P. Gioioso & Sons, Inc.

Plain-English summary

P. Gioioso & Sons was installing water lines in Winthrop, Massachusetts, when OSHA inspectors saw a foreman and another employee inside an unprotected trench. A suspended pipe passed over the employees, and their access ladder extended only 12 inches above street level. The judge affirmed serious violations for working beneath the suspended load and for the short ladder. He also affirmed a repeated cave-in protection violation because the trench was more than five feet deep, had straight-cut walls, and lacked a protective system. Gioioso did not prove unpreventable employee misconduct because it lacked sufficient evidence that its rules were effectively communicated, monitored, and enforced. The Secretary withdrew one item, and the judge assessed total penalties of $9,600 for the three affirmed violations.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.651(b)(4), 1926.651(e), 1926.1053(b)(1), and 1926.652(a)(1)
• Outcome: Two serious violations and one repeated trench-protection violation were affirmed with $9,600 in total penalties; one item was withdrawn.
• Key point: An employer did not establish employee misconduct where its written rules were not supported by records of training, active monitoring, and actual discipline.

Full text (OSHRC public release)

                          United States of America
    OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                     1120 20th Street, N.W., Ninth Floor
                        Washington, DC 20036-3419


                                                                 Phone: (202) 606-5400
                                                                   Fax: (202) 606-5050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 95-0322
P. GIOIOSO & SONS, INC.
Respondent.

                     NOTICE OF DOCKETING
           OF ADMINKIRA~                 LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on April 24, 1996. The decision of the Judge
will become a final order of the Commission on May 24, 1996 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
May 14, 1196 in order to ermit sufficient time for its review. See
Comsion Rule 91, 29 8 .F.R. 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, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Uti ation
Office of the Solicitor.I U.S.
- -. DO
~ --gL
Room S4004
Avenue, N.W.
200 Constitution
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.

                                    FOR THE COMMISSION

Date: April 24, 1996 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 950322
NOTICE IS GIVEN TO THE FOLLOWING:

Frank V. McDermott, Jr.
Acting Re ‘onal Solicitor
Office of ti%f
e Solicitor, U.S. DOL
One Congress Street, 11th Floor
P.O. Box 8396
Boston, MA 02114

Richard D. Wayne, Es .
Hinckley, Allen & Sny 1 er
One Financial Center
Boston, MA 02111

Robert A. Yetman
Administrative Law Jud e
Occupational Safety an f Health
Review Commission
McCormack Post Office and
Courthouse, Room 420
Boston, MA 02109 4501

00109161752:01
 UNlTED STATESOf AMERtCA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSE-ITS 02109-4501

PHONE: FAX:
COM (617) 223-9746 COM (617) 223-4004
FTS(617) 223-9746 f=S (67 7) 223-4004

                                                       .
SECRETARY OF LABOR,                                    ..
                                                       .
                         Complainant                   ..         OSHRC
                                                        ..        DOCKET NO. 95-0322
                                                       .
                  V.                                   .
                                                       .

P. GIOIOSO & SONS, INCORPORATED                        :
                                                       .
                         Respondent.                   .
                                                       .


Appearances:
          James Glickman, Esq.                         Richard D. Wayne, Esq.
                 Office of the Solicitor                       Hinckley, Allen& Snyder
                 U.S. Department of Labor                      Boston, MA
                         For Complainant                               For Respondent .

Before: Administrative Law Judge Robert A. Yetman




          This proceeding arises under 6 10(c) of the Occupational Safety and Health Act of 1970,29

U.S.C. 5 65 1, et. seq., (“the Act”), to review citations issued by the Secretary pursuant to 3 9(a) of
the Act and a proposed assessment of penalty thereon issued pursuant to 6 10(a) of the Act.
           On January 5,1995, P. Gioioso & Sons, Incorporated (“Gioioso”) was issued two citations
stemming from the inspection of an excavation site located in Winthrop, Massachusetts. The first

citation alleges three serious violations of different construction standards with a total penalty of
$7,200 proposed. Subsequent to the hearing, the Secretary withdrew the first item of this citation,

reducing the total proposed penalty to $5,200. The second citation alleges a repeat violation of the
excavation standard with a penalty of $8,000 proposed.
           Gioioso, a heavy utility construction contractor, was hired by the Massachusetts Water

