E.L. Davis Contracting Co.
Excavation violations affirmed with $70,500 in penalties
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This is citable Commission precedent from 1994, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
E.L. Davis Contracting was repairing a sewer line when part of a 20- to 22-foot excavation containing two employees caved in. The Commission affirmed serious violations involving the company's safety program, excavation and confined-space training, and the absence of inspections by a competent person. It affirmed as willful the failure to protect employees from cave-ins because the owner continued work in the unprotected excavation despite prior citations, a previous cave-in, and a city inspector's warning. The Commission reduced a separate item involving a modified trench box from willful to serious because the record did not show the owner knew that particular design requirement. It assessed $70,500 in total penalties, including a combined $60,000 for the two protective-system items.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.20(b)(1), 1926.21(b)(2), 1926.21(b)(6)(i), 1926.651(k)(1), 1926.652(a)(1), and 1926.652(b)(4)(i).
- Outcome: Modified. All reviewed items were affirmed, but one protective-system item was reduced from willful to serious; total penalties were $70,500.
- Key point: Continuing excavation work without cave-in protection after prior citations and a direct warning supports willfulness, while willfulness for a separate technical requirement still requires proof of the employer's state of mind toward that requirement.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPAT IONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419
PHONE:
COM (202) 6064w
m(202)6064100
0
.
SECRETARY OF LABOR, , ..
..
Complainant, ..
..
v. .. OSHRC Docket No. 92-35
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E.L. DAVIS CON’I’IWCIING CO., ;
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Respondent. l
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DECISION
Before: WEISBERG, Chairman, FOULKE and MONTOYA, Commissioners.
BY THE COIWHISSION:
This case involves one serious and one willful citation issued to E.L. Davis
Contracting Co. (“ELD” or the “company”), a pipeline installation company, after part of
an excavation in which two of its employees were working in Atlanta, Georgia, caved in.
The citations alleged numerous violations of safe excavation practices. Judge James D.
Burroughs affirmed all the serious and willful citation items on review and assessed
substantial penalties. We affirm his decision with one modification.
Background
ELD had a $597,000 contract with the City of Atlanta to repair or replace a sewer
line. The cave-in that led to the citations occurred on the evening of July 29, 1991, while
two company employees were in an excavation using a jackhammer to trim concrete
structures. The top part of the 20 to 22.foot deep excavation was square-shaped with lo-to-
ll foot sides. A sewer pipe from which liquid flowed ran through the top part of the
excavation while at the bottom was a manhole through which sewage flowed. The
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excavation was dug in previously disturbed and unstable soil and, as set forth below, had no
protective system in violation of 29 C.F.R. 5 1926.652(a)(l).
I. Serious CitationI, Item I -0Adequacy of Safety Program
This item alleges that ELD violated 29 C.F.R. 0 1926.20(b)(l)’ by not, among other
things, developing, implementing, and enforcing safety rules requiring the use of protective
equipment and prohibiting employees from entering an unstie excavation.
Facts
The company had no written safety program at the time of inspection. Company
owner Ernest LRon Davis testified that instead, he was on the job “a hundred percent of the
time,” and gave his employees verbal safety instructions prior to or When they were hired,
and that these instructions were constantly re-emphasized on the job. Two employees were
in the excavation when the cave-in occurred. Oscar Baker, one of the employees, had only
been working for ELD for about two-or-three hours. He was wearing tennis shoes and was
not wearing a hard hat. Brown Hardnett, the other employee, was not wearing a. hard hat
either. Davis testified that he had instructed Baker that he had to have safety shoes before
he could start work but that Baker “begged” him to be permitted to use tennis shoes until
he could acquire safety shoes. Davis noted, however, that about ninety percent of employees
wore tennis shoes while working. Davis further stated that Baker had been instructed to
wear a hard hat but “refused-” Davis testified that he thought Baker had pulled off his hard
hat and left it at the top of the excavation.
Judge’s Decision
The judge affirmed the citation item, finding that ELD had no written safety program
at the time of the inspection and that, if it had an oral one, it was not adequately enforced
’ Section 1926.20@)(1) provides:
5 1926.20 General safety health provisions.
ibj Accidentpeventiort responsibilities.(1) It shall be the responsibility of the
employer to initiate and maintain such programs as may be necessary to
comply with this part.
(2) Such programs shall provide for frequent and regular inspections of the
job sites, materials, and .equipment to be made by competent persons
designated by the employers.
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because evidence established that employees were permitted to work in the excavation
without hard hats or safety shoes. The judge further stated:
E.L Davis expressed an inability to compel employees to wear personal
protective equipment . . . The truth is that he does not care. He lacks .
commitment and concern for the safety of his employees.
E.L. Davis knew that his instructions to wear hard hats and safety shoes were
beirig ignored. He took no steps to enforce the rules. He took no action to
prohiiit employees from entering an unsafe excavation. Employees were
knowingly permitted to enter a 220foot deep excavation which contained an
open sewer, had no protective system, and which had not been tested for
poisonous gases or Oxygendeficiency.
The judge found that the violation was serious, holding that the failure to wear safety shoes
while operating a jackhammer exposed employees to the possibility of broken bones and
severe lacerations and the failure to wear hard hats exposed the employees to possible head
injuries from flying and falling objects.
We conclude that the judge’s findings as to the violation and the serious
characterization are clearly supported by the evidence. ELD’s claim that Davis instructed
and trained all employees at the time of hiring and throughout their employment is not
supported by the record, particularly where employees, admittedly under Davis’s direct
supervision, were allowed to work in a noncomplying excavation. Therefore, we affirm the
alleged violation of section 1926.20(b)(l) and find the violation serious.
II(a). Serious Citatiha1, Item 2(a) -- Iiwtmctionson Excavation Safely ’
This item alleges a serious violation of 29 C.F.R. 5 1926.21@)(2)2 due to ELD’s
2 Section 1926.21(b)(2) provides:
8 1926.21 Safety training and education.
&i ‘Employer responsibility.
i2j l e employer shall instruct each employee in the recognition and
Th
avoidance of unsafe conditions and the regulations applicable to his work
environment to control or eliminate any hazards or other exposure to illness
or injury.
The penalty proposed for grouped items 2a and 2b was $4,500.
failure to provide its employees with safety instructions regarding the excavation work they
were performing. In addition to the facts also applicable to the preceding item, the record
reveals that a jackhammer was being used in the excavation to chip concrete. Davis testified
that he instructed his employees on the hazardous conditions that could occur in an
excavation and on the procedures to use if they did occur. Davis testified that he told
employee Baker “that people can have reactions fkom the heat factor off a sewer line and
they can feel faint l 0 0 and if they have any reactions that they feel like is not normal in [sic]
their own decision to come out of there immediately or we’ll get them out.” Elsewhere,
Davis testified that he told employees not to go into “holes”’unless they were instructed to
do so, to “maintain the entrance and exits and ladders,” “to be aware of any availing
conditions down there that could change at any time,” and to “get out of there” if a man
“smeU[ed] a little something different” or began “getting a little dizzy.” Davis also testied
that he did not consider the excavation “that dangerous.” The compliance officer testified
that employee Baker told her he had not received any safety training.
Judge’s Decision
The judge affirmed this alleged violation after finding that employees had not been
trained and were not aware of the hazardous conditions in which they
. were working. The
judge found the violation was serious.
Discussion
“An employer complies with section 1926.21(b)(2) when it instructs employees about
the hazards they may encounter on the job and the regulations applicable to those hazards.”
