Conie Construction, Inc.

Plain-English summary

Three Conie Construction employees worked in an excavation about 20 to 21 feet deep, with hard clay above solid rock. The Commission found that the excavation was too narrow at the top to provide the slope required for Type A soil. Conie's foreman knew the excavation standard but relied on his own experience and belief that the excavation would not collapse. The company also had prior trenching citations, including a prior case involving the same foreman. The Commission reversed the judge, classified the violation as willful, and assessed a $21,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1).
• Outcome: Affirmed. The Commission found a willful excavation-protection violation and assessed $21,000.
• Key point: A foreman's confidence in soil conditions does not excuse knowingly substituting personal judgment for an excavation standard's protective-system requirements.

Full text (OSHRC public release)

                                  UNITED STATES OF AMERICA
              PATIONAL       SAFETY     AND HEALTH         REVI EW COMMISSIO         IN’
                                   One Lafayette Centre
                             1120 20th Street, N.W. - 9th Floor
                                Washington, DC 20036-3419

                                                                                         .
                                                                                       E&o2)6o64o5o
                                                                                         (202) 600-5050
                                                                                       Frs
                                                   ..
              OF LABOR,                            ..
                                                    ..
             Complainant,                            ..
                                                      ..
                                                   : OSHRC Docket No. 92-0264
                                                   ..

CONIE CONSTRUCTION, INC., ..

             Respondent.           .



                                         DECISION

BEFORE: WEISBERG, Chairman; FOULKE and MONTOYA, Commissioners.
BY THE COMMISSION:
At issue in this case is whether an excavation at the worksite of Respondent, Conie
Construction, Inc. (“Conie”), was sloped in compliance with the excavation standard at 29
C.F.R. 0 192&652(a)(l).’ The Secretary cited Conie for a willful violation of the standard,

‘That section provides:

   8 1926.652 Requirements for protective systems.
   (a) Protection of employees in excavations. (1) Each        employee in an
   excavation shall be protected from cave-ins by an adequate protective system
   designed in accordance with paragraph (b) or (c) of this section . . .      l

It is undisputed that paragraph (b)(2) applies in this case. That paragraph provides:

           (2) Option (2)~-Detemination of slopes and confi&rations using
   Appendices A and B. Maximum*allowable slopes, and allowable configurations
   for sloping and benching systems, shall be determined in accordance with the
   conditions and requirements set forth in appendices A and B to this subpart.

                                                                                    (continued...)

2

claiming that the excavation was not properly sloped, and proposed a penalty of $21,000.
The administrative law judge, Paul L. Brady, found that the Secretary failed to show
noncompliance with the standard and vacated the citation. We find, however, that the
excavation was not sloped in accordance with the standard and that the Secretary met the
remainder of his burden of proving a violation. We affirm the citation as willful and assess
a penalty of $21,000.
Analysis
In order to establish a violation, the Secretary must demonstrate that (1) the standard
applies, (2) the employer failed to comply with the terms of the standard, (3) employees had
access to the cited condition, and (4) the employer knew, or, with the exercise of reasonable
diligence, could have known of the violative condition. Kaspar EZectropZating
Corp., 16 BNA
OSHC 1517, 1521, 1993 CCH OSHD ll 30,303, p. 41,757 (No. 90-2866, 1993). The cited .
standard requires that employees in excavations be protected by an adequate protective
system designed in accordance with paragraph (b) or (c) of section 1926.652. The top 15
to 16 feet of the cited excavation, which was approximately 20 to 21 feet deep, was dug in
“hard clay” classified as Type A soil. The remainder was solid rock. The standard requires
that the walls of excavations in Type A soil be sloped 4 to 1. See Subpart P, App. B, Table .
B-l. The Secretary demonstrated that in order to comply with the standard, the top of the
excavation would have to have been 28 feet wide, instead of the 20 to 22 feet it actually was,
to have been sloped 4 to 1. Even trimming all measurements in the employer’s favor (that
is, assuming a total depth of only 19 feet, leaving only 14 feet of Type A soil above the 5
feet of rock, and a bottom only 3 feet wide), the top of the excavation would still have had
to be at least 24 feet wide to have been sloped 4 to 1. The company’s own foreman testified
that the excavation was only 22 feet wide at the top. Based on these facts, we find that the