Resources Authority to install water lines in the town of Winthrop in order to feed water to Deer
Island (Tr. 25 1,260.61,271.72). On October 6, 1994, as part of this project, Gioioso employees
were waking at an open trench site located at the intersection of two streets leading to Deer Island
(Tr. 39-40,57; Exhibit C-l). Gioioso does not dispute that the trench was dug in a gravel-type soil
and was approximately four feet wide, eighteen feet long, and at least six feet deep (Tr. 4%43,45,
51,55-56,58,61,67-68, 102, 122, 126, 137, 152, 158,287,310,314-15,321; Exhibits C-l, C-2,
& C-19 at 6). The walls of the trench were “straight cut” at a 90 degree angle to the street and the
trench was not shored, sheeted, or benched (Tr. 43,55-56,66-67,152,3 1O-13; Exhibits C-2 through

c-9) .
A group of compliance officers conducting an inspection on Deer island were driving past
the work area on their way to lunch when they noticed a large Caterpillar crawler shovel (“CAT”)
and a spoil pile located next to the open trench which contained two employees (Tr. 35-37,41-43,
48-49, 100, 149-51, 155-57; Exhibits C-l, C-2, C-7, C-8 & C-9). Pursuant to OSHA’s national
emphasis program, the compliance officer driving the car parked nearby and approached the work
area in order to conduct an inspection of the trench. One of the employees identified himself as the
project’s foreman (Tr. 43045,50054,61062,91, 102-03, 105,208.09,309).

I. Serious Citation 1. Item 2:

     29 CFR $ 1926.651(e): Employee was not prohibited to be underneath loads handled
     by lifting or digging equipment:

     RT 145; Winthrop:
           Employees were exposed to serious injury while working ina trench
           in which a section of 12” water line was being lowered.
     Under this item, the Secretary alleges violation of 0 1926.65 l(e) which prohibits an

employee from being underneath a load handled by lifting or digging equipment. According to two
ofthe compliance officers who observed the worksite, a ten-foot section of cast-metal pipe that was
suspended fkom the bucket of the CAT excavator by a single chain sling passed over the heads of
the two Gioioso employees working inside the trench (Tr. 44-45,5 1,83-84,86,108,110-14,118.19,
151,153, 163-66; Exhibit C-2). According to Gioioso’s foreman, Salvatore Sansone, the pipe was

                                              2

in the process of being moved fi-om one location to another (Tr. 327.30).* As the CAT’s arm moved
slowly, the pipe apparently spun around from its single connection point, swinging over the men’s
heads (Tr. 65, 11O-11) 115,119~20,154,163,165-66). Considering the manner in which the pipe
was suspended from the bucket of the CAT, as well as the photograph which depicts the pipe
dangling in close proximity to the men working inside the trench, the record lends credence to the
compliance offkers’ observations (Exhibit C-2).
Gioioso asserts that the testimony of the compliance officers is inconsistent regarding the
actual position of the two employees inside the trench when the pipe passed over their heads. One
compliance officer testified that he saw the employees standing close together when the suspended
pipe passed over their heads, while the other compliance officer testified that the men were standing
several feet apart (Tr. 43-46,5 1y65066,83084,110,113,118-19, 15 1, 153-54, 158, 163-66; Exhibit
C-2). Therefore, Gioioso argues, their testimony is untrustworthy and should not be credited.
Gioioso fails to acknowledge, however, that the first compliance officer made his observation after
he had parked the car and was approaching the worksite in order to remove the men fkom the trench,
while the second compliance officer made his observation from his seat in the front of the car when
the group of inspectors drove past the site. As such, any significance Gioioso would accord this
minor inconsistency is undermined by the fact that these observations were made at different times
and from different vantage points.
As noted supra, two Gioioso employee were exposed to this violative condition. Since one
of these employees was Sansone and he was well aware that the pipe was being moved in this
manner, knowledge on the part of Gioioso is established (Tr. 326-30). AX O’Horo Co., 14 BNA
2004,2007, 1991 CCH OSHD T[29,223 (No. 85-369, 1991) (employee who has been delegated
authority over other employees is considered a supervisor whose actual or con&ructive kmwkxlge
of violative conditions can be imputed to employer). Thus, there is sufficient evidence to support

     1At the hearing, there was some question as to whether the men inside the trench were preparing to

receive the pipe for installation (Tr. 57, 134, 154, 159, 171-73; Exhibit C-19 at 3). Gioioso’s safietydirector,
however, noted that the photographs indicate the trench was not “ready” for the pipe to be installed; for
instance, the crushed stones used to protect the pipe from damage were not present at the bottom of the
trench (Tr. 290092,327).