Concrete Constx Co., 15 BNA OSHC 1614, 1619, 1991-93 CCH OSHD lI 29,681, p. 40,243
(No. 89-2019, 1992).- Employers must model their rules on the applicable OSHA
requirements. El Przso Crane & Ri&ihg Co., 16 BNA OSHC 1419, 1425 n. 6, 1993 CCH
OSHD ll 30,231, p. 41,621, na 6 (No. 90-1106, 1993).
We find that the safety instructions presented in the record fall short of what is
required for compliance with the cited standard. They lack the required specificity and
completeness and they are not consistent with the terms of relevant OSHA standards. See
cases cited in El Paso Crane, 16 BNA OSHC at 1425, n. 6 & 7, 1993 CCH OSHD at
p. 41,621, n. 6 & 7.
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We also note that these inadequacies are exacerbated by the particular problems of
the work force that owner Davis knew he was dealing with,3which had a high turnover rate
and a lack of experience and that therefore could not be expected to be particularly
knowledgeable about excavation hazards and the safety precautions required to deal with
those hazards. See Beme Concrete Const~ Co., 15 BNA OSHC 2011,2016,1991-93 CCH
OSI=IDT 29,902, p. 40,811 (No. 90-2668, 1992)(what is obvious to experienced supervisor
may not be obvious to inexperienced employee). Therefore, we affirm the alleged serious
violation of section 1926.21(b)(2).
II(b). Serious Citation1, Item 2(b) -- Conjined Space Hbzard Insnuctions
The Secretary alleges that ELD failed to comply with 29 C.F.R. 8 1926.21(b)(6)(i)4
by not instructing employees who entered the excavation on July 29,1991, as to the hazards
involved and the precautions to take in confined spaces.
Facts
Davis conceded that the excavation was a confined space. He testified generally that
he instructed his employees “as to what hazardous conditions could happen and what
procedures to use in case they did,” and more specifically:
I told him that the conditions - that people can have reactions from the heat
factor off a sewer line and they can feel faint . . . and if they have any
reactions that they feel like is not normal in their own decision to come out
of there immediately or. we’ll get them out.
3 Owner Davis testified that the company basically had only about five employees
“maximum” working for it at any one time and that because the employees were “just a
temporary type” who-would “work awhile and [be] gone,” in a year’s time the company
would “wind up with a hundred or two [hundred employees] on the record.”
4 Section 1926.21@)(6)(i) provides:
§ 1926.21 Safety training and education.
(b) Employer responsibility.
(i)(i) All employees required to enter into conEned or enclosed spaces shah
be instructed as to the nature of the hazards involved, the necessary
precautions to be taken, and in the use of protective and emergency
equipment required. The employer shall comply with any specific regulations
that apply to work in dangerous or potentially dangerous areas.
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Davis further testified that he instructed his employees to:
maintain the entrance and exits and ladders . . and the proper shoes and to
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be aware of any availing conditions down there that could change at any time
. [like] under flowing conditions like that, you could have a chemical change
where nobody in the world could detect it except the man might smell a little
something Merent. So he’s instructed to get out of there . . . if they felt any
conditions that they felt was affecting them to come out of the hole . . if they
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felt they was getting a little dizzy or whatever . . . .
The CO testified that employees had not received propr instruction under the cited
standard a&that, in particular, they had not been trained in the use of emergency
equipment. She also testified that there was no such equipment on the site for them to use
even if they had been trained.
Judge’s Decision
The judge affirmed the citation item after concluding that Davisfailed to instruct his
employees as required by the standard. The judge found the violation was serious.
DiSW¶Sib?l
The safety instructions owner Davis provided to his employees were not sufficient to
comply with the cited standard. See Georgia Elec. Co. v. Ma&all, 595 F.2d 309, 320 (5th
Cir. 1979) (inexperienced employees, not ordinarily having “common sense” coming with job
familiarity, require more specific guidance from company). The tenor of owner Davis’s
instructions suggested that employees could save themselves if they started to feel dizzy or
smelled “something different” in a confined space. However, the hazards posed by toxic,
flammable, or oxygen deficient atmospheres, see 29 C.F.R. 0 1926.21(b)(6)@), are not
always overcome by resort to the senses. See Power Fids, Inc., 14 BNA OSHC 2209,2212-
2213, 1991-93 CCH OSHD ll29,304, p. 39,345 (No. 85-166, 1991). The failure to provide
employees with instructions regarding emergency equipment that the standard specifies, or
even to provide the equipment itself, are also glaring omissions. We therefore find that
ELD failed to comply with the cited standard. The violation was serious because the
consequences of not having information obtained through training on how to use emergency
equipment could result in death or serious physical harm.
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Penaltiesfor Item I, 2(a), and 2(b)
Judge’s Decision
The judge found that Davis was a small company that employed five people at the
time of the inspection but had a history of prior excavation violations. The judge found that
Davis nonetheless made “[llittle effort . . to comply with safety standards, and no training
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was provided to his employees,” and was due no credit for good faith. The judge found that
the gravity of the violation was high, but he reduced the $9,000 penalty proposed by the
Secretary for these items to $6,000 because he found that the standards cited in items 1 and
2(a) and 2(b) were cited “primarily for the same purpose.”
Discussion
We see no reason to disturb the judge’s analysis of the facts and his assessment of
a $6,000 penalty. .While ELD claims that the judge’s penalty assessments fail to take into
account the company’s small size, the judge specifically noted that ELD % a small company
that employed five people at the time of the inspection,” and took that fact into account.
The grayity of the violations is high because they involve employees working in an
unprotected excavation over 20 foot deep. ELD also has a history of prior violations, having
been found to have violated OSHA standards in 1983 and 1987 for failing to slope or shore
excavations in which employees worked. In 1983, a cave-in occurred and an employee was
hospitalized. See EL Davis Contracting Co., 88/9/A3, 13 BNA OSHC 1678, 1988 CCH
OSHD lI 28,180 (No. 87446,1988)(ALJ). Moreover, we agree that ELD deserves no credit
for good faith, particularly inasmuch as owner Davis testified that he purposely failed to pay
the penalties assessed against him in the 1983 and 1987 cases? We also find that the judge
did not exceed his discretion in assessing a combined penalty for items 1,2(a), and 2(b), see
HaH. Hall Consk Co., 10 BNA OSHC 1042, 1046, 1981 CCH OSHD II 25,712, p. 32,056
(No. 76-4765,1981), an action not opposed by the Secretary.
When Davis was asked by the Secretary’s attorney here whether it was true that Davis had
not even paid “one penny” of the $4,000 penalty assessed in the 1987 case, Davis testified,
‘That’s correct because I’m not going to pay anything that I don’t owe and I didn’t owe
that.” When questioned about a $240 penalty against his company in the 1983 case, owner
Davis similarly testified that he had not paid any of it because “I didn’t feel like I owed it.”
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III. Serious CitationI, Item 7 -- Inspection by Competent Person
This item alleges that ELD violated 29 C.F.R. 0 1926.6Sl(k)( 1)6 by not having the
excavation inspected by a “competent person” when conditions such as leaking water,
vibrations from passing traffic, and jackhammer use inside the excavation could weaken the
walls of the excavation.
Facts
Davis, who had been in the pipeline installation business for over 40 years, considered
himself the competent person on this jobsite and one capable of identifying and anticipating
iobsite hazards. He did not consider the excavation to be particularly hazardous and, as
d
mentioned above, permitted two employees without sufficient protective clothing to work in
the unprotected excavation.
