Stark Excavating, Inc.

Plain-English summary

OSHA cited Stark Excavating after finding unprotected excavations at two Illinois worksites, improper eyewear at one site, and spoil piles too close to an excavation. The Commission affirmed the Champaign cave-in item as serious because the competent person made an incorrect but not consciously evasive soil and slope assessment. It affirmed the Peoria cave-in item as willful because that foreman knew Type B soil required 45-degree slopes yet rushed the job and deliberately failed to check walls measuring as steep as 80 degrees. Stark's employee-misconduct defense failed because supervisors routinely ignored the company's required written discipline system. The repeat spoil-pile item remained affirmed, while the eyewear item was vacated because the worker's hard hat and subtle missing side shields prevented proof that the foreman knew or should have known of the condition.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.102(a)(2); 29 C.F.R. § 1926.651(j)(2); 29 C.F.R. § 1926.652(a)(1).
• Outcome: Peoria cave-in item affirmed as willful for $60,000; repeat spoil-pile item affirmed for $20,000; Champaign cave-in item affirmed as serious for $7,000; eyewear item vacated.
• Key point: A mistaken good-faith assessment may support a serious violation, while knowingly avoiding an obvious compliance check to finish faster can establish willfulness.

Full text (OSHRC public release)

Stark Excavating, Inc., Docket No. 09-0004 & 09-0005

Walter, J. David
Normal
Walter, J. David
3
2
2018-08-07T15:12:00Z
2018-08-07T15:35:00Z
1
16035
91405
761
214
107226
16.00

Clean
Clean
false

false
false
false

EN-US
X-NONE
X-NONE

MicrosoftInternetExplorer4

United
States of America

OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION

1120 20 th Street, N.W., Ninth Floor

Washington,
DC 20036-3457

Secretary of Labor,

Complainant,

v.

OSHRC DOCKETS NO.

09-0004 & 09-0005

(Consolidated)

Stark Excavating, Inc.,

Respondent.

ON BRIEFS:

Lisa A. Wilson, Attorney; Heather R.
Phillips, Counsel for Appellate Litigation; Joseph M. Woodward, Associate Solicitor;
M. Patricia Smith, Solicitor; U.S. Department of Labor, Washington, DC

For
the Complainant

Julie O’Keefe, Esq.; Armstrong
Teasdale, LLP, St. Louis, MO

For
the Respondent

DECISION

Before: ROGERS, Chairman; ATTWOOD and MacDOUGALL , Commissioners.

BY THE COMMISSION:

The
Occupational Safety and Health Administration inspected two worksites of Stark
Excavating, Inc., an excavation and paving company. The inspections took place
on June 5 and July 22, 2008, in Peoria and Champaign, Illinois, respectively. As a result of these inspections, OSHA issued several
citations to Stark under the Occupational Safety and Health Act of 1970, 29
U.S.C. §§ 651-678. At issue on review are three citation items related to the
Peoria worksite (Docket No. 09-0004): a serious eyewear violation alleged under
29 C.F.R. § 1926.102(a)(2), a willful excavation cave-in protection
violation alleged under 29 C.F.R. § 1926.652(a)(1), and a repeat
excavation spoil piles violation alleged under 29 C.F.R. § 1926.651(j)(2).
Also at issue is one citation item related to the
Champaign worksite (Docket No. 09-0005): a willful excavation cave-in
protection violation alleged under § 1926.652(a)(1). The Secretary
proposed penalties of $2,000 for the eyewear violation, $35,000 for the spoil
piles violation, and $70,000 each for the two cave-in protection violations.

Administrative
Law Judge Patrick B. Augustine affirmed all of these
citation items but he recharacterized the two cave-in protection violations as
serious. He assessed a total penalty of $36,000 for these four
violations—$2,000 for the eyewear violation, $7,000 for each of the cave-in
protection violations, and $20,000 for the spoil piles violation. For the reasons that follow, we affirm the judge except with
regard to the eyewear violation, which we vacate, and the characterization of
the Peoria cave-in protection violation, which we affirm as willful. We assess
a total penalty of $87,000.

DISCUSSION

I.         Willful
Citation 2, Item 1 ( cave-in protection ), Champaign Worksite

Under this
item, the Secretary alleges a willful violation of § 1926.652(a)(1),
claiming that Stark failed to provide cave-in protection for each employee
working inside an excavation at the Champaign worksite. The cited provision
states that “[e] ach 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.” 29 C.F.R. § 1926.652(a)(1).
The applicable paragraph here is (b)(2), which provides as follows: “ Option
(2) – Determination of slopes and configurations using Appendices A and B .
Maximum allowable slopes, and allowable configurations for sloping and benching
systems, shall be determined in accordance with the conditions and requirements
set forth in appendices A and B to this subpart.” 29 C.F.R.
§ 1926.652(b)(2). Under these appendices, soil in an excavation is
classified as Type A, B, or C depending on the soil’s characteristics, and the
soil classification determines the maximum allowable slope for the excavation
walls. 29 C.F.R. pt. 1926, sub-pt. P, apps. A(b) & B, tbl .
B-1.

The judge
affirmed the violation, but he recharacterized it as serious. On review, Stark
disputes the judge’s conclusion that the excavation did not comply with the
requirements of the cited standard and his rejection of Stark’s unpreventable
employee misconduct (“UEM”) defense. The Secretary disputes the judge’s
rejection of the violation’s willful characterization, arguing that Stark’s
worksite superintendent “deliberately disregarded” the standard’s requirements.
Based on our review of the record, we conclude that the Secretary has
established the violation, but we conclude that it is not willful.

Background

At the
Champaign worksite, Stark was installing sewer pipe in an excavation. The
portion of the excavation relevant to this citation item ran in a straight line
from the manhole Stark installed at the northern end to a preexisting concrete
“frost wall” at the south end. On the morning of the OSHA inspection, Stark
excavated around and to the south of the manhole, using a trench box for
cave-in protection. Stark’s superintendent, who was also the designated
competent person on the worksite, classified the soil located 10 to 15 feet
south of the manhole as Type B based on a reading he took using a penetrometer,
an instrument that tests the compressive strength of soil. The penetrometer
reading indicated that the soil had a compressive strength of 1.49 tons per
square foot (“ tsf ”), just below the minimum
compressive strength required for Type A soil.

Stark’s
superintendent left the worksite for approximately one hour while the crew was
installing the pipe to the south of the manhole. Before leaving, he instructed
the crew to continue excavating and installing pipe from the manhole up to the
southern “frost wall foundation,” the preexisting concrete wall that started
just below ground level and extended underground 5 to 6 feet. Following his
departure, the crew uncovered two utility lines crossing the excavation, and then continued excavating toward the frost wall. When the
superintendent returned to the worksite, he saw that his crew was working in the area of the excavation between the southernmost
utility line and the frost wall, but was no longer using the trench box
because, a crew member claimed, it would not fit into the area between the
southernmost utility line and the frost wall. The superintendent picked up some
soil from that location and used his hand to assess the soil’s characteristics.
He concluded that it was “short-term Type A” based on the “much harder” soil
there, and after “eyeballing” the excavation walls, he also concluded that they
were adequately sloped. Based on this assessment, the superintendent allowed the crew to
continue working without using the trench box.

Shortly
thereafter, an OSHA compliance officer arrived at the worksite, noticed an
employee leaving the unprotected area of the excavation, and began an
inspection. That part of the excavation—between the southern-most utility line
and the frost wall—was approximately 7 to 9.5 feet long, 7 feet deep, 5 feet
wide across the bottom, and 13 feet wide across the top. The CO classified the
soil in that area of the excavation as Type B based, in part, on the existence
of the two utility lines indicating the presence of “previously disturbed soil”
and on a thumb-penetration test that he believed showed a level of resistance
indicative of Type B soil. Using a trenching rod, the CO measured the slope of
the east wall at 75 degrees, the west wall at 65 degrees, and the south wall at
85 degrees. The top portions of both the east and west walls were “cut back” in
certain places and were less sloped than the bottom portions of the walls, the
latter being the only areas the CO measured.

Compliance

In affirming
the violation, the judge found that the excavation walls did not comply with
the sloping requirements for Type B soil, which requires a slope of no more
than 45 degrees. 29 C.F.R. pt. 1926, sub-pt. P, app. B, tbl .
B-1. The judge concluded that the soil was Type B based on his findings that
the soil in the excavation was both previously disturbed and fissured. 29
C.F.R. pt. 1926, sub-pt. P, app. A(b) (Type B soil includes “[p] reviously disturbed soils except those which would
otherwise be classed as Type C soil,” and “[s]oil that meets the unconfined
compressive strength or cementation requirements for Type A,
but is fissured or subject to vibration”). On review, Stark does not
dispute that the excavation walls were too steep for Type B soil,
but maintains that the soil was short-term Type A and that the
excavation walls were sloped in compliance with the standard’s requirements for
this type of soil. We conclude that the soil was Type B.

1.    Whether Soil was Previously Disturbed

In the area
where employees worked without a trench box, the record establishes that
preexisting utility lines cut through the northern area of the excavation, and
the frost wall—which according to Stark extended beyond the east and west
walls—was located behind the south wall of the excavation. Both
of these conditions constitute evidence that the soil in these areas was
previously disturbed and, thus, Type B. 29 C.F.R. pt. 1926, sub-pt. P, app.
A(d)(1)(iv) (conduct “[v] isual analysis” of soil type
by “[o] bserv [ ing ] the area
adjacent to the excavation and the excavation itself for evidence of existing
utility and other underground structures, and to identify previously disturbed
soil”). Given the dimensions of the excavation—only about 7 to 9.5 feet
separated the southernmost utility line and the frost wall—and the extent of
previously disturbed soil, we find that employees working in any location south
of the preexisting utility lines would have been exposed to such soil. Manganas Painting Co. , 21 BNA OSHC 1964,
1981, 2004-09 CCH OSHD ¶ 32,908, p. 53,397 (No. 94-0588, 2007) (noting that “ ‘ reasonable inferences can be drawn from
circumstantial evidence’ ” (citation omitted)). See also Gilles & Cotting , Inc. , 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD
¶ 20,448, p. 24,425 (No. 504, 1976) (rejecting actual exposure test in favor of
test based on “reasonable predictability” that “employees either while in the
course of their assigned working duties, their personal comfort activities
while on the job, or their normal means of ingress-egress to their assigned
workplaces, will be, are, or have been in a zone of danger”); RGM Constr.
Co. , 17 BNA OSHC 1229, 1234, 1993-95 CCH OSHD ¶ 30,754, p. 42,729 (No.
91-2107, 1995) (employer must protect employees in the “zone of danger,” which
is normally the area surrounding the violative condition that presents the
danger to employees which the standard is intended to prevent).

2.   Whether Soil Was Fissured

Additionally,
Chairman Rogers and Commissioner Attwood conclude that soil in this area was
fissured. “Fissured,” as the term is used in the excavation standard, is
defined as “a soil material that has a tendency to
break along definite planes of fracture with little resistance, or a material
that exhibits open cracks, such as tension cracks, in an exposed surface.” 29
C.F.R. pt. 1926, sub-pt. P, app. A(b). An analyst from OSHA’s Salt Lake
Technical Center, the Secretary’s expert witness on soil typing, testified that
he measured the compressive strength of soil taken from the excavation at
greater than 4.0 tsf , a measurement indicative of
Type A soil. Nonetheless, he classified the soil as “sandy clay cohesive Type B,”
primarily because he observed tension cracks and “small size particles,” that
had broken off the samples, characteristics that he concluded indicated
fissuring in the soil.

