Hubbard Construction

Read the official release (oshrc.gov)

Plain-English summary

Hubbard Construction installed storm-water pipe in a trench beside a heavily traveled highway. After the crew encountered a utility line, the foreman removed the trench box and directed two employees to work for several minutes in a six-foot-deep Type C excavation with slopes steeper than permitted. The judge allowed OSHA to correct factual errors in the citation because the parties fully tried the trench's actual dimensions and Hubbard was not prejudiced. A prior final citation for the same standard supported a repeat classification, and OSHA's five-year repeat lookback was lawful. The repeat item was affirmed with a $25,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1)
• Outcome: The repeat cave-in-protection item was affirmed with a $25,000 penalty.
• Key point: Encountering a utility line does not permit a competent person to remove a trench box and send employees into an excavation that lacks another compliant protective system.

Full text (OSHRC public release)

                             United States of America
              OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                        1120 20th Street, N.W., Ninth Floor
                          Washington, D.C. 20036-3457

SECRETARY OF LABOR,

            Complainant,

                  v.                                     OSHRC Docket No. 11-3022

HUBBARD CONSTRUCTION COMPANY,

             Respondent.

APPEARANCES:

  Lydia J. Chastain, Esquire, U.S. Department of Labor
          Atlanta, Georgia
          For the Complainant.

  Geoffrey D. Ringer, Esquire, Ringer, Henry, Buckley & Seacord, P.A.
         Orlando, Florida
         For the Respondent.

BEFORE: William S. Coleman
Administrative Law Judge

                           DECISION AND ORDER
  This proceeding is before the Occupational Safety and Health Review

Commission (Commission) under § 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) inspected a worksite of the Respondent, Hubbard Construction

Company (Hubbard), on September 12, 2011. The site was a road construction project

involving U.S. Highway 19 in Clearwater, Florida. The inspection resulted in OSHA
issuing to Hubbard a one-item repeat citation that alleged a violation of OSHA’s

excavations standard. Hubbard contested both the citation and the proposed penalty of

$38,500. The hearing took place in Tampa, Florida, on October 4, 2012. Post-hearing

briefing was completed on December 21, 2012.

   For the reasons described below, the repeat citation is affirmed and a penalty is

assessed in the amount of $25,000.

                                      Jurisdiction
   Hubbard timely filed a notice of contest and thus the Commission has jurisdiction

over this matter pursuant to § 10(c) of the Act, 29 U.S.C. § 659(c).

   Hubbard admits that at the time of the inspection on September 12, 2011, it was

an “employer” engaged in business affecting commerce with employees as defined in §

3(5) of the Act, 29 U.S.C. § 652(5). (Answer, December 21, 2011). Hubbard was thus

subject to the requirements of the Act.

                                 Findings of Fact
   Four witnesses testified at the hearing: (1) Brian Robinson, the OSHA

Compliance Safety and Health Officer (“CO”) whose inspection of the worksite resulted

in the issuance of the citation; (2) Keven Yarbrough, the OSHA Acting Area Director in

the Tampa, Florida office; (3) Rex Roberts, an Environmental Health and Safety Manager

for Hubbard; and (4) Joseph Etter, Hubbard’s Environmental Health and Safety Director,

and also its Risk Manager. (Tr. 19, 186, 247, 259). The following findings of fact are

based on their testimony and the exhibits received in evidence.

   On September 12, 2011, CO Brian Robinson conducted a programmed inspection

of Hubbard’s worksite at a road construction project involving a two-mile segment of

U.S. Highway 19 in Clearwater, Florida. Hubbard was the general contractor for the

                                           2

project. (Tr. 36).

    Part of the project entailed creating a trench excavation for the installation of an

underground pipe for storm water. (Tr. 249). The trench that is the subject of the citation

ran in a north-south axis along the west side of the highway. The sections of pipe were

approximately eight feet in length and two feet in diameter, and were being installed on a

southerly course. At the time of the inspection, about fifteen installed sections of pipe lay

exposed on the floor of the open trench, with the most recently installed section of pipe

situated at its southern terminus.

    No persons were in the trench when the CO arrived to inspect the trench; two

Hubbard employees, J.P. and D.G., were standing nearby. (Tr. 42). The backhoe used to

create the excavation was situated at the south end of the trench with its engine running,

as if poised to continue the digging the excavation southward. A single trench box was

on site and was positioned outside the trench.