Judge’s Decision
The judge affirmed the citation item. He found: l
[Owner Davis] is not considered capable of identifying existing and predictable.
hazards. He lacks commitment to a safety program, and his attitude negates
his good judgment on identifying hazards. His judgment was clouded. There
were recognizable and predictable hazards at the site. A competent person
would have recognized the hazards and shown more concern for the safety of
employees. The fact that E.L Davis may have been well qualified to identifjl
other safety hazards at the site does not prohibit a determination that he is
not a competent person. See Secretaryv. Ed TaylorConstr, Co., 938 F.2d 1265,
1272 (11th Cir. 1991).
Elsewhere in his decision, the judge also stated that although Davis assumed the role of
“competent person,” he falled to recognize as hazardous a confined space which had no
6 Section 1926.6Sl(k)( 1) provides:
8 1926.651 General requirements.
....
(k) Inspections. (1) Daily inspections of excavations, the adjacent areas, and
protective systems shall be made by a competent person for evidence of a
situation that could result in possible cave-ins, indications of failure to
protective systems, hazardous atmospheres, or other hazardous conditions. An
inspection shah be conducted by the competent person prior to the start of
work as needed throughout the shift. Inspections shall also be made after
every rainstorm or other hazard increasing occurrence. These inspections are
only required when employee exposure can be reasonably anticipated.
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protective system and in which there was an open sewer. The judge found the violation was
serious because “[tlhe failure to have the excavation inspected by a competent person
exposed employees to possl%lecave-in of the excavation walls and their suffocation, crushing
or death.”
Dimssion
A “[clompetent person” is “one who is capable of identifying existing and predictable
hazards in the surroundings, or working conditions which are unsanitary, hazardous, or
dangerous to employees, and who has authorization to take prompt corrective measures to
eliminate them.” 29 C.F.R. 5 1926.650(b). Davis had the authority to promptly correct
hazards and may well have had the requisite experience, but he permitted two employees
to work in an excavation in which they were exposed to safety and health hazards that
violated numerous OSHA standards. In doing so, he clearly demonstrated, and we so find,
that he was not a “competent person” because he was not “capable of identifying existing
and predictable hazards in the surroundings, or working conditions which are unsanitary,
hazardous, or dangerous to employees.” See Ed Taylor, 938 F.2d at 1271 (inability to
identify potential hazard evidence of incompetence). We therefore affirm this citation item
and find that the judge properly characterized it as serious.
Penalty
The judge assessed the $4,500 penalty proposed by the Secretary. For the reasons
stated earlier and because we find this violation to be of high gravity, we see no reason to
disturb the judge’s assessment and therefore affirm his $4,500 penalty amount.
IV(a). WUi!! citatbn 2, Item la: Excavation Lacked Rvtective *stem
This item (grouped with Item l(b) below) alleges that ELD willfully violated section
1926.652(a)(l)’ by failing to provide its employees working in the inadequately sloped
7 Section 1926.652(a)(l) provides:
1926.652 Requhments for protective systems.
(a) Protectionof employeesin acavations. (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
. (continued...)
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excavation with cave-in protection designed in accordance with 29 C.F.R. 0 1926.652(c). At
issue on review is whether the violations were willful.
Facts Bearing on Wd@buzss
A construction inspector for the City of Atlanta, Stanley Marshall, testified that on
the day before the cave-in, Davis had attempted to utilize hydraulic jacks to protect the
excavation, but the jacks had malfunctioned. Marshall “suggested to him [Davis] that he try
to find some alternative means of shoring the hole.” However, when Marshall viewed the
excavation again on the day of the cave-in, the excavation was not sloped, shored or sheeted,
even though two employees were working in it. Davis testified that the employees were
ordered into the-trench because of “[tlhe demand of the job to get that manhole out of
there and clear that intersection . . . .”
As noted earlier, ELD’s past history includes violations of OSHA standards for
failures to slope or shore excavations in which employees were working; one of these e
citations was issued after a cave-in that resulted in the hospitalization of an ELD employee.
The record also shows that Davis had previously ignored the advice of a City of Atlanta
inspector to protect a trench in 1987. In addition, Davis has purposely failed to pay
penalties assessed against him in prior OSHA cases. When Davis was asked by the
Secretary’s attorney in the instant case whether it was true that Davis had not paid even
“one penny” of a $4,000 penalty assessed in the 1987 case, Davis testified, “That’s correct
because I’m not going to pay anything that I don’t owe and I didn’t owe that. . . . We’re too
broke to go around here paying something we don’t owe.” When asked about a $240
penalty assessed against his company in the 1983 case, Davis testified that he had not paid
any of it because “I didn’t feel like I owed it.”
Judge’s Decision
The judge found the violation was willful, primarily because of (1) the two prior
occasions on which ELD had violated OSHA excavation standards, (2) ELD’s failure to pay
_and accept respons~%ilityfor the penalty assessments arising from the 1983 and 1987 OSHA
‘(...continued) .
(ii) Excavations are less than 5 feet (1.52m) in depth and examination of the
l ground by a.competent person provides no indication of a potential cave-in.
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citations, and (3) ELD’s failure on two separate occasions to protect excavations after having
been advised to do SO by Atlanta city inspectors.
Dim&on
A violation is willful if it is “committed with intentional, knowing or voluntary
disregard for the requirements of the Act, or with plain indifference to employee safety.”
Calang Corp., 14 BNA OSHC 1789,1791,1987-90 CCH OSHD II 29,080, p. 38,870 (No. 85
319, 1990). Davis allowed at least three employees to work in the unprotected excavation
following the failure and removal of the hydraulic jacks. This was done despite his
knowledge of the Act’s excavation and trenching requirements gained through prior citations,
and despite the Atlanta city inspector’s suggestion that he provide the excavation with some
alternative means of protection. These factors establish that ELD had a heightened
awareness of the Act’s requirements and yet simply chose to ignore them. See Id (willful
violation found where company president ignored CO’s observation that trench not properly
shored). Although ELD’s excavations were sometimes protected on this project and ELD
had tried to protect this excavation with jacks, these factors do not affect the mess of
the violation.
Brock v. Moreo Bras.CORS~E,
Inc., 809 F.2d 161 (1st Cir. 1987) and St. Joe Miner&
Corp. V. OSHRC, 647 F.2d 840 (8th Cir. 1981), both of which are cited by EID, are
distinguishable. Those cases involved workplaces that were not as obviously unsafe as this
one and employers who took far greater steps to protect their employees than did ELD
here. In our view, Donovan v. Capital City Excavating Co., 712 E2d 1008, 1010 (6th Cir.
1983) is closer to these facts. There, the fact that a foreman had ordered a trench box did
not preclude a willful finding because he “consciously continued the trenching operations”
while waiting for the trench box to arrive. We therefore agree with the judge that this
violation was willful.
IV(b). Wili!‘!Jkl
citation2, Item lb -- Engineer-Approved Protection System
This item - grouped by the Secretary with Item la - alleges that ED violated 29
12
C.F.R. 8 1926.652(b)(4)(i)8 by failing to use a protective system in the excavation that was
approved by a registered professional engineer (“WE”). Here, also, ow the willfulness of
the item is at issue.
Facts
After the cave-in had occurred, ELD cut an ‘(approved” trench box structure in two
to create a lo-foot by M-foot box and installed it in the excavation. Davis and one of his
employees were working in the excavation with the modified trench box when the
compliance officer arrived at the site.
