Guarco Construction Company

Plain-English summary

Guarco Construction, a two-person company acting as general contractor, was installing a sewer line at a restaurant in East Granby, Connecticut. Two off-duty OSHA officers driving past noticed an unshored, unsloped trench and stopped to inspect. They measured the trench at about 5 feet 4 inches to 5 feet 7 inches deep with a worker inside, and OSHA issued a repeat cave-in citation under 29 C.F.R. § 1926.652(a)(1) plus an other-than-serious item for a saw with a frayed cord wired directly into a wall box. Administrative Law Judge Barbara L. Hassenfeld-Rutberg affirmed both. She rejected Guarco's defenses that the worker in the trench was not its employee (a contractor that creates and controls a hazard is liable even if only others are exposed), that the trench was under 5 feet (crediting the OSHA measurement over claims the measuring stick was bowed), and that widening the trench was enough (not a recognized cave-in protection). Because the violation was a repeat of a prior affirmed citation, no good-faith reduction applied and the $7,000 penalty stood; the saw item was affirmed without penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1); § 1926.20(b)(3)
• Outcome: Both items affirmed; repeat cave-in item $7,000, defective-equipment item no penalty.
• Key point: A general contractor that creates and controls a trench hazard is liable even if only another firm's worker is exposed, and simply widening a trench is not an OSHA-recognized substitute for shoring or sloping.

Full text (OSHRC public release)

                            UNITED STATES OFAMERICA
    OCCUPATIONAL SAFETY AND HEALTH RWIEW COMMISSION
                             One Lafayette Centfe
                       1120 20th Street, N.W. - 9th Floor
                          Washington, DC 2-19




SECRETARY OF LABOR
            complainant,
      v.                                                    OSHRC DOCKET
                                                            NO. 93-2962
GUARCO CONSTRUCIION CO.
            Respondent.


                     NOTICE OF DOCKETING
              OF ADktINISTRMWE IAW JUDGE’S DECISION
    The Administrative Law Judge’s Re rt in the above referenced case was
docketedwiti the Commissionon Ottogoer 25,1994. The decisionof the Judge
will become a final order of the Commissi
                                        on on November25,1994 unlessa
Commissionmemberdirectsreviewof the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISIONBY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARYREVIEW.
Any suchpetitionshouldbe receivedby the ExecutiveSecretaryon or before
November 14, 1994in order to permit sufficienttimefor its review. See
CommissionRule 91,29 C.F.R.2200.91.
  All furtherpleadingsor communications
                                      regardingthiscase shallbe
addressedto:
                      Executive Secretary
                      OccupationalSafetyand Health
                       Review Commhion
                      ll20 20th St. N.W9 Suite 980
                      Washhgton, D.C 200364419
Petitioningparties shallalso mail a copy to:
                      DanielJ. Mic& Esq.
                      Counselfor RegionalTrial Iiti ation
                      Office of the Solicitor, U.S. DO$L
                      Room S4004
                      200 Constitution Avenue, N.W.
                      Washington, D.C. 20210
If a Directionfor Reviewis issuedby the Commission,thenthe Counselfor
RegionalTrial Litigationyill representthe Departmentof ear.  Any pafty
ha-    questionsaboutrenew r@s may contactthe Commission’sExecutwe
Secretaryor call (202) 6063400.
                                     FOR THE COMMISSION


Date: October 25, 1994
DOCKET NO. 93-2962
NOTICEIS GIVEN TO THE FOLLOWING:


DanielJ. Mick, Esq.
Counselfor Re l   onal Trial titi tion
                  citor, US. DOT
office of the So9 l
Room S4004
200 ConstitutionAve., N.W.
WashingtoqD.C. 20210



Abert HaRoss, Esq.
Re lonal Solicitor
OfFce of the Solicitor,U.S. DOL
One CongressStreet,11thFloor
P.O. Box 8396
Boston,MA 02114



Aaron L Gersten,Esq.
Gersten& Gersten
234 Pearl Street
Hartford,c1‘ 06103



BaibaraHassenfeld-Rutbeq
             Law Ju e
Administrative
Occupationalsafety an3 Health
Review Commission
McCormackPost Of6ce and
 Courthouse,Room 420
Boston,MA 021094501




 ool232l3266:Ol
                                             UNITED STATES OF AMERICA
                     OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
                                                  ROOM 420
                                       BOSTON, MASSACHUSEl-T’S 02109-4501


PHONE:                                                                                  FAX:
COM (617) 223-9746                                                                      COM (617) 223-4004
FTS 223-9746                                                                            FE 223-4004
    -~~ _
    SECRETARY-OF LABOR,                            ..
                                                   .
                              Complainant,

                                                   .
                     V.                            .                OSHRC
                                                                    DOCKETNO. 93-2962
    GUARCOCONSTRUCTION,COMPANY :
                                                   .
                              Respondent.          .