‘(...continued)
Appendix A covers classification of soil and distinguishes “stable rock” from “Type A” soil
which means cohesive soils such as clay. Appendix B covers sloping and benching and
paragraph (c)(2) provides that “[t]he maximum allowable slope for a soil or rock deposit
shall be determined from Table B-l of this appendix.” Table B-1 provides that the
maximum allowable slope for excavations less than 20 feet deep in stable rock shall be
“vertical,” and for those in Type A soil shall be “4: 1.”
 3

excavation was not properly sloped and that Conie failed to comply with the applicable
standard.2
The Secretary characterized this violation as willful and proposed a penalty of
$21,000. The judge, who vacated the citation, did not reach either issue. We could remand
for the judge to determine the proper characterization and penalty in the first instance, but
the evidence of record is sufficiently detailed for us to make the appropriate findings de
novo. See Accu-Namics, Inc. v. OSHRC, 515 F.2d 828 (5th Cir. 1975), cert. denied, 425 U.S.

903 (1976); C. Kaujbzan, Inc., 6 BNA OSHC 1295, 1977-78 CCH OSHD n 22,481 (No.
14249, 1978). C$ JA. Jones Constz Co., 15 BNA OSHC 2201,2214,,1991-93 CCH OSHD
ll 29,964, p. 41,033 (No. 87-2059, 1993).
Willfulness
The Commission has described a willful violation as one “committed with intentional,
knowing or voluntary disregard for the requirements of the Act, or with plain indifference
to employee safety.” Falcon Steel Co., 16 BNA OSHC 1179, 1181, 1993 CCH OSHD
ll 30,059, p. 41,329 (No. 89-2883, 1993) (consolidated) (citing A.P. O’Horo Co., 14 BNA
OSHC 2004,2012,1991 CCH OSHD lI 29,223, p. 39,133 (No. 8500369,199l)). By the time
of the inspection in this case, in November 1991, Conie was well aware of the requirements
of the excavation standard, yet continued to flout them. The company had been cited at
least twice before for violations of similar standards.3 In 1989, Conie reached a settlement
agreement with the Secretary in which a willful violation of a trenching standard carrying an

-mere is no question but that the cited standard applies to the facts of this case and, as
Conie admits in its answer and answers to interrogatories, approximately three employees
worked in the excavation. Finally, as discussed below, the knowledge of Conie’s foreman
and owner that the excavation was not sloped in accordance with the standard is imputable
to the employer. See Kaspar ElectroplatingCop., 16 BNA OSHC 1517, 1993 CCH OSHD
ll 30,303 (No. 90-2866, 1993).

3Until early 1990, “Subpart P -- Excavations, Trenching, and Shoring” was divided into
sections covering “Specific excavation requirements” and “Specific trenching requirements.”
29 C.F.R. Part 1926, Subpart P, was revised, effective March 5, 1990, to govern “protective
systems” for all excavations, including trenches. 54 Fed. Reg. 45,894, 45,959 (1989); 54 Fed.
Reg. 53,055 (1989).
 4

$8000 proposed penalty was reduced to a serious violation with an $800 penalty. In 1990,
the company paid $800 each for four violations, one of which was a violation of a trenching
standard.
The compliance officer testified that the foreman told him that he was familiar with
the excavation standard and knew that the excavation had to be sloped according to OSHA
requirements, but felt that it would not cave in. The foreman himself testified that he had
received specific training about the most recent OSHA regulations on excavations. The
owner of the company spoke highly of the foreman, describing him as “conscientious” and
“on the ball.” The owner further testified that upon arriving at the site, he explained to a
state inspector that “I didn’t have any problem with [the excavation]. My foreman didn’t
have a problem with it.” The foreman’s knowledge, as well as the owner’s, of the violative
conditions is therefore imputable to the company. See Tampa Shi@yar&,Inc., 15 BNA