    The area of the trench that is most relevant to the citation is the location of the

last-installed pipe section as of the time of the inspection. For the reasons that are

described below, this section of the excavation is referred to hereinafter as the

“Unshielded Area.”1

    The soil in the trench was Type C soil as defined in Appendix A to Subpart P of

29 C.F.R. Part 1926. (Exh. C-4; Tr. 54-55). The width of the trench was approximately

seventeen feet. (Exhs. C-10 and C-11; Tr. 94). The width of the trench floor was about

six feet, including the width of the pipe, which was not centered on the trench floor, but

rather was offset toward the western slope. Thus, the distance between the pipe and east

1
  The Unshielded Area is depicted in Exhibit C-1 as being that part of the trench beginning at

the blue extension ladder and continuing to the end of the trench at the bottom of the photo.
3
slope was about three feet, and the distance between the pipe and the west slope was

about one foot.2 The depth of the trench was about six feet and two inches. (Tr. 71;

Exhs. C-10 and C-11). The angle from horizontal of the west slope was around 48.8

degrees. (Tr. 71; Exhs. C-10 and C-11). The angle from horizontal of the short south

slope, at the end of the trench, was around 33.7 degrees. (Ex. C-10; Tr. 85). The angle

from horizontal of the east slope was about 33.9 degrees.3 However, at a point about two

to three feet above the trench floor, a “cut” had been dug out of the east slope that

resulted in a somewhat irregular surface, and with a slope angle throughout that was

steeper than 34 degrees and that in spots was near vertical. (Exhs. C-1, C-2, C-5).

    There was not enough terrain along the route of the pipeline to accommodate an

excavation with slopes no steeper than 34 degrees for all sides of the trench. Because of

this, Hubbard had used the trench box as a protective system for employees who were

entering and working in the trench during the installation of all sections of the pipeline in

areas outside of the Unshielded Area. (Tr. 62; Exhs. C-1 and C-2).

    In the course of creating the trench in the Unshielded Area, an underground utility

line was encountered at a depth of about three feet. This line traversed the trench on a

diagonal path from northeast to southwest; it was about three inches in diameter and was

flexible and hose-like in appearance. (Exhs. C-1 and C-2). It was lying on top of the

2
  The CO did not enter the trench and did not measure the trench floor. The findings as to the

distances between the pipe and the opposite sides of the trench are based on the scale of the two-
foot diameter pipe relative to the trench floor as reflected in Exhibits C-1, C-2, and C-9.
3
The findings in this paragraph respecting the slope angles and depth in the Unshielded Area
are based upon the CO’s testimony regarding the measurements he made using certain
instruments. After the inspection, Hubbard conducted independent measurements of the
Unshielded Area. Hubbard has not challenged the accuracy of the CO’s measurements. (Tr. 105,
107, 250).
4
last-installed section of pipe at the point of intersection at the time of the inspection.4

(Exhs. C-1, C-2, C-5, C-6, and C-9).

    Hubbard’s foreman overseeing the installation of the pipe also functioned as its

designated “competent person” as defined in 29 C.F.R. § 1926.650(b). (Ex. 14, Response

to Req. for Admis. No. 4; Tr. 249). Upon encountering the traversing utility line, the

foreman determined not to use the trench box for the installation of the last-installed pipe

section, and the trench box was removed from the trench. (Tr. 78, 95). The foreman

instructed two of Hubbard’s employees to enter the Unshielded Area to continue the

installation without the use of the trench box or other protective system. (Tr. 69-70, 89-

90, 95).

    During the inspection the foreman told the CO that (1) the trench was being dug

in Type C soil, (2) the trench was six feet deep, (3) the pipe being installed was two feet

in diameter, (4) he had used the trench box in the excavation until he encountered the

conflict with the traversing utility line in the Unshielded Area, at which point he caused

the trench box to be removed from the excavation, (5) he had 30 years of experience in

doing similar work, (6) he thought the trench was safe when he instructed the two

employees to enter the trench to install the pipe section without the trench box in place,

and (7) the two employees had worked in the Unshielded Area without the protection of

the trench box for five or six minutes. (Ex. C-11; Tr. 87-95).

    In the CO’s interviews with the two employees who had worked in the

Unshielded Area, each confirmed having complied with the foreman’s instructions to

4
  Also, four additional underground utility lines were embedded about three to four feet deep

near the surface of the western slope, but these lines were routed parallel to the path of the
pipeline and did not cross the trench. (Exh. C-6).
5
enter and work in that area without the use of the trench box.5

   As a result of the inspection, the Complainant issued to Hubbard a single item

citation alleging a repeat violation of the standard set forth in 29 C.F.R. § 1926.652(a)(1).

