Madison Underground, Inc.
Commission declines declaratory review of trench item
Apply this precedent to your situation
This is citable Commission precedent from 1993, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
Madison Underground performed sewer and water-main work in two unprotected excavations in New Berlin, Wisconsin. The ALJ affirmed one willful trench-protection item because an employee entered the north excavation, the company had no communicated rule against entry into unprotected trenches, and it had received four prior excavation citations. He assessed $300 because the exposure was brief and its gravity was low. The judge vacated the second item, which involved an employee standing on a ladder in the south excavation. After Madison ceased operating, the Secretary withdrew the request for a higher penalty but asked the Commission to decide the vacated item to create precedent and violation history. The Commission treated that request as one for a declaratory order, declined it because the remaining question was fact-specific and would serve little useful purpose, and vacated the direction for review. The ALJ result therefore stood as a nonprecedential unreviewed decision.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.652(a)(1)
- Outcome: The Commission declined declaratory relief and vacated review, leaving one willful item affirmed with $300 and the second item vacated.
- Key point: The Commission may decline a requested declaratory ruling when only a case-specific factual issue remains and no practical abatement or penalty dispute requires resolution.
Full text (OSHRC public release)
OCCUPATIONAL SAF~~~~~‘~~~~~‘~~“,~~ COMMISSION
c
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
FAX:
COM (202) 6065050
RS (202) 606-5050
SECRETARY OF LABOR,
Complainant,
..
v. .. OSHRC Docket No. 90-3249
.
MADISON UNDERGROUND, INC., I
..
Respondent. ..
..
DECISION
. .
Before: FOULKE, Chairman; MONTOYA, Commissioner.
BY THE COMMISSION:
A decision of Commission Administrative Law Judge Benjamin R. Loye is before the
Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act
of 1970, 29 U.S.C. 5 661(j) and Commission Rule 92, 29 C.F.R. 6 2200.92. In his decision
Judge Loye affirmed one item and vacated one item of a two-item citation issued to
Madison Underground that alleged willful violations of 29 C.F.R. 5 1926.652(a)(l).’ He
assessed a $300 penalty for the item he affirmed, rather than the $10,000 proposed by the
Secretary. The Commission granted a petition for review filed by the Secretary on the
following issues:
‘The standard states:
0 1926.652 Requirements for protective systems.
a) Protection ofempfoyees 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.
2
1) Whether the AIJ erred in assessing a penalty of $300 instead of the
Secretary’s proposed penalty of $10,000 for willful citation 1, item 1, alleging
a violation of 29 CFR 0 1926.652(a)(l).
2) Whether the judge erred in vacating willful citation 1, item 2, alleging a
violation of 29 CFR 8 1926.652(a)(l).
In response to the Commission’s order requesting briefs, Madison’s president wrote
to the Commission stating that Madison would not be filing a brief and that Madison was
“no longer an entity”. He explained that “United Fire & Casualty of Cedar Rapids, IA took
over the contract obligations in November 1991 and all assets were surrendered to the Bank
of Sun Prairie to settle indebtedness.”
The Secretary responded by letter, stating that, in light of Madison’s representations
and the Secretary’s own follow-up investigation, “the issue of a higher penalty than that
assessed by the judge is essentially moot since there is little likelihood of the agency
collecting any fines assessed against this entity.” The Secretary also noted that the issue of
whether a judge erred in assessing an unreasonably low penalty is already before the
Commission in Hem Iron Work, Docket No. 884962. The Secretary did state, however, that
he ..
continue[d] to have an interest in the Commission deciding the issue of
whether the judge erred in vacating Willful Citation 1, Item 2, alleging a
violation of 29 C.F.R. 9 1926.652(a)( 1). A decision on the substantive issue will
help to establish legal precedent concerning this frequently cited excavation
standard. In addition, a decision on this issue would serve to establish a history
of non-compliance as to this employer and its president in the event that
either engages in any future trenching operations.
