Blankenship & Lee Pipeline Co., Inc.

Plain-English summary

Blankenship & Lee Pipeline was reconstructing sewer lines for a pumping station in Pelham, Georgia. An employee worked in a vertical trench that measured between 5 feet 4 inches and 6 feet deep without a ladder, adequate cave-in protection, or a hard hat; loose spoil was stored only inches from the edge. The judge also found that the trained onsite personnel did not perform the required manual soil test and therefore did not provide the competent-person inspection the excavation rules require. Blankenship & Lee kept its written hazard-communication program at headquarters instead of the worksite. Its employee-misconduct defense failed because supervisors knew of or participated in the conditions and the company did not effectively enforce its rules. All five serious trenching items and the other-than-serious hazard-communication item were affirmed, with total penalties of $3,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.651(c)(2), 1926.651(j)(2), 1926.100(a), 1926.651(k)(1), 1926.652(a)(1), and 1926.59(e)(1).
• Outcome: Affirmed. Five serious trenching items and one other-than-serious hazard-communication item were affirmed with total penalties of $3,500.
• Key point: Safety training alone does not establish a competent-person inspection or employee-misconduct defense when supervisors overlook required soil testing and multiple visible trench hazards.

Full text (OSHRC public release)

                       UNKED  STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
On8 Lafay8tt8 C8ntm
1120 20th Street, N.Wm- 9th Floor
Washington, DC 20036-3419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-0377
BUNKENSHIP & LEE PIPELINE CO., INC
Respondent.

                     NOTICE OF DOCKETING
           OF ADMINIS~~         LA\N JUDGE’S DECISION
 The Administrative Law Judge’s Re rt in the above referenced case was

docketed with the Commission on Marcr 10, 1994. The decision of the-Judge
will become a final order of the Commission on April 11, 1994 unless a
Commission member directs review of the decision on or before that W, ANY 1
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THB
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY F&VIEK
Any such petition should be received the Executive Secretary on or b&m
March 30 1994 in order to ermit sua cient time for its review. See ’4)
Commissibn Rule 91,29 C.gR. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, DC. 200363419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the Soei:l
citor, U.S. Dck
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
Re@onal Trial Litigation will represent the Department of Labor. Any party
havmg questions about review nghts may contact the Commission’s Executive I
Secretary or call (202) 606-5400.
FOR THE CO-ION
. 1

Date: March 10, 1994
DOCKET NO. 93-0377
NOTICE IS GIVEN TO THE FOLLx)\KING:

Daniel J. Mi4 m.
Counsel for RC ‘onai TrialLiti ation
Office of the So$ ‘citor, U.S. Dck
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

William H. Ber er
De uty Regio niti Solicitor
Of&e of the Solicitor, U.S. DOL
Suite 339
1371 Peachtree Street, N.E.
Atlanta, GA 30309

Carl R. Pennin on, Jr, Esquire
Pennington, Ha$e II, W&bon,
Culpep er Dunlapm Richmond &
Frenc& k A.
Post Office Box 10095
Tallahassee, FL 32302 2095

Nancy J. Spies
Admmistrative Law Jud e
Occupational Safety an cf Health
Review Commission
1365 Peachtree St., N. E.
Suite 240
Atlanta, GA 30309 3119

00106214018:oQ
 UNITEOSTATES
OF AnmIcA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, NE.. SUITE 240
ATLANTA, GEORGIA 30309-3119

                                                                                       FAX

PHONE
COM (404) W-0? ‘2
COM (404) 347497
m (JOJ) 3474713
ns (Jar) 3474197

SECRETARY OF LABOR,

              Complainant,

              v.                                           OSHRC Docket No. 93-377

BLANKENSHIP & LEE, INC.,
Respondent.