                                    The Citation
   The citation alleges a repeat violation of the cited standard 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 29 CFR 1926.652(c). The employer had not
        complied with the provisions of 29 CFR 1926.652(b)(1)(i) in that the
        excavation was sloped at an angle steeper than one and one half
        horizontal to one vertical (34 degrees measured from the horizontal):
           (a) Employees working in a 8 foot deep trench were exposed to a
               crushing hazard in that, the east side of the trench where the
               crew was working was sloped at 48.8 degrees. The west side
               of the trench was sloped at 38 degrees in type C soil. No
               protective system was provided for workers in the trench.
         Hubbard Construction was previously cited for a violation of this
         occupational safety and health standard 29 CFR 1926.652(a)(1)
         which contained inspection number 310607981 citation 1 item 1 and
         was affirmed as a final order on 10/16/07, with respect to a work
         place located at Colonial Rd & Daniels Rd Winter Garden, FL 34777.

               The Complainant’s Motion to Amend the Citation
   Hubbard’s initial challenge to the citation relates to the erroneous description of

the trench’s depth, slope angles, and directional orientation as established by the

evidence. As described above, (1) the trench was approximately six feet deep (not eight

feet as alleged), (2) the west side of the trench had a slope of 48.8 degrees (not the east

side as was alleged), and (3) a portion of the opposite side of the trench (the east, not the

west side as alleged) had a slope of 33.9 degrees (not 38 degrees as alleged). Moreover,

5
No evidence was presented as to whether either of the employees stated how long they had
been in the Unshielded Area, or precisely where they were positioned in that area. Similarly, no
evidence was presented as to whether they had received any special instructions from the foreman
regarding their activities or positioning while in the Unshielded Area.
6
the description of the trench in the citation made no mention of the east side of the trench

having a “cut” that caused the lower part of that slope to be steeper than 34 degrees.

    Hubbard argued in its post-hearing brief that the citation should be vacated

because “the proof does not match the allegations” and that “the Secretary has never

moved to amend the pleadings to conform to the evidence.” (Resp’t Br. p. 7). The

Complainant’s post-hearing brief stated that “[t]o the extent necessary to clarify the

record,” the Complainant requested that the citation’s alleged violation description “be

amended to reflect the evidence as developed at the hearing” as follows:

        Employees working in a 6 foot deep trench in type C soil were exposed to a
    crushing hazard in that, one side of the trench where the crew was working was
    sloped at 48.8 degrees. The other side of the trench had a three foot tall
    unsupported vertical cut to the floor of the trench, and was sloped at 33.9 degrees
    above the cut. No protective system was provided for workers in the trench.

(Complainant’s Br. p. 22). Hubbard challenges the proposed amended description,

asserting that such an amendment would be “futile” because the evidence failed to

support all particulars of the proposed amended allegations. (Resp’t Reply Br. p. 1).

    For the reasons described below, Hubbard’s request to vacate the citation is

denied, and the citation is amended to conform to the evidence in accordance with Rule

15(b)(2) of the Federal Rules of Civil Procedure.

    Commission Rule 34(a), 29 C.F.R. § 2200.34(a), requires that a complaint set

forth “with particularity … [t]he time, location, place, and circumstances” of each alleged

violation. In this case, the complaint incorporated by reference the flawed alleged

violation description set forth in the citation.

    The standards by which administrative pleadings are assessed in proceedings

before the Commission were stated in General Dynamics Land Systems Div. Inc., 15

BNA OSHC 1275, 1279 (No. 83-1293, 1991) (internal citations omitted):

                                            7

It is well settled that administrative pleadings are to be liberally
construed and easily amended. This has been particularly true for citations
issued under the Act, which are drafted by non-legal personnel who are
required to act with dispatch. To inflexibly hold the Secretary to a narrow
construction of the language of a citation would unduly cripple
enforcement of the Act.
That administrative pleadings are to be liberally construed does not,
however, obviate the need for particularity in the statement of the charge
against the employer. Administrative pleadings must afford the employer
a fair opportunity to prepare and present a defense. A citation must be
drafted with sufficient particularity to inform the employer of what it
allegedly did wrong and that it must either contest the Secretary's
allegations or pay the proposed penalty.

   In proceedings before the Commission, Rule 15(b)(2) of the Federal Rules of

Civil Procedure governs the amendment of pleadings after hearing. Nordam Grp., 19

BNA OSHC 1413, 1414 (No. 99-0954, 2001). Rule 15(b)(2) provides as follows:

      For Issues Tried by Consent. When an issue not raised by the
   pleadings is tried by the parties’ express or implied consent, it must be
   treated in all respects as if raised in the pleadings. A party may move – at
   any time, even after judgment – to amend the pleadings to conform them
   to the evidence and to raise an unpleaded issue. But failure to amend does
   not affect the result of the trial of that issue.

   Rule 15(b)(2) is mandatory, not merely permissive, “in requiring that issues that

are tried, though not raised in the pleadings, be treated as if they were raised in the

pleadings.” Ostano Commerzeanstalt v. Telewide Sys., Inc., 880 F.2d 642, 646 (2d Cir.

