R.W. Dunteman Co.

Plain-English summary

R.W. Dunteman Co. was the general contractor on an Illinois road and underground construction project, while a subcontractor performed the below-grade work. Employees of the subcontractor worked in a trench more than six feet deep without adequate sloping, shoring, or a trench box. The judge found the trench violation willful because city engineers had repeatedly warned Dunteman and the subcontractor, but the unsafe condition persisted. Five serious items were also affirmed for manhole work without atmospheric testing, ventilation, protection from flammable gas, emergency equipment, or hazard training. The judge held Dunteman responsible in its supervisory capacity even though its own employees did not create or encounter the hazards. Penalties were reduced to $10,000 for the willful trench violation and $800 for the serious items.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(b)(1)(i); 29 C.F.R. § 1926.651(g)(1)(i); 29 C.F.R. § 1926.651(g)(1)(ii); 29 C.F.R. § 1926.651(g)(1)(iii); 29 C.F.R. § 1926.651(g)(2)(i); 29 C.F.R. § 1926.21(b)(6)(i)
• Outcome: Five serious confined-space items and one willful trench item affirmed; $10,800 in penalties assessed.
• Key point: A general contractor showed plain indifference when it knew a subcontractor's trench remained unsafe after repeated warnings and failed to require abatement.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,

                          v.                                OSHRC Docket No. 96-1101

R.W. DUNTEMAN CO.,

                     Respondent.

APPEARANCES:

      For the Complainant:
                Helen J. Schuitmaker, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago,
               Illinois.

      For the Respondent:
               Stanley E. Niew, Esq., Niew & Associates, P.C., Hinsdale, Illinois.

Before: Administrative Law Judge Sidney J. Goldstein

                                       DECISION AND ORDER
      In this action the Secretary of Labor seeks to affirm two citations issued by the Occupational

Safety and Health Administration to R. W. Dunteman Co. The matter arose after a compliance officer
for the Administration inspected a worksite of the company in Des Plaines, Illinois, and concluded that
it was in violation of various safety regulations adopted under the Occupational Safety and Health Act
of 1970 and recommended that the citations be issued. The Respondent disagreed with this
determination and filed a notice of contest. After a complaint and answer were filed with this
Commission, a hearing was held in Chicago, Illinois.

      The principal citation alleged that:

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)(1)(i) in that the excavation was sloped at an angle steeper that one and one
half horizontal to one vertical (34 degrees measured from the horizontal):

      (a) Laurel and Webford, Des Plaines, Illinois - Two workers were observed spreading
      gravel for the bedding for the combine sewer pipe that was to be installed in a trench

that was measured approximately 6 to 7 feet in depth, 16 feet in length, 12 feet wide
at the top and 8 feet wide at the bottom were not protected from cave in hazards. This
condition last existed on Tuesday, April 9, 1996.

in violation of the regulation found at 29 C.F.R. §1926.652(b)(1)(i) which reads as follows:
(b) Design of sloping and benching systems. The slopes and configurations of sloping
and benching systems shall be selected and constructed by the employer or his designee
and shall be in accordance with the requirements of paragraph (b)(1); or, in the
alternative, paragraph (b)(2); or, in the alternative, paragraph (b)(3), or, in the
alternative, paragraph (b)(4), as follows:
(1) Option (1)--Allowable configurations and slopes. (i) Excavations shall be sloped
at an angle not steeper than one and one-half horizontal to one vertical (34 degrees
measured from the horizontal), unless the employer uses one of the other options listed
below.

    The primary facts are not complicated and may be briefly summarized. The Respondent is

engaged in road construction and contracted with the City of Des Plaines, Illinois, for some road and
underground work. Under the agreement the Respondent was required to comply with Occupational
Safety and Health Administration regulations. The company subcontracted work below grade to C.
G. Enterprises. The City appointed resident civil engineers to confirm compliance with the contract,
including its safety provisions.
C. G. Enterprises dug a trench in connection with sewer installations. The trench in issue was
over six feet deep without sloping or shoring and dug in previously excavated soil. From time to time
city engineers were worried that C. G. Enterprises’ employees were unprotected while working
underground and brought their concerns to Respondent’s attention a number of times. Indeed, on one
occasion the entire project was halted for safety reasons. Safety matters brought to the Respondent’s
attention were relayed to C. G. Enterprises, but the unsafe conditions persisted. When the city was
unsuccessful in safety cooperation with the subcontractor, it filed a complaint with OSHA regarding
safety in trenching operations.
An OSHA compliance officer investigated the city’s complaint regarding cave in hazards. He
observed workers in a trench between six and one-half and seven feet deep with vertical walls with a
small slope on one side with soil content between A and B strengths. Water in the trench was pumped
out continuously. There was no trench box. The officer determined that employees in the trench were
exposed to various hazards and recommended that a “Willful” citation be issued. His conclusion was
based upon the fact that the City made attempts to correct the unsafe trench condition by reporting

