Pan Oceanic Engineering Co., Inc.

Read the official release (oshrc.gov)

Plain-English summary

Pan Oceanic Engineering performed underground sewer repair work in Chicago. An employee entered an approximately 8-foot-10-inch trench without cave-in protection even though hydraulic shoring was beside the trench, and the company had five prior final citations involving the same cave-in protection standard. The judge found that the company's pattern of allowing employees into unprotected trenches showed institutional plain indifference and affirmed the violation as willful. A competent-person item was vacated as duplicative, another item was vacated as a discovery sanction, and an alleged undermined-pavement item was vacated for insufficient proof. The judge assessed a $50,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.651(k)(2); 29 C.F.R. § 1926.652(a)(1); 29 C.F.R. § 1926.651(i)(3)
• Outcome: One willful trench-protection item affirmed; three other items vacated; $50,000 total penalty assessed.
• Key point: Repeated final citations and knowingly allowing another employee to enter an unprotected trench supported a willfulness finding.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
OSHRC DOCKET NO. 14-0214
v.
PAN OCEANIC ENGINEERING CO., INC.,
Respondent.

     Travis Gosselin, Esq. and Catherine Homolka, Esq., Office of the Solicitor, U.S. Department of Labor,
     Chicago, Illinois
             For Complainant

     Matthew W. Horn, Esq. and William Klinger, Esq., SmithAmundsen, Chicago, Illinois
            For Respondent

Before: Administrative Law Judge Patrick B. Augustine

                                     DECISION AND ORDER

I.       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 Pan Oceanic Engineering (“Respondent”) worksite in Chicago,

Illinois on July 22, 2013. As a result of the inspection, OSHA issued a Citation and Notification

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

of the Act with penalties totaling $105,600.00. The Citation was issued on January 9, 2014.

Respondent timely contested the Citation.

     In its Answer, Respondent asserted the affirmative defense of unpreventable employee

misconduct. However, one day prior to trial, Respondent filed a motion seeking withdrawal of

                                                     1

this defense. See Respondent’s Motion to Withdraw Its Employee Misconduct Defense. The

motion was granted by the Court on the first day of trial. (Tr. 13).

       Trial in this matter commenced on Tuesday, January 27, 2015, in Chicago, Illinois. Only

three witnesses testified: Compliance Safety and Health Officer (CSHO) Drew Youpel, Pan

Oceanic foreman Jose Orozco, and Optimum Results consultant Jerry Prindiville. During the

course of CSHO Youpel’s testimony, he revealed Complainant failed to provide parts of the

investigative file that were responsive to a discovery request served by Respondent during the

pre-trial phase of this case. (Tr. 135, 140). In response to Respondent’s oral motion for

sanctions, the Court held a special proceeding1 and sanctioned Complainant by vacating one of

the citation items contained in the Citation. See Section IV, infra.

       At the conclusion of the trial, the parties timely filed briefs.

II.        Stipulations

       The parties entered into a series of stipulations regarding jurisdiction, previously issued

citations, and applicable statutes, regulations, and rules. In lieu of reproducing the entire set of

stipulations within the body of this Decision and Order, the Court shall note that the parties’

Revised Joint Stipulation Statement is appended to Volume 1 of the Official Transcript as Joint

Exhibit 1. Citations to the Joint Stipulations shall be referenced as “Ex. J-1”.

III.       Jurisdiction

       Pursuant to the parties’ Joint Stipulations in this matter, the Court has jurisdiction over

this proceeding pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.

§ 659(c). (Ex. J-1). The Joint Stipulations also state that Respondent is engaged in a business

affecting interstate commerce and has employees. (Ex. J-1). See also 29 U.S.C. § 652(c).

1. References to the Special Proceedings transcript shall be marked as “SP Tr.”.

                                                    2
   

   IV. Discovery Sanctions

    In response to CSHO Youpel’s testimony that he had taken more pictures than what
   

appeared in Complainant’s exhibit notebook, the Court directed Complainant’s counsel to review

the file at the close of that day’s evidence and determine whether all photos responsive to

Respondent’s discovery request had been provided. (Tr. 142–43). The next morning,

Complainant’s counsel represented to the Court that he had found fifteen additional photos in a

separate portion of the investigatory file. (Tr. 262). Complainant’s counsel provided those

photos to Respondent via email after he discovered them. (Tr. 260). After discussing the matter

with Complainant off the record, Respondent sought by oral motion to dismiss the Complaint

and vacate the Citation pursuant to Federal Rule of Civil Procedure 37(b)(2)(a)(v). (Tr. 263).

     Complainant’s counsel explained that when an OSHA case comes into the Solicitor’s

Office that includes penalties over $100,000, there is a pre-citation review. (Tr. 264). After the

case is reviewed by the Solicitor’s Office, the pre-citation file is sent back to OSHA. Several

months later, OSHA will send the Official Investigative File once a Notice of Contest is filed.

The Solicitor’s Office does not consider the pre-citation file complete, nor is it part of the

investigation or litigation file. (Tr. 264). The additional photos were located in the pre-citation

file, and Complainant’s counsel failed to review it for the purposes of responding to discovery

requests. Complainant’s counsel admitted his oversight but stated that his failure was not

intentional. The Court took the matter under advisement and recessed for the remainder of the

day, with the following provisos: (1) trial would commence the following morning at 9:00 a.m.

to allow Respondent time to review the newly produced photographs and revise its litigation

strategy; (2) Respondent would be allowed to use the photographs in their entirety without

objection as to foundation or authenticity; and (3) Respondent would be permitted to call

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witnesses not previously designated who may have knowledge of the content of the newly

produced evidence. (Tr. 268–69).

    Prior to the presentation of trial evidence on the third day, the Court held a Special

Proceeding on Respondent’s Third Motion for Sanctions, which the Court accepted on oral

motion pursuant to Commission Rule 40.2 See 29 C.F.R. § 2200.40(a). After considering the

representations of the parties, the Court discussed its power to issue sanctions pursuant to

Commission Rules 101 and 52(f).3 (SP Tr. 13). While the Court found that Respondent had been

prejudiced in its presentation of the evidence, the Court did not find contumacious conduct on

behalf of Complainant, which is required for the sanction of dismissal pursuant to Commission

Rule 101. See Sealtite Corp., 15 BNA OSHC 1130 (No. 88-1431, 1991) (holding that failure to

comply with court orders or proceed in any fashion constituted contumacious conduct and

warranted sanction of dismissal); see also 29 C.F.R. § 2200.101(c) (indicating Rule 101 does not

address discovery sanctions).