We interpret the Secretary’s letter to be a withdrawal of issue one, the issue of the
low penalty assessment. The statement that penalties are “essentially moot since there is
little likelihood of the agency collecting any fines assessed against this entity” [emphasis
added] is consistent with Madison’s letter. The penalty issue raised by the Secretary is
present in another pending case. Accordingly, for these reasons, we will not address the
penalty issue.
In contrast to these representations, the Secretary explicitly seeks resolution on the
merits of the second issue directed for review. However, in view of the circumstances of
3
this case, particularly the mootness of the penalty issue and the absence of any dispute as
to abatement, we read the Secretary’s request for a decision on the issue of whether the
judge erred in vacating Willful Citation 1, Item 2, as a request for a declaratory order
pursuant to section 554 of the Administrative Procedure Act, 5 U.S.C. 0 554(e).
As the APA provides, the issuance of a declaratory order is discretionary. See Granite
City Teminak Cop., 12 BNA OSHC 1741, 1748, 1986-87 CCH OSHD 1 27,547, p. 35,777
(No. 83-882-S, 1986). We conclude that the issuance of a declaratory order in this case
would serve no useful purpose. The only unresolved issue is a factual one that turns on the
unique facts of this case. * Its resolution would be of dubious precedential value, and could
be resolved in a subsequent case. The Secretary’s interest in having the item affirmed in
order to establish a history of non-compliance as to Madison or its principal has already
been accomplished by the judge’s affirmance of Item 1 of the Willful Citation, which
Madison did not appeal.
We therefore exercise our discretion to preserve the Commission’s resources rather
than resolve any factual uncertainty here.
Accordingly, we decline to issue a declaratory order. The direction for review is
vacated.
Edwin G. Foulke, Jr. u
Chairman
Velma Montoya
Commissioner
Dated: ,(
2Because it has not been reviewed by the Commission, the judge’s decision is accorded the significance of an
unreviewed judge’s decision and has no precedential value. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76
CCH OSHD II 20,387 (No. 4090, 1976).
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
FAX:
COM (202) 6064050
FE (202) 606-5050
.
SECRETARY OF LABOR, ..
Complainant, ..
V. Docket No. 90-3249
MADISON UNDERGROUND, I
INC., ..
Respondent. ..
NOTICE OF COMMISSION DECISION
The attached decision by the Occupational Safety and Health Review Commission was issued on
Julv 23,1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRLATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 ot’ the Occupational SafetvJ and Health Act of 1970? 29 U.S.C. 5 660.
FOR THE COMMISSION
i
Julv 23, 1993
l
E
Date r.
*Iv
d &/a5
Docket No. 90-3249
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor. U.S. DOL
Room S4004
200 Constitution Ave.? N.W.
Washington, D.C. 20210
John H. Secaras, Esq.
Regional Solicitor
Office of the Solicitor? U.S. DOL
Room 844
230 South Dexbwn St.
Ch iup. I L 60604
Larry Nelson, President
Madison Underground, Inc.
PO Box 148
Cottage Grove, WI 53572
Benjamin R. Loye
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 250
1244 North Speer Boulevard
Denver, CO 80204-3582
/
ClNlTED STATES OF AblERICA
/I
OCCUPATiONAL SAFETY AND HEALT? REVIEW COMMISSION
I 1825 K STF?EET N.W.
47-i FLcnR
WASHINGTZ,hi DC. X006-:246
FAX:
COM (222) 634-4008
FTS 634-4008
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 90-3249
MADISON UNDERGROUND, INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on February 11, 1992. The decision of the Judge
will become a final order of the Commission on March 12, 1992 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
March 2, P992 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 cp.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006- 1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.
FOR THE COMMISSION
Date: February 11, 1992
DOCKET NO. 90-3249
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH,
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
John H. Secaras, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
230 South Dearborn St.
Chicago, IL 60604
Paul D. Lawent
Wisconsin Cha ter
The Associate % General Contractors
of America, Inc.