1989). Thus, “[w]hen issues not mentioned in the complaint … are nevertheless litigated

with the consent of the parties, the complaint is … simply an irrelevance so far as those

issues are concerned.” Torry v. Northrup Grumman Corp., 399 F.3d 876, 878 (7th Cir.

2005) (Posner, J.).

   Amendment under Rule 15(b)(2) “is proper only if two findings can be made –

that the parties tried an unpleaded issue and that they consented to do so.” McWilliams

Forge Co., Inc., 11 BNA OSHC 2128, 2129 (No. 80-5868, 1984) (emphasis in original).

                                        8

“Trial by consent may be found only when the parties knew, that is, squarely recognized,

that they were trying an unpleaded issue.” Id. at 2129-30 (emphasis added).

      For purposes of this analysis, the undersigned will assume that the disparity

between the allegations and the evidence as to (1) the directional orientation of the

trench, (2) the depth of the trench, (3) the angle of one of the slopes of the trench, and (4)

the presence of a “cut” in one of the slopes, each constitutes “an issue not raised by the

pleadings” within the meaning of Rule 15(b)(2).6 The only reasonable view of the record

is that the parties (1) actually tried those issues, and (2) impliedly consented to do so.

      It was abundantly clear from the very outset of the hearing that both parties

recognized that the citation contained flawed allegations of fact regarding depth and slope

angles. The opening statement of counsel for the Complainant foreshadowed the

discrepancy between the allegations of the citation and the expected evidence to be

presented. (Tr. 12-13). Similarly, Hubbard’s counsel addressed the discrepancies head-

on in his opening statement. (Tr. pp. 15-16). The discrepancies were thoroughly

explored in the course of the one-day hearing, which is to say they were “actually tried.”

Further, the parties without question “squarely recognized” that the matter being tried

was the configuration of the trench as described by the CO in his testimony, and not as

was erroneously described in the citation.

6
  These specific matters might be more correctly viewed simply to be erroneously pleaded

allegations of fact (not unpleaded issues of fact) that related to the pleaded issue of whether the
trench met the cited standard. Considered in such a light, these erroneous allegations would not
constitute “an issue not raised by the pleadings” within the meaning of Fed. R. Civ. P. 15(b)(2),
and there would be no cause to consider whether such allegations of fact were tried by consent.
Rather, the adequacy of the complaint would be evaluated solely against the standard described in
General Dynamics. The complaint meets that standard in that it was “drafted with sufficient
particularity to inform the employer of what it allegedly did wrong.” Id. at 1279.
9
 The erroneous allegations of the citation did not prejudice Hubbard in the

presentation of its defense. Hubbard points to no evidence it would have presented if the

citation had been more accurately drafted. It does not assert that the erroneous

allegations had any adverse effect on the manner of its presentation of its case or on its

theory of defense. Hubbard had a full and fair opportunity to present a defense.

    Accordingly, the issues respecting the configuration of the trench that varied from

the allegations of the citation must be treated as if they had been raised by the pleadings

pursuant to Rule 15(b)(2). The Secretary’s motion to amend the citation in the manner

requested is therefore granted.7, 8

                                  The Cited Standard
    The cited standard, 29 C.F.R. § 1926.652(a)(1), provides:
         (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.

    Paragraph (b) of § 1926.652, which is referred to within the cited standard,

provides in pertinent part as follows:

         (b) Design of sloping and benching systems. The slopes and
         configurations of sloping and benching systems shall be selected and

7
   The granting of the motion to amend does not amount to a finding that all matters alleged

through the amendment were necessarily proven by a preponderance of the evidence. As
reflected by the findings of fact above, the weight of the evidence does not support a finding that
the cut in the eastern slope resulted in a three-foot high vertical lower section of the east slope in
the Unshielded Area.
8
The Complainant is reminded that the Commission disapproves of the practice of
interposing a motion to amend the pleadings in a brief, and that the proper method of seeking
such a post-hearing amendment is by separate written motion. See McWilliams Forge, 11 BNA
OSHC at 2131. In this case, no prejudice resulted to Hubbard because it was able to respond to
the Complainant’s request in its reply brief.
10
 constructed by the employer or his designee and shall be in
accordance with the requirements of paragraph (b)(1); or, in the
alternative, paragraph (b)(2); or, in the alternative, paragraph (b)(3),
or, in the alternative, paragraph (b)(4), as follows:
(1) Option (1)—Allowable configurations and slopes. (i)
Excavations shall be sloped at an angle not steeper than one and one-
half horizontal to one vertical (34 degrees measured from the
horizontal), unless the employer uses one of the other options listed
below.
(ii) Slopes specified in paragraph (b)(1)(i) of this section, shall be
excavated to form configurations that are in accordance with the
slopes shown for Type C soil in appendix B to this subpart.
(2) 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.