Judge’s De&ion
The judge affirmed a willful violation, stating that the use of the unapproved trench
box “was a continuation of E.L Davis’s intentional disregard and plain indifference toward
the safetv of his emDlovees.” He found that owner Davis had “no wav of knowing if it [the
d A # d
modified trench box] would be effective as a protective system” and that, after two cave-ins,
Davis should have made reasonable inquiries as to the requirements of the Act to protect
his employees.
Discussion
We find that the Secretary failed to establish that the violation was willful. Although
Davis admitted at the hearing that the modified trench box was not approved by an RPE,
the Secrem does not claim and the record does not show that Davis knew that he was
violating the cited
. standard when he put the non-complying box into the excavation.
8 Section 1926.652@)(4)(i) provides:
0 1926.652 Requirements for protective systems.
.
~b)%si&n of sloping and benching systems. The slopes and configurations of
sloping and benching systems shall be selected and constructed by the
employer or his designee and shall be in accordance with the requirements of
paragraph (b)(l); or, in the alternative, paragraph (b)(2); or, in the
alternative, paragraph (b)(3), or, in the alternative, paragraph (b)(4), as
follows:
(4) Option (4)--Design by a registeredprofessional engineer. (i) Sloping and
benching systems not utilizing Option (1) or Option (2) or Option (3) under
paragraph (b) of this section shall be approved by a registered professional
engineer.
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However, the Secretary asks the Commission to find the violation willful because it can “be
inferred that Davis’[s] attitude toward the OSHA requirements was such that he would not
have complied with the standard even if he had known of it,” citing Carabetta Entep., 15
BNA OSHC 1429, 1991-93 CCH OSHD lf 29,543 (No. 89-2007, 1991). We are unable to
do so. Although the record demonstrates that ELD has often violated OSHA trench and
excavation standards, we cannot conclude on this record that ELD would not have complied
with this standard had it known of the standard’s existence. Although it was not cited as
serious, the seriousness of the violation is evident from the record. We therefore find that
the violation wa’~serious. Simplex l’he Recotier Co., 12 BNA OSHC 1591, 1597, 1984-85
CCH OSHD ll 27,456, p. 35,572 (No. 8242, 1985).
V. Penalties
Although we reduce the characterization of item l(b) to serious, we affirm the
$60,000 penalty assessed by the judge for combined items l(a) and l(b) for the reasons he
gave:
Davis has ignored the OSHA standards that are applicable to his business
operations. The penalty proposed for the willful citation must be of sufficient
amount to convince E.L Davis that OSHA is not a paper tiger. The
standards have been enacted for employees’ safety and must not be ignored.
Davis has been cited three times for the same violation . . . . In the present
case and one previous case, he was informed by a City of Atlanta inspector
prior to a cave-in of the need for an adequate protective system . . In both
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instances he ignored the warning and continued to act and operate by ignoring .
the standards. He has shown little concern for employees’ safety. He lacks
commitment toward’enforcing a safety program. He has continued to ignore
small penalty assessments . and openly boasts that he has not paid the fine
l l
[in OSHRC Ddcket No. 87-8461and that he does not owe it. This attitude
has no respectfor the law or for the safety of its employees.
We believe that the stakes are too high to allow this company to continue to operate
in this manner. We would expect that payment of this penalty will bring a new appreciation
to the company of the vital importance of complying with OSHA regulations. See D & S
Grading Co. v. Secretary of Labor, 899 F.2d 1145, 1148 (11th Cir. 1990). However, if the
penalties we assess in this case fail to induce future compliance by the company, we will
consider extraordinary remedies against this or any other company owned by E.L Davis in
future cases that come before us.
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Order
For the reasons stated above, we affirm Serious Citation 1, item 1, alleging a violation
of 29 C.F.R. 5 1926.20(b)(l), as a serious violation. We affirm Serious Citation 1, item 2(a),
alleging a violation of 29 C.F.R. 8 1926.21(b)(2), as a serious violation. We affirm Serious
Citation 1, item 2(b), alleging a violation of 29 C.F.R. 5 1926.21(b)(6)(i), as a serious
violation. For purposes of penalty, we combine the aforementioned items 1,2(a), and 2(b)
of Serious Citation 1 and assess a total penalty of $6,000. We also affirm Serious Citation
1, item 7, alleging a violation of 29 C.F.R. 0 1926.651(k)(l), as a serious violation; we assess
a $4,500 penall.
With respect to Willful Citation 2, item l(a), alleging a violation of 29 C.F.R.
8 1926.652(a)(l), we affirm the subitem as a willful violation. With respect to Willful
Citation 2, item l(b), alleging a violation of 29 C.F.R. 6 1926.652(b)(4)(i), we downgrade the
subitem fkom its alleged willful characterization and aflirm it as a serious violation. We
assess a combined penalty of $60,000 for subitems l(a) and l(b) of Willful Citation 2.
Stuart E. Weisberg
ChaiIman
Commissioner
Velma Montoya
Commissioner
Dated: September 29, 1994
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419
0
.
SECRETARY OF LABOR, 0
.
0
a
Complainant, ..
l
0
v.
0
a Docket No. 924035
.
E. L DAVIS CONTRACTING CO., ;
0
l
Respondent. a.
.
NOTICE OF COMMISSION DECISION
The attached decision and order by the Occupational Safety and Health Review Commission was
issued on SeDtember 29.1994, ANY PERSON ADVERSELY AFF’ECI’ED OR AGGRIEVED WHO
WISHES TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL
VVITETHEAPPROPRIATEFEDERALCOURTOFAPPEALS WITHIN 60 DAYSOFTHE DATE
OF THIS DECISION.- See Section 11 of the Occupational Safety and Health Act of 1970, 29
U.S.C. 5 660.
FOR THE COMMISSION
SeDtember 29. 1994
Date Ray H! Darling, Jr.
Executive Secretary
DOCKET NO. 94-0035
NOTICE IS GIVEN TO THOSE FOLLOWING:
Daniel J. Mick, Esquire
Coordinator for D.C. Litigation
office of the Solicitor, U.S. DOL
Room S-4014
200 Constitution Ave., N.W.
Washington, D.C. 20210
Jaylynn K. Fortney, Regional Solicitor
OfEiceof the Solcitor
U. S. Department of Labor
1371 Peachtree St., N. E., Rm. 339
Atlanta, GA 30367
Emerson Carey, Jr., Esquire
Emerson Carey, P. C.
1745 Martin Luther King, Jr., Dr ive, N. W.
Atlanta, GA 30314
E. L Davis
E. L Davis Contracting Co.
P. 0. Box 56
Norcross, GA 30091
Administrative Law Judge Office
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N. E.
Atlanta, GA 30309-3119
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
4TH FLOOR
WASHINGTON D.C. 20006-l 246
FAX:
c&~&$O~m6&4008
SECRETARY OF LABOR
Complainant,
V. OSHRC DOCKET
NO. 92-0035
E. L. DAVIS CONTRACTING COMPANY
Respondent. F
NOTICE OF DOCKETING
OF ADMINKTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Re ort in the above referenced case was
docketed with the Commission on Marc K 4, 1993. The decision of the Judge
will become a final order of the Commission on April 5, 1993 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 petition should be received by the Executive Secretary on or before
March 24, 1993 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 C. F .R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
ReviewCommission
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. DO5
Room S4004
200 Constitution Avenue, N.W.
‘Washington, DC. 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
havrng questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.
Date: March 4, 1993
DOCKET NO. 92-0035
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Ms. Bobbye D. Spears
Re ional Solicitor
Of&e of the Solicitor, U.S. DOL
Suite 339
1371 Peachtree Street, N.E.
Atlanta, GA 30309
Emerson Carey, Jr., Esquire
c/o E. L. Davis Contracting Co.