Stark claims
that the analyst’s testimony deserves no weight because he relied on a
definition of fissured soil that is “markedly different” from the standard’s
definition. Stark focuses on the analyst’s reference to “small size particles,”
claiming that he unreasonably interpreted the standard to include this
characteristic. However, in addition to the OSHA analyst’s reference to “small
size particles,” a thorough examination of his testimony shows that he also
noted that the samples he examined had “tension cracks,” which is one of the
characteristics explicitly mentioned in the standard’s definition of “fissured
soil.” Id. This description of fissured soil also appears in a section
of the appendix that discusses how to conduct a “visual analysis” of soil in
and around an excavation. As the analyst further explained:

[A] soil that is fissured would be a soil that has a
tendency to break along certain definite planes of fracture with little
resistance, and it’s exhibited by the small particle sizes . .
. . These definite planes of fracture where they break, that’s evidenced
by the small particles sizes that are seen in the soil. So
this is a direct reflection of what’s written in the regulations. It’s a direct
way of actually looking at the soil and determining if
the soil does meet this criterion.

His
testimony regarding “definite planes of fracture” is consistent with the
standard’s definition, and his reliance on “small particle sizes” was, in his expert
opinion, how he determines that characteristic. Id. ; see Indus. Glass , 15 BNA OSHC 1594, 1601, 1991-93
CCH OSHD ¶ 29,655, p. 40,174 (No. 88-348, 1992) (finding for party based
in part on eminence of its experts); All Purpose Crane, Inc. , 13 BNA
OSHC 1236, 1239, 1986-87 CCH OSHD ¶ 27,877, p. 36,549 (No. 82-284, 1987)
(finding expert’s testimony “persuasive in light of his extensive expertise”).
Accordingly, the Secretary has established that the soil was fissured.

For the
reasons stated above, we find that the soil in the Champaign excavation was
Type B. Moreover, because Stark concedes the excavation walls were not properly
sloped for such soil, we conclude that the Secretary has established a violation of
§ 1926.652(a)(1).

Unpreventable
Employee Misconduct

Stark argues
that the cave-in protection violation was the result of UEM. To establish this
affirmative defense, an employer must show that it “(1) established work rules designed
to prevent the violative conditions from occurring; (2) adequately communicated
those rules to its employees; (3) took steps to discover violations of those
rules; and (4) effectively enforced the rules when violations were discovered.”
Manganas Painting Co. , 21 BNA OSHC at
1997, 2004-09 CCH OSHD at p. 53,412. The employer’s burden of proof, however,
is “more rigorous” when the violation alleges, as it does here, “unpreventable supervisory
misconduct” because, as the Commission has recognized, the supervisor’s duties
include “protect[ ing ] the safety of employees under
his supervision” and the supervisor’s misconduct is “strong evidence that the
employer’s safety program is lax.” CBI Servs .,
Inc. , 19 BNA OSHC 1591, 1603, 2001 CCH OSHD ¶ 32,473, pp. 50,234-35 (No.
95-0489, 2001), aff’d per curiam , 53 F. App’x 122 (D.C. Cir. 2002) (unpublished).

It is
undisputed that Stark had written rules addressing the violative condition, and
that it had adequately communicated those rules to its employees, including its
supervisors. Additionally, the judge found that Stark monitored for compliance
with those rules, at least through the actions of its safety director, “by
reviewing daily foreman reports and conducting on-site safety audits.” The
judge rejected Stark’s UEM defense, however, based on his finding that Stark’s
supervisors did not “effectively enforce [the company’s] own rules and policies
when violations were discovered” because they gave oral warnings instead of
written safety tickets. He also found that at the two excavations at issue
here, “similar excavation safety deficiencies were observed at two different
jobsites, supervised by different individuals, involving different employees,
only a few weeks apart,” circumstances that he stated “ belie[ ]
the notion that the violative conduct was isolated or unforeseeable.”

We agree
with the judge that Stark failed to effectively enforce its rules—including
those concerning excavation cave-in protection—when violations were discovered.
One month after a July 2006 OSHA inspection, Stark instituted a written
disciplinary policy that required the issuance of a written safety ticket for
any safety violation and progressive disciplinary consequences for subsequent
violations. At that time, Stark’s safety director provided all
supervisors—including the superintendent at the Champaign worksite and the
foreman at the Peoria worksite—with booklets of safety tickets and explained that,
pursuant to its disciplinary policy, if any employee did not follow Stark’s
safety rules, the supervisor was to issue that employee a written safety
ticket. The tickets themselves explicitly stated that violators, even
first-time ones, are to be issued written warnings, and no provision in Stark’s
safety program allowed for oral warnings. Both the superintendent at the
Champaign worksite and the foreman at the Peoria worksite admitted to
understanding what was required under Stark’s disciplinary policy.

Between
August 2006, when Stark first required the issuance of written safety tickets,
and July 2008, when OSHA conducted its inspection of the Champaign worksite
(the second inspection in this case), Stark’s supervisors issued a total of
thirty-three tickets. Of those thirty-three tickets, six were issued by Stark’s
area manager in Champaign—all in September 2006, the month after the policy
went into effect—and the rest of the tickets were issued by Stark’s safety
director. No other supervisor issued a written ticket over the 22-month period
between Stark’s establishment of this policy and OSHA’s Champaign inspection.
Indeed, the Champaign superintendent and Peoria foreman both testified that
they preferred to issue oral warnings instead of written safety tickets, and
their testimony suggests that they never would have issued a written safety
ticket upon discovering an employee’s violation of Stark’s safety program.

As Stark
points out, the Commission has recognized that oral warnings are adequate in
certain cases. But “[o] nly in a rare case . . . where
an employer has a long, near-unblemished safety and health history, despite
frequent opportunities for violations, can that employer establish that its
work rule was effectively enforced by only oral reprimands.” GEM Indus.,
Inc. , 17 BNA OSHC 1861, 1864, 1995-97 CCH OSHD ¶ 31,197, p. 43,689 (No.
93-1122, 1996), aff’d per curiam , 149 F.3d
1183 (6th Cir. 1998) (unpublished table decision). Here, Stark’s policy
expressly required written warnings with progressive disciplinary consequences,
so giving only oral warnings undermined the policy’s progressive nature. Id. ,
1995-97 CCH OSHD at p. 43,689 (finding that employer’s failure to issue
“written reprimand, although it was [employee’s] second violation of the work
rule, demonstrates that [employer] did not follow its own safety program,” and
“[t]his fact undermines [employer’s] claim that its oral reprimands provided
adequate enforcement”). Even if oral reprimands would have been adequate under the
circumstances of this case, Stark provided no documentation indicating that any supervisor at any
of its 200 to 250 worksites had issued an oral warning during the 22-month
period in question. Rawson Contractors, Inc. , 20 BNA OSHC 1078, 1081,
2002-04 CCH OSHD ¶ 32,657, p. 51,327 (No. 99-0018, 2003) (employer’s UEM argument
“fails without any specific evidence to corroborate its assertion that
employees were disciplined”); Precast Servs ., Inc. ,
17 BNA OSHC at 1455, 1995-97 CCH OSHD at p. 43,035 (“To prove that its
disciplinary system is more than a ‘paper program,’ an employer must present
evidence of having actually administered the discipline outlined in its policy
and procedures.”).

Stark
essentially argues that it established that its disciplinary policy was
effective because employee violations diminished after the policy was
instituted. This assertion is contradicted, however, by admissions from Stark
supervisors that they disregarded the policy—the record reflects that had they
observed safety violations, they would not have issued written warnings (or
even documented oral disciplinary action). The policy’s shortcomings are also demonstrated by the safety
director’s admitted failure to ask supervisors why they were not issuing
written tickets even though he knew that no supervisors, except the Champaign
area manager, had submitted required copies of any tickets. Additionally, we
find that the existence of two non-compliant excavations within such a short
period of time—both of which were overseen by supervisors who were also
competent persons responsible for the non-compliant conditions—is “strong
evidence” that Stark’s enforcement was lax. CBI Servs ., Inc. , 19 BNA OSHC at
1603, 2001 CCH OSHD at pp. 50,234-35 (recognizing that misconduct by supervisor
is “strong evidence that the employer’s safety program is lax”). We therefore
affirm the judge’s rejection of Stark’s UEM defense.

Characterization

The judge
characterized the cave-in protection violation as serious rather than willful,
finding the evidence did not demonstrate Stark’s state of mind was such that,
if informed of the duty to act, it would not have cared, and that although
Stark’s conclusions about the soil type being short-term Type A were incorrect,
they were reasonable and appear to have been made in good faith. The Secretary
argues, as he did to the judge, that through its superintendent at the
Champaign worksite, Stark had a heightened awareness of OSHA’s cave-in
protection requirements and the violative condition. The Secretary also contends
that despite this awareness, the superintendent “deliberately disregarded”
these requirements and allowed a Stark employee to work in an unprotected
trench, essentially substituting his own judgment for the requirements of the
standard.

“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, 2000 CCH OSHD ¶ 32,134, p. 48,406
(No. 90-2775, 2000) (citation omitted), aff’d , 268 F.3d 1123 (D.C. Cir.
2001).

[I]t is not enough for the Secretary to show that an
employer was aware of conduct or conditions constituting the alleged violation;
such evidence is already necessary to establish any violation . . . . A willful violation is differentiated by heightened
awareness of the illegality of the conduct or conditions and by a state of mind
of conscious disregard or plain indifference . . . .

Hern Iron Works, Inc. ,
16 BNA OSHC 1206, 1214, 1993-95 CCH OSHD ¶ 30,046, pp. 41,256-57 (No. 89-433,
1993). This state of mind is evident where “ ‘ the
employer was actually aware, at the time of the violative act, that the act was
unlawful, or that it possessed a state of mind such that if it were informed of
the standard, it would not care.’ ” AJP Constr., Inc. v. Sec’y of Labor ,
357 F.3d 70, 74 (D.C. Cir. 2004) (emphasis and citation omitted).

We agree with
the Secretary that Stark had a heightened awareness of the requirements of the
cited provision, but we do not find that Stark had the requisite state of mind
for a willful violation. Regarding Stark’s heightened awareness, the parties
stipulated at the hearing that all Stark employees, including the
superintendent, received appropriate training concerning the work rules at
issue. Specific to the excavation rules, the superintendent testified that he:
(1) learned about sloping and trench box methods of cave-in protection through
training from both Stark and his previous employer; (2) has “been through
several OSHA training classes and competent person classes”; and (3) has viewed
demonstrations “put on by the trench box companies.” The superintendent also
testified that he had “[t]he OSHA standard guidelines . . . for years,” and
used them, along with penetrometers and protractors issued by Stark, “to help
[him] with sloping.”