    The Court instead proceeded pursuant to Commission Rule 52(f). Although the typical

process of filing a motion to compel and subsequent failure to answer did not occur, the Court

explained that because Complainant’s failure to produce was not discovered until CSHO

Youpel’s testimony, the typical process was not available to Respondent. Nonetheless, the Court

allowed each party to address their respective positions as to whether sanctions should be

imposed. Commission Rule 52(f) states that “the Judge may make such orders with regard to the

failure as are just.” 29 C.F.R. § 2200.52(f). When considering the sanction of dismissal, the

Commission and federal courts typically consider eight criteria, principal among those being

prejudice to the party seeking discovery, whether there is a showing of willful default, and

2. The two previous motions were directed at the identification and designation of witnesses. (SP Tr. 7–8).
3. At trial, the Court referred to Commission Rule 56 as cross-referencing Fed. R. Civ. P. 37 and the sanctions
   associated therewith; in fact, the proper Commission Rule is 52(f). Errata Order (Jan. 30, 2015).

                                                 4
   

   contumacious conduct by the noncomplying party. Int’l Diving Svcs., 22 BNA OSHC 1921 (No.

08-1886, 2009) (citing Duquesne Light Co., 8 BNA OSHC 1218, 1221 (No. 78-5303, 1980)).

According to the Commission, only one of those criteria is necessary to render a judgment of

default against a party. Id. (citing Ford Dev. Corp., 15 BNA OSHC 2003, (No. 90-1505, 1992).

    The Court finds Respondent was prejudiced in its preparation for the trial in this matter in

that it did not receive photographs that were requested during the discovery phase of this

litigation until the second day of trial. As ALJ Phillips held in International Diving Services,

“Had Respondent provided complete responses to the Secretary’s discovery requests, she could

have conducted more informed depositions and better prepared trial tactics and strategies

regarding the issues in dispute for the upcoming trial.” Id. The Court finds that Respondent has

been so prejudiced in this case. Though Respondent was given a day to review the newly

produced documents—as well as additional opportunities to cure any additional prejudice—this

does not make up for the opportunities lost during the pre-trial phase of this litigation.

    Based on the totality of the circumstances—namely, the prejudice to Respondent and the

lack of contumacious conduct on behalf of the government—the Court found that vacating one

citation item would serve as an adequate sanction. As such, Citation 1, Item 3, and its associated

penalty, were VACATED without objection. (Tr. 19).

V. Factual Background

       a. The Inspection

    Respondent is an underground construction company that operates in the Chicago area. It

provides both private and public services, including, as is relevant to the present case, sewer

repair for the City of Chicago and its residents. (Tr. 293). On the day of the inspection, July 22,

2013, one of Respondent’s crews was called to repair a sanitary drainage service at 1008 N.

LeClaire Street (hereinafter “worksite”), which was part of a larger project to repair private

                                              5

drains across the City of Chicago. (Tr. 293, 317). The crew consisted of three employees: Jose

Orozco, a foreman; Alex Reyes, a laborer or “bottom man”; and Jerry McDonagh, a machine

operator. (Tr. 214–15, 317–18). Orozco had just become a foreman earlier that month. (Tr. 292).

    In response to an anonymous phone call that workers were inside an unprotected trench,

the OSHA Calumet City Area Office sent CSHO Youpel to perform an inspection pursuant to

the trench and excavation National Emphasis Program. (Tr. 41, 47). CSHO Youpel drove to the

worksite and parked on the right side of the street, approximately one-half block from the trench.

(Tr. 49–50; Exs. C-6, C-7). While sitting in his car, CSHO Youpel took a number of

photographs which depicted Reyes, Orozco, and McDonagh working around the trench. (Ex. C-

5, C-7). During the course of his observations, CSHO Youpel noticed Mr. Orozco lean down

over the trench as if to speak to someone. (Tr. 50; Ex. C-7). At that time, CSHO Youpel could

not see into the trench and had no reason to believe that someone was in the trench. However, as

he observed this, CSHO Youpel saw a piece of pipe being thrown out of the trench. (Tr. 51).

After witnessing the thrown pipe, CSHO Youpel pulled his car to the other side of the street,

taking care not to lose sight of the trench. (Tr. 72–73). Right before entering the worksite,

CSHO Youpel took a photograph of Reyes climbing out of the trench on a bright blue ladder.

(Ex. C-5). The photograph also depicts a skid steer, the combination machine being operated by

McDonagh, a red truck containing equipment, and shoring equipment adjacent to the trench. (Ex.

C-5).

    Upon entering the worksite, CSHO Youpel asked to speak with the foreman, and

identified himself as a compliance safety and health officer. (Tr. 52). CSHO Youpel discussed

with Orozco what he had just observed. In response, Orozco testified that he was not aware that

Reyes was in the trench until he returned from his truck, where he went to gather shoring

materials, at which time he stated that he asked Reyes to exit the trench. (Tr. 283, 351). Orozco

                                            6

testified that he had not told Reyes to enter the trench and, instead, told him to guide McDonagh

in clearing out the bottom of the trench. (Tr. 333). Orozco also testified that there was no need to

enter the unprotected trench because they had already located and identified the underground

utilities. (Tr. 284).

    At trial, Respondent advised the Court that Orozco did not speak English very well and

would require an interpreter. That said, CSHO Youpel testified that he conducted his entire

inspection in English and that at no time during his inspection did Orozco indicate that he did not

understand. (Tr. 52–53). Nevertheless, after he began the inspection, CSHO Youpel suggested

that Orozco contact Jerry Prindiville, with whom CSHO Youpel had worked on previous

inspections of Respondent. (Tr. 71, 250). After a series of phone calls, Prindiville arrived at the

worksite approximately thirty (30) minutes later. (Tr. 71–72, 421).

    Over the course of his inspection, CSHO Youpel measured the dimensions of the trench:

8 feet, 10 inches deep; 8 feet, 3 inches long; and 5 feet wide. (Tr. 81–82, 89, 92–93; Exs. C-2, C-

8, C-9). He determined that that trench was dug in “Type B soil at best”, based on the fact that it

was previously disturbed soil and due to the presence of pea gravel. (Tr. 86). The ladder he

observed from across the street extended down to the deepest part of the trench, and, consistent

with the photos that he took, CSHO Youpel observed hydraulic shoring and finboard right next

to the trench but not installed. (Tr. 66). He also observed the damaged, orange-clay sanitary line

at the bottom of the trench, as well as a piece of that damaged pipe resting outside the trench.

(Tr. 65, 96, 146–47).