                                                   3

the conclusion that a violation of 5 1926.65 l(e) has occurred as alleged.

II. Serious Citation 1. Item 3:

    29 CFR $ 1926.1053@( 1): Portable ladders were used for access to an upper landing
    surface and the ladder side rails did not extend at least 3 feet (.9m) above the upper
    landing surface to which the ladder was used to gain access:

    RT 145; Winthrop:
          A ladder used for access and egress to a trench did not extend three
          feet above the street level.
    Under this item, the Secretary alleges violation of 5 1926.1053(b)( 1) which requires that

*portable ladders used for access to an upper landing surface extend at least three feet above said
surface. * It is undisputed that a ladder leaning against one of the side walls near the center of the
trench extended only 12 inches above the road surface (Tr. 48-49,55,85,292-93,322-23; Exhibits
C-l, C-3 through C-9). Gioioso’s foreman admits that he placed the ladder inside the trench in this
manner (Tr. 322). Both compliance officers observed the foreman and the laborer working with him
use this ladder to exit the trench (Tr. 62,14 l-42,161). Thus, there is sufficient evidence to support
the conclusion that a violation of $ 1926.651(e) has occurred as alleged. Gioioso, while
acknowledging the violation in its post-hearing brief, urges that it should be characterized as de
minimis. Based upon the evidence discussed @@a(Section V), the Secretary has presented sufficient
support to characterize the violation as serious.

III. ReDeat Citation 2? Item 1:

    29 CFR $ 1926.652(a)(l): Each employee in an excavation was not protected from
    cave-ins by an adequate protective system designed in accordance with 29 CFR
    1926.652(c). The employer had not complied with the provisions of 29 CFR
    1926.652(b)(l)(I) in that the excavation was sloped at an angle steeper than one and
    one-half horizontal to one vertical (34 degrees measured from the horizontal):

     RT 145; Winthrop, Tafts Avenue:


      * As an alternative to extending the ladder in this manner, 6 1926.1053(b)(l) provides the option of

securing the ladder at its top to a rigid support and adding a grasping device such as a grabrail in order to
assist employees in mounting and dismounting the ladder. This option was not utilized here.

                                                  4

Employees were exposed to serious injury or death while working in
an unshored trench that was seven feet deep.
Under this item, the Secretary alleges violation of 6 1926.652(a)(l) which requires each
employee in an excavation to be protected corn cave-ins by an adequate protective system. As noted
supra, the walls of the trench were straight cut to a 90 degree angle and the trench did not contain

any kind of protective system. Although Gioioso has acknowledged that the trench was at least six
feet deep, it maintains that the two employees inside the trench never stood on the trench’s floor, but
stood on an exposed, six-inch diameter natural gas pipe that traversed the trench (Tr. 48-49, ‘71-72,
139-41 152, 310, 314, 318; Exhibits C-3, C-4, C-5, C-6, & C-19). Since this pipe was located
approximately three and a half feet corn the top of the trench, Gioioso claims that its employees
were never exposed to the cave-in hazard presented by a trench measuring more than five feet (Tr.
313,316-18).
Based on the testimony of the two compliance officers who observed the worksite, as well
as the only photograph taken of the men while they were inside the trench, it is unlikely that the men
were standing on the floor of the trench at the time that the compliance officers observed them. Both
compliance officers testified that from outside the trench, the tops of the hard hats worn by the men
were visible (Tr. 50-51, 61, 102-03, 151). In fact, in the photograph of the two employees, the
foreman is pictured almost from the waist up and the full face of the laborer is visible (Tr. 158,3 15-
16; Exhibit C-2). Given that the heights of the two employees were estimated to be no more than
six feet and the depth of the trench was placed at over six feet, Gioioso’s contention that the men
were standing on the pipe at the time that the photograph was taken is not an unreasonable one (Tr.
63, 122-24, 167).
But no matter where they were standing, the employees were still inside a trench that was
not protected in accordance with 8 1926.652(a)( 1). In Ford Dev. Corp., 15 BNA OSHC 2003,2011,
1992 CCH OSHD 7 29,900 (NO. 90-l 505,1992), afd, 16 F.3d 12 19 (6th Cir. 1994), Ford made the
same argument Gioioso makes here, claiming that its employees were only exposed to a trench that
was 3 1/2feet deep because they were supposed to stand on a pipe located at that depth. The
Commission rejected this argument as “unpersuasive”, stating fhat “[§ 1926.652(a)( 1)] speaks of the
depth of the trench, not of the position of employees in the trench.” Since the depth of this trench
W~,Swell over the five-foot depth exception level, Gioioso was required to comply with the
protection requirements of the cited standard, irrespective of where the men were told to stand while
inside the trench.
At the hearing, the foreman acknowledged that cave-in protection was requ&cl in the tm&
Indeed, he claims that the reason he and the laborer were inside the trench was to measure it in order
to determine whether a steel trench box would fit inside (Tr. 3 10,3 12014,324). The compliance
officer confirmed that he observed a trench box about 100 yards away from the work area (Tr. 53,
86,133,324). According to the foreman, his primary concern was ensuring that the exposed gas line
was not ruptured. Moreover, if the trench box did not fit, he claims he was prepared to use some
other type of shoring system (Tr. 13436,3 13; Exhibit R-l). But as the Secretary has validly noted,
the men did not need to enter the trench in order to measure it for these purposes. Just as the
compliance officer did during his inspection, the dimensions of the trench could have easily been
determined from outside of the trench. Having entered the trench, for whatever purpose, the men
should have been protected from a potential cave-in. Thus, there is sufficient evidence to support
the conclusion that a violation of 0 1926.652(a)( 1) has occurred as alleged.

