R & R Pipeline, Inc.

Plain-English summary

R & R Pipeline is a Colorado utilities contractor. During a December 1994
inspection of a trenching job in Littleton, an OSHA compliance officer found a
worker in a trench about 10 to 11 feet deep with no shoring in place, a spoil
pile of excavated dirt piled less than two feet from the trench edge, and no
trench box protecting the worker from a cave-in. OSHA issued three items: a
serious item for the spoil pile too close to the edge, a serious item for failing
to have a competent person inspect the excavation, and a repeat item for the lack
of cave-in protection, because R & R had been cited for the same cave-in standard
at a different site months earlier.

Judge Benjamin R. Loye affirmed the spoil-pile item as serious and affirmed the
cave-in item as a repeat violation. He rejected R & R's unpreventable-employee-
misconduct defense on the cave-in item, finding that although the company had a
shoring work rule and had told the crew to use protection, it did not consistently
enforce the rule: a longtime leadman treated the violation as no big deal and
faced no discipline for three months, until OSHA suggested at the informal
conference that firing the workers would help the company's defense. The judge
vacated the competent-person inspection item, finding the Secretary did not prove
that the company president had failed to test the soil before work began. Because
R & R was a small employer with about nine workers, the judge cut both penalties:
the spoil-pile penalty from $2,800 to $1,400 and the repeat cave-in penalty from
$5,600 to $2,800, for $4,200 assessed in total.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.651(j)(2); 29 C.F.R. § 1926.651(k)(1); 29 C.F.R. § 1926.652(a)(1)
• Outcome: Spoil-pile serious item affirmed (penalty $2,800 to $1,400); competent-person inspection item vacated; repeat cave-in item affirmed (penalty $5,600 to $2,800); $4,200 total
• Key point: Having a written shoring rule is not enough; when a supervisor is involved in the violation and the company does not actually discipline known trenching infractions, the unpreventable-employee-misconduct defense fails, and a prior final order for the same cave-in standard supports a repeat classification.

Full text (OSHRC public release)

                                         United States of America
              OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                   1120 20th Street, N.W., Ninth Floor
                                      Washington, DC 20036-34 19

                                                    Phone: (202) 606-5 100
SECRETARY              OF LABOR                       Fax: (202) 606-5050
                         Complainant,
              v.                                                             OSHRC DOCKET
                                                                             NO. 950423
R & R PLUMBING
                           Respondent.


                             NOTICE OF DOCKETING
                      OF ADMINISTRATIVE LAW JUDGE’S DECISION
     The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on February 5, 1996. The decision of the Judge
will become a final order of the Commission on March 6, 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 I‘IMUSTFILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
February lf6, 1996 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 C.F. If . 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. NW., Suite 980
                              Washington, D.C. 20036-3419

Petitioning        parties shall also mail a copy to:
                              Daniel J. Mick, Esq.
                              Counsel for Regional Trial Litigation
                              Office of the Solicitor, U.S. DOL
                              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
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review rrghts may contact the Commission’s Executive
Secretary or call (202) 6065400.

                                                FOR THE COMMISSIONh


Date: February 5, 1996
DOCKET NO. 95-0423
NOTICE IS GIVEN TO THE FOLLOWING:



Tedrick Housh, Esq.
Re ional Solicitor
Of&e of the Solicitor, U.S. DOL
1210 City Center Square
1100 Main Street
Kansas City, MO 64105



Richard C. Cornish, Esq.
6300 South Syracuse Way
Suite 555
Englewood, CO 80111 6725



Benjamin R. Lo e
Administrative E aw Jud e
Occupational Safety an f Health
 Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO t 0204 3582




 00110535275:08
                                                    UNITED   STATES OF AMERICA
                    OCCUPATIONAL              SAFETY AND HEALTH REVIEW COMMISSION
                                                    1244 N. Speer Boulevard
                                                          Room 250
                                                 Denver, Colorado 80204-3582


PHONE
COM (303) 8444409                                                                   zi   (303) 8444759
~W~844-3409                                                                         Frs (303) 8444759




  SECRETARY              OF LABOR,

                              Complainant,

                                   V.                             OSHRC DOCKET NO. 95-0423




 R & R PIPELINE,              INC.,



                              Respondent.