APPEARANCES:

    Idie J. Rodriguez, Esquire                     Carl R Pennington, Jr., Esquire
       u. s. Department of Labor                     Penningto& H&be%WiBinsus Culpepper,
       Oflce of the Solicitor                         Dunlap, Richmond bt French, PA
       Atlanta, Georgia                              TaUahasec, FIorida
             For Complainant                              For Respondent

Before: Administrative Law Judge Nancy J. Spies

                                   DECB’IONAVD ORDeR


    Blankensbip & Lee, Inc. (B Br L), is an underground utility contractor. During the

November 4,1992, inspection by Occupational Sdety and Health Administration (OSHA)
Compliance Of&xx David Hubert, B & L was reconstructing the sanitary sewer lines for a
new pumping station for the City of PeIham, Georgia ur. 13). On January 13, 1993, the
Secretary issued two citations to B & L: alleged serious violations of trenching-related
standards and a nonserious violation of the hazard communications requirements.
Specifically, the serious citation alleged violations of 8 1926.651(c)(2),for failure to provide
a safe means of egress from a trench; 8 1926.651(j)(2), for failure to keep excavated
material further than 2 feet from the trench; 8 1926.100(a), for failure to enforce wearing
of hard hats while in the trench; # 1926.6Sl(k)(l), for failure to have the trench inspected
by a competent person; and Q 1926.652(a)(l), for failure to have an adequate protective
system as required by the standard
B 8t L primarily asserts that any violation was the result of unanticipated
circumstances and employee misconduct.

   B & L is incorporated in the State of Florida and does business in that state and in

Alabama and Georgia (Tr. 12). The contract for the work in Pelham was bid from the
company’s Alabama office. B & L’s employees, some of whom lived in Fkxida, regularly
traveled across state lines while performing the work in Pelham, Georgia. B & L used
equipment which was manufactured in Illinois and other states in the Midwest ur. 13-14,
29-30). An employer is covered by the Occupational S&ety and Health Act a# 1970 (Act)
if it is engaged in a business affecting commerce. VW?O~ Inc., 11 BNA OSHC #)9q 1984
CCH OSHD 126,974 (No. 79-1569,1984). B & L’s business activities a&cted commerce,
and it is covered by the Act.

  The trench was cut with a 2& to 320inch bucket. The employees and Hubert agreed

that the bottom width of the trench was 28 to 32 inches (Tr. 65,127). Hubert measured the
top width as 36 inches. The trench walls were vertical without sloping or shoring (Tr.
104). The part& dispute the height of the trench, which is critical to the case. Since actual
measurements were taken, it is unnecessary to rely on hearsay testimony comparing the
height of an w employee to the height of the trench. While superintendent James
Lines watched, Hubert used a steel tape to measure the depth of the trench at the point
where he observed the employee had been working. That measurement was 6 feet.
Approximately 40 feet north from the first measurement, where the trench appeared
shallowest to Hubert, he measured 5 feet 4 inches (Tr. 95, 104, 126). The spoil pile was
placed on the west side of the trench. Hubert measured the east side from the bottom of

                                         2

the trench to the point where “the soil started bending back* (Tr. 114-115). Hubert noted
that on the east side there was “a little bit of [soil] spillage” (Tr. 126). After the compliance
officer left, Lines also measured the trench. To do this, he “cleaned the dirt off the top of
the ditch” to get the “true measurement” at the place along the trench wall where the grass
line shuwed. Lines measured this portionof the trench as 4 feet 11 inches. (Exh. C-3; Tr.
139). Lines’ approach was not an acceptable method for measuring a trench wall. The
employee was cl;pasad to a pos&le cave-in of a 6-foot trench wall. Hubert had not
measured the side of the trench where the spoil pile was placed. He correctly included in
the trench wall measurement incidental soil deposited as the excavation was dug. The depth
of the trench at the two locations was shown to be 6 fett and 5 feet 4 inches, respectively.

                                    CITATION NO. 1

                    Item 1: Alleged Violation of 8 1926.651(c)(2)

   The Secretary charges a violation of 0 1926.651(c)(2),for fkilure to have a s8ft means

of egress. The standard requires: .

