Archon Construction

Read the official release (oshrc.gov)

Plain-English summary

Two Archon employees entered a six-foot-deep trench with steep walls and no cave-in protection to cut an existing sewer pipe. The judge found that the foreman knew the trench's physical condition, even though he mistakenly believed it was less than five feet deep. That mistaken belief prevented a willful classification, but Archon's three earlier citations under the same protective-system standard supported a repeat violation. A separate item requiring employee removal after a competent person finds a hazard was vacated because the foreman had not recognized the cave-in condition. The repeat item was affirmed with a $40,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.651(k)(2); 29 C.F.R. § 1926.652(a)(1)
• Outcome: The competent-person removal item was vacated; the cave-in protection item was modified from willful to repeat and affirmed with a $40,000 penalty.
• Key point: A good-faith mistake about trench depth can defeat willfulness, while prior final citations under the same standard can still support a repeat classification.

Full text (OSHRC public release)

                   UNITED STATES OF AMERICA
       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,

                     Complainant,
                                                            DOCKET NO. 10-0486
                             v.

Archon Construction,

                     Respondent.

Appearances:

    Lisa Williams, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois
             For Complainant

    Carl E. Metz, Esq., Falk Metz, LLC, Chicago, Illinois
            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 an Archon Construction (“Respondent”) worksite in Downers Grove,

Illinois, on January 13, 2010. As a result of the inspection, OSHA issued a Citation and

Notification of Penalty (“Citation”) to Respondent alleging serious, willful, and repeat violations

of the Act with total proposed penalties of $74,000.00. Respondent timely contested the

Citation. During a break at the beginning of the trial on December 7, 2010 in Chicago, Illinois,

the parties settled Citation 1 Items 1, 2, 3, 4 and Citation 3 Item 1. (Tr. 53-54). The Partial

Settlement Agreement was approved on January 11, 2011. Therefore, only Citation 1 Item 5 and

Citation 2 Item 1 remain in dispute.
 Jurisdiction

     Jurisdiction of this action is conferred upon the Commission pursuant to Section 10(c) of

the Act. The record establishes that at all times relevant to this action, Respondent was an

employer engaged in a business and industry affecting interstate commerce within the meaning

of Section 3(5) of the Act, 29 U.S.C. §652(5). Slingluff v. OSHRC, 425 F.3d 861 (10th Cir.

2005).

                                        Applicable Law

     To establish a prima facie violation of the Act, the Complainant must prove by a

preponderance of the evidence that: (1) the cited standard applied to the condition; (2) the terms

of the standard were violated; (3) one or more of the employees had access to the cited condition;

and (4) the employer knew, or with the exercise of reasonable diligence could have known, of

the violative condition. Astra Pharmaceutical Products, 9 BNA OSHC 2126, 1981 CCH OSHD

&25,578 (No. 78-6247, 1981).

     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).

     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.’”

Kaspar Wireworks, Inc., 18 BNA OSHC 2178, 2000 CCH OSHD ¶32,134 (No. 90-2775, 2000).

This test describes misconduct that is more than negligent but less than malicious, or committed

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with specific intent to violate the Act or standard. Georgia Electric Co., 595 F.2d 309, 318-19

(5th 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. AJP Construction, Inc., 357 F.3d 70 (D.C. Cir. 2004).

Complainant must show that Respondent had a “heightened awareness” of the illegality of its

conduct. Id. Heightened awareness is more than simple awareness of the conditions constituting

the alleged violation; such evidence is already necessary to establish the basic violation. Id.

Instead, Complainant must show that Respondent was actually aware of the unlawfulness of its

action or that it “possessed a state of mind such that if it were informed of the standards, it would

not care.” Id.

                                       Stipulations

    1. Jurisdiction of this action is conferred upon the Occupational Safety and Health

        Review Commission by section 10(c) of the Act. (Complaint and Answer).

    2. Respondent has an office and place of business located at 563 South Route 53,

        Addison, Illinois 60101 and is an underground utility contractor which may include

        excavation work. (Complaint and Answer).