As the
designated competent person at the Champaign worksite, the superintendent was
responsible for analyzing the soil type in the excavation and determining what
protective measures were needed to comply with OSHA’s cave-in protection
requirements. The superintendent testified that he completed a “Competent
Person Daily Report” before leaving the worksite on the day of the inspection.
This report, a template of which is contained in the company’s excavation
manual, includes information that mirrors the requirements of
§ 1926.652(b)(1)-(2), (c), (g) & Apps. B-C. See Morrison-Knudsen
Co. , 16 BNA OSHC 1105, 1126-27, 1993-95 CCH OSHD ¶ 30,048, p. 41,284 (No.
88-572, 1993) (concluding that employer’s safety program establishes awareness
of duties in cited standards). Although the Daily Report itself does not
mention the applicable OSHA standard, the excavation manual includes a copy of
Subpart P in its entirety and the standard is referenced in the company’s
safety manual. Given this evidence, we conclude that the superintendent, and
thus Stark, had a heightened awareness of the cited provision’s requirements.
See Caterpillar, Inc. , 17 BNA OSHC 1731, 1732-33, 1995-97 CCH OSHD ¶
31,134, pp. 43,482-83 (No. 93-373, 1996) (finding heightened awareness
established by imputing knowledge of supervisory personnel to employer), aff’d ,
122 F.3d 437 (7th Cir. 1997).

However, we
do not find that Stark “deliberately disregarded” these requirements. Stark’s
superintendent conducted a soil analysis, prepared an excavation report and,
prior to his departure from the worksite, required his crew to use a trench
box. After he returned and found that the crew was no longer using the trench
box, the superintendent evaluated the soil in the area where the crew was then
working, but he erroneously concluded that it was short-term Type A.
Specifically, the superintendent testified that when he returned to the
worksite, he noticed in less than a minute that: (1) the trench box was no
longer being used, which surprised him because “[w]e run with the trench box”;
(2) the excavator operator was “digging” while the other crew member, who was
standing in the excavation, provided direction; (3) the crew had almost
finished excavating from the southernmost utility line to the south wall and
had “dug out” underneath both of the utility lines; and (4) the operator
required “more than one pass . . . to fill the [excavator] bucket,” indicating
that “the ground was hard”—“considerably harder than it was when” work started
that morning. One crew member explained to the superintendent that the trench
box was not being used because it would not fit between the southernmost
utility line and the frost wall.

Although the
superintendent also admitted he took no penetrometer readings from the area of
the excavation where he observed the crew working without a trench box, he did
assess the soil in this area and found that it was too hard to put his thumb
in. According to the superintendent, based on his observations and the fact
that his penetrometer reading from that morning was just below the compressive
strength requirement for Type A soil, he concluded at that point that the soil
was in fact short-term Type A. He also concluded that his crew did not need to
use the trench box to complete work on the excavation because, in his
estimation, the slopes of its walls were “[ i ]n
compliance,” i.e., they were sloped no more than a one-half-to-one ratio (63
degrees) and, therefore, offered adequate protection. Based on our review of
the record, we find the Secretary has not shown that the superintendent was, in
fact, aware that the excavation was noncompliant. See Gen. Motors Corp. ,
22 BNA OSHC 1019, 1043, 2004-09 CCH OSHD ¶ 32,928, p. 53,622 (No. 91-2834E,
2007) (consolidated) (“[T]he Commission and courts distinguish ‘between
mere negligence and willfulness,
holding that the former is sufficient for affirming a non-willful violation,
but that willfulness is characterized by an intentional, knowing failure to
comply with a legal duty.’ ” (citation omitted)).

As to
the superintendent’s specific sloping estimates, the Secretary has failed to
establish that the superintendent appreciated he was violating the requirements
of the standard at the time of his assessment. The superintendent testified
that he knew the excavation’s depth was 7 feet based on “the plans,” and he
estimated that the tops of the east and west walls each protruded 3.5 feet from
their bases. These estimates were relatively close to what the CO subsequently
measured—except that the superintendent did not take into
account the more severe cutbacks at the top of the east and west walls,
which skewed his analysis of the slopes of those walls. Because his estimates
of the walls’ slopes were not so far from the actual slopes of the walls’
steepest inclines, he reasonably could have believed the east and west walls were in compliance . Compare Calang
Corp. , 14 BNA OSHC 1789, 1791-92, 1987-90 CCH OSHD ¶ 29,080, pp. 38,870-71
(No. 85-0319, 1990) (finding violation willful as employer, who was told
excavation walls were “nominally vertical,” “could not have believed in good
faith that the slope of the trench walls complied with OSHA requirements”).
Moreover, the Secretary never asked the superintendent anything about his
assessment of the 85-degree soil-covered south wall, leaving us nothing with
which to evaluate whether he knew that the wall’s slope was significantly out
of compliance—even for short-term Type A soil.

As to
his failure to correctly type the soil, we note that OSHA’s subsequent testing
of the soil confirmed the superintendent’s assumptions concerning the soil’s
compressive strength. Additionally, the record does not indicate if the
superintendent considered whether the excavation contained previously disturbed
or fissured soil. In fact, the Secretary never asked the superintendent any
questions about previously disturbed soil, even though it was evident that the
soil had been previously disturbed to install the utility lines at the north
end and the frost wall at the south end. With regard to fissuring, the
superintendent admitted that he was aware of the term from his training, and
testified that at the time, he believed “fissuring” would have included “cracks
in the sides of the bank or anywhere in [the] sides of the excavation.”
However, the record contains no evidence as to whether he observed any such
cracks when he assessed the soil, either before his departure from the worksite
or after his return. And beyond examining the soil for cracks, the
superintendent admitted he was not aware of any other circumstances that would
be indicative of fissuring.

In sum, we find that the evidence does not show the superintendent
was attempting to sidestep the requirements of the excavation standard or that
his failure to comply with them was anything more than negligence. Compare
Rawson Contractors, Inc. , 20 BNA OSHC at 1081-82, 2002-04 CCH OSHD at p.
51,327 (holding foreman “acted with conscious disregard of the requirements of
[§ 1926.652(a)(1)]” as he was the competent person and admitted to knowing
“condition was in violation of OSHA standards when he made the decision to
remove the trench boxes and send employees into the trench”). We therefore
conclude that the Secretary has failed to establish that the superintendent
consciously disregarded the requirements of the cited standard. Accordingly, we
affirm Willful Citation 2, Item 1 in Docket No. 09-0005 as serious.

II.
         Serious Citation 1, Item
1b ( eyewear ), Peoria Worksite

Under
this item, the Secretary alleges a serious violation of § 1926.102(a)(2), which
provides that eyewear protection must be compliant with American National Standards
Institute (“ANSI”) requirements. It is undisputed that on the day of the inspection, a Stark
laborer cutting an “8-inch pipe with a 16-inch cut-off saw” was wearing
prescription eyeglasses that had dark lenses similar to those of the safety
glasses issued by Stark, but lacked side shields as
required by ANSI. For approximately ten minutes, the laborer, who was also
wearing a fully brimmed hard hat, was in the excavation cutting the pipe. The
foreman at the worksite, who was standing near the edge of the excavation,
watched the laborer perform this task.

The only
issue on review with respect to this item is whether Stark “
‘ knew or could have known with the exercise of reasonable diligence of
the conditions constituting the violation.’ ” Contour Erection & Siding
Sys., Inc. , 22 BNA OSHC 1072, 1073, 2004-09 CCH OSHD ¶ 32,943, p.
53,787 (No. 06-0792, 2007) (citation omitted). In affirming the violation, the
judge found that the foreman’s “presence and direct observation of [the
laborer] while he was cutting the pipe” established Stark’s knowledge of the
violative condition. Stark argues that the judge erred in finding that its
foreman had knowledge of the violative condition, because: (1) the hard hat
worn by the laborer while he was in the excavation blocked the foreman’s view
of the laborer’s glasses “during the brief 10-minute period [the laborer] was
cutting the pipe”; (2) the lack of side shields on the glasses would not be
readily apparent to the foreman since they “are very small and are sometimes
clear”; and (3) the foreman “was accustomed to seeing his crew wear safety
glasses” and “had never worked with an employee who wore prescription glasses.”

We agree
with Stark that the record fails to support the judge’s finding of knowledge.
Photographs in evidence show that from the foreman’s position at the edge of the
excavation, his view of the laborer’s face—including his eyewear—was blocked by
the laborer’s fully brimmed hard hat. See Thomas
Indus. Coatings, Inc. , 23 BNA OSHC 2082, 2085-86, 2009-12 CCH OSHD ¶
33,200, p. 55,767 (No. 06-1542, 2012) (rejecting argument that foreman’s
proximity to employee who failed to use lifeline established foreman’s
knowledge of fall protection violation, because although foreman worked near
violative condition, his view of employee at relevant time was restricted and
duration of violative conduct was unknown); Manganas
Painting Co. , 21 BNA OSHC at 1989, 2004-09 CCH OSHD at p. 53,405 (finding
that Secretary did not establish knowledge of respirator violation as evidence
did not show whether supervisor could have seen, in dusty conditions, that
employee was not wearing respirator inside his blasting hood). There is no
evidence that the laborer ever looked up from his work during the brief amount
of time he was in the excavation or that he was otherwise positioned relative
to the foreman in a way that would have allowed the foreman to see the
laborer’s eyewear without the hard hat obstructing his view.

The
record also fails to support the Secretary’s claim that the lack of side
shields was “obvious,” as well as his implication that the foreman “must have
seen” that the laborer was wearing improper eyewear while the crew worked
together for an hour and a half before the laborer entered the excavation.
According to the foreman, while he “wasn’t really paying
attention” on the morning of the inspection, he did notice that the laborer was
wearing glasses with dark lenses. Not until “OSHA was onsite
and we had all been talking among ourselves” did the foreman notice that the
glasses lacked side shields. Indeed, the record does not show that the foreman
was ever in a position to observe that the glasses
lacked side shields before then, and there is no dispute that the side shields
on Stark’s safety glasses were “very small” and “sometimes clear” in color.
See Shaw Areva Mox Servs ., LLC , 23 BNA OSHC 1821, 1825 n.8, 2009-12 CCH
OSHD ¶ 33,178, pp. 55,613-14 n.8 (No. 09-1284, 2012) (rejecting knowledge
argument in part because record did not establish “personnel were sufficiently
close to the fuel tank to have necessarily observed such a small and subtle defect
during the time the cited condition existed” (emphasis added)).

The
Secretary claims that the foreman would have noticed the laborer was not
wearing the required eye protection at the time of the violation had he “simply
paid attention sooner.” According to the Secretary, the foreman was not
reasonably diligent because he did not “notice, or inquire about, [the
laborer’s] use of eye protection before [the laborer] began working in the
trench.” But in focusing on the foreman’s testimony that he “wasn’t really
paying attention” before OSHA arrived on site, the Secretary ignores the
context of this statement. The foreman testified that he noticed the laborer
was wearing glasses that were “dark,” which he concluded were Stark-issued
safety glasses. In addition, his testimony suggests that he was unaware the
laborer wore prescription glasses—even though he had previously worked with the
laborer, he stated that “he did not have anyone on [his] crews that wore . . .
prescription glasses.” Thus, the record shows that the foreman took note of the
laborer’s eyewear and assessed it, making a reasonable judgment based on the
dark lenses that the laborer was wearing the required safety glasses.