APPEARANCES:

              For the Complainant:
                       Tobias B. Fritz, Esq., Office of the Solicitor, Department of Labor, Kansas City, Missouri

              For the Respondent:
                       Richard C. Comish, Esq., Englewood, Colorado

Before:                Administrative       Law Judge: Benjamin R. Loye

                                                  DECISION AND ORDER

              This proceeding arises under the Occupational           Safety and Health Act of 1970 (29 U.S.C. Section
65 1 et seq. ; hereafter called the “Act”).

              Respondent,     R & R Pipeline (R & R), at all times relevant to this action maintained                 a workplace
at 8492 South Wadsworth Court, Littleton, Colorado where it was engaged in work as a utilities contractor.
 Respondent          admits it is an employer engaged in a business affecting commerce                     and is subject to the
requirements         of the Act.

              On December 28,1994 the Occupational Safety and Health Administration                       (OSHA) conducted an
inspection of R & R’s Littleton worksite.                 As a result of that inspection,      R & R was issued citations
alleging violations of the Act together with proposed penalties.                 By filing a timely notice of contest R &
.R brought this proceeding before the Occupational Safety and Health Review Commission                           (Commission).

              On September 6,1995, a hearing was held in Denver, Colorado.                The parties have submitted briefs
on the issues and this matter is ready for disposition.
                                                       Facts

          On December 28, 1994, Compliance Officer David Nelson arrived at R & R’s Littleton worksite,
where he noted a trench 68 feet long, running east to west, which was approximately              32 inches wide on
average (Tr. 33; Exh. C-3). The trench was 10 feet deep on the east end, 11 feet deep on the west (Tr. 37,
58; Exh. C-3). For 40 to 45 feet on the east end of the trench, a spoil pile located along the south side of
the excavation was less than two feet away from the side of the trench (Tr. 34-36,58; Exh. C-3). A ladder
was located approximately       30 feet from the house located at the east end of the trench (Tr. 38,5 8; Exh.
C-3). The eastern portion of the trench, from the house to the ladder, had been opened the previous day;
the western portion, from the ladder towards the street, had been dug the morning of the inspection                   (Tr.
37). Nelson took samples, and performed tests including penetrometer, dry strength and ribbon tests, from
which he determined that the soil in the trench was mainly type B (Tr. 40,58; Exh. C-3). The bottom three
feet of the trench approximately      10 feet from the west end of the trench was type A soil (Tr. 41). In three
places the soil in the trench had been previously      disturbed: along the house; where a light PVC pipe ran
diagonally across the trench; and where the trench intersected the main sewer connection              (Tr. 59). The
soil in those areas was downgraded       to type B from type A, or type C from type B (Tr. 59).

          Nelson observed an R & R employee, Steve Bishop, use the ladder to exit the trench at the direction
of his leadman, Steve McKay, who was watching Bishop probe for the existing sewer line in the trench
(Tr. 22.23,39,60,      147. 165; Exh. C-3, C-4, C-5). Bishop told the CO that he had been in the trench for
approximately      45 minutes that day (Tr. 43, 178).*

          McKay told Nelson that he had not conducted any inspections to determine the soil type though
he was the “competent       person” on site for purposes of the standard (Tr. 55; Exh. C-2). However, John
Roberts, R & R’s president, who was also qualified as a competent person (Exh. R-5), testified that he had
visually identified the soil in the east end of the trench as type B on the Monday preceding               the OSHA
inspection     (Tr. 198).   Roberts further testified that he was on site between           7:30 and 8:00 a.m. on
Wednesday,       December 28, before McKay started to dig (Tr. 202).          Roberts stated that he inspected the
soil visually and manually, with a dry strength test (Tr. 205; See also, testimony of Steve Bishop, Tr. 178).
Roberts      stated that he felt the soil was type B soil (Tr. 205).