IV. Unpreventable
a EmDlovee Misconduct Defense

    Gioioso contends that all three of these violations are the result of unpreventable employee

misconduct, primarily on the part of its foreman. In order to establish this affirmative defense,
Gioioso must prove that it has work rules designed to prevent the violative conditions, that these
rules are effectively communicated to its employees, and that it has effectively enforced these rules
when they are violated. Centex-Rooney Constr. Co., 16 BNA OSHC 2127,2130,1994 CCH OSHD
.
130,621 (No. 92-085 1, 1994). When the misconduct of a supervisory employee is alleged, “the
proof of unpreventable employee misconduct is more rigorous and the defense is more difficult to
establish since it is the supervisor’s duty to protect the safety of employees under his supervision.”
L.E. Myers Co., 16 BNA OSHC 1037, 1041, 1993 CCH OSHD 7 30,016 (No. 90-945, 1993).
Despite an effort to develop a safety program that includes frequent training sessions, I find that

Gioioso’s program falls short in terms of its implementation and enforcement.
Gioioso’s employee safiety manual, distributed to all new hires, contains general sections on

                                               6

the lifting of loads, the proper placement of ladders in trenches, and the protection requirements for
trenches (Tr. 253-55,285.86,292.93,295,302-03; Exhibit R-2). While not extensive in detail, these
materials can be considered rules which govern the work practices of Gioioso’s employees.
Although Gioioso’s foreman indicated that he was aware of these specific rules, Gioioso has not
definitively established that these rules have been effectively communicated to all employees (Tr.
53,3 13,321-22). According to Gioioso’s safety director, “toolbox talks” are held weekly at each
worksite, safety meetings are held monthly for supervisory personnel, and safety seminars are held
biannually for all employees (Tr. 255-59, 264-65, 268-69, 296). Despite this training schedule,
Gioioso has provided little information regarding the exact nature of these sessions, submitting into
evidence only a sampling of toolbox talk topic sheets excerpted from a newsletter published by the
National Utility Contractors Association (Tr. 258-59,261.62; Exhibits R-3 to R-12). According to
these sheets, Gioioso scheduled several toolbox talks throughout 1993 and 1994, but there is nothing
to verify that these talks actually took place. In fact, the record as a whole lacks critical information
regarding the content of these various training sessions, who conducted each session, and most
important, which employees actually attended (Tr. 257,264,268-69 ). With&t such documentation
to prove that its training program has been fully implemented, Gioioso cannot persuasively argue
that these particular work rules have been effectively communicated to its employees. See Hamilton
Fixture, 16 BNA OSHC lO73,1090,1993 CCH OSHD 7 30,034 (NO.8801720,1993), afd, 28 F.3d
12 I3 (6th Cir. 1994) (employer must establish that it has effectively communicated and enforced the
specific rule or rules at issue).
Most significant is the fact that there is also nothing in the record indicating that Gioioso has
effectively enforced its safety program. Gioioso has provided no evidence to indicate that it actively
monitors its employees’ compliance with the safety program. Without some type of check on
employee work practices, such as unscheduled safety audits or mandatory safety checklists,
violations of Gioioso’s safety program will remain undiscovered. Indeed, one can only wonder
where the two Gioioso project superintendents assigned to this relatively small worksite were when
the foreman was violating the company’s safety rules (Tr. 53,265.66). Even when safety violations
are discovered, Gioioso has provided no documentation to indicate that its four-tier disciplinary
policy is actually executed (Tr. 29698,300; Exhibit R-14). See Precast Services Inc., 17 BNA

                                                7                          -.