   Paragraph (c) of the § 1926.652, which is also referred to within the cited

standard, sets forth design options for various protective systems, including shield

systems such as a trench box.

                      The Complainant’s Burden of Proof
   To prove a violation of an OSHA standard, the Complainant must show by a

preponderance of the evidence that: (1) the cited standard applies; (2) its terms were not

met; (3) employees had access to the violative condition; and (4) the employer either

knew or could have known with the exercise of reasonable diligence of the violation.

Astra Pharm. Prod., Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in

relevant part, 681 F.2d 69 (1st Cir. 1982).

                       Whether the Cited Standard Applies
   To establish that 29 C.F.R. § 1926.652(a)(1) applies to the trench, the

Complainant must show that employees were working in an excavation more than five

feet deep, unless the excavation was dug in stable rock. The depth in the Unshielded

Area was approximately six feet and two inches. Hubbard’s employees were performing

                                          11

work while inside the trench. The Complainant has established that 29 C.F.R. §

1926.652(a)(1) applies.

               Whether the Terms of the Cited Standard Were Met
   Hubbard did not meet the terms of the standard as to work done by employees

within the Unshielded Area of the trench. In order to meet the cited standard in Type C

soil without the use of a protective system such as a trench box, the slopes of the trench

were required to be no steeper than 34 degrees from horizontal. Moreover, any

excavation in Type C soil with a slope that does not exceed 34 degrees, but that has any

vertically sided lower portion, must be shielded or supported to a height at least 18 inches

above the vertical side. See Figure B-1.3 in Appendix B to Subpart P of Part 1926. The

configuration of the trench in the Unshielded Area failed to meet these standards.

   With a slope angle of 48.8 degrees, the west slope caused the trench to fail to

conform to the minimum slope angles for an unsupported or unshielded trench in Type C

soil. Moreover, the east slope of the Unshielded Area likewise caused the trench to fail to

conform to the minimum slope angle for an unsupported or unshielded trench in Type C

soil -- the irregular surface of the cut resulted in a slope greater than 34 degrees

throughout the part of the slope where the cut had been dug out. This rendered the trench

non-conforming to the cited standard absent the use of a support or shield system.

   The Complainant has established that the terms of 29 C.F.R. § 1926.652(a)(1)

were not met.

            Whether Employees Had Access to the Violative Condition
   Employee access to a violative condition may be shown through either actual

employee exposure, or by showing that “while in the course of their assigned working

duties . . . [employees] will be, are, or have been in a zone of danger.” Gilles & Cotting,

                                        12

Inc., 3 BNA OSHC 2002, 2003 (No. 504, 1976). The test of whether an employee would

have access to the “zone of danger” is based on “reasonable predictability.” Id.; Kokosing

Constr. Co., Inc., 17 BNA OSHC 1869, 1870 (No. 92-2596, 1996) (citation omitted).

   Hubbard argues that “the exposure of the employees to any hazard was minimal at

best” because (1) “the majority of the footprints were on the eastern side, away from the

steeper western slope,” (2) “some of the footprints were on top of the two foot diameter

pipe,” and (3) the “employees who worked in the trench were only present for

approximately five to six minutes.” (Resp’t Br. pp. 4-5).

   The Complainant has established employee access to the violative condition

through proof of actual exposure for a period of five to six minutes. Contrary to

Hubbard’s assertion, most of the boot prints were nearer to the steeper western slope,

particularly the boot prints on the top of the installed pipe, which nearly abuts the western

slope in parts of the Unshielded Area. (See Exhs. C-1, C-2, C-5, C-9). The employees

were actually exposed to a cave-in hazard while present in the locations established by

their boot prints in the Unshielded Area, as well as every other location within the

Unshielded Area in which they were necessarily present in the course of installing the

pipe section.

   Hubbard’s seeming suggestion that exposure to the violative condition was

obviated or mitigated when an employee was standing on the two-foot diameter pipe that

had been installed in the six-foot trench, is rejected. One court has harshly criticized a

similar argument as follows:

       The safety standard is implicated by the depth of a particular trench,
       without regard to an individual worker’s precise position in it. The
       notion that having workers stand on a laid pipe within a trench is a
       satisfactory method of protecting them from the risk of cave-ins is

                                         13

nonsense.… [T]he regulations … allow employers to choose from a
limited universe of acceptable procedures, not to jury-rig convenient
alternatives and impose them on an imperilled [sic] work force.

P. Gioioso & Sons, Inc. v. OSHRC, 115 F.3d 100, 109 (1st Cir. 1997) (citing Ford Dev.

Corp., 15 BNA OSHC 2003, 2011, aff’d, 16 F.3d 1219 (6th Cir. 1994)). The Secretary

has proven that employees had access to the violative condition.