    CSHO Youpel also conducted interviews of Orozco, Reyes, and McDonagh during the

course of his inspection. He learned that it was Respondent’s practice to install trench protection

only after all of the utilities had been located in the trench using shovels, probes, or the machine.

(Tr. 67, 111; Ex. C-2, C-4). This practice was confirmed by CSHO Youpel’s subsequent review

                                             7

of previous inspections, wherein he discovered that “[i]t was an ongoing theme . . . .” (Tr. 113).

During his interview with McDonagh, the equipment operator, he learned that McDonagh had

told Orozco that cave-in protection should be installed but that Orozco told him not to worry

about it. (Tr. 68–70, 110; Ex. C-2).

         b. Respondent’s Safety Program

    In order to illustrate that it has a pattern and practice of compliance and that the actions of

Reyes were unforeseeable, Respondent introduced evidence relating to its safety program,

including its safety manual, training attendance forms, test scores, and internal inspection

documentation. (Ex. R-14, R-15, R-16, R-19, R-26). The training sessions, inspections, and

documentation were facilitated or generated by employees of Optimum Results, including

Prindiville. (Tr. 402, 404–405).

    According to Orozco and Prindiville, Respondent presented two large training sessions

per year—once in Spring, after workers return from a seasonal lay-off, and again later in the

year. (Tr. 299, 405–406). These training sessions cover, amongst other issues, a review of

excavation procedures and safety rules, which are included in the Excavation Safety section of

the manual. (Tr. 406, Ex. R-19). In fact, Orozco attended a mandatory training session on

excavation safety just nine days prior to the inspection (Tr. 310–11; Ex. R-12). Orozco also

received competent person training on March 26, 2011. (Ex. R-15).

    In October of 2012, Prindiville conducted an inspection of a worksite supervised by

Orozco.4 This inspection covered the same basic points as an OSHA inspection, including PPE

and trench protection. (Tr. 415–16; Ex. R-26). Based on his inspection, Prindiville found that

4. Although Orozco did not become a foreman until July 2013, he testified that there were occasions when he
   served as a temporary foreman. (Tr. 205). Considering the date of this inspection by Optimum, it would appear that
   this was one of those instances. (Ex. R-26).

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   Orozco’s crew was, for the most part, following proper procedures and safety protocol. (Tr.

315–17, 416–20; Ex. R-26).

VI.      Discussion

         a. Law Applicable to all Citations

      To establish a prima facie violation of section 5(a)(2) of the Act, 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 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. Ormet

Corp., 14 BNA OSHC 2134 (No. 85-0531, 1991).

         b. Citation 1, Item 15

      Complainant alleged a serious violation of the Act as follows:

      29 CFR 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.

      a.     On or about July 22, 2013—at the above addressed jobsite, the competent
      person identified cave-in hazards in a trench measuring eight (8) feet ten (10)
      inches in depth and permitted an employee to enter the trench, thereby exposing
      the employee to cave-in hazards.

(Ex. C-1).

         c. Citation 2, Item 1

      Complainant alleged a willful violation of the Act as follows:

      29 CFR 1926.652(a)(1): Each employee in an excavations is not protected from
      cave-ins by an adequate protective system designed in accordance with paragraph
      (b) or (c) of this section:

5. The Court has not reproduced the language of 1926.651(k)(2) in this section because the exact language of the
   standard appears in the body of the citation item. In those cases where the language of the standard has been
   modified to include the allegation, the Court has reproduced the exact language of the standard. See Section V.c and
   V.d, infra.

                                                    9
   

   The employer does not protect each employee in its excavations by properly
   sloping the excavation or by using appropriate protective systems designed in
   accordance with paragraphs (b) or (c) of 29 CFR 1926.652.

   a. This most recently occurred on July 22, 2013—at 1008 N. LeClaire in
   Chicago, IL 60651, an employee is exposed to cave-in hazards while working in
   an unprotected trench measuring eight (8) feet ten (10) inches in depth.

   To abate this hazard in the future, the employer must ensure that its excavations
   are properly sloped, or that protective systems designed in accordance with this
   standard are used, and that no employees enter the excavations until protection is
   provided.

   This employer has been cited to this practice that included: Pan Oceanic
   Engineering CO., Inc., was previously cited for a violation of this occupational
   safety and health standard or its equivalent standard 29 CFR 1926.652(a)(1)
   which was contained in OSHA violation number 310176540, citation number 1,
   item 1, issued on June 28, 2007, and became a final order on or about July 10,
   2007, with respect to a workplace located at 11148 South Champlain in Chicago,
   IL 60628, and OSHA violation number 312595655, citation 1, item 1, issued on
   August 4, 2009, and became a final order on or about August 28, 2009, with
   respect to a workplace located at 25th and Claremont in Chicago, IL 60608, and
   OSHA violation 313934325, citation 2, item 1, issued May 27, 2010 and became
   a final order on or about November 23, 2010, with respect to the workplace
   located at 720 W 67th St. in Chicago, IL, and OSHA violation number 313935793,
   citation number 2, item 1, issued August 17, 2010, and became a final order on or
   about September 8, 2010, with respect to a workplace located at 1114 W. Taylor
   St. in Chicago, IL 60607, and OSHA violation number 3151566307, citation
   number 2, item 1, issued May 19, 2011, and became a final order on or about June
   15, 2011, with respect to a workplace located at 60 E. 102nd Pl. in Chicago, IL
   60628.

(Ex. C-1).

   The cited standard provides:

   Each employee in an excavation shall be protected from cave-ins by an adequate
   protective system designed in accordance with paragraph (b) or (c) of this section
   except when:

   (i)    Excavations are made entirely in stable rock; or
   (ii)   Excavations are less than 5 feet (1.52m) in depth and examination of the
   ground by a competent person provides no indication of a potential cave-in.

29 C.F.R. § 1926.652(a)(1).

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i. The Foregoing Citation Items Are Duplicative

   Respondent contends that Citation 1, Item 1, and Citation 2, Item 1 are duplicative.

Specifically, Respondent argues that, because the citation items stem from the same alleged

conduct and necessarily require the same abatement, the items are duplicative and that Citation 2,

Item 1 should be vacated. Complainant did not address this issue in his brief. Based on its

review of the applicable case law, the standards cited, and the facts of this case, the Court finds

that the citation items are duplicative. For the reasons that follow, the Court shall vacate Citation

1, Item 1 as being duplicative of Citation 2, Item 1.

   According to the Commission, violations are considered duplicative “where the standards

cited require the same abatement measures, or where abatement of one citation will necessarily

result in the abatement of the other item as well.” Rawson Contractors, 20 BNA OSHC 1078

n.5 (No. 99-0018, 2003) (emphasis added) (citing Flint Eng. & Constr. Co., 15 BNA OSHC

2052, 2056–57 (No. 90-2783, 1992)).