  (2) Means of egresrfim trench tzavatibns A stainway,ladder, ramp or other
  safe means of egress shall be located in trench excavations that are 4 feet or
  more in depth so as to require no more than 25 feet of lateral travel for
- employees.
   The terms of the standard apply since at the time of the inspection the trench was

a minimum of 5 feet 4 inches deep and had been opened up for the length of 100 feet (Tr.
95,99). There was no stairway or ladder in the trench. When Hubert requested the exposed
employee, Jackie Rutherford, to exit the trench, Rutherford climbed onto the sewer pipe and
walked 70 feet down to the north end of the open trench where it was being backfilled (Exh.
C-2; Tr. 3493). B & L argues that rather than walking 70 feet to the rear of the trench,
the employee could have exited on the “ramp” which was created at the south end as the
John Deere backhoe dug the trench. The distance to the backhoe was less than 25 feet (Tr.
68). B & L misses the point. The standard requires that there be a quick and safe means
of egress from a trench. B & L did not show that the excavator,created anything like an exit
ramp on November 4,1992. Even if a slope was coincidentally constructed while the trench

                                             3

ramp on November 4,1992. Even if a slope was coincidentally cmstrwted while the trench
was being excavated, this was not a “ramp” or a “safe means of egress” for purposes of the
standard (See 8 1926.651(~)(1)). Practically speaking, Rutherford had the alternative of
walking, as he did, 70 feet and exiting at the rear of the trench or walking into the operating
backhoe and risk being crushed by it. Alternately, B & L suggests that Rutherford could exit
the trench by stepping onto the pipe and hoisting himself out of the trench vrm 79). Using
rounded sewer pipe as a boost out of a trench which is higher than 4 feet is unacceptable.
B & L did nothing to provide safe egress for its employee. Its argument that no means of
egress was rquired is contrary to the standarxl
B & L had constructive knowledge of the violation “which [was] readily apparent to
anyone who looked.” Sbnplkz Tote Recorder Co., 766 F.2d 575, 589 (D.C Cir. 1985).
Further, his superintendent knew the violation existed, and his knowledge is imputed to
B & L Dover Ekvator Co., 15 BNA OSHC 1378,199l CCH OSHD 129,524, p. 39,849 (No.
. 88-2642,199l). Failure to have a quick and safe means of egress fkom a trench compounds
the dangers of a cave-in and could result in serious bodily harm or death
The violation is affirmed as serious.

                                          PENALTY

       B & L employed between forty to fifty employees in November 1992 vr. 28). One
employee was exposed to the hazard “all day” (Tr. 38). There was no showing of previous
serious violations (Tr. 143). Respondent had a formal safety program, and its employees
attended weekly safety meetings. It is recognized that B & L made some sign&ant efforts
toward educating its employees on the trenching standards. It sent 14 employees for training
to become competent persons. Its co-owner, William Lee, is a certified OSHA instructor

(Tr. 140, 141, 172). The Act requires “due consideration” be given to the size of the
employer’s business, the gravity of the violation, the good faith of the employer, and the
history of previous violations in determining the appropriate penalty. The gravity of the
of&me is the principal factor to be considered. Nackema Operating Co., 1 BNA OSHC 1001,
1971-73CCH OSHD 1 15,032 (No. 4,1972). Considering these factors, a penalty of $1,000


                                               4

Item 2a: All@ Violation of 8 1926.651(j)(2)

        The Secretary alleges that B & L violated 0 1926&l(j)(2) by storing the spoil pile
at the edge of the trench. B Br L argues that since there was no other place to store the
excavated material, it was impossible to comply with the standard The standard requires:
        (i)~~ofanployecs~mloarcrrock~soiL(2)Employeershallbe
        protected fkom excavated or other materials or quipment that could pose a
        md      by. . . placing and keeping such materials or quipment at kast 2 feet
        from the edge of excavations. . q or by the use of retaining devices that are
        sufficient to prevent materials . . born falling or rolling into the excavations
                                       l




The facts establish the violation. Hubert observed the spoil pile stored at the edge of the
west side of the excavation (Exh. C-5; Tr. 94, 102). The backhoe operator, cahrin Scott,
admitted the spoil was no more than 6 to 8 inches from the edge (Tr. 66). T& spoil pile was
loose and dry (T’r.49,95). The spoil was placed near the trench edge becam           pipes had
been stored perpendicular to the street, taking up more room than if they had been Iaid