4814 E. Broadwa
Madison, WI 53 7y16
Benjamin R. Lo e
Administrative la w Jud e
Occupational Safety an tf Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO ir0204 3582
00102354248 : 05
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244
N. SPEER BOULEVARD
ROOM 250
DENVER, COLORADO 80204-3582
PHONE: FAX:
COM (303)844-2281 COM (303)844-3759
TTs 564-2281 ITS 564-3759
. SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 90-3249
MADISON UNDERGROUND, INC.,
Respondent.
APPEARANCES:
For the Complainant:
Lisa R Williams, Esq., U.S. Department of Labor, Office of the Solicitor,
Chicago, Illinois
For the Respondent:
Paul D. Lawent, Esq., The Associated General Contractors of America, Inc,
Madison, Wisconsin
DECISION AND ORDER
Loye, Judge:
This proceeding arises under the Occupational Safety and Health Act of 1970 (29
USC. Section 651 et seq.; hereafter called the “Act”).
Respondent, Madison Underground, Inc. (Madison), at all times relevant to this
matter maintained a workplace at 15224 Vera Cruz Drive, New Berlin, Wisconsin where
it was engaged in sewer and water main construction (Tr. 17; Answer VII).
Madison admits it employed workers at the New Berlin site and that it is involved
in a business affecting commerce (Answer llIII), and is, therefore, an employer within the
meaning of the Act. a
On September 20, 1990, a compliance officer (CO) for the Occupational Safety
and Health Administration (OSHA) conducted an inspection of Madison’s New Berlin
worksite (Tr. 105-106). As a result of that inspection, on October 26, 1990 Madison was
issued citations alleging violations and suggesting proposed penalties pursuant to the Act
(Answer lIIV).
By filing a timely notice of contest to all citations Madison brought this proceeding
before the Occupational Safety and Health Review Commission (Commission).
On October 9 and 10, 1991 a hearing was held in Milwaukee, Wisconsin. At the
hearing the Secretary withdrew “repeat” citation 2, item 1. Madison withdrew its contest
to “serious” citation 1, item 1, which will automatically become a final order of the Com-
mission. Remaining at issue is “willful” citation 3, items 1 and 2, alleging two separate
violations of 29 CFR 51926.652(a)(l).
The parties have submitted briefs and this matter is now ready for decision.
Alleged Violations
Willful citation 3, item 1 alleges:
1
29 CFR 1926.652(a)(l): 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)(l)(i) in that
the excavation was sloped at an angle steeper that (sic) one and one-half horizontal to
one vertical (34 degrees measured form (sic) the horizontal):
(a) An employee working in an excavation at 15224 Vera Cru Drive, New
Berlin on g/20/90 on the north side of the road that was 8 feet deep, 12 feet long and 11
feet wide, was not protected from the hazards of moving ground by a sloping/benching
system that met all of the elements of options (l), (2), (3), (4). Specifically, this exca-
vation in Class B soil was sloped to a 60 degree angle were (sic) a 45 degree angle is
required.
Willful citation 1, item 2 alleges:
2
29 CFR 1926.652(a)(l): Each employee in an excavation was not protected cave-in (sic)
by an adequate protective system designed in accordance with paragraph (b) or (c) of
this section:
.
2
(a) An employee entered an excavation that was 7 feet deep and 3 feet wide in
Class A soil. The excavation had vertical walls with no protective system provided expos-
ing the employee to a moving ground hazard.
The cited standard provides:
#1926.652(a) Protection of employees in excavations. (1) Each employee in an exca-
vation 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.
Facts
Madison’s New Berlin worksite included two excavations on either side, north and
south, of Vera Cruz Drive, which Madison had linked up by excavating beneath the
roadbed with a “mole,” or air powered borer (Tr. 19), in order to tie lateral residential
water lines from the south to the water main north of the roadbed (Tr. 22). On
September 20, 1990, the excavations, which had been filled in over night (Tr. 67-68), had
been reopened and the copper laterals pulled through a four inch hole created by the
mole (Tr. 87-88, 227). The copper laterals had not yet been connected to the main (Tr.
s7) l
Milt Zimmerman, Madison’s job foreman and the “competent person” on site for
purposes of the excavation standards (Tr. 17-18), testified that the north, or water main
trench was about 10 feet wide, 11 feet long at the surface. Zimmerman believed that the
width at the bottom of the trench was about “bucket width,” or 30 inches, and that the
trench was seven feet deep (Tr. 21-22, 37). CO Leslie Berendt measured the north
excavation at 12 feet long, 11 feet wide and eight feet deep (Tr. 117-l 18, 135).