Despite
this initial assessment, the Secretary maintains that the foreman should have
further “inquire[d] about” the laborer’s eyewear given Stark’s safety rule
requiring ANSI-compliant eyewear at all times . Yet the
Secretary has not shown that the foreman had any reason to question the
adequacy of the laborer’s eyewear after making an initial assessment of it. Cf.
Thomas Indus. Coatings, Inc. , 23 BNA OSHC at 2085, 2009-12 CCH OSHD at
p. 55,767 (questioning, but not determining, existence of violative condition
does not necessarily establish actual knowledge). Nor has the Secretary
established that the foreman had any reason to believe the laborer would be
likely to violate Stark’s safety policy by not wearing the required eyewear.
Under these circumstances, we find the Secretary has not
established that Stark, through its foreman, had knowledge of the violative
condition. Accordingly, we vacate Serious Citation 1, Item 1b in Docket No.
09-0004.

III.        Willful
Citation 2, Item 1 ( cave-in protection ), Peoria Worksite

Under
this item, the Secretary alleges a willful violation of § 1926.652(a)(1),
claiming that Stark failed to provide cave-in protection for each employee in
the excavation at the Peoria worksite. The judge affirmed the violation but
recharacterized it as serious. Stark has not challenged the violation’s merits
on review, arguing only that the violation was the result of UEM. As discussed
with respect to the Champaign cave-in protection item, we find that Stark
failed to show that it effectively enforced its rules when violations of its
safety policy, including rules concerning excavation cave-in protection, were
discovered. We therefore reject Stark’s UEM defense as to this item as well.

The
Secretary argues that the judge erred in rejecting the violation’s willful
characterization because the record shows that Stark’s foreman at the Peoria
worksite “deliberately disregarded” the requirements of the excavation standard
and, alternatively, exhibited plain indifference to employee safety. See
Hern Iron Works, Inc. , 16 BNA OSHC at 1214, 1993-95 CCH OSHD at p. 41,257
(“A willful violation is differentiated by heightened awareness of the
illegality of the conduct or conditions and by a state of mind of conscious
disregard or plain indifference.”). The judge determined that Stark lacked the
state of mind necessary to establish a willful violation of § 1926.652(a)(1)
because Stark (1) “had developed and implemented, as conceded by [the
Secretary], a well-documented excavation safety program with adequate rules and
employee training”; and (2) made “a reasonable effort . . . to slope the
excavation as opposed to not taking any steps at all to slope the walls.” As to
this latter determination, the judge found that the foreman was in a hurry,
neglected to measure the excavation walls, and “did not know whether . . . the
sloping was in compliance with [OSHA’s] requirements.”
But the judge concluded that the foreman’s “actions are distinguishable from a
supervisor who measured the angle of the excavation walls, determined they were
non-compliant, and then proceeded with no regard for employee safety.”

We
disagree. It is undisputed that the excavation was 8 feet deep and dug in Type
B soil, and its walls exceeded the maximum allowable slope of 45 degrees for
this type of soil. There is also no dispute that the foreman, who was the
designated competent person at the Peoria worksite, was aware of the soil type
before he observed a Stark laborer enter and work in the unprotected
excavation. Indeed, as the competent person, he was responsible for
analyzing the soil type in the excavation and determining what protective
measures were needed to comply with OSHA’s cave-in protection requirements.
Like the competent person at the Champaign worksite, the foreman was required
to perform this task each day by completing the Competent Person Daily Report
included in Stark’s excavation manual. The foreman acknowledged that the safety
director had given him a copy of the excavation manual and explained to him how
to use the Daily Report. The foreman also testified that he took a 10-hour OSHA
class that, among other things, covered excavation work, and that the safety
director discussed “OSHA excavation rules” at an annual safety training
meeting.

According
to the foreman, he used the Daily Report “every day” during the period before
OSHA’s inspection of the Peoria worksite; he would record the soil type in the
Daily Report and then determine what type of cave-in protection to use—sloping,
benching, or a trench box. As previously noted, the portion of the Daily Report
pertaining to cave-in protection, as it relates to sloping and benching
methods, mirrors the requirements of § 1926.652(b)(1)-(2), (c), (g) & Apps.
B-C, and while the report itself does not mention the applicable OSHA standard,
Stark’s excavation manual includes a copy of Subpart P in its entirety and the
standard is referenced in its safety manual. See Morrison-Knudsen Co. ,
16 BNA OSHC at 1126-27, 1993-95 CCH OSHD at p. 41,284 (concluding that
employer’s safety program establishes awareness of duties in cited standards).
Additionally, the foreman’s testimony suggests that he had previously conducted
soil testing and utilized various methods of cave-in protection to comply with
“OSHA regulations.” Given this evidence, we conclude that the foreman, and thus
Stark, had a heightened awareness of the cited provision’s requirements. See
Caterpillar, Inc. , 17 BNA OSHC at 1732-33, 1995-97 CCH OSHD at pp.
43,482-83 (imputation of supervisory knowledge).

We also
conclude that the record supports the Secretary’s contention that the foreman
“deliberately disregarded” these requirements. The evidence shows that the
foreman knew the excavation walls should have been sloped at a maximum of 45
degrees before the laborer entered the excavation to cut the pipe. The foreman
testified that soon after work began that day, he determined that the
excavation contained Type B soil based on a sample he analyzed with a
penetrometer, and he recorded that information in his Daily Report. Printed on
the report itself is the requirement that “[ i ]f
sloping/benching methods of protection are used,” the slope for an excavation
with Type B soil is “1:1 or 45°.” This establishes that the foreman, as Stark’s
competent person at the worksite, was aware that unless a trench box was used,
the excavation walls could not be sloped more than 45 degrees without running
afoul of his company’s, as well as OSHA’s, safety requirements.

Despite
the foreman’s testimony that he had no idea at the time whether the excavation
walls were sloped in accordance with “the OSHA regulation” because he was “in a
hurry” and not “paying attention,” the evidence shows that he knew—or at least
deliberately avoided knowing—that the slopes of the east and west walls
exceeded 45 degrees by a wide margin. The CO measured the slopes of these walls
at 60 to 80 degrees, depending on the precise locations along the walls. Yet,
the foreman admitted that after he typed the soil, he did nothing that morning
to determine whether the walls of the excavation met the 45-degree requirement.
As he recognized, he “was not really thinking at all,” he “was in
a hurry and .  . . just wanted to get the job
done,” it was a “big oversight of [his],” and he “did not pay attention to
really how the hole looked.” Consistent with this admission, the foreman’s
Daily Report shows that he did not complete the portion of the report
pertaining to cave-in protection. Having classified the soil type and recorded
it on the Daily Report, we find it incredible that the foreman could have failed
to observe the marked discrepancies between the slopes that actually
existed —up to 80 degrees—and the 45-degree slopes that the foreman knew
were required for this particular excavation.

Under
these circumstances, we find that the foreman either knew the slopes of the
excavation walls exceeded 45 degrees, or deliberately avoided this knowledge in
his admitted haste to complete the work. See E. Smalis Painting Co. ,
22 BNA OSHC 1553, 1572, 2009-12 CCH OSHD ¶ 33,030, p. 54,363 (No. 94-1979,
2009) (relying on United States v. Ladish Malting
Co. , 135 F.3d 484, 488 (7th Cir. 1998), which notes that
“ ‘actual knowledge and deliberate avoidance of knowledge are the same
thing’ ” and “[b] ehaving like an ostrich
supports an inference of actual knowledge” (citation omitted)); see also
Rawson Contractors, Inc. , 20 BNA OSHC at 1081-82, 2002-04 CCH OSHD at p.
51,327 (conscious disregard established where foreman was competent person and
knew “condition was in violation of OSHA standards when he made the decision to
remove the trench boxes and send employees into the trench”). Contrary to
Stark’s contention on review, the foreman’s failure to protect the laborer
working in the excavation was not based on “ ‘ a
good faith, albeit mistaken, belief’ ” that the excavation was in compliance
with OSHA’s requirements. Manganas Painting
Co. , 21 BNA OSHC at 1991, 2004-09 CCH OSHD at p. 53,406 (citation omitted).
We affirm Willful Citation 2, Item 1 in Docket Number 09-0004 as willful.

IV.         Penalties

In
assessing a penalty, the Act requires the Commission to give “due consideration
to the appropriateness of the penalty with respect to the size of the business
of the employer being charged, the gravity of the violation, the good faith of
the employer, and the history of previous violations.” 29 U.S.C. § 666(j).
It is undisputed that Stark is a relatively large employer with a history of
prior excavation violations. On review, Stark argues that the penalty amount
assessed for any affirmed violation should be reduced because the company
“demonstrated substantial good faith with regard to
the implementation of its safety program.” Stark also claims that the
violations at issue were low gravity.

As we previously stated regarding Stark’s UEM defense, the
evidence does not support the company’s assertion of good faith. With respect
to gravity, both of the excavations at issue in this
case were considerably out of compliance with the cited standard’s cave-in
protection requirements, posing significant risks to the employees exposed to
the violative conditions. See Calang Corp. , 14
BNA OSHC at 1794, 1987-90 CCH OSHD at p. 38,873 (substantial penalties
typically warranted for cave-in protection violations because “the incidence of
cave-ins is high, and the likelihood of death or severe injury to employees in
a collapsing trench is . . . high”). Exposure in the Peoria excavation involved
a single employee for ten minutes. In addition, two spoil piles and a backhoe
were located immediately next to that excavation, though the Secretary does not
dispute Stark’s assertion that the asphalt underneath the backhoe may have
decreased the risk of it falling in. With respect to the Champaign excavation,
the length of exposure was approximately one hour and involved one or two
employees. See Siemens Energy & Automation, Inc. , 20 BNA OSHC 2196,
2201, 2004-09 CCH OSHD ¶ 32,880, p. 53,231 (No. 00-1052, 2005) (noting
that principal factor in penalty determination is gravity, which “is based on
the number of employees exposed, duration of exposure, likelihood of injury,
and precautions taken against injury”). Given these circumstances, we assess
penalties of $60,000 for the willful cave-in protection violation and $20,000
for the repeat spoil piles violation in Docket No. 09-0004 (Champaign), and we
assess a penalty of $7,000 for the serious cave-in protection violation in
Docket No. 09-0005 (Peoria).

ORDER

We vacate Serious Citation 1,
Item 1b in Docket No. 09-0004. We affirm Willful Citation 2, Item 1 in Docket
No. 09-0004 as alleged and assess a penalty of $60,000; we affirm Repeat Citation
3, Item 1 in Docket No. 09-0004 as alleged and assess a penalty of $20,000; and
we affirm Willful Citation 1, Item 2 in Docket No. 09-0005 as serious and
assess a penalty of $7,000.

SO
ORDERED.

/s/ ________

Thomasina
V. Rogers

Chairman

/s/ ________

Cynthia L. Attwood

Commissioner

/s/ ________

Heather L. MacDougall

Commissioner

Dated:   November 3,
2014                                          

UNITED
STATES OF AMERICA

OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,

Complainant,

v.