    Appeafarws:
              CbistineEskib~Esq.
                      omeoftihe~~
                     U.S.DepartmentofLabor
                           ForComplainant




    Before: AdministrativeLaw Judge Barbara L. HasseafeM-RId-Rutberg

                                 .   DECISION

             Thisisaproceedingundersection10(c)aftheOccupationalSafetyandHeathActof1970,
    29 U.S.C., et seq, (“the Act”), to reviewa citationissuedbythe Secretarypursuntto section9(a) of
    the Act and a proposed assessmentof pen&y issued therem for an alI@ repeat violatim of 29 CFR
    1926.652(a)(l) and an alleged o&z thm~saiais viokion of 29 CFR 1926.20(b)(3).
             Respondent, Guam Consbuction Company        (“Guard’), a ccwporzdtm,
                                                                                wasissuedtwo
    ~itatims  on October 13,1993, stenzningfiom an investigation cducted   byth&ccuptid       safety
    and Health Administrationf”OSIiA“) of 8 comhwticm site on south Main Sweetin Emt Granby,
    Connecticut on August 19,1993. ThomasHey and Joseph Nomad, two OSHA represent&~
    conducfed an investigationbased OIIpotentiany S&W vi~kti~~~~ that they had ati& tie d+&
    past the construction site aftef work on August 19; 1993. The RespcmW ww then issuedtwo
    citations, one repeat ca@ng a total proposed penalty of $7000.00, and me c&r &an s&us with no
     Propo~ P-w           l




           Guano filed a timdy Notice of Contest and a hekng was held in Bcmtm, Masm&mm 0~
     August 2,1994, presided cwerby Judge Barbara L. IIimedbld-Rutberg.
                                             JSSU)N


I. Repeat Citation 1, Item 1
       The Secretary alleges that the Respondent, Guarco, committed a repeat violation of 29 CFR
1926.652(a)( 1) because its employees were not protected from cave-ins at an excavation by an
adequateprotective system, i.e. the excavation was not shored or sloped.’ The classification of repeat
violation stemmed from the factthat the Respondent had been previously cited for the same hazard.
(Tr. 38; Exhibit C-8). The parties settled that case andthe settlement included an affirmation of the
citation. (Tr. 40-41; Exhibit C-9).
        Guarco is a small construction company, which at the time of the citation, was installing pipe
for a sewer line at the Blue Goose Restaurant in East Granby, Connecticut, an establishment owned by
Allessio Guarco, a cousin of the Respondent’s president, Carl Guarco. (Tr. 2526,75).     On August 19,
1993, two OSHA representatives, Safety Supervisor Joseph Normand and Compliance Officer
Thomas Foley, were driving by the restaurant and noticed potentially serious OSHA violations, i.e.
that the trench did not appear to be shored or sloped. (Tr. 17). Even though the inspectors were “off
duty’, they decided to conduct an inspection of the excavation site because of the serious tids
associated with trenching work which were recognized in OSHA’s National Emphasis Program. (Tr.
17-18). At the time of the inspection, Mr. Daniel Cowles was standing in the excavated area/trench
while MXarl Guarco was working in an excavator. (T.r. 23.24,27; Exhiiiits C-l, C-2, C-3). Mi.
Gilman Gagnon, an employee of Respondent, was the only other person present on site. (Tr. 46,99).
M. Normand and Mr. Foley determined that the excavation was ullsafe and in violation of OSHA
standards as it had not been shored or sloped to prevent cave-ins which could cause serious injuq or
death to a person in the trench. (Tr. 38). OSHArequires shoring and sloping of any trench that is
deeper than 5 feet (see footnote 1). Mr. Normand and Mr. Foley measured the depth of the trench at
approximately where Mr. Cowles had been standing when they came on site by using Mr. Carl
Guarco’s surveyors stick. They determined that the depth ranged corn about 5 feet, 4 inches to 5 feet,
7 inches, thus subject to OSHA standards. (Tr. 29032,444;      Exhibits C-4, C-5).
        The Respondent proffered four af!irmative defenses in response to the citations. Its first
defense asserts that it should not have been cited by OSHA because OSHA standards did not apply to


*The relevantportionof 29 CFR 1926.652(a)(l)states:
        Eachemployeeinanexcavation~hdlbqwtected~omcave4ns byambcpa@pratectivesystemdesignedin
        accordawe with paragraph (b) or (c) of the s&on except when:. . .
                (ii) Exczwhoru are less th 5 fti (1.52m) in dep&.