. parallel to the street (Tr. 75, 97).
B & L asserts that the Secretary has the burden of proving that the spoil pile posed
a hazard of falling or rolling into the excavation (Respondent’s Brie&pg. 4). The standard
presupposes the hazard, and it is sufficient for the Secretary to prove that the terms of the
standard were not met. See Wtight& Lopez, 10 BNA OSHC 1108, 1981 CC’H OSHD
125,728 (No. 76-256,198l). Further, when a standard specifies a method of complying, an
employer seeking to be excused from compliance has the burden of demonstrating that the
standard is infeasIble under the circumstances. h-Par Engd Fom Co., 12 BNA OSHC
1949,19559,1986-87 CCH OSHD 127,650, pp. 36,024-27 (No. 79-2553,ME), r&d on other
pun&, 843 F.2d II35 (8th Cir. 1988); State Sheet Metal Co., 16 BNA OSHC llSS,ll61,1993
CCH OSHD 130,042 (Nos. 904620 & 90-2894,1993). B & L’s infeasibility defense fails not
only because abatement was physically possible if the pipes were repositioned, but B & L
did not use alternative protective measures which were available. Set Sei6e.l Mbdetn
Mfg. & Welding Co., 15 BNA OSHC 1218,1227,1991 CCH OSHD II 29,442, p. 39,683 (No.
88;821, 1991).
 Lines was aware of the location of the spoil pile, ati his knowledge is imputed to the
company. The vioMion is serious because a falling spoil pile in the narrow trench could
result in serious bodily harm.
A serious violation is affirmed.

                    Item 2b= Alleged Violation of Q 1926.100(a)

   The Secretary asserts that B & L violated 0 1926.100(a) because Rutherford was not

wearing a hard hat while he was in the trench. B & L admits that Rutherford did not wear
protective head gear. The standard speciks that=
Employees working in areas where there is a possible danger of head injury
a shall be protected by protective helmets.
l l

Rutherford was required to stoop over when he disconnected the pipe harness and when he
cleaned the newly lowered pipe vr. 60). He was subject to the danger of head int while
performing his work in the trench. Rutherford had been observed throughout the day by
superintendent Lines, and his knowledge is imputed to B & L ur. 38). The violation is
serious because Rutherford was in danger of being hit, by equipment or materials as pipe
was lowered, or by falling soil fkom the spoil pile or a cave-in.
The serious violation is af!Eirmed.

                                      PENALTY

   Considering the statutory factors previously discussed and the moderate gravity of the

grouped violations, a penalty of $1,000 is assessed for items 2a and 2b.

                  Item 3: Alleged Violation of 8 1926.651(k)(l)

   The Secretary alleges that B & L violated 9 1926.651(k)(l) because the trench was

not inspected by a competent person as required by the standard. The standard provides:
Daily inspections of excavations, the adjacent areas, and protective systems
shall be made by a competent person.
 The excavation standards in 91926.650(b) define “competent person” as:

   (O]ne who is capable of identifying existing and predictable hazards in the
   surroundings, or working conditions which are unsanjtary, hazardous, or
   dangerous to employees, and who has authorization to take prompt corrective
   measures to eliminate them.

   Two of the three employees at this trench, foreman Iines and heavy equipment

operator Scott, received competent person training from the National Utility Contractors
Association (Tr. 102). These were two of the fourteen B 8t L employees who took the
competent person training (Tr. 147). Although Lines and Scott may have re&ved
“competent person” instruction, they did not perform the m testsandmakethe
decisions appropriate to those given the classEcation.
Subpart P, Appendix A(c)(2), requires the competent person to classi@soil as either
stable rock Type 4 Type B, or Type C soil, This classification must be ‘@bed on at least
one visual and at least one manual analysis.” At the time of the inspection, Lines told
Hubert that he had not made a manual test of the soil (Tr. 103,128). Lines tcsti&d that
he performed a “visual test” of the soil, noting:
Q. Did you pick up the soil and do anything with it before OSHA arrhd?
A No. I do every day, a visual check. (‘I?. 50).
Later in his testimony, Lines seemed to recall that he may have squeezed the soil to check
for firmness and water. His recollection was based on the fact that this was something he
usually did. Lines did not lcnow if he actually performed the test on the day of the
inspection (Tr. 5940). Lines’ memory would have been freshest when he admitted to
Hubert that he performed no manual tests. It is thus concluded that Lines failed to make
the required manual soil test. Lines was also incorrect as to the proper method for
measuring a trench. Since the standards specify different requirements predicated upon
different trench depths, a competent person must be able to measure those dimensions
accurately. Failure to have a competent person conduct the tests necessary to classi@ the
soil may result in a cave-h from improperly protected trenches.
The violation is affirmed as serious.