OSHRC DOCKETS NO.

09-0004 & 09-0005

(Consolidated)

Stark Excavating, Inc.,

Respondent.

Appearances:

Leonard A. Grossman, Esq., Office of the Solicitor, U.S. Department of
Labor, Chicago, Illinois

For Complainant

Julie O’Keefe, Esq., Armstrong Teasdale, LLP, St. Louis, Missouri

For Respondent

Before:
Administrative Law Judge Patrick B. Augustine

DECISION
AND ORDER

Procedural
History

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 Stark Excavating, Inc. ("Respondent") worksite in
Peoria, Illinois on June 5, 2008, and a second inspection of a worksite in
Champaign, Illinois on July 22, 2008. As a result of
those inspections, OSHA issued Citations and Notifications of Penalty to
Respondent charging violations of the Act at each location. Respondent timely contested the citations in both cases, which were
subsequently consolidated for hearing, and a trial was conducted between
November 3 and November 6, 2009, in Peoria, Illinois.

Jurisdiction

Jurisdiction
of this action is conferred upon the Commission pursuant to Section 10(c) of
the Act. At all times relevant to this action, Respondent was an employer
engaged in a business affecting interstate commerce within the meaning of
Section 3(5) of the Act, 29 U.S.C. §652(5). Complaints and Answers; Slinghuff v. OSHRC , 425 F.3d 861 (10 th Cir.
2005).

Applicable Law

To
establish a prima facie violation of the Act, the Complainant must
prove: (1) the standard applies to the cited condition; (2) the terms of the
standard were violated; (3) one or more of the employer’s employees had access
to the cited conditions; and (4) the employer knew, or with the exercise of
reasonable diligence could have known, of the violative conditions. Ormet Corporation , 14 BNA OSHC 2134, 1991 CCH
OSHD ¶29,254 (No. 85-0531, 1991).

A
violation is “serious” if there is a substantial probability that death or
serious physical harm could result from the violative condition. 29 U.S.C.
666(k) . Complainant need not show that there is a substantial probability
that an accident will occur; she need only show that if an accident occurred,
serious physical harm would result. If the possible injury addressed by the
regulation is death or serious physical harm, a violation of the regulation is
serious. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir.
1984); Dec-Tam Corp ., 15 BNA OSHC 2072, 1993 CCH OSHD ¶29,942 (No.
88-0523, 1993).

When
Complainant alleges a “repeat” violation, she has the burden of establishing
that the present and past violations are substantially similar. Potlatch Corp .,
7 BNA OSHC 1061, 1063 (No. 16183, 1979). Complainant makes a
prima facie showing of “substantial similarity” by establishing the past
and present violations are for failure to comply with the same standard. The
burden then shifts to Respondent to rebut that showing. Monitor Construction
Co ., 16 BNA OSHC 1589, 1594 (No. 91-1807, 1994).

A
violation is “willful” if it is “committed ‘with intentional, knowing or
voluntary disregard for the requirements of the Act or with plain indifference
to employee safety.’” Diamond Installations, Inc ., 21 BNA OSHC 1688,
2005 CCH OSHD ¶32,848 (No. 02-2080, 2006) (cited references omitted). This test
describes misconduct that is more than negligent but less than malicious, or committed with specific intent to violate the
Act or standard. Georgia Electric Co., 595 F.2d 309, 318-19 (5 th
Cir. 1979 ); Ensign-Bickford Co. v. OSHRC, 717 F.2d 1419, 1422-23 ( D.C.Cir . 1983). The employer’s state of mind is the key
issue. Diamond Installations, supra . Complainant must show that
Respondent had a “heightened awareness” of the illegality of the conduct. Id .
Heightened awareness is more than simple awareness of the conditions
constituting the alleged violation; such evidence is already necessary to
establish the violation. Id. Instead, Complainant must show that
Respondent was actually aware of the unlawfulness of
the action or that it “possessed a state of mind such that if it were informed
of the standards, it would not care.” Id.         Numerous
cases “make clear that willfulness will be obviated by a good faith, albeit
mistaken, belief that particular conduct is permissible.” Froedtert Lutheran
Hosp., Inc., 20 BNA OSHC 1500, 1510 (No. 97-1839, 2004). Thus
a company cannot be found to have willfully violated a standard if it exhibited
a good faith, reasonable belief that its conduct conformed to law, or if it
made a good faith effort to comply with a standard or eliminate a hazard. American
Wrecking Corporation v. Secretary of Labor, 351 F.3d 1254, 1262-63 (D.C.
Cir. 2003); General Motors Corp. Electro-Motive Division , 14 BNA OSHC
2064, 1991 CCH OSHD ¶29,240 (No. 82-630 et al ., 1991). To negate
willfulness, the employer’s good faith efforts or belief must be objectively
reasonable under the circumstances. Caterpillar Inc., 17 BNA OSHC 1731,
1733 (No. 93-373, 1996), aff’d 122 F.3d 437 (7 th Cir. 1997).

Respondent
asserted “unpreventable employee misconduct” as an affirmative defense in each
case. To establish this defense, Respondent must show that: (1) it had
established work rules designed to prevent the violations, (2) it adequately
communicated those rules to its employees, (3) it took steps to discover
violations of its rules, and (4) it effectively enforced the rules when
violations were discovered. Diamond Installations supra . When the
alleged misconduct is that of a supervisor, the required
proof 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, 1991 CCH
OSHD ¶29,317 (No. 87-1067, 1991). The actions and knowledge of supervisory
personnel are generally imputed to their employers. Revoli
Const. Co., 19 BNA OSHC 1682 (No. 00-0315, 2001). It is well settled that
an employee who has been delegated authority over other employees, even if only
temporarily, is considered to be a supervisor for the
purposes of imputing knowledge to an employer. Access Equipment Systems,
Inc., 18 BNA OSHC 1718, 1726 (No. 95-1449, 1999). In such an
instance, the Respondent must establish that it took all feasible steps to
prevent the incident, including adequate instruction and supervision of its
supervisory employee. Archer-Western Contractors Ltd.,
supra.

Factual
Stipulations

The
following undisputed facts were identified in the parties’ pre-trial
submissions:

·     Respondent has an
office and place of business at 895 W. Washington St., Bloomington, Illinois.

·     Respondent is engaged in
the business of excavation and related activities as well as construction.

·     On June 5, 2008,
Respondent had a worksite located at 3708 N. Prospect Road, Peoria, Illinois
(Starbucks Coffee) which was the site of Inspection 310801246 (Docket 09-0004).

·     On July 22, 2008,
Respondent had a worksite at Springfield and Third, Champaign, Illinois which
was the site of Inspection 310802095 (Docket 09-0005).

·     Stark Excavating was
cited for a violation of Occupational Safety and Health Standard 29 C.F.R.
§1926.652(a)(1) or its equivalent which was contained in OSHA inspection
308573252, Citation 1, Item 2b issued on August 30, 2006, with
regard to a workplace located at Euclid Street, Bloomington, Illinois.
Respondent did not contest this citation. An Informal Settlement Agreement re:
Inspection 308573021, including this citation, was signed by Wayne E. Clayton
on behalf of Respondent, and was entered on September 21, 2006.

·     Stark Excavating was
cited for a violation of Occupational Safety and Health Standard 29 C.F.R.
§1926.652(a)(1) or its equivalent which was contained in OSHA Inspection
308573021, Citation 1, Item 2, issued on August 30, 2006, with
regard to a workplace located at the corner of North Orange Prairie Road
and West Landens Way, Peoria, Illinois. Respondent
did not contest this citation. An Informal Settlement Agreement re Inspection
308573021, including this citation, was signed by Wayne E. Clayton on behalf of
Respondent, and was entered on September 21, 2006.

·     Stark Excavating was
cited for a violation of Occupational Safety and Health Standard 1926.651(j)(2)
or its equivalent which was contained in OSHA Inspection 308573252, Citation 1,
Item 1 issued on August 30, 2006, with regard to a
workplace located at Euclid Street, Bloomington, Illinois. Respondent did not
contest this citation. An Informal Settlement Agreement re Inspection
380573021, including this citation, was signed by Wayne E. Clayton on behalf of
Respondent, and was entered on September 21, 2006. (See also Tr. 89-90, 92-94,
866; Ex. C- 40, C-41, C-42).

·    ( OSHRC
Docket No. 09-0004/OSHA Inspection No. 310801246) Prior to Matt Bohm’s entry
into the excavation, Foreman Jason Schupp had
classified the soil at the excavation as Type B and had recorded that on his
daily report. Prior to Matt Bohm’s entry into the excavation, Jason Schupp did not take measurements to determine the slope of
the walls of the excavation. A measurement taken by CSHO Karl Armstrong at the
site indicated the excavation had not been properly sloped. During the
inspection, CSHO Armstrong did not determine the distance of the spoil pile
from the excavation. During the time he was in the excavation, Matt Bohm wore ( i ) prescription glasses that did not have side shields; and
(ii) a hard hat. CSHO Armstrong used a soil pocket penetrometer during his inspection, and obtained results of 1.8 tons per square foot
and 2.1 tons per square foot.

·    ( OSHRC
Docket No. 09-0005/OSHA Inspection No. 310802095) The area of the excavation
from where CSHO Strain took his measurements for the purpose of determining
soil type and slope had been dug during the day of the OSHA inspection. During
the inspection, CSHO Strain did not measure the distance of the spoil pile from
the excavation.

Additional
Findings of Fact and Discussion

OSHRC Docket
No. 09-0004 (OSHA Inspection No. 310801246) (Starbucks site)

On
June 5, 2008, OSHA Compliance Safety and Health Officer (“CSHO”) Karl
Armstrong, with the Peoria, Illinois Area OSHA Office, conducted an inspection
of Respondent’s jobsite at Prospect Road in Peoria, Illinois. (Tr. 25-26).
Respondent is a large excavation and paving company that typically handles
about 250 jobs per year throughout central and southern Illinois. (Tr. 937). At
this location, Respondent’s crew was replacing a leaking underground fire
hydrant water-line in an excavation in front of a Starbucks coffee house. (Tr.
36, 550-551). The excavation was originally created two weeks earlier, but the
crew had not been back to the site until the day of the OSHA inspection at
issue here. (Tr. 551). Before entering the jobsite, CSHO Armstrong observed and
photographed four of Respondent’s employees working in and around the
excavation from across the street: Foreman Jason Schupp ,
Backhoe operator Mark Schweigert , Superintendent Greg
Gilmore, and Laborer Matthew Bohm. (Tr. 26-28; Ex. C-5).

Foreman
Schupp was the crew supervisor and designated
competent person. (Tr. 77-78, 127-128). Foreman Schupp
and Superintendent Gilmore were standing at the edge of the excavation,
watching Mr. Bohm working inside the excavation, when OSHA arrived at the
jobsite. (Tr. 31, 89, 577-578). Mr. Bohm was cutting off a piece of pipe with a
hand-held, 16-inch, cut-saw. (Tr. 70-71, 566). He worked in the bottom of the
8-foot deep excavation for approximately ten minutes. (Tr. 36, 574; Ex. C-17).
Foreman Schupp admitted that, prior to OSHA arriving,
he had not checked the angle of the excavation walls to determine whether they
were compliant. However, he did analyze a soil sample and fill out his
competent person/excavation report. (Tr. 574, 590).