OSHC 1454, 1455, 1995 CCH OSHD 7 30,910 (NO. 93-2971, 1995), petition for reviewfiled, No.

96-303 1 (6th Cir. Jan. 9, 1996) (“TO prove that its disciplinary program is more than a ‘paper
pqgram’, an employer must present evidence of having actually administered the discipline outlined
in its policy and procedures.“). In fact, it is not even evident that employees are aware that the
threat of disciplinary action exists. Gioioso notes that on the day of the inspection, the foreman was
repr&tnded by one of the project superintendents and sent home without pay. This action alone,
however, does not prove adequate enforcement of the specific work rules at issue here (Tr. 297,300).

Id. at 1456.
Based on his testimony, the foreman’s actions were in direct contravention of what he knew
Gioioso’s safety policy to be. AS the Commission has stated, misconduct on the part of a
supervisory employee is a strong indication that his employer’s safety program is lax. L.E. Myers,
supra, 16 BNA at 1041. Because that has proven to be the case here, Gioioso has failed to sustain

its allegation of unpreventable employee misconduct. Moreover, based upon the history of safety
violations compiled by Gioioso, it is likely that violations will continue so long as Gioioso fails to
communicate to its employees its strong interest in complying with safety and health regulations and
vigorously enforcing its safety program by severely disciplining employees who fail to comply with
safety regulations.

V. Characterization of the Violations & Penalties

Serious Citation 1, Item 2

    Section 17(k) of the Act, 29 U.S.C. $666(k), provides that a violation is “serious” if there

is “a substantial probability that death of serious physical harm could result” from the violation. In
order to establish that a violation should be characterized as serious, the Secretary need not establish
that an accident is likely to occur, but must show that in the event of an accident, it is probable that
death or serious physical harm could OCCUT.
Flintco Inc., 16 BNA OSHC 1404,1405,1993 CCH
OSHD 7 30,227 (No. 924396, 1993). Here, the evidence establishes that a ten-foot section of cast-
metal pipe was suspended just above a trench and capable of swinging around from its single

connection point. Should that pipe break free of its sling as it passes over the heads of the employees
working inside the trench, these employees could suffer serious physical injury (Tr. 83-84).

                                               8

Accordingly, this violation was properly characterized as serious.

     Pursuant to 5 17(j) of the Act, the Commission is authorized to assess each violation an

appropriate penalty, giving due consideration to the size of the employer, the gravity of the violation,

the good faith of the employer, and the employer’s history of previous violations. Merchant’s

Masonry, Inc., 17 BNA OSHC 1005,1006-07,1995 CCH OSHD 7 30,635 (No. 92-424,1994). The
most significant of these factors is the gravity of the violation, which includes the number of exposed
employees, the duration of exposure, the precautions taken to prevent injury, and the degree of
probability that an injury would OCCUR
Id
For this violation, the OSHA assistant area director testified that the probability of an injury

occurring was judged to be greater and the severity of the injury was judged to be high (Tr. 197-98,
200-01). The gravity-based penalty was reduced by 20% for Gioioso’s size, but no reduction was
given for good faith or prior history of violations (Tr. 199-200). Thus, a total penalty of $4,000 is

pqosxL Given Gioioso’s extensive citation history, reviewed by the assistant area director at the
hearing, and the fact that Gioioso’s foreman knowingly disregarded his duty to protect the employees

under his supervision, I agree that it is inappropriate to give Gioioso credit for previous history or

good fiith (Tr. 1750 79, 182-94; Exhibits C-l 1 through C-17).3 However, based upon my own

analysis of the factors set forth in $ 17(j), I fmd the gravity of the violation to be less than that

indicated by the proposed penalty* Only two employees were exposed to the hazard created by the

suspended pipe and, according to the testimony of the compliance officers, the pipe was over the
employees’ heads for a short amount of time. Therefore, I find a penalty of $1,000 to be more

reasonable and appropriate under the circumstances.

Serious Citation 1, Item 3

     It is undisputed that the ladder placed inside the trench extended only 12 inches above street

level. The two employees who used this ladder to enter and exit the trench may have grabbed the

ladder’s side rails for support and fallen back into the trench, suffering serious physical injury (Tr.