                                                    2
    that excavation because at the time of the inspection, none of Guarco’s employees were exposed to the
    potential hazard in the trench. Mr. Cowles, who testified that he was not an employee of Guarco, was
    the only worker in the trench at that time. (Tr. 75-77). This argument, that OSHA does not apply to
    such a situation, lacks merit. It is well-established in the case law that where an employer is in control
.   of a work site and/or has created a hazard, its own employees need not be exposed to the hazard for
    the employer to be found in violation of OSHA standards. It is enough that any eees            at the
    work site could be exposed to the hazard that was created and/or under the control of the cited
    employer. See, e.g., Donovan v. AakzmsSteel Erection, 766 F.2d 804,811 (3rd Cir. 1985); Beatty
    Equipment Leasing, Inc. v. Secrehzryof Labor, 577 F.2d 534, 536-37 (9th Cir. 1978); Breman v.
    ~S.‘..K, 513 F.2d 1032, 1037-38 (2nd Cir. 1975). When Mr. Carl Guarco told hk. Cowles to get out
    of the trench, he did so, which proves that Mr. Guarco had control over the work site. (Tr. 24; Exhibit
    C-2). Respondent’s fourth defense of “insufficient exposure” is also erroneous in light of this case law
    since exposure is not a required element Bny employee need only have access to the hazard for an
    employerto be foundin violation of OSHA standards. Bennan, 513 F.2d at 1038.
            Rationale for this interpretation lies in the legislative history of the Act whichis to preva
    accidents and injuries to all employees; thus, to absolve an employer f?om responsibility for a hazard it
    created and/or controlled regardless of how many employees were exposed, simplybecause none of its
    m employees were exposed, would defeat the purpose of the Act. See, e.g., AdkzmsSteel Erection,
    766 F.2d at 81I; Beatty Equipment, 577 F.2d at 536-37; Brewtan, 513 F.2d at 1037-38. Mr. Cowles
    testified that he had been requested by the Respondent’s cousin, Allessio Guarco, the owner of the
    r-ant       where the construction was taking place, to repair and/or replace a~ undergroundcm&lit *
    that had been damaged. (Tr. 75-77). This task necessitated that Mr. Cowles work in the excavation
    which had been dug by the Respondent, and Mr. Normand and Mr. Foley saw Mr. Cowles working in
    the trench when they arrived on site. (Tr. 23024,27; Exhibits C-l, C-2, C-3). Mr. Cowles was
    therefore inwbly      exposed to the hazard of a possible cave-in. Guarco was the general contractor at
    the work site, had complefe control over the work site, and had excavated the trench, creating the
    hazard, (Tr. 34,103); therefore, the citation for a violation of OSHA standards in the construction of
    the trench was appropriate even though none of Guarco’s own employees were exposed to the hazard
    at the time of the inspection. &e, e.g., Adzms Steel Erection, 766 F.2d at 811;Beatty Equipment, 577
    F.2d at 536-37;Brernum, 513 F.2d at 1037-38.
             In its second defense, Respondent maintains that there was no need to shore or slope the
    trench because it was not over 5 feet deep and thus it was not an excavation subject to OSHA
    regulations. Respondent insists that the trench was not over 5 feet deep. (Tr. 104,117). ML Carl
    Guarco maintained that his stick used by the OSHA repre=ntatives was inaccurate, and that even ifit
    was accurate, it was bowed out at such an angle so as to significantly increase the measurements taken
                                                         3
of the depthof the trench. (Tr. 106). Furthermore, Respondent asserts that his widening of the trench
to accommodate excess soil in the case of a cave-in was a sticient    safety precaution. (Tr. 103). Mr.
Normand, the OSHA Assistant Area Director, Safety Supervisor, who had conducted the inspection,
testified that widening a trench is not a recognized means of protecting an excavation under OSHA
standards because the side walls could still collapse and cause serious injury or death. (Tr. 121). In
addition, Mr. Normand testified that the surveyor’s stick that was used to measure the depth of the
trench was not sufficiently bowed out to bring the height differential down 4 inches. (Tr. 121-Z). Mr.
                                                                                                   ‘. _
Normand confirmed that the stick was slightly bowed out so as to cause about a one-half&h          .I
difference in the measurement of the depth of the trench; however, a 4 inch difference would be
necessary to bring the actual measurement under 5 feet and out of the range of the OSHA standard
cited. (Tr. 122). Mr. Guarco admitted that he had not mentioned his concern over the accuracy of the
stick at the time of the inspection. (Tr. 11243). Mr. Normand also stated that the stick had been        .,
assembled properly and thus there was no reason to believe that it was inaccurate. (Tr. 72, 123-25,
Exhibits C-4, C-5). He demonstrated that assembly at the hearing and in photos. (Tr. 123-25; Exhibits
c-4, C-5).
       Respondent’s third affirmative defense that the alleged job site was not a “recognized hazard” is
completelyerroneous. This is not a section S(a)(l) of the Act, General Duty Clause citation but a
situation where the Respondent allegedly violated a specific OSHA standard relating to necessary
safietyprocedures when constructing and working in a trench. The argument that this was not a
recognized hazard is totally inappropriate in this case because OSHA has a regulation which m
rem-         this situation as a hazard.                                                           em_        --
        Section 17(j) of the Occupational Safety and Health Act of 1970 mandates that the
Commission give *due consideration” to four criteria when assessing penalties. These four criteria are:
(1) the size of the employer’sbusiness, (2) the gravity of the violation, (3) the good fkith of the
employer, and (4) the employer’s history of previous violations. S&e&q of Labor v. Dream Skt
Fashion, Im., OSHRC Docket No. 92-2962 (July Ii, 1994); StkzteSheet Meti Co., 16 BNA OSHC
1155,1161-62,1993 CCH OSHD para. 30,042, p. 41,227 (No. 90-1620,1993). In this case,
althoughthe Respondent, a corporation, employs only two people (Mr. Guarco and Mr. Gagnon),the
severity of any possible injury would be high as death could result from a cave-in of the trench In
addition, there doesn’t appear to have been any substantial precautions taken against injq,   although
Mr. Guarco maintained that he widened the trench to compensate for a potential cave-in, this is not an
OSHA recognized means of preventing trench cave-ins. Moreover, the likelihood of injury is high
sincethe trench was not shored or sloped and Mk Cowles was working in the trench at the site.
Finally, since this has been establishedas a repeat violation, Respondent is not entitled to any
reductions in penalty based on good faith. The history of the company indicates being cited for the
                                                    4
same violation previously. The proposed penalty of $7000.00 is amply supported by the evidence and
no mitigating factors are found so as to warrant a change in penalty. Thus the repeat citation with its
proposedpenaltyof $7000.00 is AFFIRMED