Significant
evidence, including expert testimony, was introduced on soil samples and
soil-typing at this excavation. (Tr. 211-249). That testimony ultimately became
irrelevant as the parties eventually stipulated during trial that the soil in
this excavation was “Type B” as defined in 29 C.F.R. §652. (Tr. 146, 228-230,
232).

Using an
engineering rod and universal protractor, CSHO Armstrong determined that three
of the walls in the excavation were angled vertically at 76 degrees, 80
degrees, and 75 degrees. (Tr. 50-52; Ex. C-9, C-10, C-11, C-18, C-20, C-22).
Safety Director Clayton confirmed that he also observed excavation walls exceeding
63 degrees during OSHA’s inspection. (Tr. 892). Ultimately, Respondent
stipulated during trial that at least one side of this excavation was not in
compliance with the excavation protection regulations. (Tr. 20, 59-60).

In
addition, Foreman Schupp conceded that Mr. Bohm was
not wearing approved safety glasses while cutting the pipe. (Tr. 583-585). Mr.
Bohm was wearing only his personal prescription glasses. (Tr. 68, 584). Foreman
Schupp testified that this was the first jobsite he
supervised in which an employee wore prescription glasses
so he did not recognize it as an issue. (Tr. 582-583). Although Mr. Bohm’s
eyeglasses did not qualify as OSHA or ANSI compliant safety glasses, CSHO
Armstrong testified that they did offer some protection to the eye. (Tr. 175,
200). Therefore, he concluded that the condition presented a “lesser”
probability of an actual injury in terms of calculating a proposed penalty.
(Tr. 175).

With regard to the alleged spoils pile violation, CSHO
Armstrong photographed the condition and location of the piles during his
inspection but failed to physically measure their distance from the top edge of
the excavation wall. (Tr. 44, 110; Ex. C-15). He did not recognize the location
of the spoils piles to be an issue until later when he was reviewing
investigative photographs. (Tr. 107-108). At least one of the spoils piles
depicted in investigative photographs was clearly several feet high and located
right at the edge of the excavation wall, immediately above the pipe that had
been cut by Mr. Bohm. (Ex. C-12; C-15; C-19; C-21). CSHO Armstrong described
two hazards resulting from such a situation: (1) material from the spoils pile
falling into the trench onto employees, and (2) the weight of the spoils pile
at the edge contributing to the possibility of an excavation wall collapse.
(Tr. 88). The court also notes that one of OSHA’s investigative photographs
clearly depicts the base of an outrigger on the backhoe resting right at the
top edge of the excavation above the area in which Mr. Bohm was working. (Ex.
C-19).

In
addition to the stipulations concerning Respondent’s history of violations in
2006, Respondent also received three other citations approximately twenty years
earlier. However, Complainant failed to produce a copy of the twenty-year-old
citations and conceded that they were not significant in determining the
classification of the present violations. (Tr. 186, 194, 197-198).

Respondent’s
primary dispute with regard to the citation items
alleged in this case concern: ( i ) employer knowledge;
(ii) employee misconduct; (iii) the willful classification of Citation 2 Item
1; and (iv) the repeat classification of Citation 3 Item 1. (Tr. 74, 230).

Citation 1 Item
1(b)

Complainant
alleges that Respondent violated the cited regulation as follows:

29 CFR 1926.102(a)(2): Eye
and face protective equipment being worn by the employees did not meet the
requirements specified in American National Standards Institute, Z 87.1-1968,
Practice for Occupational and Educational Eye and Face Protection. An employee
was exposed to eye injuries, while cutting 8-inch ductile pipe with a 16-inch
cut-off saw and the employee was wearing prescription glasses which did not
meet the requirements of ANSI Z 87.1-1968, and did not
have side shields to protect the eyes from side exposure to flying debris.

The
cited regulation provides:

29 CFR 1926.102(a)(2): Eye
and face protection equipment required by this Part shall meet the requirements
specified in American National Standards Institute, Z87.1-1968, Practice for
Occupational and Educational Eye and Face Protection.

Respondent’s
employee, Matthew Bohm, was cutting a water main pipe with a portable hand-held
saw. The cited standard requires ANSI compliant eye protection “when machines
or operations present potential eye or face injury from physical, chemical, or
radiation agents.” 29 C.F.R. §1926.102(a)(1) . Particles entering the eye
as a result of cutting pipe with a hand-held saw could
have result in substantial and permanently debilitating injuries. The standard
clearly applies to the cited condition. Foreman Schupp
acknowledged that in this instance, Mr. Bohm was wearing his personal
prescription glasses rather than qualifying safety glasses. The standard was
violated. Obviously, Mr. Bohm was the employee exposed to the violative
condition. Fabricated Metal Prods ., 18 BNA OSHC 1072, 1995-1997 CCH OSHD
&31,463 (No. 93-1853, 1997). Foreman Schupp was
the crew supervisor and designated competent person. (Tr. 77-78, 127-128).
Knowledge of Mr. Bohm’s failure to wear qualifying eye protection is imputed to
Respondent through Foreman Schupp’s presence and
direct observation of Mr. Bohm while he was cutting the pipe. Globe
Contractors, Inc. v. Herman , 132 F.3d 367 (7th Cir. 1997). The citation was
properly characterized as a serious violation. Whiting-Turner Contracting
Co., 13 BNA OSHC 2155, 1989 CCH OSHD ¶28,501 (No. 87-1238, 1989). Complainant
established the prima facie elements necessary to affirm Citation 1 Item 1(b).

Citation 2 Item
1

Complainant
alleges that Respondent willfully violated the cited regulation as follows:

29 CFR 1926.652(a)(1): Each employee
in an excavation was not protected from cave-ins by an adequate protective
system designed in accordance with paragraph (b) sloping and benching systems,
or paragraph (c) support systems, shield systems, and other protective systems:
Each employee in an excavation is not protected from cave-ins by an adequate
protective system. The employer does not protect each employee in its trenches
by properly sloping the trenches or using appropriate protective systems. This
violation was observed at 3708 North Prospect Road, Peoria, Illinois. To abate
this violation, the employer must ensure that its trenches are properly sloped
or equipped with appropriate protective systems, and that no employees enter
trenches until this protection is provided.

[with additional language
regarding abatement verification requirements and reference to previous
citations alleging violations of the same standard in 2006 (two), 1989, and
1986]

The
cited regulation provides:

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

The
citation alleges a failure to provide adequate excavation protection for Respondent’s
employees. The cited standard addresses various acceptable methods of
excavation protection. The standard clearly applies. The parties agreed that
the soil in this eight-foot-deep excavation was “Type B.” Therefore, the slope
of the excavation walls could not exceed 45 degrees (one horizontal to one
vertical). 29 C.F.R. §1926.652, Appendix B, Table B-1.2 . The record
establishes that three walls of the excavation exceeded the maximum allowable
slope, with no other form of protection having been implemented. The terms of
the cited standard were violated. Mr. Bohm’s presence in the bottom of the
excavation while it was in this condition establishes employee exposure to the
violative condition. As with Citation 1 Item 1(b) above, Foreman Schupp’s direct knowledge of Mr. Bohm working in this
excavation, in this condition, is imputed to Respondent.

The court
concludes that Complainant failed to establish the willfulness of this
violation. Respondent had developed and implemented, as conceded by
Complainant, a well-documented excavation safety program with adequate rules
and employee training. (Tr. 520-521). The existence of this program, and the
acknowledgement of OSHA as to its comprehensiveness, does not demonstrate the
Respondent’s state of mind was “such that, if informed of the duty to act, it
would not have cared.” Diamond Installations , supra . In
addition, the record demonstrates a reasonable effort by the Respondent to
slope the excavation as opposed to not taking any steps at all to slope the
walls. Foreman Schupp admitted that he was in a hurry
and neglected to measure the angle of the excavation walls on the morning of
the inspection. (Tr. 574, 594-595). He also testified that he did not know whether or not the sloping was in compliance with the requirements.
(Tr. 675). His actions are distinguishable from a supervisor who measured the
angle of the excavation walls, determined they were non-compliant, and then
proceeded with no regard for employee safety. While there is no excusing
Foreman Schupp’s omission, or the exposure of Mr.
Bohm to this unsafe condition, the court is not convinced that the evidence in
this case rises to the level of “intentional, knowing or voluntary disregard
for the requirements of the Act or with plain indifference to employee safety.”
On the contrary, Foreman Schupp testified that he “ usually
get[s] into trouble because [he] take[s] too much time making sure that ditches
are correct . ”
(Tr. 594). Inaction due to negligence is not generally equated to willfulness. See
McLaughlin v. Richland Shoe Co ., 486 U.S. 128, 133 (1988). Considering
these facts, in combination with the finding (below) that Respondent
established three of the four elements necessary to prove an employee
misconduct defense, the court concludes that Complainant failed to establish
willfulness. Since a wall collapse in this improperly sloped excavation could
have resulted in serious injury or death, the court concludes that Complainant
established the prima facie elements necessary to affirm Citation 2 Item 1 as a
serious violation of the Act.

Citation 3 Item
1

Complainant
alleges that Respondent repeatedly violated the cited regulation as follows:

29 CFR 1926.651(j)(2): Employees
were not protected from excavated or other materials or equipment that could
pose a hazard by falling or rolling into excavations: Each employee in an
excavation is not protected from struck-by hazards and the spoil pile and
materials are stored within two feet of the excavation. The employer does not
protect each employee in its trenches by setting spoil piles and materials at
least two feet from trenches. This violation was observed at 3708 North
Prospect Road, Peoria, Illinois. To abate this violation, the employer must
ensure that spoil and materials are set back from the edge of the excavation at
least two feet and that no employees enter trenches until this protection is
provided.

[with additional language
regarding abatement verification requirements and reference to a previous
citation alleging a violation of the same standard in 2006]

The
cited regulation provides:

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

The
citation is for improper placement of spoils extracted from an excavation. The
cited standard establishes the minimum distance for proximity of spoils piles
to an excavation. The standard clearly applies to the cited condition. The
standard prohibits placement or storage of “excavated or other materials or
equipment that could pose a hazard by falling or rolling into excavations” within
two feet of the excavation edge. CSHO Armstrong testified that the spoil pile
at the south end of the excavation came down to the edge of the excavation.
(Tr. 53). Investigative photographs also establish that the spoils pile nearest
to the backhoe bucket, as well as one of the backhoe outrigger bases were
within two feet of the excavation edge. (Ex. C-12, C-15, C-19, C-21). The terms
of the standard were violated. Mr. Bohm was exposed to this violative condition
while he was working inside the excavation. If dirt from the spoils pile
collapsed back into the excavation, or the backhoe’s outrigger base slipped off
the edge, Mr. Bohm could have been seriously injured or killed. Therefore,
employee exposure was established. As with the first two alleged violations,
Foreman Schupp was present and his knowledge of these
jobsite conditions is imputed to Respondent.