   To prove a violation of 29 C.F.R. § 1926.651(k)(2), Complainant must establish that “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.” To

prove a violation of 29 C.F.R. § 1926.652(a)(1), Complainant must establish that employees

were not protected from cave-ins by an adequate protective system. Thus, the hazard faced by

employees under either scenario is the same—cave-ins. Depending on the situation, however,

the abatement could be different. When viewed in isolation, the proper abatement for a violation

of 1926.651(k)(2) would be removal of the employee from the excavation until such time as the

hazard has been removed, as opposed to 1926.652(a)(1), which would require the installation of

an adequate protective system. Under the facts of this case, however, it is apparent that if

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Respondent had installed proper protective equipment, there would have been no need to remove

the employee from the excavation.

     This exact issue as addressed by ALJ Frye in Pentecost Contracting Corp., 17 BNA

OSHC 1429 (No. 92-3789 et al., 1995). As in this case, the respondent company was cited for

violating both 1926.651(k)(2) and 1926.652(a)(1). Citing favorably to the Commission’s

holding in Capform, 13 BNA OSHC 2219 (No. 84-556, 1989), ALJ Frye held, “If the

Respondent had complied with the first standard and used proper shoring techniques to avoid the

danger of cave-in, he would have also been in compliance with the second standard, because

without the hazard of a cave-in, there is no need to remove the employees from the excavation.”

Pentecost, 17 BNA OSHC 1429.

     Based on the foregoing, the Court finds that the citation items are duplicative: abatement

of Citation 2, Item 1 will necessarily result in the abatement of Citation 1, Item 1. Accordingly,

the Court shall follow the precedent laid down by the Commission in Capform and hereby

VACATES Citation 1, Item 1. See Capform, 13 BNA OSHC 2219 (vacating duplicative citation

item); see also U.S. Steel Corp., 10 BNA OSHC 2123 (No. 77-3378, 1982) (same); Manganas

Painting Co., Inc., 21 BNA OSHC 1964 (No. 94-0588, 2007) (vacating duplicative citation

involving “substantially the same violative conduct [that requires] the same means of

abatement”).

                  ii.    The Standard Applies6

     The scope and application paragraph for Subpart P—Excavations states, “This subpart

applies to all open excavations made in the earth’s surface. Excavations are defined to include

trenches.” 29 C.F.R. § 1910.650(a). A trench, according to Subpart P, is a narrow excavation

made below the surface of the ground, wherein “the depth is greater than the width, but the width

6. The remainder of this section deals solely with Citation 2, Item 1.

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   of a trench (measured at the bottom) is not greater than 15 feet (4.6m).” The trench at issue

measured 5 feet wide by 8 feet, 3 inches long by 8 feet, 10 inches deep. Thus, the standard

applies.

              iii.   The Terms of the Standard Were Violated

   The terms of the standard were also violated. CSHO Youpel observed Reyes exiting a

trench that did not have appropriate protective equipment installed. (Ex. C-5). While shoring

equipment was present at the worksite—in fact, located adjacent to the trench itself—no attempt

had been made to install the shoring equipment prior to Reyes’ entry into the trench. In addition,

neither of the exceptions applies to this trench. The trench was greater than 5 feet deep and the

soil, according to CSHO Youpel, was Type B, owing to the fact that the ground was previously

disturbed.

              iv.    Respondent Knew or, with the Exercise of Reasonable Diligence,
                     Could Have Known of the Violative Condition

   The key issue in this dispute is whether Respondent, through its foreman, Orozco, knew

or could have known of the violative condition. According to Complainant, Respondent had

both actual and constructive knowledge of the condition. Complainant contends that not only

did Orozco know that the trench was deeper than five feet and that there was no cave-in

protection installed, but that he actually observed Reyes in the trench. Respondent, on the other

hand, argues that Orozco only became aware of Reyes’ presence in the trench when he returned

to the trench from his truck, where he claims he was retrieving shoring equipment.

   The crux of this issue and much of this case hinges on the word of CSHO Youpel versus

that of Orozco. There is no question that Reyes was observed exiting a trench that did not have

cave-in protection installed. (Ex. C-5). Prior to observing Reyes in the trench, CSHO Youpel,

while parked on the right side of the road, observed what appeared to be a piece of pipe being

thrown out of the excavation. (Tr. 49, 147). At the same time he observed the pipe being thrown

                                           13

out of the excavation, he also saw Orozco standing at the edge of the excavation. (Tr. 50–51; Ex.

C-7). According to CSHO Youpel, it appeared as if Orozco was providing directions to someone

inside the trench. (Tr. 50).

    Orozco, on the other hand, testified that he had not told Reyes to enter the trench. Rather,

he instructed Reyes and McDonagh to clean out the bottom of the trench so that the sanitary line

could be fixed and the shoring equipment installed. (Tr. 333). He clarified that he did not tell

Reyes to go into the trench; rather, he intended that Reyes would direct McDonagh, who

operated the combination machine, to scoop out the bottom.7 Orozco stated that there was no

reason for Reyes to enter the trench because all of the utilities had already been located. (Tr.

284). After he had given Reyes his instructions, Orozco explained that he went to his truck to

gather additional shoring materials, or perhaps a monitor for the camera used to look inside the

pipes. (Tr. 333). When he got to his truck, Orozco testified that he turned around and saw a

ladder sticking out of the trench. (Tr. 333–34). Upon seeing this, Orozco went to the trench and

told Reyes to “get out of there.” (Tr. 334). Orozco testified that Reyes had said that he entered

the excavation because water was seeping out of the sanitary main into the excavation.8

    Thus the Court is confronted with the question of whether it believes CSHO Youpel saw

Orozco standing over the excavation when a piece of pipe was thrown out of it—which supports

a conclusion that Orozco had actual knowledge of the violation—or whether it believes that

Orozco did not become aware of Reyes’ presence in the trench until he turned around while

retrieving supplies from his truck. Based on the Court’s credibility determination, the evidence,

and reasonable inferences drawn therefrom, the Court finds that Mr. Orozco had actual

knowledge of Mr. Reyes’ presence in the trench.

7. According to Orozco, part of Reyes’ job as the “bottom man” is to direct the machine operator where to dig in the
   excavation. (Tr. 338).
8. Apparently the combination scoop damaged a portion of the sanitary main. (Tr. 335). Orozco said that this did
   not concern him because they were already there to repair the sanitary system.