II. Other Citation 2, Item 1
       The Secretary also alleged that Guam violated 29 CFR 1926.20(b)(3) because of the presence
of a saw at the work site thatwas improperly wired into a wall box and was equipped with a frayed
attachment cord.:! Mr. Normand testified to these conditions, i.e. that the saw had a frayed cord and
that it was directly wired into the wires in an electrical outlet box on the outside of the restaurant. (Tr.
35-36; Exhibits C-6, C-7). During the inspection, Mr. Guarco stated that the saw had been used by
Cowles to cut the plastic pipe being laid in the trench. (Tr.3637).
       Respondent maintained that he should not have been cited because the saw was the property of
Mr. Cowles, not the Respondent, and Mr. Cowles was the only one who used the saw. Again, this
argument fails. It has been established that Guarco was the general contractor and in complete control
of the work site. Thus it is responsible for the safety of all -2~        working at that site. Mr.
Cowles testified that the saw in question was his own property and that he was the only one who used
it, (Tr. 70,76); however, Respondent should have infonrmedML Cowles of the hazards of using that
saw and refused to allow him to use it. This approach would have been a foible         solution since
Mr.Guarco testified that he had another saw at the work site and thus Mr. Cowles could have
pefiomed his job by using that saw. (Tr. 114-E). Thiscitation was classified as other than serious
and no penalty was proposed. Considering the four statutory criteria required when assessing a
proposed penalty, there is nothing in the record that would warrant a penalty being imposed in this
instance. The citation is hereby AFFIRMED and no penalty is assessed.




        All findings of fact relevant and necessary to a detemination of the contested issues have been
found specially and appear herein. See Rule 52(A) of the Federal Rdes of Civil Procedure. Proposed
findings of fact or conclusions of law inconsistent with this decision are denied.


* 29 CFR 1926.20@)(3)states:
       The use of any machinery,tool, material,orequipmentwhich is not in CO-     with any applicable
       reqbemat of thispartis probiiti Suchde         machines,tools, nuteMs, or equipmentshall be either
       identifiedas m&e by taggingor lockingtheWntrolsto renderthem inopenHe or &all be physicallyremoved
       fromits place of operation.


                                                      5
      Repeat Citation 1, Item 1, alleging a violation of 29 CFR 1926.652(a)( 1) is
AFFIRMED with a penalty of $7000.00.
      Other than Serious Citation 2, Item 1, alleging a violation of 29 CFR 1926.20(b)(3) is
AFFIRMED without penalty.




                                                    Judge, OSHRC
       October    19, 1994
Date:
Boston, Massachusetts