Post Office Box 56
Norcross, GA 30091
James D. Burroughs
Administrative Law Jud e
Occupational Safety an d Health
Review Commissron
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119
00110108925:04
UNI-IEO STATESOf AMERICA
OCCUPATIONAL SAFETY AND HEALTH RWIW COMMISSION l
1365 PEACHTREE SIREElI, NE. SUITE 240
ATLANTA, GEORGIA 30309-3119
PHONE FAX
cw (404)
347-4107 coM(4a4)3474113
ns (404)
3474197 m (401)3474113
.
l
SECRETARY OF LABOR, l
l
.
.
Complainant, ..
l
l
v.
l
. OSHRC Docket No. 92-35
..
E. L. DAVIS CONTWKI’ING CO., l
l
.
l
Respondent. l
l
l
APPEARANCES:
Curtis L. Gaye, Esquire Emerson Carey, Jr., Esquire
Sharon Calhoun, Esquire East Point, Georgia
Office of the Solicitor For Respondent
U. S. Department of Labor
Atlanta, Georgia
For Complainant
Before: Administrative Law Judge James D. Burroughs
DECISION AND ORDER
E. L Davis Contracting Co. (Davis) contests a serious citation alleging violations of
(1) $ 1926.20(b)(l), for failure to initiate and maintain a safety program,
(2a) 5 1926.21(b)(2), for failure to instruct employees in the recognition and avoidance of
unsafe conditions, (2b) 0 1926.21(b)(6)(i), for failure to instruct employees in the hazards
of confined space and precautions to be taken in the use of protective emergency
equipment, (3) 0.1926.28(a), for failure to require employees to wear safety-toe footwear
while operating a jackhammer in an excavation, (4) 0 1926.100(a), for failure to require
employees to wear protective helmets while working in an excavation, (5) 8 1926.651(g)(l)(i),
for failure to perform atmospheric testing in an excavation prior to employees entering,
(6) 0 1926.651(g)(2)(i), for failure to have emergency rescue equipment readily available
where hazardous atmospheric conditions exist, and (7) 8 1926.651(k)(l), for failure to have
the excavation and adjacent areas inspected by a competent person In the alternative, the
l Secretary alleges a violation of 8 1926.651(k)(2), for failure to remove employees from
hazardous conditions until the necessary precautions have been taken. Davis further
contests a willful citation alleging a violation of (1) 0 192&652(a)(l), for failure to have a
protective system in the manhole excavation and (2) 8 1926.652(b)(4)(i), for failure to have
a protective system approved by a registered professional engineer.
Davis is in the pipeline installation business. It is owned by E. L Davis (Tr. 8). At
all times pertinent to this proceeding, it was working on a $597,000 contract with the City
of Atlanta to repair or replace a sewer line (Tr. 8). Work on the contract commenced in
February, 1991, Davis was laying 360inch pipe (Tr. 44). On July 29, 1991, Davis had
progressed up Harris Street and was working at the comer of Peachtree Center and Harris
Street.
On the evening of July 29, 1991, a slight cave-in occurred around 9:00 p.m. Oscar
Baker and Brown Hardnett were in the excavation Ee Le Davis had been in the excavation
(Tr. 8-9, 14). Additional employees were on the site but were not in the excavation Baker
had been working for the company only a matter of IWOor three hours. This was his first
day at work (Tr. 8-9):
The dimensions of the excavation were approximately 11 feet by 11 feet. The depth
of one side of the excavation measured 20.5 feet. The other side of the excavation measured
22.5 feet deep. The excavation contained a manhole in which an active sewer flowed. The
employees were in the excavation using a jackhammer to trim some concrete structures (Tr.
12, 14, 23).
Ee Le Davis was at the excavation at all times operations were being performed and
was aware of the existing conditions. He had been inside the trench on several occasions.
Additional employees had also been inside the trench prior to the cave-in. E. Le Davis had
2
been informed by the City of Atlanta inspector that it would be necessary to utilize a
protective system in the excavation. The hydraulic jacks on the site were leaking. They
were installed and immediately malfunctioned because of the leak. The jacks were removed
from the excavation, and no type of protective system was utilized. The excavation was not
sloped. There was some support from existing utility lines (Tr. 14-U).
As a result of the accident on July 30, 1991, Kathleen Gil&n Ragan was assigned
to conduct an inspection. She proceeded to the site on that date and identified herself to
the City of Atlanta persons who were at the site. She was informed that the contractor was
E. L. Davis. He was not at the site at the time she arrived, She proceeded to measure the
area with an engineering rod and to take photographs of the excavation. As a result of her
investigation, serious and willful citations were issued to Davis on November 13, 199’1.
The Allegations
Burden of Proof
In order to establish a violation of the standard, the Secretary has the burden to show
by a preponderance of the evidence that (1) the standard applies to the cited conditions, (2)
its terms were not met, (3) employees had access to the violative conditions, and (4) the
employer knew or could have known of the violative condition with the exercise of
reasonable diligence. Omet Copomtion, 14 BNA OSHC 2134, 2135, 1991 CCH OSHD
U 29,254 ‘(No. 85-531, 1991). Davis had full knowledge of all of the violative conditions.
E. I. Davis, the owner and operator, was present at the jobsite and made several trips into
the excavation. According to him, he had an oral safety program because he was at the site
at all times and was iware of the conditions under which the employees worked.
Item 1 - Alleged Violation of 5 1926.20(b)(l)
The Secretary alleges that Davis’failed to initiate and maintain a safety program.
Section 1926.20(b)( 1) provides:
(b) Accidentprevention responsibilities.(1) It shall be the responsibility of the
employer to initiate and maintain such programs as may be necessary to
comply with this part.
3
Davis had no written safety program at the time of the cave-in. E. L. Davis contends
that he is the embodiment of the company’s safety program (Tr. 1849). He is always on the
job and orally instructs employees (Tr. 18). According to him, employees had been
instructed when hired (Tr. 26). Exhibit C-3 purportedly represents Davis’s oral safety
program which was reduced to writing after the inspection (Tr. 21). No documentation of
the safety program was offered at the time of the inspection.
Even if Davis had a safety program, it did not meet the requirements of the standard.
There was no enforcement. E. L Davis allowed employees to work without hard hats and
to wear tennis shoes. He claims to have instructed Oscar Baker that he had to have safety
shoes to work in the excavation (Tr. 18). Baker was wearing tennis shoes and was allowed
to work (Tr. 19). E. L Davis expressed an inability to compel employees to wear personal
protective equipment (Tr. 1849). The truth is that he does not care. He lacks commitment
and concern for the safety of his employees.
E. L. Davis knew that his instructions to wear hard hats and safety shoes were being
ignored. He took no steps to enforce the rules. He took no action to prohibit employees
from entering an unsafe excavation. Employees were knowingly permitted to enter a 22.foot
deep excavation which contained an open sewer, had no protective system, and which had
not been tested for poisonous gases or oxygen deficiency.
There was no provision
. for frequent and regular inspection of the work site by a
competent person. E. L. Davis, who assumed the role of “competent person” on the jobsite,
failed to recognize as hazardous a confined space which had no protective system and in
which there was an open sewer (Tr. 24,49). While E. L. Davis has forty years’ experience
in the business, he lacks the necessary commitment needed for a viable safety program.