It
was undisputed that Respondent received a Citation and Notification of
Penalty in 2006 which included a violation of 29 C.F.R. §1926.651(j)(2).
(Ex. C-41, C-42). By presenting evidence of a previous violation of the same
cited standard, Complainant has met its burden of establishing the substantial
similarity of the hazards. Respondent failed to present evidence to rebut that
prima facie showing. Accordingly, Complainant established the prima facie
elements necessary to affirm Citation 3 Item 1 as a repeat violation of the
Act.

Affirmative
Defense

Respondent
asserted the defense of unpreventable employee misconduct to these violations.
The record establishes that Respondent had written rules concerning excavation
protection requirements, spoils pile placement during the excavation process,
and effective eye protection. (Ex. R-7). Respondent also established that those
rules were adequately communicated to employees and supervisors through
training and distribution of written materials. In fact, Complainant stipulated
to these elements of the defense. (Tr. 520-521). Respondent also established
that it monitored for compliance with these rules, at least through the actions
of its Safety Director, Wayne Clayton, by reviewing daily foreman reports and
conducting on-site safety audits. (Tr. 799-805). However, the court is not
persuaded that Respondent effectively enforced its own rules and policies when
violations were discovered.

Foreman
Schupp acknowledged that Respondent’s policy for
safety violations mandates the issuance of “safety tickets” with progressive
disciplinary consequences. (Tr. 542-543). According to company policy, the
first violation should result in the issuance of a ticket accompanied by a
written warning. (Ex. R-2). A second violation should result in a ticket accompanied by
a one-day suspension without pay. A third violation should result in a ticket
accompanied by a three-day suspension without pay. Respondent’s policy mandated
that a fourth violation resulted in termination. (Tr. 543; Ex. R-2). The court
notes that the Respondent’s policy does not allow “verbal” warnings to be
issued in lieu of the written safety tickets. Safety Director Clayton testified
that in 2006, after the safety violation policy was implemented, he provided
training on the policy to all area managers, superintendents and foremen
(collectively referred to as “supervisors” ), and
provided copies of the policy to each of those individuals along with a “safety
ticket” book. (Tr. 798-799, 852-853). Despite this policy, training and Foreman
Schupp’s observation of safety violations by various
employees, he testified that he has never issued any tickets to anyone. (Tr.
543). Foreman Schupp testified that he has verbally
corrected employees in the past for improper placement of spoils piles and
failure to wear proper safety glasses. (Tr. 523-525). In fact, the only method
of correction he has ever used for employee safety violations were both verbal
and undocumented. (Tr. 602-603). The deficiency in the practice of verbal
warnings lies in the fact that this practice undermines Respondent’s safety
rule enforcement scheme in that there was no method to determine how many times
a particular employee had received verbal corrections
for safety violations, especially when working for different foremen.

Foreman
Schupp was not the only supervisor who had observed
safety violations on Respondent’s jobsites yet failed to follow its discipline
program. Rod Martin, one of Respondent’s Superintendents, testified that he
verbally corrects employees for safety deficiencies but has never issued any
“safety tickets.” (Tr. 633-634). In fact, none of Respondent’s supervisors, with the exception of Safety Director Clayton, have issued
any “safety tickets” to any employee since August of 2006 - the same year the
program was implemented. (Tr. 947-948). For the safety program to truly be
effective and properly implemented, supervisors need to follow Respondent’s own
policy and issue safety citations. In conclusion, the court rejects Safety
Director Clayton’s theory that supervisors did not issue “safety tickets” to
employees in 2007 and 2008 because the company established a better track
record of complying with safety regulations. (Tr. 883-887). Superintendent
Martin and Foreman Schupp contradicted his theory
through testimony that after 2006, they issued only verbal warnings for
observed safety violations.

In
addition to supervisors not following Respondent’s program for enforcing its
safety rules, the court is also troubled by Superintendent Martin’s testimony
that supervisors gave each other advance warning when
Safety Director Clayton was in their area conducting safety audits. (Tr. 637).
Superintendent Martin testified that supervisors on different projects
communicated by radio to let each other know when Safety Director Clayton was
patrolling the area. (Tr. 637). This apparent cooperation among Respondent’s
supervisors to undermine the “surprise” element of internal safety audits
exposes a flaw in the effectiveness of Respondent’s safety enforcement program.

Foreman
Schupp’s statement that he “gets into trouble” when
he “takes too much time making sure that ditches are correct” is also
troubling. (Tr. 594). This reveals an unsavory conundrum for Respondent’s
supervisors - risking trouble for taking the time to properly implement safety
measures, or, risking trouble for not taking the time to properly
implement safety measures. This is a dilemma that would not be present in a
workplace in which safety was a priority and failure to follow safety rules was
effectively enforced.

Finally,
incorporating the findings below concerning OSHRC Docket No. 09-0005, the fact
that similar excavation safety deficiencies were observed at two different
jobsites, supervised by different individuals, involving different employees,
only a few weeks apart, belies the notion that the violative conduct was
isolated or unforeseeable. Falcon Steel Co. , 16 BNA OSHC 1179, 1193
(Nos. 89-2883 & 3444, 1993); Brennan v. Butler Lime and Cement Co .,
520 F.2d 1011 (7th Cir. 1975).

These
facts convince the court that: (1) Respondent’s safety program has deficiencies
that need to be addressed, and (2) Respondent’s rules were not effectively
enforced when violations were discovered. Rawson Contractors , Inc., 20
BNA OSHC 1078, 2002 CCH OSHD ¶32,657 (No. 99-0018, 2003). Accordingly,
Respondent failed to establish the affirmative defense of unpreventable
employee misconduct with regard to the violations
alleged in OSHRC Docket No. 09-0004.

OSHRC Docket No. 09-0005 (OSHA Inspection No.
310802095) (Champaign site)

On
July 22, 2008, OSHA Compliance Safety and Health Officer (“CSHO”) Jeff Strain,
with the Peoria, Illinois Area OSHA Office, conducted an inspection of
Respondent’s jobsite at Springfield and Third, in Champaign, Illinois. (Tr.
261). A general contractor representative walked him over to an excavation CSHO
Strain had observed when he entered the jobsite, and introduced him to
Respondent’s Superintendent, Rod Martin. (Tr. 263). Superintendent Martin was
the designated competent person for the excavation. (Tr. 313-314). Respondent’s
crew, under the supervision of Martin, was installing underground sewer lines
near a newly constructed store. (Tr. 642).

Superintendent
Martin told CSHO Strain that he had tested the soil with a penetrometer that
morning, as well as the day before, both of which indicated a compressive
strength of 1.49 tons per square foot (“ tsf ”). (Tr.
663). A slightly higher result of 1.5 tsf would have
been an indication of “Type A” soil. (Tr. 663). Consequently, Superintendent Martin categorized the soil as
“Type B.” (Tr. 663). Based on CSHO Strain’s observations of the soil, a
thumb-penetration test, the existence of two previously installed utility
lines, and observed fissures, he also concluded that the soil was “Type B.”
(Tr. 288). To be sure, CSHO Strain took two soil samples and mailed them to
OSHA’s Salt Lake City Laboratory for analysis. (Tr. 289; Ex. C-38). At trial,
Complainant maintained its position that the soil in the excavation was “Type
B”, while Respondent argued that soil in the area in which employees were
working was actually “short-term Type A” which would allow slopes as steep as
63 degrees (1/2 horizontal to 1 vertical). (Tr. 342-343).

On
the morning of the OSHA inspection, but before CSHO Strain’s arrival,
Superintendent Martin’s crew had been using a trench-box for excavation
protection. (Tr. 658). However, Superintendent Martin left the site for a
one-hour meeting, and when he returned, his crew was no longer using the trench
box because it would not fit into the area between the water main and the frost
wall (a type of foundational wall). (Tr. 665-666, 739-740; Ex. C-35, C-36). The
protection method at that point was simple sloping - no benching, shielding, or
other type of excavation protection was being attempted. (Tr. 389-391). No
additional soil testing had been conducted when the crew decided to change from
trench-box protection to sloping protection. (Tr. 702). Based only on his
previous penetrometer test and what Superintendent Martin described as “much
harder” soil, he changed his previous conclusion and determined that the soil
in the new working area must have changed to “Type A.” (Tr. 667, 674). On that
basis, he allowed his crew to continue working without using the trench box. (Tr. 667).

When
CSHO Strain arrived “a few minutes later”, Superintendent Martin was observed
and photographed working with his crew at the excavation. (Tr. 659, 669; Ex.
C-36). Superintendent Martin conceded that one of Respondent’s employees, A.J.
Kerber, had been working in the excavation for about an hour when CSHO Strain
arrived at the jobsite. (Tr. 276, 666, 735).

During
the OSHA inspection, Superintendent Martin and Safety Director Clayton
conducted two additional penetrometer tests which resulted in compressive
strength readings of 3.5 tsf and over 4.0 tsf . (Tr. 672, 736, 912). Clint Merrell, a Laboratory
Analyst in OSHA’s Salt Lake City Technical Laboratory, who has performed more
than 2,600 soil analyses during his thirty year tenure
with OSHA, testified as an expert witness on soil-typing. (Tr. 217; Ex. C-25).
He described in detail how he applied OSHA’s method of analyzing the two soil
samples he received from CSHO Strain. (Tr. 213, 440-471, 480; Ex. C-27, C-38).
His own compressive strength testing resulted in readings similar
to those obtained by Superintendent Martin and Safety Director Clayton
during the inspection: 4.0 tsf and 4.1 tsf . (Tr. 441-449). Despite Mr. Merrell’s compressive
strength test results, which he acknowledged were indicators of “Type A” soil,
he ultimately concluded that the samples were “sandy clay cohesive Type B”
soil, primarily based on small clumps that had broken off of
the samples. (Tr. 444). He testified that this was an indication of fissuring
in the soil. (Tr. 441-442, 448-453). Mr. Merrell explained that compressive
strength tests were only one indicator of soil-type. “Type B” soil can also
have a high compressive strength. (Tr. 454). Respondent did not call an expert
witness to address Mr. Merrell’s contentions. CSHO Strain’s testimony and
investigative photographs also revealed that the excavation contained
previously disturbed soil, as two existing utility lines were uncovered and
continued to cross through the middle of Respondent’s excavation. (Tr. 265,
668; Ex. C-32). The soil would have also been previously disturbed during the
construction of the frost wall on the south end of the excavation. (Tr.
691-700; Ex. C-33, C-34, C-35).

The
excavation was more than six feet deep and the angles of three of the trench
walls measured (vertically) 85 degrees , 75 degrees,
and 65 degrees. (Tr. 280, 286-287, 384, 958; Ex. C-32, C-35, C-36). Safety
Director Clayton confirmed that he also observed walls in the excavation which
were greater than 45 degrees, which he agreed would not be compliant for “Type
B” soil. (Tr. 909, 954). CSHO Strain testified that none of the three excavation wall angles he measured would be compliant
in either “Type B” or “Type A” soil. (Tr. 434).