     3Initially, the reduction given for size was to be 40%, but this amount was halved because of what

the assistant area director characterized as Gioioso’s “lack of concern for safety and health on the w&site”
(Tr. 200). Based upon my own assessment of Gioioso’s conduct, the size reduction will remain at 20%.

                                                 9

85, 128, 130, 132). Thus, based upon the analysis set forth supra with regard to serious violations,
I find that this violation was properly characterized as serious.
With regard to penalty, the assistant area director testified that the probability of an injury
occurring was judged to be lesser and the severity of the injury was judged to be low (Tr. 201).
After allowing for the 20% size reduction, a total penalty of $1,200 is proposed. However, based
upon my own analysis of the penalty factors set forth in 6 17(j), I find the gravity of the violation
to be less than that indicated by the proposed penalty. As noted with regard to Item 2, only two
employees were exposed to this violative condition. Also, the compliance officer acknowledged that
the ladder was positioned at a safe angle and seemed stable (Tr. 128, 293-94). As such, the
likelihood of a fall occurring was small Accordingly, I find a penalty of $600 to be more reasonable
ad appropriate under the circumstances.

Repeat Citation, Item 1
There is no question that an unprotected trench which is more than five feet deep poses a
cave-in hazard. Had a cave-in occurred here at the time that the employees were working inside the
trench, they could have suffered serious physical harm or even death (Tr. 68,143-44). Thus, based
upon the analysis set forth supra with regard to serious violations, I find that this violation was
properly characterized as serious. On the basis of a citation issued to Gioioso in 1992, the Secretary
has also alleged that this violation should be characterized as repeat (Tr. 177-79, 195, 203-04;
Exhibit C-1 1). A violation is properly classified as repeated under 6 17(a) of the Act if at the time
of the alleged repeat violation, there was a Commission final order against the same employer for
a substantially similar violation. EdwardJoy Co., 15 BNA OSHC 2091,2092,1991-93 CCH OSHD
T[29,938 (No. 91-1710, 1993); Potlatch Corp., 7 BNA OSHC 1061, 1063, 1979 CCH OSHD
’ 7 23,294 (No. 16183, 1979). It is undisputed that the 1992 citation, which contains a serious
violation of 6 1926.652(a)( 1), became a final order of the Commission on August 13,1993 (Tr. 203-
05; Exhibit C-1 1). Therefore, the violation is armed as repeat.
With regard to penalty, the assistant area director testified that the probability of an injury
occurring was judged to be greater and the severity of the injury was judged to be high (Tr. 201-02).
After allowing for the 20% size reduction, a total penalty of $8,000 is proposed. Based upon my

                                                10

own analysis of the penalty factors set forth in 5 17(j), I find that this penalty accurately reflects the
gravity of the violation. Having been previously cited under this standard, Gioioso was well aware

of the hazard posed by an unprotected trench. This hazard was exacerbated by the fact that the
trench was located on a residential street with a considerable amount of vehicular traffic travelling
to and from Deer Island (Tr. 69-70). Although only two men were exposed to this hazard, the record
indicates that they were inside the trench for a considerable amount of time. In addition, Gioioso’s
foreman testified that an additional instance of exposure occurred earlier in the day when the laborer
entered the unprotected trench in order to dig out the gas pipe with a hand shovel (Tr.-324-25).

Therefore, I find a penalty of $8,000 to be reasonable and appropriate under the circumstances.

VI. Findings of Fact and Conclusions of Law

     All findings of fact relevant   and necessary to a determination of the contested issues have

been made above. Fed. R. Civ. PI 52(a). All proposed findings of fact and conclusions of law

inconsistent with this decision are denied.

                                             ORDER

     Serious    citation 1, item 1) alleging a violation of 29 C.F.R. 0 1926.65 l(b)(4), is

WITHDRAWN.
Serious citation 1) item 2, alleging a violation of 29 C.F.R. 5 1926.65 1(e), is AFFIRMED
and a penalty of $1,000 is assessed.

     Serious citation 1, item 3, alleging a violation of 29 C.F.R. 6 1926.1053(b)(l),               is

AFFIRMED and a penalty of $600 is assessed.
Repeat citation 1) item 1Yalleging a violation of 29 C.F.R. 8 1926.651(a)(l), is AFFIRMED
and a penalty of $8,000 is assessed.

Dated:
Boston, Massachusetts

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