OSHC 1533, 1537, 1991-93 CCH OSHD 7 29,617, p. 40,100 (No. 86360, 1992)
(consolidated) (citing AX O’Horo, 14 BNA OSHC at 2007,199l CCH OSHD at p. 39,128).
The foreman in this case was also the Conie foreman in the 1990 case who then rejected the
standard’s requirements in favor of his judgment that the trench was safe. When asked
whether he thought the trench that was the subject of the 1990 citation was unsafe, Conie’s
foreman denied there was any danger in tunneling under a tree, based on his “experience.”
“I know the ground is good. If I thought I was in any unsafe conditions, I definitely wouldn’t
have [gone] in there.” In this case, when asked why he selected a slope of only ‘/2 to 1 for
an excavation in Type A soil over 20 feet deep, the foreman testified that “I thought it
would be safe . . . [bIased on my experience and everything.” His belief, regardless of his
25 years of experience, is immaterial in determining the willfulness of the violation. Also
irrelevant in this context is the opinion of Conie’s expert witness, a geotechnical engineer,
that a ‘/2to 1 slope was sufficient to protect against collapse. The engineer characterized the
soil above the solid rock as “A plus” or “better than A,” based on tests he performed in the
vicinity seven months after the excavation was back-filled. While his testimony may be
relevant to the probability of an accident occurring, it has no bearing on whether Conie
willfully violated a standard requiring a 4 to 1 slope for Type A soil.
 5

      Finally,   that the foreman       entered       both   excavations     himself,   while       perhaps

demonstrating confidence in his own professional assessments of potentially dangerous
situations, does not change the willfulness of this violation. As the United States Court of
Appeals for the Sixth Circuit has observed:
His decision to continue with the trenching operations was intentional,
deliberate, and voluntary; therefore, it was “willful.” Accord Empire-Detroit
Steel Div. v. OSHRC, 579 F.2d 378 (6th Cir. 1978). This conclusion appears
to be warranted, irrespective of [the foreman’s] good faith belief that the
workers could continue with the trenching without hazard.
Donovan v. CapitalCityExcavating Co., 712 F.2d 1008,lOlO (6th Cir. 1983). See allsoCalang
Cop., 14 BNA OSHC 1789, 1987-90 CCH OSHD II 29,080 (No. 85-0319, 1990) (although
foreman may not have committed the violations intentionally to endanger the employees, he
did intentionally ignore OSHA’s requirements after the inspector correctly explained them -
to him), and cases cited. In this case, the foreman knew what the standard required and
knew that the sloping ratio he chose did not comply with the standard, yet he purposefully
substituted his own judgment for the unambiguous requirements of the standard. For all the
foregoing reasons, we find that the violation was willful.
Penalty
In determining an appropriate penalty, we note that the penalty was proposed under
section 17(a) of the Act, 29 U.S.C. 8 666(a), as amended by the Omnibus Budget
Reconciliation Act of 1990, Pub. L. No. 101-508 0 3101 (1990), which provides that an
employer who willfully violates the Act or any standard promulgated pursuant thereto “may
be assessed a civil penalty of not more than $70,000 for each violation, but not less than
$5,000.” The Act provides:
The commission shall have authority to assess all civil penalties .. l

      giving due consideration to the appropriateness of the penalty with respect to
      the size of the business of the employer being charged, the gravity of the
      violation, the good faith of the employer, and the history of previous
      violations.

Section 17(j) of the Act, 29 U.S.C. $ 666(j). See Hem Iron Works,Inc., 16 BNA OSHC 1619,
1994 CCH OSHD Ii 30,363 (No. 88.1962,1994). The gravity of the offense is generally the
principal factor to be considered. See Nacirema Operating Co., 1 BNA OSHC 1001, 1971-73
 6

CCH OSHD n 15,032 (No. 4, 1972). The excavation here was cut into hard clay, it was
sloped % to 1, and, according to an experienced geotechnical engineer and a seasoned
foreman, it was not likely to collapse. At the same time, the excavation was very deep, over
20 feet deep, and quite narrow at the bottom, only a few feet wide. If a wall were to
collapse around an employee, serious injuries or death would most surely result. See CaZang
Cop., 14 BNA OSHC at 1794, 198790 CCH OSHD at p. 38,873. We therefore conclude
that the gravity of this violation was moderate to high.
Although Conie is a moderate-sized company, the moderate-to-high gravity of this
violation, Conie’s lack of good faith, and its history of previous violations, all support a
penalty of $21,000 for this willful violation, as proposed by the Secretary.
ORDER
Accordingly, we reverse the judge’s decision, affirm a willful violation of 29 C.F.R.
6 1926.652(a)(l), and assess a penalty of $21,000.

                                                       Stuart E. Weisberg
                                                       Chairman

                                                            0
                                                         Y&N
                                                       Edwin G. Foulke, Jr.
                                                       Commissioner



                                                       -Velma Montoya
                                                       Commissioner

Dated: June 29, 1994