                                                   14
   

   CSHO Youpel testified that he observed a piece of pipe being thrown out of the trench

during his pre-inspection observation of the worksite. This observation appears to be confirmed

by the fact that CSHO Youpel observed broken pieces of pipe, like the one he had seen thrown

out of the trench, resting outside of the trench and by the fact that Reyes told him he was in the

bottom of the trench to locate the utility and remove the broken pipe from the excavation.9 (Tr.

65–66; Ex. C-5). Orozco testified that these pipe sections could have been pulled out of the

excavation by the combination machine shovel; however, he admitted that he did not observe the

combination machine pulling pipe sections out of the trench. (Tr. 391).

    A couple of the photographic exhibits submitted by Complainant lend additional support

to CSHO Youpel’s version of the facts. In Exhibit C-5, it is clear that Reyes is exiting the trench

using a bright blue ladder, which extends roughly three feet above the surface of the street. (Ex.

C-5). As to C-7, however, the Court is again confronted with a difference of opinion. According

to CSHO Youpel, this picture illustrates the point in time when Orozco, who is wearing a dark,

long-sleeved sweatshirt, was speaking with Reyes in the trench just after a piece of pipe was

thrown out of it. (Tr. 73). Respondent contends that this is impossible, because, according to

Orozco, the ladder is sitting directly behind him in the photograph marked as C-7. (Tr. 348–49).

Thus, Respondent claims, Reyes could not have entered the trench because there was no means

by which to do so. CSHO Youpel testified, however, that the equipment directly behind Orozco

in C-7 appeared to be a piece of hydraulic shoring. (Tr. 66–74). When C-5 and C-7 are

compared, the Court finds that CSHO Youpel’s testimony is more consistent with the

photographic evidence.

    As noted above, the ladder used by Reyes was bright blue and clearly sticks out in the

center of the photograph in C-5. In C-7, however, the item which Orozco identified as the ladder

9. CSHO Youpel also testified that those pieces of pipe could only have come from the bottom of the trench
   because they matched the sanitary line in both color and make-up. (Tr. 65, 392).

                                              15
   

   is not blue, nor does it stick out in the same manner as the ladder identified in C-5. (Ex. C-7).

Considering that there are other aspects of the picture that are blue—such as the bottom of the

license plate of the black SUV parked to the left of the excavation and the handicap parking

signs adjacent to it—the court would expect that the ladder would exhibit a similar color. 10 (Exs.

C-5, C-7). When looking at C-5 (where the ladder is clearly visible), there is a piece of

equipment resting to the side of the gravel pile that has the same shape and is resting in roughly

the same orientation as the piece of equipment identified as shoring equipment by CSHO Youpel

in Exhibit C-7. (Id.). Given that CSHO Youpel testified that his eyes never left the worksite

when he traveled from the right side of the road (where he took photo C-7) to the left side of the

road (where he took C-5), and never saw the ladder inserted into the trench, it stands to reason

that whatever is resting behind Orozco in C-7 is not a ladder. (Tr. 73, 148–49, 168).

    The Court assigns little weight to Orozco’s version of the facts. As stated above, Orozco

testified that he observed the ladder sticking out of the trench after he had turned towards the

worksite upon reaching the bed of his truck to gather additional shoring supplies. According to

Orozco, the front of the truck depicted in C-5 (with the door open) was approximately 50 feet

away from the trench, which means that the bed of the truck was even farther away. (Tr. 386).

The ladder was sticking out of the trench at a height roughly equal to the height of the gravel pile

located between the trench and the front of the truck. (Ex. C-5). Thus, while gathering shoring

materials—which Orozco was not carrying at the time he returned to the trench—Orozco claims

to have seen the ladder sticking out of the trench from the back of the truck, through the rear

window and front windshield, and over the gravel pile. (Tr. 386). And yet somehow, during his

brief trip from the trench to the truck and back again, Orozco was not able to see or hear Reyes

10. Further, given the distance of the SUV and the handicap signs from the trench in Exhibit C-5, the fact that the
    blue color stands out so clearly on those items as opposed to the purported ladder lends additional support to CSHO
    Youpel’s observations.

                                                    16
    

    pick up the ladder, stand it up, and insert it into the trench. (Tr. 219–220). Similarly, CSHO

Youpel, who testified that his eyes never left the site of the trench when he drove from the right

side of the road to the left, did not observe a ladder being inserted into the trench. Based on

these observations, the Court finds that it is reasonable to infer that the reason why neither

CSHO Youpel nor Orozco observed a ladder being inserted into the trench was that it was

already there. See Oakland Constr. Co., 3 BNA OSHC 2023 (holding that reasonable inferences

from circumstantial evidence are proper).

   In addition to finding that CSHO Youpel’s testimony more closely conforms to the

photographic evidence, the Court finds his testimony more credible and gives it great weight. As

an example of CSHO Youpel’s credibility, the Court notes that CSHO Youpel admitted that the

photographic exhibits contained in Complainant’s exhibit notebook did not constitute the entirety

of the photos he had taken at Respondent’s worksite, notwithstanding the fact that Respondent

had previously requested such photos in discovery and that such an admission could (and did)

have serious consequences. (Tr. 134–40).

   Based on the foregoing, the Court credits CSHO Youpel’s testimony that Orozco was

standing above the trench and communicating with Reyes while Reyes was working in the

bottom of an unprotected trench. Thus, through Orozco, the Court finds that Respondent had

direct, actual knowledge of the violation. See Dun Par Engineered Form Co., 12 BNA OSHC

1962, 1965 (No. 82–928, 1986) (“The actual or constructive knowledge of an employer’s

foreman can be imputed to the employer.”); Paul Betty, d/b/a Betty Brothers, 9 BNA OSHC

1379, 1381–82 (No. 76–4271, 1981) (“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.”).

                                           17

v. Respondent’s Employees Were Exposed to the Hazard

     As described above, Respondent’s employee, Reyes, was exposed to the hazard of cave-

ins at the worksite. Under the supervision of his foreman, Reyes entered an 8-foot, 10-inch-deep

trench with vertical walls and no cave-in protection. Without proper protection in the form of

sloping, benching, or shoring, Reyes was exposed to a significant hazard that can result in

serious injuries, up to and including death. (Tr. 101).