Experience without commitment negates a strong safety program. A competent person gains
insight and knowledge from his experiences. This helps prepare the individual with the
knowledge to maximize employees’ safety. The lack of commitment and poor attitude
expressed by E. L. Davis interceded and prohibited him from exercising good judgment.
The violation is affirmed.
4
Item 2a - Alleged Violation of B 1926.2UbJf2i ’
The Secretary alleges that employees had not received safety training relative to the
type of work they were performing. Section 1926.21(b)(2) states:
(2) The employer shall instruct each employee in the recognition and
avoidance of unsafe conditions and the regulations applicable to his work
environment to control or eliminate any hazards or other exposure to illness
or injury.
The standard requires that an employer inform employees of safety hazards which would be
known to a reasonably prudent employer or which are addressed by specific OSHA
regulations. This means supervisory personnel advise employees of the hazards associated
with the actual dangerous conduct in which they are presently engaging. R & R Builders,
Inc., 15 BNA OSHC 1383, 1992 CCH OSHD li (No. 91-2851992). E. L Davis did not
consider the excavation to be particularly hazardyus (Tr. 22-23).
Employees had not been trained in safety and were not aware of the hazardous
conditions in which they were working (Tr. 71). One employee who had been on the job
two or three hours was instructed that he could not enter the excavation without wearing
proper shoes and a hard hat. In spite of this instruction, the employee was allowed to work
in the excavation without either. Additional employees were instructed as to where they
were to work in the excavation, but the rules as to protective equipment requirements were
not enforced. Davis employed two transient persons at the site who were not familiar with
the safety requirements.
The violation is affirmed.
Item 2b - Alleged Violation of S 1926.2l(b)(6)(’
The Secretary alleges that employees were required to enter confined spaces without
receiving instructions as to the nature of the hazards involved, the necessary precautions to
be taken, and in the use of protective and emergency equipment required for the job.
Section 1926.21(b)(6)(i) provides:
(6)(i) All employees required to enter into confined or enclosed spaces shall
be instructed as to the nature of the hazards involved, the necessary
precautions to be taken, and in the use of protective and emergency
equipment required. The employer shall comply with any specific regulations
that apply to work in dangerous or potentially dangerous areas.
The excavation in which the employees were working was a confined space. This fact
was recognized by E. L Davis (Tr. 27-28). The excavation was approximately 11 feet by 11
feet and approximately 20.5 to 22.5 feet deep. It qualifies as a confined space.
E. L Davis contends that he instructed the employees to maintain the entrance, exits,
and ladders and to be aware of any conditions which could change at anytime. The standard
is clear. Employees are to be instructed as to the nature of the hazard, precautions to be
taken, and in the use of protective and emergency equipment. “Evidence that the
employees were unaware of particular safety requirements, because of a lack of specific
instruction, establishes a violation.” R & R Builders, Inc., supra, 15 BNA OSHC at 1390.
Davis failed to instruct his employees as required by the standard.
The violation is affirmed.
Item 3 - Alleged Violation of d 1926.28(a\
The Secretary alleges that Davis violated 5 1926.28(a) by failing to have employees
wear appropriate personal protective equipment. Section 1926.28(a) provides:
(a) The employer is responsible for requiring the wearing of appropriate
personal protective equipment in all operations where there is an exposure to
hazardous conditions or where this part indicates the need for using such
equipment to reduce the hazards to the employees.
E. L Davis stated that he instructed Baker to wear safety shoes. At the same time, he was
aware that he was wearing tennis shoes (Tr. 18). E. L Davis testified, “Well, he only had
tennis shoes on which about ninety percent of them do” (Tr. 18).
Section 1926.28(a) is a general standard. In order to establish a violation under this
standard, the Secretary must establish that a reasonable, prudent employer concerned about
the safety of the employees in the circumstances involved would recognize the existence of
a hazardous condition and provide the required protection. Advance Bronze, Inc. v.
6
Secretary, 917 F.2d 944 (6th Cir. 1990). This test may be satisfied by, among other things,
evidence that other employers in the industry provide the particular protective equipment
or opinion testimony from persons familiar with the working conditions.
Davis was aware of the need for employees to wear safety shoes. While E. L. Davis
informed employees that safety shoes were required, he took no positive action to insure
that they were worn. He was responsible for requiring his employees to wear safety shoes.
A conscious decision was made to permit employees to work without safety shoes. No effort
was made to enforce the standard.
The violation is affirmed.
Item 4 - Alleged Violation of S 1926.1OO(a]
The Secretary alleges employees were not wearing protective helmets. Section
1926.100(a) provides:
(a) Employees working in areas where there is a possible danger of head
injury from impact, or from falling or flying objects, or from electrical shock
and burns, shall be protected by protective helmets.
E. L. Davis admits that employees were working in the excavation, which was 20.5 to 22.5
feet deep, without wearing hard hats (Tr. 19). He stated, “Well, they won’t wear them” (Tr.
19). There is no evidence that he took any positive steps to enforce the standard.
The excavation was neither sloped, shored nor equipped with an approved protective
system (Tr. 34). Employees were exposed to the hazard of being hit in the head by falling
objects or dirt from a cave-in (Tr. 80). The standard requires employees to wear hard hats.
E. L. Davis clearly recognized the need to wear hard hats. He wore one for his own
protection and made them available to employees (Exh. C-5; Tr. 65). He knowingly allowed
employees to work without protective helmets and asserts that he is virtually powerless to
force employees to wear them (Tr. 1819). This is not a viable defense. E. L. Davis
Contracting Co., 13 BNA OSHC 1678, 1988 CCH OSHD li 28,180 (No. 87-846, 1988).
An employer can rebut the prima facie imputation of knowledge ifit can demonstrate
that it “effectively communicated its work rule requiring the wearing of hard hats to
employees and that the rule was effectively enforced through supervision adequate to detect
7
failures to comply and discipline sufficient to discourage violations.” I. T.0. Corporation of
America, 11 BNA OSHC 1562,1565-1X6,1983 CCH OSHD ll26,583 (NO. 80-2369,1983).
E. L. Davis was aware of the violations. No steps were taken to enforce the rule (Tr. 19).
The violations were allowed on a continuing basis. Davis’attitude continues to be the same
as determined by Judge Paul L Brady in Docket No. 87-846, in which the following was
quoted from the transcript:
Q0 What do you say to Ray Dumas when you catch him in a ditch
for instance, and he doesn’t have a hard hat on? What do you
do to him?
A. Well, we try to make them get their hard hats. We can’t
enforce it.
Qa Do you ever fine them? Have you ever fined Ray Dumas or
anybody?
***
Am You can’t get them to appear every day. How you going to fine
them?
Q l Have you ever withheld pay?
A We just beg them. We don’t have no authority over them no
more.
The violation is med.
Item 5 - Alleged Violation of S 1926.651(&fl&J
The Secretary- alleges that Davis failed to test the atmosphere of the excavation
before allowing employees to enter. The standard provides:
(i) Where oxygen deficiency (atmospheres containing less than 19.5 percent
oxygen) or a hazardous atmosphere exists or could reasonably be expected to
exist, such as in excavations in landfill areas or excavations in areas where
hazardous substances are stored nearby, the atmospheres in the excavation
shall be tested before employees enter excavations greater than 4 feet
(1.22 m) in depth.