            ’ Respondent’s objection to Nelson’s testimony regarding his conversation with Bishop was upheld at the
   hearing (Tr. 44). The undersigned reverses that ruling; Bishop’s comments are non-hearsay under Federal Rule of
   Evidence 80 l(d)(2)(D) which excepts statements by the agent or servant of a party-opponent “concerning a matter
   within the scope of the agency or employment, made during the existence of the relationship.”

                                                           2
        Nelson noted that two aluminum shores, 22-36” span, were located on the side of the trench on the
28th (Tr. 39,60).   Roberts testified that he had brought additional speed shores, as well as steel plating and
plywood, onto the site the morning of the OSHA inspection, and stored them under the job trailer out back
(Tr. 202-03).   Roberts testified that on the preceding day, Tuesday, he spoke to McKay, discussing          the
spacing of speed shores and the use of steel plates and/or banking should McKay encounter type C soils
(Tr. 201).   On Wednesday,     Roberts told McKay that because a trench box would not fit in between the
gas line and the water line, McKay would have to use shoring, though it was difficult and time consuming
to install and remove (Tr. 205). Roberts testified that he specifically    stated that he did not want to see
anyone down in the trench without shoring (Tr. 206).

         McKay told Nelson that the shores would have been installed once the sewer line was located (Tr.
39,60; Exh. C-2). Bishop testified at the hearing that “[i]t wasn’t either one of us’ decisions   specifically.
. . it just came so natural to get in there and do it. The ditch looked good to us.” (Tr. 172-73).      Bishop
admitted he knew at the time that working in the trench without a trench box was against the regulations,
and stated he believed that Roberts’ would have fired him on the spot if he had caught him (Tr. 179).
However, Bishop stated, they were in a hurry, and putting the jacks in and taking them out was slow and
tedious work (Tr. 173, 177, 180). Bishop further stated that it was not possible to dig the trench with
shoring in place because it got in the way of the shovel (Tr. 186-87).

        McKay stated he was aware that the spoil pile was too close to the trench; he told CO Nelson that
he did not have room to place the spoil back any further (Tr. 83; Exh. C-2).

        Carol Finley, an employee at R & R, testified that she was responsible for seeing that employees
receive their first safety instruction (Tr. 102). Finley testified that all new employees   are informed     of R
& R’s excavation policy, which states that:

        All soils are classified TYPE C SOIL unless otherwise identified by a professional.    All simple
        slope excavations 20 ft. or less in depth shall have a maximum allowable slope of 1%: 1. If jobsite
        is such that proper sloping is not allowable SHORING must be used. We have our own trench
        boxes and Trench Shoring may also be called to rent shoring if our shoring is unavailable.         If
        shoring is used on any job employees must stay within the shoring boxes at all times. DO NOT
        work in front of or behind boxes. They are there for your protection.

(Tr. 109; Exh. R-l).     Finley testified that employees    are also informed that any willful violations         of
Federal or State OSHA regulations can be considered grounds for dismissal (Tr. 115; Exh. R-2).             Finley
stated that Bishop and McKay were both informed of the policy at the time they were hired, Bishop in
early to mid-1 994, and McKay in 1991 (Tr. 110, 112, 129; Exh. R-4, R-7).


                                                        3
       In October 1994, Bishop participated in Trench Shoring Services’ Safety in Excavation          Course,
receiving “competent     person” training in OSHA standards, soil and hazard identification,   and protective
systems, including    trench shoring (Tr. 120, 163; Exh. R-4).    McKay participated in the same course in
January 1995, following the December 1994 OSHA inspection (Exh. R-7). Finley stated that McKay had
been trained as a competent person in 1991, but that he was required to repeat the training in 1995 because
of the December      1994 OSIIA inspection (Tr. 149,2 12).

        Finley also testified that R & R holds weekly safety meetings, at least one of which, the October
17,1994 meeting, dealt with the use of trench boxes, and was attended by Steve Bishop (Tr. 134.36,142,
156; Exh. R-9).