Zimmerman stated that the southern lateral trench was annroximately three feet
wide, ten feet long and seven feet deep (Tr. 20, 38). Berendt measured the south trench
at three feet wide, seven feet long and six feet deep (Tr. 118).
The north trench was dug in soil composed partially of undisturbed hardbound
clay, partially of backfill (Tr. 117-118). The south trench was dug entirely in hardbound
clay (Tr. 118). Based on her penetrometer readings, Berendt concluded that the hard-
3
bound clay had a compressive strength on average of over 1.5 tons per square foot (Tr.
120-121). The previously disturbed soil was less cohesive and showed fissuring in some
areas (Tr. 122). Both Berendt and Zimmerman classified the soil in the north excavation
as class B soil, due to the presence of backfill, and the south trench as type A (Tr. 25, 30,
122, 141).
The sides of the south trench were vertical (Tr. 39, 135; Ex. C-1-3 through C-l-
17). The north excavation had a two foot wide bench running along most of the west
side, two feet below ground level. A second bench was located near the bottom of the
trench (Tr. 126-128, 133; Ex. C-l-18 through C-l-29, C-5). Madison stipulated at the
hearing, however, that the benching was incidental to the trenching operation and was
not intended to provide protection from moving ground, or to comply with the sloping
requirements of the excavation standards (Tr. 263-264). Hydraulic shores and a trench
box or shoe were available at the Madison site, a block from the cited trenches (Tr. 34
35, 65), but were not being used at the time of the inspection (Tr. 68). Neither excava-
tion was shored (Tr. 34).
On September 20, 1990, CO Berendt was assigned to respondent’s New Berlin
worksite with instructions to perform an on-site investigation (Tr. 105). At approximately
l&15 a.m., as Ms. Berendt drove up to the site, she observed a Madison employee, Paul
Goodman, running in the direction of her car and yelling “get out of the trench, get out
of the trench” (Tr. 106-107, 170). Ms. Berendt pulled her car around a large spoil pile
and saw another employee, Kelly Reese, climb out of an excavation and walk away with
Mr. Goodman (Tr. 107).
In an interview on the day of the inspection Reese told CO Berendt “I was mak-
ing a connection, in the process of it. We had pulled that copper through, one inch
copper, after we got the mole unstuck. It was a matter of two minutes and the connec-
tion would have been made”(Tr. 72).
At the hearing Reese admitted that he had been in the south trench, on a ladder,
watching the mole, earlier on the day of the inspection (Tr. 77-78). Reese further stated
that he was in the north trench when Berendt arrived (Tr. 75), but “had not made it to
the bottom of the ditch” (Tr. 74). The Madison crew was working in another hole, and
4
Reese stated that he had just stepped down onto the top ledge of the north excavation to
pick up a bucket of tools and head to the other worksite when he heard Goodman
yelling at him to get out of the hole (Tr. 69, 73, 75, 89; Ex. C-1-24 through C-1-28).
Goodman, Madison’s backhoe operator, testified that he was unaware of CO
Ekendt’s arrival on the worksite. At the time she drove up to the site he was on his way
to get Kelly and take him up to the other site (Tr. 230). Goodman thought that he saw
Kelly standing on the back side of the north trench as he walked up, but admitted that
Kelly could have been in the trench, standing on the ledge (Tr. 231, 236). Goodman
stated that as he approached, he told Kelly, “we got to go, we got to go to a different
hole.” (Tr. 235).