The excavation wasa confined space. E. L. Davis recognized this fact (Tr. 27). The
excavation was 20.5 to 22.5 feet deep and contained an open sewer. The standard required
Davis to test the atmosphere for poisonous gases and oxygen deficiency. The intent of the
standard is that the atmosphere be tested by competent persons using equipment designed
and approved for that purpose. E. L. Davis asserted that he satisfied this standard by
relying on his sense of smell to determine if harmful substances were present in the
excavation. He was aware that this approach was inadequate as evidenced by the following
exchange between Davis and counsel for the Secretary (Tr. 32):
Q l In other words, you conducted a smell test?
A. Yeah, that’s about as good as I know of.
Q l Mr. Davis, isn’t it true that some poisonous gases have no smell?
A Well, them people that got killed a few weeks ago out at the river
found that out; they went in and one of them died . . . .
Q. They couldn’t smell the gas, could they?
A. Well, they couldn’t smell it.
In spite of the fact that there was no protective system in the excavation and there
was an open sewer in a confined space, E. L Davis did not consider the excavation
unsanitary or dangerous. His lack of commitment and concern of safety of employees is
clearly evidenced by the following exchange (Tr. 24):
Q0 And you didn’t find anything with all those conditions that would lead
you to tell them, [employees] ‘Don’t go down in the excavation?’
.
A. Not pa&ularly. Everybody does it.
The violation is affirmed.
Item 6 - Alleged Violation of 8 1926.651(‘(2)(
The Secretary alleges that Davis violated 5 1926.651(g)(2)(i), for failure to have
emergency rescue equipment at the site. The standard provides:
(i) Emergency rescue equipment, such as breathing apparatus, a safety
harness and line, or basket stretcher, shall be readily available where
hazardous atmospheric conditions exist or may reasonably be expected to
develop during work in an excavation. This equipment shall be attended when
in use.
The dimensions of the excavation constitute a confined space. E. L Davis acknowledges this
fact (Tr. 27). Section 1926*21(b)(6)assumes that hazardous atmospheric conditions may be
reasonably expected to exist in confined spaces. Secrerary u. Ed TaylorConsbuctibn Co., 938
F.2d 1265, 1272 (11th Cir. 1991). The hazards normalIy associated with confined spaces
were in this case aggravated by the presence of an open sewer. The standard required Davis
to maintain emergency rescue equipment at the worksite. Davis admits that it had none (Tr.
33).. E. L Davis was on the worksite while employees were working in the confined space
and was aware of the conditions.
The violation is affirmed.
Item 7 - Alleged Violation of 6 1926.651fk)f11
The Secretary alleges that Davis violated 0 1926.651(k)(l), by failing to have the
excavation inspected by a competent person prior to commencing work. The standard
provides:
0 hspections. (1) Daily inspections of excavations, the adjacent areas, and
protective systems shall be made by a competent person for evidence of a
situation that could result in possible cave-ins, indications of failure of
protective systems, hazardous atmospheres, or other hazardous conditions. An
inspection shall be conducted by the competent person prior to the start of
work and as needed throughout the shift. Inspections shall also be made after
every rainstorm or other hazard increasing occurrence. These inspections are
only required when employee exposure can be reasonably anticipated.
“Competent person” is defined by 0 1926.650(a) as:
Competent person means one who is capable of identifying existing and
predictable hazards in the surroundings, or working conditions which are.
unsanitary, hazardous, or dangerous to employees, and who has authorization
to take prompt corrective measures to eliminate them.
10
E. IL Davis contends that he was the “competent person” on the job site during the time
when the violative conditions allegedly existed. He testified, “After forty years experience,
I definitely consider myself quantified [sic] to make those decisions” (Tr. 21).
While Davis has forty years’experience and considers himself to be qualified to make
the decisions that had to be made, he is not considered capable of identifying existing and
predictable hazards. He lacks commitment to a safety program, and his attitude negates his
good judgment on identifying hazards. His judgment was clouded. There were recognizable
and predictable hazards at the site. A competent person would have recognized the hazards
and shown more concern for the safety of employees. The fact that E. L Davis may have
been well qualified to identify other safety hazards at the site does not prohl%it a
determination that he is not a competent person. See Secretay v. Ed Taylor Conrtruction
Co., supra.
The Secretary has pleaded in the alternative a violation of 6 1926.651(k)(2) in the
event E. L Davis was determined to be a competent person. This issue has been decided
under the Secretary’s primary position.
Classification of Violations
The Secretary submits that the violations were serious within the meaning of section
17(k) of the Act. In order to prove a serious violation, the Secretary must show that there
is a substantial probability that death or serious physical harm could result from the
condition in question. The Secretary need not prove that an accident is probable. It is
sufficient if an accident is possible and the probable result would be serious injury or death.
Brown & Root, Inc., Power Plant Division, 8 BNA OSHC 1055, 1980 CCH OSHD ll 24,275
(No. 76-3942,198O). The Secretary must also establish that the employer knew or with the
exercise of reasonable diligence should have known of the existence of the violation. The
knowledge element is directed to the physical conditions which constitute a violation.
SouthwesternAcoustics & Specialty,Inc., 5 BNA OSHC 1091,1977-78 CCH OSHD ll 21,582
(No. 12174, 1977).
The failure to wear safety-toe footwear in the excavation while operating a
jackhammer exposed employees to broken bones and severe lacerations. The failure to wear
a protective helmet while in the excavation exposed employees to the danger of head injury
from falling or flying objects. Depending on the size of the object that hit the employee, he
~~1s in grave danger. The failure to conduct atmospheric testing in the excavation before
allowing employees to enter exposed them to unknown conditions which could have resulted
in their death. Davis had nothing to indicate that there was an appropriate level of oxygen
within the excavation. The failure to have emergency rescue equipment at the site exposed
employees to needless
. delay which could have resulted in their death before such equipment
could be brought to the scene. The failure to have the excavation inspected by a competent
person exposed employees to possible cave-in of the excavation walls and their suffocation,
crushing, or death.
The failure to initiate and maintain a safety program, instruct employees in the
recognition and avoidance of unsafe conditions, and to instruct employees as to the
necessary precautions and the use of protective and emergency equipment when entering
an excavation resulted in serious violations being committed by Davis. The conditions
employees were exposed to as a result of these deficiencies necessitates classifying these
violations as serious.
Willful Citation
Item la - Alleged Violation of d 1926.652(a)m
Section 1926.652(a)(l) provides, in pertinent part:
Protection of mpbyees 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 . . .
l
On July 29, 1991, two Davis employees were working in an excavation which was
approximately 20.5 to 22.5 feet deep in previously disturbed and unstable soil which had no
protective system. The two employees were injured when dirt from the walls of the
excavation caved in. E. L. Davis was aware of these conditions. He was on the jobsite when
12
the employees entered the excavation, and he was there on a regular basis when work was
being performed. These facts are sufficient to establish a violation of the cited standard.
The Secretary alleges the violation was willful. A willful violation is one “involving
voluntary action, done either with an intentional disregard of, or plain indifference to, the
requirements of the statute.” Georgia Elecnic Co. v. Marshall, 595 F.2d 309, 319 (5th Cir.
1979); Ensign-Bicybrd Co. v. OSHRC, 717 F.2d 1419, 1423 (D. C. Cir. 1983); cert. denied,
466 U. S. 937 (1984). Willfulness involves misconduct that is more than negligent but less
than malicious or committed with specific intent to violate the Act or a standard. E.g.,
Georgia Elect& Co., supra; Ensign-BiclifordCo., supra.