        Roberts testified that he was aware of four or five incidents in the last five years in which R & R
workers have been in unprotected excavations (Tr. 239). Roberts stated that he has sent home workers he
caught working outside a trench box, as well as workers caught without safety glasses or proper boots (Tr.
238). Finley testified that she did not know of any employee who was dismissed for safety rule itiactions
prior to the December       1994 inspection   (Tr. 139).   Letters of reprimand   had been placed in some
employees’ files, and some employees were suspended for failing to have hard hats or steel toed boots (Tr.
139-40).

        Following the December OSHA inspection, however, no immediate disciplinary action was taken
by R&R. Roberts stated that he did not learn of the inspection from McKay until the following Friday (Tr.
209). According to Roberts, McKay told him “I don’t know what you’re getting so worked up about on
all this. They’re just going to fme you $100 bucks” (Tr. 210). Roberts testified that he did not believe he
could fire employees for safety violations, but was encouraged by OSHA at R & R’s informal conference
to fire the employees    involved in the December 28, 1994 incident (Tr. 236). On March 17, 1995 Finley
typed a memo for the files of Messrs. McKay, Bishop and Villareal, which stated that all three had been
terminated    for “blatant disregard of company safety policy” (Tr. 146; Exh. R-8).

           Bishop testified that he was not fired in March 1995, but quit R & R at about that time because he
did not like the way a ditch he was working in was shored (Tr. 176, 182). Bishop stated that in that case,
the operator should have stepped, or benched the ditch he was working in. When the operator refused,
Bishop walked off the job after giving notice to his supervisor (Tr. 176-77). Roberts stated that he was
on his way to fire Bishop when he found out Bishop had quit (Tr. 213-14,222).         Villareal had quit prior
to March 1995 (Tr. 213).
                                    Alleged Violation of $1926.651(6)(2)

       Serious citation 1, item 1 alleges:

29 CFR 1926.65 1(j)(2): Protection was not provided by placing and keeping excavated or other materials
or equipment at least 2 feet (.61m) from the edge of excavations, or by the use of retaining + devices that
were sufficient to prevent materials or equipment from falling + or rolling into excavations, or by a
combination of both if necessary:

       a) 8492 Wadsworth Ct. Littleton Co.: A retaining device or the required spacing for excavated
       materials was not maintain from the trench edge (sic).

       The cited standard states:

       Employees shall be protected from excavated or other materials or equipment that could pose a
       hazard by falling or rolling into excavations. Protection shall be provided by placing and keeping
       such materials or equipment at least 2 feet (.6 1 m) from the edge of excavations, or by the use of
       retaining devices that are sufficient to prevent materials or equipment from falling or rolling into
       excavations, or by a combination of both if necessary.

Discussion

        It is clear from the testimonial and photographic      evidence that R & R was in violation of the cited
standard on the date of the inspection.        Employee       Bishop was exposed to the hazard posed by the
improperly placed spoil pile when he climbed up and down the ladder in the center of the trench. McKay,
^Lheleadman on the site, was aware both that the spoil pile was too close to the trench, and that Bishop was
working inside.

        Nelson testified that an employee could have been seriously hurt or killed from materials falling
from the spoil pile into the excavation.     In addition, the extra surcharge to the trench side could cause a
cave-in, resulting in serious injury or death (Tr. 53). The cited item was, therefore, a “serious” violation.

        R & R’s affirmative defense, unpreventable employee misconduct, was not proved in regard to this
item. In order to establish an unpreventable employee misconduct defense, the employer must establish
that the violative conduct on the part of an employee was a departure from a uniformly and effectively
communicated and enforced work rule designed to prevent the violation. Mosser Construction Co. 15
BNA OSHC 1408, 1991-93 CCH OSHD 129,546 (NO. 89-1027, 1991). R & R introduced no evidence
of any work rule specifically addressing the placement of the spoil pile. Rather their evidence was directed
to the sole issue of employees   working in unprotected        trenches.   The violation has been established.