   Hubbard’s contention that “the exposure of employees to any hazard was minimal

at best,” even if accepted as accurate, is no defense to the “employee access” element of

an alleged violation. The cited standard, 29 C.F.R. § 1926.652(a)(1), is a specific

“occupational safety and health standard” as defined by section 3(8) of the Act, 29 U.S.C.

§ 652(8), that was promulgated pursuant to section 6(b) of the Act, 29 U.S.C. § 655(b).

Such a specific occupational safety and health standard “presupposes the existence of a

hazard when its terms are not met.” Del-Cook Lumber Co., 6 BNA OSHC 1362, 1365

(No. 16093, 1978). The Complainant “is not required to prove that noncompliance with

these standards creates a hazard in order to establish a violation.” Austin Bridge Co., 7

BNA OSHC 1761, 1766 (No. 76-93, 1979).

                 Whether Hubbard Had Knowledge of the Violation
   To establish employer knowledge, the Secretary must prove that the employer

knew or, with the exercise of reasonable diligence, could have known of the conditions

constituting the violation. Contour Erection & Siding Sys., Inc., 22 BNA OSHC 1072,

1073 (No. 06-0792, 2007). The actual or constructive knowledge of its supervisors and

foremen is generally imputable to the employer. Rawson Contractors Inc., 20 BNA

OSHC 1078, 1080-81 (No. 99-0018, 2003); A.P. O’Horo Co., 14 BNA OSHC 2004,

2007 (No. 85-369, 1991).

                                       14

Hubbard’s foreman at the worksite served also as the designated “competent

person,” as defined in 29 C.F.R. § 1926.650(b). In the course of the inspection, the

foreman told the CO that the trench was being dug in Type C soil, that it was six feet

deep, and that a trench box had been used in the trench up to the time that the utility line

that crossed the trench was encountered. The foreman told the CO that he instructed the

employees to continue the installation without using the trench box. The actual use of the

trench box up to the time of the utility line issue establishes that the foreman had actual

knowledge that the trench was not sufficiently sloped to comply with the cited standard

and that the use of some support or shield system was necessary to conform to the

standard. The foreman’s actual knowledge of the violation is imputed to Hubbard. The

Complainant has established Hubbard’s knowledge of the violative condition.

                       Affirmative Defense of Infeasibility
   Hubbard did not interpose the affirmative defense of “infeasibility” in its Answer

to the Complaint and did not seek to amend its Answer before or during the hearing.

   In Hubbard’s post-hearing brief, Hubbard argued for the first time that

compliance with the standard in the Unshielded Area was infeasible because of the

interference of the utility line. After filing that brief, Hubbard filed a “Motion to Amend

Affirmative Defenses” to assert “the affirmative defense that compliance with the cited

standard was infeasible.” The Complainant opposes the motion to amend.

   When an OSHA standard “states a specific method of complying, an employer

seeking to be excused from liability for its failure to comply with the standard has the

burden of demonstrating that the action required by the standard is infeasible under the

circumstances cited.” State Sheet Metal Co., 16 BNA OSHC 1155, 1160 (No. 90-1620,

1993)(consolidated). An employer who raises the affirmative defense of infeasibility has

                                        15

the burden to prove that “(1) literal compliance with the requirements of the standard was

infeasible under the circumstances and (2) either an alternative method of protection was

used or no alternative means of protection was feasible.” Id. (emphasis in original).

   The legal standards applicable to Hubbard’s motion to amend the pleadings after

hearing are set forth above in connection with the discussion of the Complainant’s

motion to amend the complaint. Here, it would be improper to grant Hubbard’s motion

because the parties neither tried the issue of infeasibility nor impliedly or expressly

consented to do so. McWilliams Forge Co., Inc.

   Moreover, even if Hubbard were allowed to amend its Answer post-hearing, the

evidence presented at the hearing was insufficient to support even a prima facie case of

the infeasibility defense.

   Accordingly, Hubbard’s post-hearing request to interpose an infeasibility defense

fails on both procedural and substantive grounds. Hubbard’s motion to amend is denied.

                         “Repeat” Classification of Violation
   A violation may be deemed a repeat violation “if, at the time of the alleged

repeated violation, there was a Commission final order against the same employer for a

substantially similar violation.” Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183,

1979). A prima facie case of substantial similarity may be established “by showing that

the prior and present violations are for failure to comply with the same standard.” Id.