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its anxiety, both verbal and written, to the Respondent and its subcontractor without success, and that
trench boxes were available but not in use. He also relied upon field notes of City engineers.
The evidence is clear that the Respondent’s employees neither created the hazard nor were
exposed to the trenching problem.
The issue is whether Respondent as general contractor who did not create the hazard or control
the trenching operation was responsible for ensuring that workers in the excavation were protected.
A general contractor who, as in this case, did not create the violative condition is responsible
nevertheless for violations of other employers where the general contractor could reasonably be
expected to prevent or detect and abate the violation. There is a presumption that the general
contractor has sufficient control over the subcontractors to require them to comply with the safety
standards and to abate violations. It is reasonable to expect the general contractor to ensure a
subcontractor’s compliance with safety standards if the general contractor could reasonably be
expected to prevent or detect or abate the unsafe condition by reason of its supervisory capacity. Since
the Respondent had notice of the infraction and failed to require abatement by the subcontractor, this
portion of the citation is AFFIRMED.
The Complainant urges that its characterization of the violation as “Willful” is correct. An
OSHA violation is “Willful” if it is committed with intentional disregard of, or plain indifference to, the
requirements of the statute. In this case the Respondent knew that its subcontractor was in violation
of the standard regarding trenching because City engineers had called its attention to the
subcontractor’s violations. Although these infractions were called to its attention of the subcontractor
and the Respondent, the latter failed to pursue these admonitions. Ignoring the violations amounts to
plain indifference to the requirements of the standard, and thus the violation was properly classified as
“Willful.”
Citation No. 1 contained five items relating to employees working in a manhole greater than
four feet in depth (approximately eight feet) in the vicinity of Laurel and Webford, Des Plaines, Illinois,
on April 11, 1996. Item 1a charged that employees entering the manhole did not test the atmosphere
of the confined space prior to entry and on a regular basis for the presence of sufficient oxygen and
absence of hazardous levels of toxic or combustible gases or vapors; Item 1b stated that employees
entering a confined space were not provided with adequate precautions such as ventilation or
respirators prior to entry; Item 1c alleged that employees entering a confined space were not provided
with adequate precautions such as ventilation to prevent employee exposure to atmosphere containing

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a concentration of a flammable gas in excess of 20% of lower limits; Item 1d asserted that employees
entering a confined space such as sewer manholes did not have emergency equipment readily available;
and Item 1e specified that employees entering a confined space such as a sewer manhole were not
instructed in the nature of the hazards involved, the necessary precautions to be taken, and in the use
of protective and emergency equipment required. these violations were in contravention of the
standards found at 29 C.F.R. §1926.651(g)(1)(i), 651(g)(1)(ii), 651(g)(1)(iii), 651(g)(2)(i) and
21(b)(6)(i), respectively.
On these issues the compliance officer testified that at the manhole where the subcontractor’s
employees worked there was a possibility of methane gas. Yet there was no gas meter to test for gas
or ventilation; there was no emergency equipment available; and the subcontractor’s employees were
not trained in safety matters relating to methane gas.
The compliance officer’s information was confirmed by Respondent’s superintendent who
stated that the company had no gas meters because it did no underground work. He also made no
inquiry of the subcontractor to ascertain if its employees were trained in methane gas safety measures.
The superintendent also had no experience in ventilation, rescue equipment, breathing apparatus or
hazards in connection with confined spaces.
Again, Respondent did not create the hazard, and its employees were not exposed to hazards
related to confined spaces.
For the reasons mentioned in connection with the “Willful” citation, the Company was
responsible for the safety of the subcontractor’s employees. Therefore, these items of citation No. 1
are AFFIRMED.
There remains the questions of penalties. The Administration recommended a penalty of
$32,000.00 for the “Willful” citation. Taking into consideration Respondent’s efforts to inform the
subcontractor of the City’s safety concerns, I believe the suggested amounts excessive. For the
“Willful” citation a penalty of $10,000.00 is in order. For the same reasons, the penalty for the serious
violations is reduced to $800.00.
In sum, I find that the Respondent was in violation of the five items of citation No. 1, and a
penalty of $800.00 is assessed. I also find that the Respondent was in “Willful” violation of the
regulation shown in citation No. 2 and a penalty of $10,000.00 is assessed.

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Sidney J. Goldstein
Judge, OSHRC

Dated:

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