     Accordingly, the Court finds that Complainant proved his prima facie case. The Court

now turns to the question of whether Complainant properly characterized the violation as willful.

              vi.    The Violation was Willful

     “A willful violation is one committed with either intentional disregard of or plain

indifference to the requirements of the Act or a standard.” J.A. Jones Constr. Co., 15 BNA

OSHC 2201 (No. 87-2059, 1993). “[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 a 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, 16 BNA OSHC 1206, 1214 (No. 89-433,

1993). In other words, Complainant must show that, at the time of the violative act, the

employer was either actually aware 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.” Propellex Corp., 18 BNA

OSHC 1677 (No. 96-0265, 1999). Thus, it is not enough to show that Respondent was merely

careless or displayed a lack of diligence. Beta Constr. Co., 16 BNA OSHC 1435 (No. 91-102,

1993). The Commission has found such heightened awareness where an employer has been

previously cited for a violation of the standard in question, is aware of the standard’s

                                             18

requirements, and is on notice that a violative condition exists. See J.A. Jones, 15 BNA OSHC

2201; D.A. & L Caruso, Inc., 11 BNA OSHC 2138, 2142 (No. 79-5676, 1984).11

    Good faith efforts to correct a particular hazard can negate a claim of willfulness;

however, the Commission applies a test of objective reasonableness to determine whether an

employer acted in good faith. J.A. Jones, 15 BNA OSHC 2201 (citing A.P. O’Horo, 14 BNA

OSHC 2004, 2013 (No. 85-369, 1991); Calang Corp., 14 BNA OSHC 1789 (No. 85-319, 1990).

Thus, an employer “is not necessarily spared from a finding of willfulness by taking any

measure, regardless how minimal, to enhance employee safety.” Id. (citing Coleco Indus., 14

BNA OSHC 1961 (No. 87-2007, 1992).

    Complainant asserts that this citation item should be characterized as willful for the

following reasons. First, Respondent has a lengthy history of noncompliance with the specific

standard at issue in this citation item—29 C.F.R. § 1926.652(a)(1)—as illustrated by the parties’

Joint Stipulations. (Ex. J-1). Second, Respondent had detailed knowledge of the requirements of

the Act through regularly scheduled training sessions and by virtue of its safety manual having

an entire section dedicated to excavation requirements. (Ex. R-14, R-15, R-19). Third,

Respondent, through Orozco, knew that the trench was non-compliant and nonetheless directed

Reyes to enter the trench. Fourth, Respondent had an established practice of locating all utilities,

regardless of depth, prior to installing a cave-in protection system. Finally, CSHO Youpel

testified that the combination machine operator, McDonagh, told him that he had told Orozco

that they needed to install shoring in the excavation and that Orozco told him not to worry about

it. (Tr. 68).

11. The Seventh Circuit recently attempted to clarify the burden of proof applicable to a willful violation. Dukane
    Precast, Inc. v. Perez, 785 F.3d 252 (7th Cir. 2015). Specifically, the court held that “proof of willfulness . . .
    requires only that the defendant was aware of the risk, knew that it was serious, and knew that he could take
    effective measures to avoid it, but did not—in short, that he was reckless in the most commonly understood sense of
    the word.” Id.at 256. As will be shown, under either formulation (recklessness versus plain indifference), Orozco
    knew of the risk associated with unprotected trenches, had the opportunity to abate the hazard, and failed to do so.
    As such, Respondent’s violation of the standard was properly characterized as willful.

                                                    19
    

    Consistent with the previous discussion, Respondent contends that Orozco did not

consciously disregard a known safety violation; rather, it was only when Orozco saw Reyes in

the trench that he became aware of the violation. As the Court has already rejected this

contention, it will instead focus on Respondent’s other argument—that its comprehensive safety

program, implemented in response to earlier citations, illustrates that it was not plainly

indifferent to employee safety nor did it consciously disregard the requirements of the Act. In

essence, though not specifically stated, Respondent argues that its good faith efforts to correct

and/or prevent trench hazards should negate a finding of willfulness.

    The Commission has characterized a citation item as willful when the Secretary can

establish that Respondent: (1) was previously cited for a violation of the standard at issue; (2)

was aware of the standard’s requirements; and (3) was on notice that a violative condition

existed. As stipulated by the parties, Respondent was cited pursuant to 29 C.F.R. §

1926.652(a)(1) four separate times between August 2009 and the inspection at issue.12 (Ex. J-1).

At least one of these citation items was issued after Respondent claims to have implemented a

more robust culture of safety in response to two such citation items that were issued in 2010. (Tr.

405; Ex. J-1).

    As part of its new emphasis on a culture of safety, Respondent worked closely with

Optimum to increase meetings, trainings, and inspection frequency. (Tr. 405). This includes full-

company trainings two to three times annually, including a refresher course given to employees

who are coming back from the winter layoff. (Tr. 406). In the spring meeting held in March of

2011, Optimum provided competent person training to a number of Respondent’s employees,

including Orozco. (Tr. 406–407). According to Prindiville, that course, which was four hours

long, went through the basics of soil types, trench protection and how to install it, ladders,

12. Respondent was also cited for a violation of the same standard in 2007. The citation item under discussion is not
    included in that number.

                                                     20
    

    electrical safety, soil management, and spoil piles. (Tr. 407). In addition, Prindiville indicated

that he performs multiple unannounced inspections of various worksites to ensure compliance

with safety rules. (Tr. 314–17; 414–20). These inspections are performed in a manner similar to

OSHA inspections, and a written report is produced to indicate compliance or whether discipline

needs to be issued. (Ex. R-26).

   Although the foregoing safety program certainly speaks to Respondent’s attempts at

compliance, the Court is concerned with what appears to be Respondent’s practice of installing

shoring only after all utilities have been located. According to CSHO Youpel, this practice “was

an ongoing theme of [past] inspections.” (Tr. 113). He premised this conclusion on his review of

Respondent’s past inspections, the documentation of which indicated that utilities were always

located prior to the installation of cave-in protection. (Tr. 112–13). That pattern and practice was

confirmed by the statements given to CSHO Youpel by Orozco, Reyes, and McDonagh. CSHO

Youpel testified that Reyes and Orozco told him that they wait to install cave-in protection until

after the utilities are located because the process of installation and removal is time-consuming if

it has to be done during the utility-locating process, which may require multiple attempts. (Tr.

110–11). McDonagh told CSHO Youpel that he had told Orozco that cave-in protection needed

to be installed, but that Orozco told him not to worry about it. (Tr. 109).

   Even though Respondent had a policy, training, and an inspection regime in place, the

manner and order in which utilities were located and shoring was installed does not appear to

have changed over the course of four years. This is problematic because, as in this case, there

may be situations where utilities are not identified until after the five-foot threshold in 29 C.F.R.