   The violation occurred on September 12, 2011. The Secretary alleges that it is a

repeat violation because a citation had been issued against Hubbard on November 9,

2006, that charged a “serious” violation of the same standard involved here that occurred

on October 30, 2006 in Winter Park, Florida. The citation in the prior case alleged that

Hubbard’s employees were working in an unprotected excavation that was sloped at an

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angle steeper than the 34-degree maximum allowed by § 1926.652(b)(1)(i). The parties

settled the prior citation as an “other than serious” violation through an informal

settlement agreement dated December 1, 2006, which became a final order on October

16, 2007. (Ex. C-14, Resp’t Resp. to Req. for Admis. No. 14).

   Both the prior and present violations were of the same standard. In both cases,

Hubbard caused its employees to perform work in an unprotected excavation with a slope

that was steeper than the maximum permissible angle of 34 degrees measured from

horizontal. (Ex. C-12). The Complainant has established that the present violation is

substantially similar to the 2006 violation.

   Hubbard challenges the “repeat” classification because the present violation

occurred more than three years after the date of the final order of the prior violation.

Until October 1, 2010, the Complainant’s policy had been to consider a violation to be a

“repeat” only if it occurred within three years of the either final order date or the final

abatement date of a prior violation, whichever was later. This policy has been set forth in

OSHA’s Field Operations Manual (FOM).

   In September 2010, the Complainant announced that effective October 1, 2010,

this three-year time frame would be expanded to five years. (Ex. A). The Complainant’s

articulated reason for this expansion of the time frame (as well as for other changes to the

administrative penalty calculation system) was that the former policies had resulted “in

penalties which were often too low to have an adequate deterrent effect.” (Ex. A).

   Hubbard argues that the Complainant’s change of policy is arbitrary and

capricious and thus unlawful under the judicial review provisions of the Administrative

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Procedure Act (APA), specifically 5 U.S.C. § 706(2)(A),9 because the Complainant

“failed to provide any reason or explanation whatsoever for the Agency’s departure from

its prior policy of looking back only three years for repeat violations.” (Resp’t Br. p. 9).

Hubbard contends that it is unlawful to classify the instant violation as a repeat by

application of the expanded five-year time frame.

    Hubbard’s assertion that the Complainant provided no reason or explanation for

the change in policy is simply incorrect. In the public announcement of the change, the

Complainant articulated a reason for the change -- to enhance the deterrent effect of

penalties. See Exhibit A.

    An agency’s change in policy in the enforcement of the statute it administers will

withstand scrutiny against a claim of arbitrariness or capriciousness under 5 U.S.C. §

706(2)(A) if the new policy “is permissible under the statute, that there are good reasons

for it, and that the agency believes it to be better, which the conscious change of course

adequately indicates.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515, 129

S.Ct. 1800, 1811 (2009) (emphasis in original).

    The Complainant’s articulated reason meets this standard. Expanding the time

frame for a potential repeat violation from three years to five years is permissible under

the Act because “the time between violations does not bear on whether a violation is

repeated” under section 17(a) of the Act, 29 U.S.C. § 666(a). Hackensack Steel Corp., 20

BNA OSHC 1387, 1392 (No. 97-0755, 2003), quoting Jersey Steel Erectors, 16 BNA

OSHC 1162, 1168 (No. 90-1307, 1993). Moreover, OSHA materials such as the FOM

“are only a guide for OSHA personnel to promote efficiency and uniformity, are not

9
  Section 706(2)(A) requires that on judicial review of an agency action, “[t]he reviewing

court shall -- … hold unlawful and set aside agency action, findings, and conclusions found to be
-- (A) arbitrary, capricious, an abuse of discretion, or otherwise not according to law.”
18
binding on OSHA or the Commission, and do not create any substantive rights for

employers.” Id. (upholding a “repeat” classification even though prior violations

occurred beyond the three-year time frame then set forth in OSHA’s predecessor manual

to the current FOM).

   The Secretary’s classification of the violation as “repeat” based on a five-year

time frame was lawful. Hubbard’s assertions to the contrary are rejected.

                               Penalty Assessment
   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. Valdak Corp., 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995); Allied

Structural Steel, 2 BNA OSHC 1457, 1458 (No. 1681, 1975). The permissible range of

penalties for a repeat violation is from no penalty to $70,000. 29 U.S.C. § 666(a). The

Complainant seeks imposition of a penalty of $38,500.

   Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that in assessing penalties,

the Commission give “due consideration” to four criteria: the size of the employer’s

business, the gravity of the violation, the employer’s good faith, and its prior history of

violations. Specialists of the South, Inc., 14 BNA OSHC 1910 (No. 89-2241, 1990).