    3. Respondent performed work at or near 2625 Ogden Avenue, Downers Grove,

        Illinois, which in part included excavation. (Complaint and Answer).

    4. Respondent at all times hereinafter mentioned was engaged in a business affecting

        commerce in that Respondent was engaged in handling goods or materials which had

        been moved in commerce. (Complaint and Answer).

    5. Respondent at all times hereinafter mentioned was an employer employing

        employees in said business at the aforesaid workplace. (Complaint and Answer).

    6. Pursuant to section 10(c) of the Act, Respondent duly filed, by mail, with a

        representative of Complainant, a notice of contest which contested the

        aforementioned Citation and Notification of Penalty and the penalty proposed

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therein; and said notice of contest was thereupon duly transmitted to the

        Occupational Safety and Health Review Commission. (Complaint and Answer).

                             Additional Factual Findings

   Three witnesses testified at the hearing: (1) Kevin Vojtech, OSHA Compliance Safety

and Health Officer (“CSHO”); (2) Timothy Farrell, Respondent’s jobsite Foreman; and (3)

Eugene Duffy, Respondent’s Productivity and Safety Supervisor. (Tr. 21, 129, 149). Based on

their testimony and discussion of evidentiary exhibits, the court makes the following additional

factual findings.

   On January 13, 2010, CSHO Vojtech was driving by Respondent’s worksite on Ogden

Avenue in Downers Grove, Illinois, when he observed work activities in and around an open

excavation. (Tr. 25, 101). CSHO Vojtech pulled over to observe and photograph the site for

about 10 minutes, during which time he saw employees enter a trench to perform work. (Tr. 25-

26). He then entered the jobsite and initiated an OSHA inspection. (Tr. 26, 101; Ex. C-22). At

that point, the two employees had already completed their work and exited the excavation. (Tr.

34, 66, 118).

    Respondent’s crew was in the process of installing one-half mile of sewer line,

approximately 12 feet underground, alongside Ogden Avenue. (Tr. 134-135; Ex. R-3). They had

been working at this site for about a month prior to the OSHA inspection. (Tr. 140). Foreman

Timothy Farrell was supervising Respondent’s crew and serving as the designated competent

person for the excavation. (Tr. 32-34, 130-132, 144). Respondent’s Productivity and Safety

Officer, Gene Duffy, was also present during the OSHA inspection, but had arrived at the jobsite

only 5-10 minutes before CSHO Vojtech, and did not see the employees working in the trench.

(Tr. 32, 172).

   CSHO Vojtech measured the trench at various locations, and used an inclinometer to

measure the angles of the excavation walls. (Tr. 39-40; Ex. C-26, C-22). The trench was 30 feet

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long, 13 feet wide at the widest point, and 6 feet deep at the location where employees had cut

the pre-existing pipe. (Tr. 40; Ex. C-22, C-26). The angles of the trench walls ranged from 75

degrees to 90 degrees. (Tr. 40, 62). CSHO Vojtech also noted the proximity of a dump truck and

nearby vehicular traffic along Ogden Avenue. (Tr. 51; Ex. C-24).

   Foreman Farrell told CSHO Vojtech during the inspection that he had directed employees

Jason Farrell and Jerry Magellan to enter the trench to cut a pre-existing pipe that was in the

crew’s way. (Tr. 32-33, 36, 141-143). Foreman Farrell also told CSHO Vojtech that he had

classified the soil in the excavation near the pre-existing pipe as Type C soil, but did not realize

that the excavation at that location had exceeded the 5-foot depth referenced in the excavation

regulations. (Tr. 32-33, 143). Foreman Farrell acknowledged that had he known the excavation

was 6 feet deep at that location, he could have sloped the excavation walls or used the available

trench boxes which Respondent had been using at the site for the past month. (Tr. 140, 146).

However, no such methods of protection were used in the excavation where the employees had

been working moments before OSHA arrived. (Ex. R-3, C-26).

   In 2009, during a previous OSHA inspection at another jobsite, Respondent was cited for

a willful violation of the same standard at issue in Citation 2 Item 1 in this case: 29 C.F.R.