§ 1926.652(a)(1) is already breached. Although this pattern of conduct may not necessarily

place an employee in harm’s way—conceivably, there are instances where utilities will be

located before the trench is more than five feet deep—it nonetheless reflects an unwillingness or

                                             21

inability to learn from past mistakes and indicates that Respondent places undue emphasis on

production versus safety. This emphasis on production appears to be ingrained—not only did

CSHO Youpel identify it as a “common theme”, but each of the employees he spoke to at the

worksite, including the foreman, stated to him that it was standard practice to identify utilities

prior to installing cave-in protection. In the Court’s view, blindly adhering to a pattern or

practice without regard to the potential safety consequences of that pattern or practice

constitutes, at the very least, plain indifference to the requirements of the standard.

   Respondent, both at the institutional level and at the individual level (Orozco) had a

heightened awareness of the requirements of the standard. Not only had they been cited pursuant

to the same standard four times in the four years leading up to the present case, they had twice-

annual training sessions and monthly surprise inspections that dealt with this very issue. Further,

Orozco had not only been in attendance at the company-wide trainings, and been a participant in

surprise inspections performed by Optimum, he was also specifically told by a member of his

crew that his trench needed shoring. Instead of heeding that warning, Orozco responded by

telling the crew member not to worry and proceeded to direct work inside a non-compliant,

unprotected trench until the utilities were located and the trench was properly cleaned out. In

other words, Respondent, through Orozco, was directly aware of the violative condition and

nonetheless chose to proceed with the work in spite of it.

   Respondent attempted to illustrate its good faith by pointing out that the shoring was

resting to the side of the excavation, waiting to be installed when needed. The problem, however,

is that at the point when Reyes was discovered coming out of the unprotected trench, the trench

was almost four feet deeper than the threshold for requiring cave-in protection. This alone both

confirms CSHO Youpel’s testimony that Respondent had a pattern of waiting to install shoring

until after the utilities were located and illustrates the hazard of adhering to that pattern of

                                              22

conduct in the face of very clear and obvious hazards (especially from the point of view of a

competent person).

   The Court finds that Respondent committed a willful violation of the standard. Its recent

history of violations, coupled with specific and repeated training on the issues related to

excavations, show that Respondent had a heightened awareness of the requirements of the

standard. Notwithstanding its renewed emphasis on safety and heightened awareness of the

requirements of 29 C.F.R. § 1926.652(a)(1), Respondent nonetheless maintained some aspects of

its production-focused mindset; namely, by adhering to the practice of waiting to install cave-in

protection until all utilities had been located. Orozco clearly adhered to this practice because,

even when confronted by McDonagh, he refused to install cave-in protection and allowed Reyes

to enter the trench without proper protection.

   Respondent has had multiple opportunities to cure the underlying behavior that led to the

previous and current citations being issued, and yet it has either refused to address it or willfully

blinded itself to the consequences of its practice of identifying utilities prior to installing cave-in

protection. Even after Respondent re-committed itself to safety by revamping its program in

response to citations targeting its excavation practices, Respondent nonetheless received two

subsequent citations (including the one at bar) pursuant to the same standard and identifying the

same pattern of conduct. As such, the Court finds that Respondent was, at the institutional level,

plainly indifferent to a work practice that has repeatedly subjected it to citations and penalties

and its employees to hazardous working conditions. This institutional state of mind is also

reflected in Orozco’s decision to allow Reyes to enter the trench without cave-in protection—

though he was clearly aware of the requirements of the standard, and that his trench was non-

compliance, he still allowed Reyes to enter the trench.

                                              23

Based on the foregoing, the Court hereby AFFIRMS Citation 2, Item 1 as a willful

violation of 29 C.F.R. § 1926.652(a)(1).

       d. Citation 3, Item 2

   Complainant alleged a repeat violation of the Act as follows:

   29 CFR 1926.651(i)(3): Sidewalks, pavements and appurtenant structure are
   undermined and a support system or another method of protection is not provided
   to protect employees from the possible collapse of such structures.

   The employer does not ensure sidewalks, pavements and appurtenant structure are
   not undermined unless a support system or another method of protection in [sic]
   provided to protect employees from possible collapse of such structures.

   a.     This most recently occurred on July 22, 2013—at 1008 N. LeClaire in
   Chicago, IL 60651, an employee is working in a trench measured at eight (8) feet
   ten (10) inches in depth. The trench undermines the street and is not supported
   nor provided a means of protection from possible collapse of the street, thereby
   exposing the employee to cave-in hazards.

   To abate this hazard in the future, the employer must ensure sidewalks, pavements
   and appurtenant structures are not undermined unless a support system or another
   method of protection is provided to protect employees from possible collapse of
   such structures.

   This employer had been cited for this practice that included: Pan Oceanic
   Engineering CO., Inc., was previously cited for a violation of this occupational
   safety and health standard or its equivalent 29 CFR 1926.651(i)(3) which was
   contained in OSHA violation number 313934325, citation 1, item 2, issued on
   May 27, 2010, and became a final order on or about November 23, 2010, with
   respect to a workplace located at 720 W. 67th St. in Chicago, IL 60621, and
   OSHA violation number 313935793, citation 1, item 2b, issued August 17, 2010,
   and became a final order on or about September 8, 2010, with respect to a
   workplace located at 1114 W. Taylor St. in Chicago, IL 60607.

   The cited standard provides:

   Sidewalks, pavements, and appurtenant structure shall not be undermined unless a
   support system or another method of protection is provided to protect employees
   from the possible collapse of such structures.

29 C.F.R. § 1926.651(i)(3).

                                           24

i. The Standard Applies

     For the reasons described in Section VI.c.ii, supra, the Court finds that the standard

applies.

               ii.    The Terms of the Standard Were Not Violated

     The cited standard prohibits undermining sidewalks, pavements, and other appurtenant

structures unless a support system or another method of protection is provided to prevent

collapse. The term “undermined” is not defined by the regulations, nor is any clarity gained

through a review of the regulatory history of the standard. See Occupational Safety and Health

Standards—Excavations, 54 Fed. Reg. 45894-01, 45924 (Oct. 31, 1989). Suffice it to say,

however, that common sense indicates that a sidewalk is undermined when the underlying

substrates (dirt and rock) are excavated from underneath. See WEBSTER’S SEVENTH NEW

COLLEGIATE DICTIONARY 967 (1969) (“to excavate the earth beneath: form a mine under”); see

also Bunge Corp., 12 BNA OSHC 1785 (No. 77-1622 et al., 1986) (“It is axiomatic that OSHA

standards must be interpreted in accordance with the natural and plain meaning of their words . .

. .”).

     Complainant points out that the issue of whether it is Complainant’s burden to prove that

a hazard exists or whether the standard presumes a hazard is currently unsettled. Compare

Rawson Contractors, Inc., 20 BNA OSHC 1273 (No. 02-1291, 2003) (ALJ) (holding

1926.651(i)(3) presumes a hazard) with Florida Gas Contractors, Inc., No. 14-0948, slip op.