Gravity is the primary consideration among these four statutory criteria, and is

determined by “such matters as the number of employees exposed, the duration of the

exposure, the precautions taken against injury, and the likelihood that any injury would

result.” J.A. Jones Constr. Co., 15 BNA OSHC 2200, 2214 (No. 87-2059, 1993). The

matter of an employer’s “good faith” should take into account such factors as

“aggravated conduct, disregard of the Act, or flouting.” Potlatch Corp., 7 OSHC at 1064.

Further, with respect to assessing the penalty for a repeat violation, other factors to be

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considered are “an employer’s attitude (such as his flouting of the Act), commonality of

supervisory control over the violative condition, the geographical proximity of the

violations, the time lapse between the violations, and the number of prior violations.” Id.

   In regard to size, Hubbard is a relatively large employer with over 500 employees

(Tr. 96-97; Exh. C-11), and thus no reduction of the penalty for size would be

appropriate.

   As to good faith, Hubbard’s foreman and competent person on site made a

conscious decision to instruct the two employees to perform work in an unshielded and

unsupported trench that the foreman knew did not conform to the excavation standard.

The foreman professed to believe that the trench was “safe” for the employees to work in

without any shield or support system, but such belief by the designated competent person

on site was objectively unreasonable. Hubbard is thus due no reduction for “good faith.”

   As to history, Hubbard violated the same standard at another work place less than

five years before the prior violation. Hubbard is, consequently, due no reduction of the

penalty based on its history of violations. However, even though the prior violation was

finally adjudicated as “other than serious,” OSHA enhanced its proposed penalty by ten

percent on the mistaken understanding that it had been adjudicated as serious. (Tr. 219).

This enhancement was based on a plain error of fact and was inappropriate.

   The undersigned concludes that the violation of the cited standard is of high

gravity. The Commission observed in 1990 that “[t]rench cave-ins, which are frequently

caused by failure to comply with the Secretary’s trenching standards, have been for many

years one of the most severe problems in occupational safety,” and that in response to this

problem, OSHA established in 1985 a National Emphasis Program (NEP) respecting

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trench and excavation safety. Calang Corp., 14 BNA OSHC 1789, 1794 (No. 85-0319,

1990). That same NEP continues today. (Tr. 243-44). The continuation of the NEP that

was initiated in 1985 indicates that the failure to comply with the excavation standards

remains a serious problem in occupational safety today. See also Mosser Constr., 23

BNA OSHC 1044, 1046 (No. 08-0631, 2010) (“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”).

   Here, as in Calang Corp., the employer’s “[c]onscious disregard of OSHA

trenching requirements warrants a substantial penalty because the incidence of cave-ins is

high, and the likelihood of death or severe injury to employees in a collapsing trench is

also high.” Id. While the evidence established that the employees were exposed to the

violative condition for only five to six minutes, a trench can collapse without warning “in

the blink of an eye.” (Tr. 209). If a cave-in had occurred during the five to six minute

period of exposure, there would have been a “substantial probability that death or serious

physical harm could result.” (Tr. 205-212). See Illinois Power Co. v. OSHRC, 632 F.2d

25, 28 (7th Cir. 1980) (“[T]he language in Section 17(k) requiring a ‘substantial

probability that death or serious physical harm could result’ in order to find a serious

violation refers not to the probability that an accident will occur but to the probability

that, an accident having occurred, death or serious injury could result”).

   Factors that increased the probability of a cave-in occurring during the five to six

minute period of employee exposure included (1) the vibrations from the heavily-traveled

highway that ran parallel to and only about 20 feet away from the trench, (2) the

vibrations from the backhoe that was running when the CO arrived to inspect the trench,

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and (3) the fact that the Type C soil was previously disturbed, as reflected by the utility

line that crossed the path of the pipeline in the Unshielded Area, as well as the four utility

lines that were partially embedded in the 48.8-degree west slope.

   A factor that weighs in favor of assessing a lower penalty than that proposed by

the Complainant is the citation’s overstatements regarding the depth of the trench and the

slope angle of one side of the trench. It is likely that the OSHA officials who calculated

the proposed penalty presumed that the trench was configured as the citation erroneously

alleged. Such OSHA officials may well have mistakenly concluded that the violative

condition that was alleged posed a greater hazard to workers than the hazard that actually

was present.

   Considering all the factors described above, the undersigned determines that the

appropriate penalty to be assessed is $25,000.

                    Findings of Fact and Conclusions of Law
   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Federal Rule of Civil Procedure 52(a).

                                      ORDER

   Based on the above Findings of Fact and Conclusions of Law, it is ordered that

Repeat Citation 1, Item 1, alleging a violation of 29 C.F.R. § 1926.652(a)(1), is

AFFIRMED, and a penalty of $25,000 is assessed.

                                   /s/
                                   WILLIAM S. COLEMAN
                                   U.S. OSHRC JUDGE

Date: March 25, 2013
Washington, D.C.

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