                                          7

PENALTY

   Considering the factors previously discussed and the gravity of failing to conduct

appropriate tests, which is moderate in the circumstances, a penalty of $500 is assesse&

                  Item 4: Alleged Violation of 0 lP26.652(a)(l)

   A violation of 0 1926.652(a)(l) is asserted because B & L did not shore, slope or use

alternate methods for protecting its employees in the excavation. The standard fequires:
Each employee in an excavation shall be protected fkom cave-ins by an
adequate protective system designed in accofd8llot with paragraph (b) or (c)
of this section except when: (i) Excx~tions are made entirely in stable rock
or (ii) Excavations are less than 5 feet in depthl l l l

As stated, the trench ranged in depth from 5 foot 4 inches to 6 feet. The standard required
that some Drotective system be used unless the trench was dug in solid rock. It was not.
Hubert relited that he picked up chunks of soilandptierizedtheminhishandasLines
watched. L&s told Hubert that the soil wan a sandy clay. Hubert ~las~ifi& the dl zu lope
C based on the ease with which the soil crumbled in his hand (Tr. 95). Lines, on the other
hand, recalled that he would have classified the soil as between A and B (Tr. 57).
Regardless, B & L should have sloped the trench or employed some other protective
method. B & L’s superintendent was on site, and his knowledge of the violation is imputed
to the company. Failure to properly slope or shore a trench can result in cave-ins causing
serious bodily injury or death. The violation is serious. In determining the appropriate +
penalty, the factors previously discussed were considered together with the gravity of the
violation, which was high. The penalty was mitigated by the efforts made by respondent
since 1980 to create a safe workplace. A penalty of $1,000 is assessed.

               B & L’S EMPLOYEE MISCONDUCI’DEFENSE

  Before reaching the decision that B & L violated each of the alleged excavation

standards, its employee misconduct defense was carefully considered. The Commission has
long recognized that an employer is not required to take into account the idiosyncratic
L

Co. v. OSHRC, 489 F.2d 1257, 1266 (DC. Cir. 1973). It is not suf6cient to met the
defense, however, that an employer “takes safety seriously.” In order to establish 811
affirmative defense on grounds of employee misconduct, the employer must show that: (I)
it established work n&s designed to prevent the violative conditions from occur&g (2) the
work rules were adequately communicated to its employees; and (3) it took steps to discover
vio]&oas of those rules, and effectively enforced the rules when violations were discovered.
&,   Gary concrete Ruduc& Inc., 15 BNA OSHC 1051,1056,1991 CXH OSHD 129,344,
p. 39,452 (No. 861087, 1991); H. B. J!iwhry co., 7 BNA OSHC 220& 1981 CCH OSHD
125,223 (No. 80-1357,1981), affd, 638 F.2d 812 (5th Cir. 1981).The burden of proving the
defense rests with the employer asserting it. S & H Riggers & Enx~        Inc., 7 BNA OSHC
126O,W9 CCH OSHD 123,480 (NO. 15855,1979), re~ti, 659 FM 12’73(5th Cir. lwl)e
       The company’s work rules must be specific as to the hazard in order that employees
know exactly what conduct is prohibited. B & L required employees to wear hard hats in
all “construction areas.” (Exh. R-2, pg. 28). Trenches “in unstable or sofi material, 5 feet or
more in depth,” were to be sloped or otherwise protected (Exh. R-2, pg. 35). Iikewise, work
rules existed regarding use of ladders in trenches and storing excavated materials 2 f&t from
the trench edge. Of concern here is the fact that the work rule involving sloping of the
trench wz~ based on the earlier standard and addressed only “unstable or soft mateM.”
Generally speaking, the work rule must be precise enough to implement tbe rquirements
of the standard or be functionally equivalent to it. MXW C’?WU&~ Co., 15 BNA OSHC
1408,1415 n. 4,1992 CCH OSHD 129,546, p. 39,906 n. 4 (No. 89-1027,199l). It is unclear
how B & L used the competent person manual (Exh. R-l) which simply recited the new
standard. Even if the work rules were arguably specific, however, they were not adequately
communicated and enforced. B & L conducted weekly safety meetings, but it was not
established that the particular rules were ever communicated to the employees. Each of the
work rules at issue was ignored by Rutherford, by Scott and, must significantly, by
superintendent Lines. For an employee misconduct defense “[proofj is more rigorous and
the defense more difficult to establish . . . .” when the employee is a supervisor. Daniel
Combuc~n Co., 10 BNA OSHC 1549,1552,1982 CCH OSHD 126,027 (No. 16265,1982).
As the Commission stated in Jensen ConstmctionCo., 7 BNA OSHC 1477,1478,1979 CCH