Foreman Zimmerman testified that when an employee is going to make a connec-
tion in an excavation, a trench box is placed in the bottom of the trench with a backhoe;
the employee enters the box by way of a ladder (Tr. 55, 56). Both Zimmerman and
Goodman testified that, to the best of their knowledge, no Madison employees worked in
any of the New Berlin trenches without the protection of shoring or the shoe at any time
during the job (Tr. 58, 236237).
Goodman, however, was unaware of any specific work rules prohibiting the entry
of employees into unshored trenches, and did not believe Madison had any written rules
on the subject (Tr. 337-338). Reese stated that he would not have gone into the excava-
tion to make a connection without the benefit of either a shoe or shoring (Tr. 70, 77979),
but had not received any training from Madison specifically covering OSHA safety regu-
lations governing trench entry (Tr. 62-63). Any safety training he had received came
through his union and from his 10 or 11 years of on the job experience (Tr. 61-63).
Madison received four prior citations between 1987 and 1990 for violations of the
excavation standards, specifically, for failure to effectively shore the sides of excavations
(Tr. 163-167).
Alleged Violation of W26.652(a)(l)
The cited standard requires employers to provide a system of protection from
cave-ins for employees in excavations over five feet deep which are dug in soils other
than stable rock.
In order to prove a violation of section 5(a)(2) of the Act, 29 U.S.C. 5654
(a)(2), the Secretary must show by a preponderance of the evidence that
(1) the cited standard applies, (2) there was a failure to comply with the
cited standard, (3) employees had access to the violative condition and (4)
the cited employer either knew or could have known of the condition with
the exercise of reasonable diligence.
Astra Pharmaceutical products, Inc., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD
825,578, pp. 31,899~900 (No. 786247, 1981).
It is undisputed that Madison’s New Berlin excavations were more than five feet
deep and were dug in soils subject to the regulation. It is also admitted that the excava-
tions contained none of the cave-in protection described in the standard.
Respondent maintains, however, that the Secretary failed to prove employee
exposure to the hazard addressed by the standard, because “there is no evidence that
anyone was more than 2 or 3 feet below the surface on the north trench. l l and none
that anvone
d was in the south trench at all” (Brief of Respondent, p. 1).
As regards item 1, Respondent’s argument is unconvincing. Though Kelly’s test-
irnony at trial adequately explains his earlier statement to CO Berendt, in which he
appeared to state that he had been in the bottom of the north trench making a connec-
tion, he did admit to being in the trench, standing on the west wall’s first bench retrieving
his tools.
Because the cited standard states only that an employee must be in the trench
rather than in the bottom of the trench, and because a cave-in of the trench’s west wall
could affect an employee standing on the bench, carrying him to the bottom of the
trench, this Judge finds that the Secretary’s invocation of the cited standard in this
instance is reasonable and that Madison’s employee was exposed to the hazard addressed
by the standard.
Kelly’s observation of the mole’s operation while standing on a ladder placed in
the south trench, however, does not appear to entail the same hazards. An employee on
a grounded ladder is supported by more than the very ground which is in danger of
giving way, and would not necessarily be dislodged by the movement of the soils of the
6
trench walls. This Judge finds that the Secretary’s attempt to apply the cited regulation
to an employee on a ladder is unreasonable. Item 2 will, therefore, be dismissed.
The final element of the Secretary’s burden as to item 1, actual or constructive
knowledge, is established by the record.
In Secretary of Labor v. Omet Cop, 14 BNA OSHC 2134, 2137, 1991 CCH
OSHD 829,254, p. 39,201 (No. 85-531, 1991) the Commission reaffirmed its position that
it is not necessary to show that the employer knew of a specific instance of violative
conduct in order to establish constructive knowledge. The Commission cited Brock v.
L.E. Myers Co., High Voltage Div., 818 F.2d 1270 (6th Cir. 1987), cert. denieci, 484 U.S.