§1926.652(a)(1). (Tr. 70, 73; Ex. C-2, C-3, C-32). That violation was amended to a repeat

violation and accepted by Respondent as part of an Informal Settlement Agreement executed on

January 12, 2010, the day before OSHA’s inspection in the present case. (Tr. 89, 121-122, 154;

Ex. C-9). The court notes that the foreman and employees working at the 2009 jobsite were

different than the foreman and employees working on the jobsite in this case. (Tr. 125, 145). In

fact, the foreman involved in the 2009 inspection no longer works for Respondent. (Tr. 157).

Respondent was also cited in 2008 and 2004 for two other violations of 29 C.F.R.

1926.652(a)(1), which it also accepted by way of Informal Settlement Agreements. (Ex. C-32).

No specific factual information regarding the 2004 or 2008 inspections was introduced into the

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record. The court notes that after the current OSHA inspection, Respondent provided Foreman

Farrell with additional excavation safety training. (Tr. 175). The court also notes that

Respondent is a relatively small employer, with 61 employees. (Tr. 94).

                                       Discussion

                                   Citation 1 Item 5

   Complainant alleged a serious violation of the Act in Citation 1 Item 5 as follows:

          29 C.F.R. §1926.651(k)(2):       Where the competent person found

          evidence of a situation that could result in a possible cave-in,

          indications of failure of protective systems, hazardous atmospheres, or

          other hazardous conditions, exposed employees were not removed

          from the hazardous area until the necessary precautions had been

          taken to ensure their safety: On January 13, 2010, employees were

          working in a trench that needed cave-in protection and had evidence

          of possible cave-in, and the competent person did not remove the

          employees from the trench, exposing the employees to a trench

          collapse.

   The cited standard provides:

          29 C.F.R. §1926.651(k)(2): Where the competent person finds

          evidence of a situation that could result in a possible cave-in,

          indications of failure of protective systems, hazardous atmospheres, or

          other hazardous conditions, exposed employees shall be removed from

          the hazardous area until the necessary precautions have been taken to

          ensure their safety.

   The cited standard mandates the action a designated competent person must take when he

or she “finds evidence of” a possible cave-in or other hazardous condition in an excavation. The

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standard clearly applies to the cited condition. Complainant argued that Respondent violated this

standard because CSHO Vojtech identified “visible evidence of hazards” in the trench, yet

Foreman Farrell had “failed to remove Jason Farrell and Mr. Magellan from exposure to these

hazards.” (Comp. Brief, p. 14).

   The plain language of the subparagraph cited by Complainant requires proof that

Respondent’s designated competent person, Foreman Farrell, was personally aware of a

hazardous situation in the trench which presented the possibility of a cave-in, or the failure of a

protective system, but then failed to remove employees from the area until the condition could be

remedied. The record is devoid of any such evidence. On the contrary, the court credits

Foreman Farrell’s testimony that, at the time, he did not know that the trench depth where the

employees cut the pipe was 6 feet deep. There was certainly no evidence presented at trial which

established his specific knowledge of the depth of the trench at that location, or that he

recognized any possibility of a cave-in or failure of a protective system. Accordingly,

Complainant failed to establish that the terms of the cited standard were violated. Citation 1

Item 5 will be VACATED.

                                    Citation 2 Item 1

   Complainant alleged a willful violation of the Act in Citation 2 Item 1 as follows:

           29 C.F.R. §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) or (c) of this section. On January 13,

           2010, employees were working in a trench cutting a 6 inch sanitary

           pipe without cave-in protection exposing the employees to the hazard

           of a trench collapse. Archon Construction Co., Inc. was previously

           cited for a violation of this Occupational Safety and Health

           Administration standard or its equivalent standard 29 C.F.R.

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1926.652(a)(1) which was contained in OSHA inspection number

   312600026, citation number 2, item number 1, issued on 12/21/2009,

   with respect to a workplace located at 6806 Lorraine Drive,

   Countryside, Illinois. Archon Construction Co., Inc. was previously

   cited for a violation of this Occupational Safety and Health

   Administration standard or its equivalent standard 29 C.F.R.