        The proposed    penalty of $2,800.00was computed             based, in part, on R & R’s size.      The CO
believed that R & R had 12 employees         At the hearing, Roberts testified, without contradiction,    that R &

                                                          5
R had only 9 employees (Tr. 192). This judge notes that OSHA Instruction CPL 2.107 (Penalty Policy for
Employer       Size), effective October 2, 1995, recognizes the inability of small employers to pay penalties
calculated at the current levels, which have increased seven fold in recent years. The new policy calls for
reductions of up to 80% for employers with 10 or fewer employees.         [25: 12 Current Report] O.S.H. Rep.
(BNA) 474 (Aug. 23, 1995). This judge finds that the penalties assessed in this matter are excessive for
an employer       of R & R’s size, and that an additional    20% reduction    over the 60% already given is
appropriate.     A penalty of $1,400.00 will be assessed.



                                     Alleged Violation of @1926.651(k)(l)

        Serious citation 1, item 2 alleges:

29 CFR 1926.65 l(k)( 1): An inspection of the excavation, the + adjacent areas, and protective systems was
not conducted      by the competent + person prior to the start of work and as needed through out the shift.

        a) 8492 Wadsworth Ct. Littleton Co.: An inspections of the excavation was not conducted            prior
        to the start of work to determine iflwhat type of protective system would be needed (sic).

        The cited standard provides:

        Daily inspections of excavations, the adjacent areas, and protective systems shall be made by a
        competent person for evidence of a situation that could result in possible cave-ins, indications of
        failure of protective systems, hazardous atmospheres, or other hazardous conditions. An inspection
        shall be conducted by the competent person prior to the start of work and as needed throughout the
        shift. Inspections shall also be made after every rainstorm or other hazard increasing occurrence.
        These inspections are only required when employee exposure can be reasonably anticipated.

        Appendix       A to Subpart P, subsection    (c)(2) describes   the required   substance   of such daily
inspections.

        The classification of the deposits shall be made based on the results of at least one visual and at
        least one manual analysis. Such analyses shall be conducted by a competent person using tests
        described in paragraph (d) below, or in other recognized methods of soil classification and testing
        such as those adopted by the America Society for Testing Materials, or the U.S. Department of
        Agriculture textural classification system.

Discussion

         The citation alleges that an inspection of the worksite was not conducted prior to the start of work
on Wednesday, the day Bishop was observed working in the trench.           At the hearing, CO Nelson testified
that the soil needs to be inspected daily in order to determine what type of protective     system is needed in
the trench to prevent cave-ins (Tr. 56). Nelson was unaware that any other competent person from R &
R had been on the worksite that day (Tr. 55). At the hearing, however, Roberts testified in detail about the
required testing, which he maintained        he had performed   prior to the start of work on the day of the
inspection.

        Complainant      failed to establish by a preponderance     that the required     daily testing was not
performed.     The citation is, therefore, dismissed.



                                     Alleged Violation of 51926.6520(l)

        Repeat citation 2, item 1 alleges:

29 CFR 1926.652(a)( 1): Each employee in an excavation was not protected from cave-ins by an adequate
protective system designed in accordance with (b) or (c) of this section:

        a) 8492 Wadsworth Ct. Littleton Co.: Employees working in a trench were not protected from
        cave-ins by the use of an adequate protective system.

R & R Pipeline was previously cited for a violation of this Occupational Safety and Health standard or its
equivalent standard 1926.652(a)( 1) which was contained in OSHA inspection 110534427, citation number
1, item number 1, issued on 05-18-94 (sic).

        The cited standard provides:

        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 except when: (I) Excavations are made entirely in stable rock; or (ii) Excavations
        are less than 5 feet (1.52 m) in depth and examination of the ground by a competent person
        provides no indication of a potential cave-in.

Discussion
         The evidence establishes that the cited standard was violated.     Respondent     raises the affirmative
defense of unpreventable       employee misconduct.