989, 108 S.Ct. 479 (1987), which holds that:
the Secretary makes out a prima facie ease of the employer’s awareness of a
potentially preventable hazard upon the introduction of proof of the employer’s
failure to provide adequate safety equipment or to nronerlv instruct its emnlovees
on necessarv safetv Drecautions.
Id. at 1277 (emphasis added). See also; Dance Construction Co., v. OSHRC, 586 F.2d
1243, 1246 (8th Cir. 1978)(employer may not “fail to properly train and supetise its
employees and then hide behind its lack of knowledge concerning their dangerous work-
ing practices.“)
Kelly was not instructed to enter the unsupported trench, and no supetisory
personnel observed him step down on to the bench. However, Goodman testified that
he knew of no established work rules prohibiting the entry of employees into unshored
trenches, and did not believe Madison had any written rules on the subject. Kelly testi-
fied that he received no training from Madison on safety or on OSHA regulations gov-
eming excavations. The testimony of Kelly and Goodman was not rebutted by
supervisory personnel testifying at the hearing. In fact, Respondent’s counsel introduced
IU) evidence indicating that Madison had any safety program whatsoever.
Madison’s failure to institute and communicate safety rules prohibiting work prac-
tices which are unsafe and contrary to OSHA excavation regulations is sufficient to estab-
lish not only constructive knowledge of the violation but, in light of Madison’s history of
OSHA violations, to establish a “willful” state of mind.
me Commission has held that a willful violation “is one committed with
intentional, knowing or voluntary disregard for the requirements of the Act, or with plain
indifference to employee safety.” Secretary of Labor v. Calang Corp., 14 BNA OSHC
1789 1991 CCH OSHD li29,080 (No. 85-319, 1990).
Since 1987 Madison has received four separate citations for allowing employees to
work in inadequately sloped or shored trenches. In spite of those citations, it apparently
failed to institute rules prohibiting entry into unguarded trenches, or to instruct its per-
sonnel in OSHA regulations regarding such trenches. Accepting the unrebutted facts
presented at hearing, this judge cannot but find that Madison was indifferent to both the
reauirements
A of the Act and emnlovee safetv.
A d
<
Penahv
The determination of what constitutes an appropriate penalty is within the discre-
tion of the Review Commission. Long Manufacturing Co. v. OSHRC, 554 F.2d 902 (8th
cir. 1977). In dete mining the penalty the Commission is required to give due consider-
ation to the size of the employer, the gravity of the violation and the employer’s good
faith and history of previous violations. The gravity of the offense is the principle factor
to be considered. Nacirema Operating Co., 1 BNA OSHC 1001, 1971-73 CCH OSHD
115,032 (No. 4, 1972).
The Commission has stated that the elements to be considered in determining the
gravity are: (1) the number of employees exposed to the risk of injury; (2) the duration
of exposure; (3) the precautions taken against injury, if any; and (4) the degree of proba-
bility of occurrence of injury. Secretary v. National Realty and Construction Co., 1 BNA
OSHC 1049, 1971-73 CCH OSHD 715,188 (No. 85, 1971).
The gravity of the violation in this case is negligible, only one employee was
exposed to the danger of moving ground for less than a minute. The probability of an
injury resulting from this brief exposure was virtually nil. Because of the “willful” failure
of Madison to institute work rules consistent with OSHA regulations and to convey them
to its employees, however, this Judge feels that some penalty is appropriate. A penalty
of $300.00 will, therefore, be assessed.
Findings of Fact and Conclusions of Law
Ah findings of fact and conclusions of law relevant and necessary to a determina-
tion of the contested issues have been found specially and appear in the decision above.
See Rule 52(a) of the Federal Rules of Civil Procedure. Proposed Findings of Fact or
Conclusions of Law that are inconsistent with this decision are denied.
ORDER
1. “Willful” citation 1, item 1 alleging violation of 29 CFR 51926.652(a)(l) is
AFFIRMED and a penalty of $300.00 is ASSESSED.
2. “Willful” citation 1, item 2 alleging violation of 29 CFR 51926.652(a)(l) is
VACATED.
Dated: February 3, 1992
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