   1926.652(a)(1) which was contained in OSHA inspection number

   311253553, citation number 1, item number 1, issued on 11/05/2008,

   with respect to a workplace located at NW corner of Maple Ave. &

   55th St., Downers Grove, Illinois. Archon Construction Co., Inc. was

   previously cited for a violation of this Occupational Safety and Health

   Administration standard or its equivalent standard 29 C.F.R.

   1926.652(a)(1) which was contained in OSHA inspection number

   308146539, citation number 1, item number 1, issued on 10/18/2004,

   with respect to a workplace located at 1520 Bond Street, Naperville,

   Illinois.

The cited standard provides:

   29 C.F.R. §1926.652(a)(1): Requirements for protective systems. (a)

   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 the ground by a competent person provides no

   indication of a potential cave-in.

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Respondent’s crew was engaged in the installation of sewer lines 12 feet beneath the

ground in an excavated trench. The cited standard clearly applies. The trench was 6 feet deep

where two of Respondent’s laborers had been working just moments before OSHA’s arrival,

with walls measuring between 75 degrees and 90 degrees. They were cutting previously

installed pipe which, pursuant to Appendix A to Subpart P of Part 1926, required the surrounding

soil to be classified as either Type B or Type C soil. The court accepts Foreman Farrell’s on-site

conclusion that the soil in the area was Type C soil. Regardless, trench walls ranging between

75 degrees and 90 degrees failed to meet the minimum requirements for either Type B or Type C

soil at that depth and there was no evidence of any alternative method used to protect employees

while they were cutting the pipe. The preponderance of the evidence establishes that Respondent

failed to implement an acceptable excavation protection method for its employees as proscribed

by 29 C.F.R. §1926.652(a)(1) and Appendix B to Subpart P of Part 1926. The cited standard

was violated.

   To establish employee exposure to a violative condition, Complainant must prove that it

was reasonably predictable that employees “will be, are, or have been in the zone of danger”

created by a violative condition. Fabricated Metal Products, 18 BNA OSHC 1072, 1995-1997

CCH OSHD &31,463 (No. 93-1853, 1997); Gilles & Cotting, Inc., 3 BNA OSHC 2002, 1975-76

CCH OSHD ¶20,448 (No. 504, 1976). Laborers Jason Farrell and Jerry Magellan were exposed

to the violative condition of the excavation for approximately 10 minutes while cutting pipe on

the day of the inspection.

   Foreman Farrell was present, observed the conditions of the excavation, and directed the

two laborers to enter and cut the previously installed pipe. To establish employer knowledge, an

employer does not have to possess knowledge that a particular condition violated the Act or its

regulations, just knowledge that the condition existed. Shaw Construction, Inc., 6 BNA OSHC

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1341, 1978 CCH OSHD &22,524 (No. 3324, 1978). His knowledge of the condition of the

excavation is imputed through him to the Respondent. A.P. O’Horo Co., 14 BNA OSHC 2004,

1991 CCH OSHD &29,223 (No. 85-0369, 1991).

   In determining whether a violation is serious, the issue is not whether an accident was

likely to occur; it is rather, whether the result would have been death or serious harm if an

accident had occurred. Whiting-Turner Contracting Co., 13 BNA OSHC 2155, 1989 CCH

OSHD ¶28,501 (No. 87-1238, 1989). Complainant has determined that “excavation work is one

of the most hazardous types of work done in the construction industry [and] [t]he primary type of

accident of concern in excavation-related work is [the] cave-in.” Mosser Construction, Inc., 23

BNA OSHC 1044, 2010 CCH OSHD ¶33,049 (No. 08-0631, 2010). Failure to comply with the

minimum levels of protection in the excavation standard could result in trench collapses and

serious physical harm to employees. Id. The violation was serious.