         The Commission        has held that where the misconduct   of a supervisory    employee   is alleged, the
employer      must establish   that it took all feasible steps to prevent the accident,     including   adequate
instruction and supervision of its supervisory employee.     Daniel Constr., 10 BNA OSHC 1549,1552,1982
CCH OSHD 26,027, p. 32,672 (No. 16265,1982).            A supervisor’s involvement in the misconduct     is strong
evidence that the employer’s safety program was lax. Consolidated Freightways Corp., 15 BNA OSHC
1317, 1321, 1991 CCH OSHD 29,500, p 39,810 (No. 86-0351, 1991). Therefore, where a supervisory
employee is involved,      the defense of unpreventable     employee misconduct    is more difficult to establish.
fd .

         In this case, R & R established that it had a work rule specifically requiring the use of shoring in
excavations   where sloping       was impractical,     and that Bishop and McKay were told of the policy.
Moreover, those employees were specifically told by Roberts, the morning of the OSHA inspection, that
they were not to be in that particular trench without protection.         In addition to his safety instructions,
Roberts provided them with the shoring equipment they needed to protect themselves             in the trench.    It is
clear from the testimony that Bishop and McKay knew that they were working in violation of both OSHA
and company rules.

         The record fails to establish, however, that R & R enforced its safety rules with a system of written
reprimands and suspensions.       Bishop, a new employee, believed he would be disciplined for the infraction
if caught. According      to Robert’s own testimony, however, McKay, a longtime employee and lead man,
thought nothing of the OSHA violation. McKay initially failed to inform Roberts of the OSHA inspection;
when he finally did, he couldn’t understand Roberts’ concern. McKay clearly believed there would be no
serious consequences       for his failure to follow company policy, and indeed there were none for three
months, until Roberts was told at R & R’s informal conference that firing the employees would strengthen
his employee misconduct        defense.     Other evidence in the record supports this judge’s conclusion that R
& R failed to adequately       enforce its safety rules, namely, R & R’s failure to discipline     employees      for
known violations      of the trenching rules unless caught in the act, and the fact that there was virtually no
management     supervision     at the worksite despite R & R’s citation by OSHA for violation of the same
standard following     an inspection      of a separate worksite in May 1994 (Tr. 19-21).

         Respondent    failed to establish the affirmative defense of unpreventable     employee misconduct.

Repeat
         Complainant’s      exhibit C-6 establishes that a citation for the identical standard, 5 1926.652(a)( 1)
became a final order of the Commission           on September 14, 1994 (Tr. 21). A violation is repeated under
section 17(a) of the Act if, at the time of the alleged repeated violation, there was a final order against
the same employer        for a substantially    similar violation. Potlatch Corporation, 7 BNA OSHC 1061,
 1979 CCH OSHD 723,294 (16183, 1979). The entry into the record of a prior citation issued to re-
spondent alleging a violation of the same standard, combined with respondent’s fkther concessions that
the prior citation was not contested and had become a final order prior to the date of the inspection
giving rise to the present citation was sufficient to complete the Secretary’s          prima facie case.       Stone

                                                            8
Container Cop., 14 BNA OSHC 1757, 1990 CCH OSHD 729,064 (No. 88310, 1990). The burden
of demonstrating the dissimilarity of the violation is then shifted to the Respondent.
       R & R failed to demonstrate     that the May 1994 violation was not substantially   similar to the one
cited here. R & R points out that the trench cited in May was dug in sandy soil and was sloped rather than
shored (Tr. 66, 217).   Nonetheless,    the citation clearly focused on the presence   of employees     in an
inadequately protected trench, and should have put R & R on notice of problems in this area.

       The citation will be affirmed as a “repeated” violation.

       A penalty of $5,600.00 was proposed. For the reasons discussed in citation 1, item 1, the penalty
is deemed excessive. $2,800.00 will be assessed.



                                                  ORDER

1.     Serious Citation 1, item 1, alleging violation of $1926.65 1(j)(2) is AFFIRMED and a penalty
       of $1,400.00 is ASSESSED.

2.     Serious citation 1, item 2, alleging violation of 5 1926.65 1(k)( 1) is VACATED.

3.     Repeat citation 1, item 1, alleging violation of 81926.652(a)( 1) is AFFIRMED and a penalty of
       $2,800.00 is ASSESSED.




                                                       Sudge, OSHRC

Dated: ~e&s         22, 1995