                                              9

. I -

        0Sl-D 1 23,664 (No. 761538,1979), “[m]oreover, the fact that a supervisor would feel free
        to breach a company safety policy is strong evidence that the implementation of the @iv
        is lax.” Finally, B & L did not enforce the work n&s when violations were shown.
        Rutherford was not disciplined for failing to wear his hard bat; Scott, for placing the spoil
        pile at the trench edge and for Ming to slope the trench; or Lines, for failing to take action
        to correct the violations ur. 20, 170). Lines and Scott, both of whom tessed             at the
        hearing, may be as Blankenship characterized them, %s good as they come” vr. 171).                .
        Discipline for safety rule i&actions by no means requires termination. However, B & L
        took no effective disciplinary measures after four of their wcxk rules were violated. B & L
        has not met its emplayee misconduct defense.

                                             CITATION NO. 2

                               Item 1: Alleged Violation of 9 192659(e)(l)

               The Secretaq alleges a nonserious violation of 5 1926.59(e)(l) becaust B Bt L did
        not keep a hazard communication program at the jobsite. Diesel fuel, hydraulic fluid and
        gasoline were used by employees in Pelham. B & L admits that its written program was
        kept at its headquarters and not at the jobsite. The standard provides:
               Employers shall develop, implement, and maintain az the w&cc,         a written
               hazard communication program . . . . (Emphasis added)

        An employer is required to have its program at the actual worksite. sofewav store NO. 914,
        16 BNA OSHC 1504, 1993 CCH OSHD 129,597 (No. 91-373, 1993). The violation is
        “other” than serious since employees were familiar with the hazard communication standard
        and with the specifics concerning the hazardous substances they worked with (Tr. 106). No
        penalty is assessed,

                                        FINDINGS OF FACTAND
                                        CONCLUSIONS OF LAW


               The foregoing decision constitutes the findings of fact and conclusions of law in
        accordance with Federal Rule of Civil Procedure 52(a).
                                                                                                    .
                                                     10

Based on the foregoing decision, it is ORDERED:
(1) That the violation of Q 1926.651(c)(2)is afEirmed as serious and a penalty in the
amount of $1,000 is assessed.
(2) That violations of 5 1926.651(j)(2) and 8 192&100(a) are affimwd as serious md
a penalty in the amount of $1,000 is assessed
(3) That the violation of 9 1926.651(k)(l) is affirmed as serious a.nd penalty of $500
is assessed
(4) That the violation of Q 1926.652(a)(l) is affirmed and a penalty of $1,000 is
Maed.
(5) That the violation of si 1%6.59(e)(l) is affirmed as nonserious with no penalty
assessed

                                              /s/ Nancv Je SDies
                                        NANCY Je SPm
                                        Judge

Date: March 3, 1994

                                           11