   CSHO Vojtech testified that this violation was willful because “the foreman and the

competent person for the trench knew that the trench needed cave-in protection, that the

employees were exposed to a hazard, and that he directed the employees to work in the trench

anyways because he needed to get the job done. He was blocking the company’s driveway, and

he needed to get that section of pipe in that day.” (Tr. 59). This testimony focuses on the prima

facie elements required for any violation of the Act, not necessarily a willful violation.

Numerous cases “make it 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). To negate

willfulness, the employer’s good faith efforts or belief must be objectively reasonable under the

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circumstances. Caterpillar Inc., 17 BNA OSHC 1731, 1733 (No. 93-373, 1996), aff’d 122 F.3d

437 (7th Cir. 1997).

    The court credits Foreman Farrell’s testimony that he did not know that the excavation

was 6 feet deep at the location where the employees cut the pipe. His testimony is corroborated

by OSHA’s own investigative photographs, which reveal that the depths of the excavation at the

time ranged from as shallow as 3 feet in some locations, to between 5 and 6 feet near the location

of the pre-existing pipe. (Ex. C-22, C-26). Respondent’s undisputed testimony establishes that

for the previous month at this jobsite, Respondent’s crew had been consistently using trench

boxes to protect employees from excavation hazards, sometimes using multiple trench boxes

stacked vertically when the depth of the trench warranted it. Considering the totality of the

circumstances, the court is not convinced that Respondent’s actions in relation to this violation

demonstrated plain indifference to employee safety or a conscious disregard for the requirements

of the Act. Complainant failed to establish that the violation was properly characterized as a

willful violation.

    Complainant alleged, alternatively, that Citation 2 Item 1 was a repeat violation, which

requires proof that: (1) the same employer, (2) was cited at least once before, (3) for a

substantially similar violation of the Act, and (4) the prior citation became a final order. Bunge

Corp. v. Secretary of Labor, 638 F.2d 831 (5th Cir. 1981). Complainant makes a showing of

“substantial similarity” by establishing that the past and present violations are for failure to

comply with the same standard. Potlatch Corp., 7 BNA OSHC 1061 (No. 16183, 1979). The

burden then shifts to Respondent to rebut that showing. Monitor Construction Co., 16 BNA

OSHC 1589 (No. 91-1807, 1994). “In cases where the Secretary shows that the prior and present

violations are for an employer’s failure to comply with the same specific standard, it may be

difficult for an employer to rebut the Secretary’s prima facie showing of similarity.” Potlatch,

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supra.

     Complainant established a rebuttable presumption that Citation 2 Item 1 was a repeat

violation by proving that Respondent received a citation for a violation of the same standard in

2009, which became a final order on January 12, 2010 pursuant to Section 10(b) of the Act.

Complainant also introduced undisputed evidence which established that Respondent had

received citations for violations of the exact same standard in 2008 and 2004, both of which were

resolved through Informal Settlement Agreements with local area OSHA offices. (Ex. C-32).

Respondent failed to rebut the presumption that Citation 2 Item 1 was a repeat violation.

Potlatch, supra. Accordingly, Citation 2 Item 1 will be MODIFIED from a willful violation to a

repeat violation, and AFFIRMED.

                                         Penalty

     In calculating the appropriate penalty for affirmed 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).

     It is well established that the Commission and its judges conduct de novo penalty

determinations and have full discretion to assess penalties based on the facts of each case and the

applicable statutory criteria. Allied Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975);

Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995). Based on the totality of the

circumstances in this case, including the exposure of two employees to an unsafe trench for

approximately ten minutes, Respondent’s status as a small employer (61 employees), and

Respondent’s history of violating the provisions of 29 C.F.R. §1926.652(a)(1) three times

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previously in 2009, 2008, and 2004, the court assesses the penalty for Citation 2 Item 1 at

$40,000.00.

                                     ORDER

    Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED

that:

    1. Citation 1 Item 5 is VACATED; and

    2. Citation 2 Item 1 is MODIFIED to a repeat violation, AFFIRMED as modified, and

a penalty of $40,000.00 is ASSESSED.

Date: June 21, 2011 __/s/__________
Denver, Colorado PATRICK B. AUGUSTINE
Judge, OSHRC

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