An employer’s intentional disregard of or plain indifference to its safety obligations
under the Act can be established in various ways. Proof of prior citations for the same or
similar standards is relevant to establishing a violation as willful. See Cedar Constn~tion Co.
v. OSHRC, 587 F.2d 1303, 13054306 (D. C. Cir. 1978); Empire-DetroitSteel v. OSHRC, 579
F.2d 378,385.386 (6th Cir. 1978); F. XI Messina Construction Cop. v. OSHRC, 505 F.2d 701,
702 (1st Cir. 1974). Evidence showing that the employer deliberately disregarded a known
safety requirement, see, e.g, RSR Corporation v. Brock, 764 F.2d 355,363 (5th Cir. 1985), or
consciously failed to remedy an obvious and serious hazard, is also pertinent.
The record is replete with evidence establishing Davis’s intentional disregard of or
plain indifference to safety obligations under the Act. Davis has been cited on two previous
occasions for failure to slope or shore excavations in which employees were working. On
these occasions, there was a cave-in and employees were taken to a hospital. See
E. L. Davis Contracting Co., supra. Davis has not shown any desire to comply with safety
standards designed to-protect the health and safety of employees. When asked about a $240
penalty assessed against Davis in a previous ease, E. L. Davis boasted that he had not paid
a penny of the penalty because “I didn’t feel like I owed it” (Tr. 39). E. L. Davis was then
asked about a $4,000 penalty assessed by Judge Paul L. Brady in Docket No. 87-846. The
following dialogue took place (Tr. 42):
Q. Isn’t it true that you were assessed a penalty in that case of
$4,000?
. 13
Well, you attempted to assess one, yes.
The Judge -- I didn’t attempt. The Judge fixed a penalty of
$4,000, isn’t that true?
Well, that’s what I received in the mail.
And isn’t it true that you didn’t pay one penny of that either?
That’s correct because I’m not going to pay anything that I don’t
owe and I didn’t owe that.
All rig& sir.
We’re too broke to go around here paying something we don’t
owe.
The arrogance of E. L Davis in boasting that he has never paid any of the penalties
assessed by the Commission in Docket No. 87-846 is evidence of his total disregard for the
Act 0
E. L Davis ignored the City of Atlanta inspector, Jerome Marshall, when reminded
of his obligation to provide protection for the employees in the excavation (Tr. 46). In
Docket No. 87-846, Davis was faced with similar problems. Judge Brady found:
Fortune testified that he told Davis at the beginning of the project that Davis
needed to use some’protective devices, such as jacks, to support the trench,
which Davis ignored. Although respondent had several hydraulic showing
jacks at the work site, they were used less than half the time on the job.
Fortune also stated that Davis was on the work site often enough to know that
the trench was unsupported (Tr. 13, 42,46).
The violation was willful.
Item lb - Allened Violation of S 1926.652(b)(4)@
The Secretary alleges that Davis installed a modified trench box after the cave-in
which was not approved by a registered professional engineer. Section 1926.652(b)(4)(i)
provides:
14
(4) Des&n by a registeredprofessional engineer. (i) Sloping and benching
systems not utilizing Option (1) or Option (2) or Option (3) under paragraph
(b) of this section shall be approved by a registered professional engineer.
E. L. Davis admits that on July 30,1992, the day after the accident, a modified trench
box was installed in the excavation. This structure was not approved by a registered
professional engineer as required by the standard (Tr. 35,66). E. L Davis and an additional
employee were working in the excavation with the unapproved trench box when the
compliance officer arrived at the site (Tr. 65).
The violation is affirmed.
The Secretary alleges that the violation is willful. The use of the unapproved trench
box was a continuation of E. L. Davis’s intentional disregard and plain indifference toward
the safety of his employees. After two cave-ins, E. L Davis should have made reasonable
inquiries as to the requirements of the Act to protect his employees. According to him, the
trench box was a modified makeshift structure which had been prepared overnight. The
trench box, as modified, is not used in the construction industry. E. L. Davis had no way of
knowing if it would be effective as a protective system. Twenty-four hours after the
excavation cave-in, employees were ordered to enter the excavation under conditions which
violated the standard. E. L Davis had no commitment to employees’ safety. He was
indifferent to their safety. The violation is willful.
Determination of Penalty
The Secretary proposes penalties in the amount of $4,500 each for items 1, 2, 5, 6
and 7 of the serious citation. A penalty. of $2,250 had been proposed for items 3 and 4 of
the serious citation. Items la and lb of the willful citation have been grouped for purposes
of determining a total penalty of $63,000.
While the Secretary has proposed penalties, the Commission is the final arbiter of all
penalties in contested cases. Secretaryv. Intentate Glass Co., 487 F.2d 438 (8th Cir. 1973).
Under section 17(j) of the Act, the Commission is required to find and give due
consideration to the size of the employer’s business, the gravity of the violation, the good
15
faith of the employer, and the history of previous violations in determining an assessment
of an appropriate penalty.
The violation of items 1 and 2 of the serious citation are grouped for the assessment
of an appropriate penalty. Section 1926.20 is labeled “[gleneral safety and health
provisions.” The language used in 6 1926.20(b)(l) is nebulous in its reference to “such
programs as may be necessary.” Section 1926.21 entitled ‘Safety training and education,”
specifically informs an employer as to what “such programs specified in 6 1926.20(b)(l) must
provide. Since the standards are cited primarily for the same purpose, they will be grouped
as one violation for purposes of assessment of a penalty.
Davis is a small company that employed five people at the time of the inspection.
E. L Davis, the owner, supervised the work of employees and indicates that he was on the
job 100 percent of the time operations were being conducted. He was fully aware of the
conditions which faced his employees. Little effort was made.by him to comply with safety
standards, arid no training was provided to his employees. There was no evidence of a good
faith effort to conduct his operations with proper concern for safety. Davis has a history of
previous excavation violations. The conditions cited were numerous and presented a danger
to untrained employees.
After consideration of the criteria specified in section 17(j) of the Act, the following
penalties are assessed for the serious violations which occurred at the jobsite.
Serious Citation
Item No. Assessed Penalty
1, 2 (Grouped) $6,000
3 2,250
4 230
5 4,500
6 4,500
7 4,500
16
Davis has ignored the OSHA standards that are applicable to his business operations.
The penalty proposed for the willful citation must be of sufficient amount to convince E. L.
Davis that OSHA is not a paper tiger. The standards have been enacted for employees’
safety and must not be ignored. Davis has been cited three times for the same violation at
different worksites over different periods of time. In the present case and one previous case,
he was informed by a City of Atlanta inspector prior to a cave-in of the need for an
adequate protective system. See E. L. Davis Contzacting Co., supra. In both instances, he
ignored the
. warning and continued to act and operate by ignoring the standards. He has
shown little concern for employees’ safety. He lacks commitment towards enforcing a safety
program. He has continued to ignore small penalty assessments. In Docket No. 87846,
$4,000 was assessed after a trial on the merits before Judge Paul L. Brady. E. L Davis
openly boasts that he has not paid the fine and that he does not owe it. This attitude has
no respect for the law or for the safety of its employees. A penalty of $60,000 is
appropriate.
FINDINGS OF FACT AND
CONCLUSIONS OF MW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
ORDER
Based on the foregoing, it is
ORDERED: (1) That the violations as set forth in the serious citation issued to
Davis on November 13, 1991, are affirmed and the following penalties assessed:
Item No. Assessed Penaltv
1,2 (Grouped) l $6,000
3 2,250
4 2,250
5 4,500
6 4,500
7 4,500
17
(2) That the willful citation issued to Davis on November 13, 1991, is
affirmed and a total penalty of $60,080 is assessed for the violations.
Judge
Date: February 24, 1993
18
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