(Dec. 12, 2014) (ALJ) (holding standard does not presume a hazard).13 While that may be the

case, the Court finds that Complainant has failed to prove that the trench in question was

undermined.

13. ALJ Joys’ decision in Florida Gas Contractors, Inc. is currently pending review before the Commission.

                                                   25
    

    The evidence presented by Complainant on this citation item was cursory; in fact, the

colloquy addressing the facts of this violation spanned a mere two pages in the trial transcript.

(Tr. 120–21). During that discussion, CSHO Youpel stated that he found a portion of the trench

(right side of the picture in C-9) to be undermined. (Tr. 120). CSHO Youpel, however, did not

indicate the extent of the undermining, and the photograph in C-9 does not provide a good angle

to determine whether that portion of the trench is, in fact, undermined. The picture, insofar as

the Court can tell, was taken to illustrate the length of the trench, not to illustrate any perceived

undermining. Further, when compared with the multitude of photographs that were taken of the

other alleged violations and the amount of testimony and evidence associated with them, the

citation item alleging that the trench was undermined appears to be little more than an after-the-

fact determination based on a less-than-helpful photograph focused on the trench’s length. (Ex.

C-9). Though it does appear as if there might be a depression in the wall or sloughing of

dirt/rock, it is not clear to the Court that this rises to the level of undermining. See Rawson, 20

BNA OSHC 1273 (finding violation of standard when soil had flowed into the excavation from a

wall that had undermined the pavement by five feet). On cross-examination, Complainant got

Prindiville to admit that the trench was “undermined”, but that any such undermining was

“minimal”. (Tr. 454). The Court perceives Prindiville’s testimony to be little more than an

admission that the picture appears to have a depression underneath the surface level of the

excavation and, therefore, only undermined in the most technical sense.

   Complainant has presented the Court with little more than a badly angled photograph and

the CSHO’s word, with no corresponding facts, that the trench wall was undermined. With

nothing more, the Court cannot find that Complainant proved that the terms of the standard were

violated. As such, Citation 3, Item 2 shall be VACATED. In addition, to the extent that the

foregoing violation would have been abated by the installation of a hydraulic shoring system, the

                                             26

Court finds that it is duplicative of Citation 2, Item 1, and could be vacated on that basis as

well.14

VII.      Penalty

       In determining the appropriate penalty for affirmed violations, section 17(j) of the Act

requires the Commission to give due 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 Constr. Co.,

15 BNA OSHC 2201, 2214 (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. E.g., Allied Structural Steel

Co., 2 BNA OSHC 1457, 1458 (No. 1681, 1975); Valdak Corp., 17 BNA OSHC 1135, 1138

(No. 93-0239, 1995), aff’d, 73 F.3d 1466 (8th Cir. 1995).

      Without question, the gravity of the violation alleged in Citation 2, Item 1 is high. The

trench was nearly nine feet deep with vertical walls and no cave-in protection. The worksite

itself was located on a road with traffic driving by and heavy machinery operating adjacent to the

trench, both of which cause vibrations that contribute to the possibility of a cave-in. Further, as

multiple cases and the testimony of CSHO Youpel illustrate, working in an unprotected trench is

incredibly dangerous and exposes employees to serious injury, often involving death. Although

only one individual was exposed to the hazard, the likelihood of a collapse was high in light of

the foregoing, and in consideration of the fact that the trench itself was dug in previously

14. The Court recognizes that there are multiple hazards that can be associated with an undermined excavation (e.g.,
    cave-ins affecting people in the trench or collapse of the undermined sidewalk, pavement or appurtenant structure
    affecting people outside of it); however, based on Prindiville’s testimony that any undermining was minimal, and
    CSHO Youpel’s testimony that his concern was for the exposure of individuals inside the excavation, it appears as if
    hydraulic shoring would have abated the hazard perceived by CSHO Youpel.

                                                    27
    

    disturbed soil that showed signs of sloughing into the excavation. Thus, in all areas but one, the

Court agrees with the assessment of Complainant as to the criteria for determining a proper

penalty.

   The Court disagrees with Complainant’s assessment as to Respondent’s size.             The

penalty assessed by Complainant is based on Respondent being characterized as a large

employer. (Ex. C-2). A large employer, according to Complainant’s own criteria, is one with

over 250 employees. (Ex. C-2). The first problem with Complainant’s assessment is that it did

not properly apply its own criteria—CSHO Youpel documented that Respondent had 214

employees, which would qualify it for a 10% reduction in penalty (as opposed to the 0% that it

received). (Ex. C-2). There is no evidence in the record to indicate that Respondent has this

many employees. The only testimony as to the number of employees Respondent has came from

Orozco, who testified that approximately 40 people attended the Spring kick-off training session

and that those people constituted “All company, all the workers.” (Tr. 305; Ex. R-14). The Court

is not entirely convinced by this evidence, as there were likely workers that were not in

attendance due to their positions at the company (and Orozco is hardly in the best position to

make an estimate of how many people work for Respondent); however, when the proposed

penalty of this willful citation item is compared to the proposed penalty of the willful items

documented in Exhibit J-1, there is a fairly drastic discrepancy. The highest penalty proposed

for a willful violation in the underlying citation items was $35,000. (Ex. J-1). Considering the

manner in which Complainant calculates penalties for willful violations (no credit for good faith,

no credit on history), it stands to reason that the former penalties were reduced based on

Respondent’s size.

   As such, the Court is not convinced by Complainant’s estimate of Respondent’s size and

shall reduce the penalty accordingly. That said, the Court is not bound by the penalty

                                           28

determinations of Complainant or its decision to grant or withhold credit for good faith, history,

or size. What most concerns the Court in this case is the gravity of this violation and

Respondent’s repeated disregard of the requirements of the cave-in protection standard. In light

of those facts, taking into account a slight downward adjustment for Respondent’s size, the Court

finds that a penalty of $50,000 is appropriate.

                                         ORDER

   The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing

Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Item 1, and its associated penalty are VACATED.

2. Citation 2, Item 1 is AFFIRMED and a penalty of $50,000.00 is ASSESSED.

3. Citation 3, Item 1, and its associated penalty are VACATED.

4. Citation 3, Item 2, and its associated penalty are VACATED.

SO ORDERED.

                                                     /s/ Patrick B. Augustine
                                                   Patrick B. Augustine

Date: September 28, 2015 Judge, OSHRC
Denver, Colorado

                                              29