With regard to the alleged spoils pile violation, CSHO
Strain did not actually measure the distance of the spoils pile to the edge of
the excavation wall. (Tr. 349). He assumed that any loose material on the top
edge of the excavation wall consisted of spoils material. (Tr. 350). However,
the white rock gravel prevalent in the photographs and near the edge of the
excavation did not come out of the excavation. (Ex. C-33, C-34). A layer of
white gravel had been intentionally placed on the surface edge to serve as a
buffer between work materials and mud (Tr. 679, 681, 683, 686, 723) and to
build a ramp (Tr. 679-680). Thus, the white gravel is not part of the spoil pile.
An examination of the photograph taken by CSHO Strain clearly shows the
placement of the white gravel. (Ex. C-36). With the exception
of a few clumps of soil, the white gravel is readily visible until the
area north of the preexisting utility line. (Ex. C-33). Superintendent Martin
testified that he specifically checked the spoils pile above the area where Mr.
Kerber had been working and no part of that spoils pile, except for a few small
clumps of dirt, were within two feet of the excavation edge. (Tr. 687).
Superintendent Martin explained that the only spoils pile material within two
feet of the edge was in the portion of the excavation being backfilled - behind
the pre-existing water pipe (running perpendicularly through the excavation
about halfway up). (Ex. C-30, C-31, C-33 and C-36). He also testified that
employees were not working in that area. (Tr. 724, 731-732). Since CSHO Strain
did not personally observe employees working in the excavation where the spoil
piles actually were within two feet of the excavation
wall (i.e., north of the preexisting water pipe), or measure any distances from
the spoils pile to the excavation edge, the court accepts Superintendent
Martin’s description of the employee’s location in relation to the spoils
piles. The court also gives weight to the photographic evidence which shows the
white gravel laid down as a buffer from the mud at grade level. (Ex. C-33
through C-36).

Citation
1 Item 1

Complainant
alleges that Respondent willfully violated the cited regulation as follows:

29 CFR 1926.651(j)(2):
Employees were not protected from excavated or other materials or equipment
that could pose a hazard by falling or rolling into excavations: Each employee
in an excavation is not protected from struck-by hazards and the spoil pile is
stored within two feet of the excavation. The employer does not protect each
employee in its trenches by setting spoil piles at least two feet from
trenches. This violation was observed at Springfield and Third, Champaign,
Illinois. To abate this violation, the employer must ensure that spoil piles
are set back from the edge of the excavation at least two feet and that no
employees enter trenches until this protection is provided.

[with additional language regarding
abatement verification requirements and reference to a previous citation
alleging a violation of the same standard in 2006]

The
cited regulation provides:

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

Complainant
carries the burden of proof on all elements necessary for a prima facie
violation of the Act. In this instance, Complainant failed to establish by a
preponderance of the evidence that the spoils pile was placed within two feet
of the excavation edge above the area in which Mr. Kerber was working.
Therefore, there is insufficient evidence to conclude that the cited standard
was violated or that Mr. Kerber was exposed to any violative condition. Since
violating the terms of the standard and employee exposure are essential
elements of a prima facie violation, Citation 1 Item 1 is VACATED.

Citation 1 Item
2

Complainant
alleges that Respondent willfully violated the cited regulation as follows:

29 CFR 1926.652(a)(1): Each
employee in an excavation was not protected from cave-ins by an adequate
protective system designed in accordance with paragraph (b) sloping and
benching systems, or paragraph (c) support systems, shield systems, and other
protective systems: Each employee in an excavation is not protected from
cave-ins by an adequate protective system. The employer does not protect each employee
in its trenches by properly sloping the trenches or using appropriate
protective systems. This violation was observed at Springfield and Third,
Champaign, Illinois. To abate this violation, the employer must ensure that its
trenches are properly sloped or equipped with appropriate protective systems,
and that no employees enter trenches until this protection is provided.

[with additional language
regarding abatement verification requirements and reference to previous
citations alleging violations of the same standard in 2006 (two), 1989, and
1986]

The
cited regulation provides:

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

The
citation alleges a failure to properly protect employees working in an
excavation. The cited standard addresses various acceptable methods of
excavation protection. The standard clearly applies. The court agrees with the
results of the soil analysis conducted by Mr. Merrell, CSHO Strain, and
Superintendent Martin (his first analysis, prior to the OSHA inspection), that
the soil in this excavation where Mr. Kerber was working was “Type B” soil.
CSHO Strain and Mr. Merrell both testified that they observed indications of
fissuring in the soil. But even if their testimony about fissuring (which
Respondent strongly disputed) is ignored, the excavation contained two
previously installed utility lines and a foundational wall that was installed
on the south end of the excavation, clearly indicating that the soil in the
area had been previously disturbed. The applicable regulations state
unequivocally that: “...no soil is Type A if: ( i )
[t]he soil is fissured; or...(iii) the soil has been previously disturbed...” Appendix
A to Subpart P of Part 1926 - Soil Classification . The record establishes
that three walls of the excavation exceeded the maximum allowable slope of 45
degrees for “Type B” soil, with no other form of protection having been
implemented. Therefore, the terms of the cited standard were violated. Mr.
Kerber’s presence in the bottom of the excavation establishes employee exposure
to the violative condition. Finally, Superintendent Martin’s direct knowledge
of Mr. Kerber working in this excavation, in this condition, is imputed to
Respondent.

The
court does not agree, however, that Complainant established the willfulness of this
violation. As discussed above in the context of OSHRC Docket No. 09-0004,
Respondent had developed and implemented, as conceded by Complainant, a
well-documented excavation safety program with adequate rules and employee
training. (Tr. 520-521). The existence of this program, the acknowledgement of
OSHA as to its comprehensiveness, and facts relating to alleged employee
misconduct described below do not demonstrate the Respondent’s state of mind
was “such that, if informed of the duty to act, it would not have cared.” Diamond
Installations, supra .

Superintendent
Martin conducted a soil analysis, prepared an excavation report, and required
employees to use a trench box for protection prior to OSHA’s arrival. Even
after Superintendent Martin returned from a short meeting and discovered the
change in excavation protection methods, he re-evaluated the soil and
erroneously concluded that it had changed to Type A in the new working area.
While there is no excusing Superintendent Martin’s failure to ensure the
appropriate slope angles of the excavation walls at that point, or the exposure
of Mr. Kerber to this unsafe condition, the court is not convinced that the
evidence in this case rises to the level of “intentional, knowing or voluntary
disregard for the requirements of the Act or with plain indifference to
employee safety.” On the contrary, Respondent maintained from the date of the
inspection through trial, based on reasonable albeit incorrect evidentiary
support, that this was a short-term excavation containing “Type A” soil.
Therefore, Respondent argues, pursuant to CSHO Strain’s own demonstrative
diagram of the excavation, the walls were compliant. (Tr. 408; Ex. C-37). The
court finds that although Superintendent Martin’s and Safety Director Clayton’s
conclusions about the soil type were incorrect because of fissuring and
previous disturbances to the soil, they were reasonable and appear to have been
made in good faith. The Commission has held that willful
violations are not appropriate if the employer acted reasonably and in good
faith . General Motors Corp. Electro-Motive Division, supra .

In
analyzing the alleged willfulness of this violation, the court provides no
weight to the OSHA investigation which occurred approximately seven weeks prior
to this one (OSHA Inspection No. 310801246) because citations resulting from
that inspection had not even been issued by the time of the present inspection.
The court also notes that after the 2006 excavation citations, Respondent
implemented significant and substantial changes to its excavation safety
program, including additional training, excavation manuals for supervisors,
daily excavation reports, and a discipline program which included the issuance
of safety tickets to employees. (Tr. 793-801).

Considering
these facts, in combination with the finding (below) that Respondent
established three of the four elements necessary to prove an employee
misconduct defense at this location, the court concludes that Complainant
failed to establish the willfulness of Citation 1 Item 2. Since a wall collapse
in this improperly sloped excavation could have resulted in very serious
injuries or death, the court concludes that Complainant established the prima
facie elements necessary to affirm Citation 1 Item 2 as a serious violation of
the Act.

Affirmative
Defense

Respondent
also asserted the defense of unpreventable employee misconduct to these
violations. (Tr. 6, 23). The same rationale discussed above in the Affirmative
Defense section of OSHRC Docket No. 09-0004 applies here. Respondent’s safety
program is deficient in that supervisors issue only
undocumented and untracked verbal warnings, have not followed Respondent’s
written requirements to issue progressive “safety tickets” since 2006, and have
created a system which undermines the “surprise” aspect of internal safety
audits by providing each other with advanced warnings when Safety Director
Clayton is in their area. Additionally, the occurrence of virtually identical
excavation violations on two different jobsites within a seven
week period contradicts the notion that the behavior was isolated or
unforeseeable. Falcon Steel Co ., supra . Respondent failed to
establish that its excavation rules were effectively enforced and deficiencies
in the implementation of their safety program were exposed. Accordingly,
Respondent failed to establish the affirmative defense of unpreventable
employee misconduct with regard to the violations
alleged in OSHRC Docket No. 09-0005.

Penalties

In
calculating the appropriate penalty for violations, Section 17(j) of the Act
requires the Commission to give Adue consideration@
to four criteria: (1) the size of the employer's business, (2) the gravity of
the violation, (3) the good faith of the employer, and (4) the employer's prior
history of violations. 29 U.S.C. '666(j) . Gravity is the primary
consideration and is determined by the number of employees exposed, the
duration of the exposure, the precautions taken against injury, and the likelihood
of an actual injury. J.A. Jones Construction Co. , 15 BNA OSHC 2201, 1993
CCH OSHD &29,964 (No. 87-2059, 1993). Neither of the OSHA investigators
credited Respondent for size, history, or good faith in formulating proposed
penalties in these two cases. (Tr. 206-207, 311-312).

In
OSHRC Docket No. 09-0004 (OSHA Inspection No. 310801246), the court considers
the totality of the circumstances, including the fact that one employee was
exposed to all three violative conditions for approximately ten minutes, that
all three violative conditions were open and obvious, and that Respondent was
cited for similar excavation safety violations approximately two years earlier.

In
OSHRC Docket No. 09-0005 (OSHA Inspection No. 310802095), the court also
considers the totality of the circumstances, including the fact that one
employee was exposed to the unprotected excavation for approximately one hour,
that there were some indications (although ultimately incorrect) of “short-term
Type A” soil, and that Respondent was cited for the same violation at two
different locations two years earlier. Based on these factors, the court
assesses penalties for the affirmed violations as set out below.

ORDER

Based
upon the foregoing Findings of Fact and Conclusions of Law:

OSHRC Docket
No. 09-0004 (OSHA Inspection No. 310801246)

1.
       Citation 1 Item 1(b) is hereby
AFFIRMED and a penalty of $2,000.00 is ASSESSED;

2.
       Citation 2 Item 1 is hereby modified
to a serious violation, AFFIRMED as modified, and a penalty
           of $7,000.00
is ASSESSED;

3.
       Citation 3 Item 1 is hereby AFFIRMED
as a repeat violation and a penalty of $20,000.00 is
            ASSESSED.

OSHRC Docket
No. 09-0005 (OSHA Inspection No. 310802095)

1.
       Citation 1 Item 1 is hereby VACATED;

2.         Citation
1 Item 2 is hereby modified to a serious violation, AFFIRMED as modified, and a
penalty            of
$7,000.00 is ASSESSED.

/s/ _________

PATRICK
B. AUGUSTINE

Judge,
OSHRC

Date: May 18, 2010

Denver, Colorado