V & W Construction & Service Co.

Plain-English summary

V & W Construction was replacing an underground oil-water separator at a National Guard base. After the company removed the trench shoring, employees entered the nine-foot-deep excavation even though soil was sloughing from the walls and no protective system remained. The judge rejected claims that the inspection resulted from harassment or violated OSHA procedures because the reported cave-in hazard justified an on-site inspection. The company had constructive and actual knowledge through its project supervisor, who knew the trench condition and had seen an employee enter it. Its employee-misconduct defense failed because it did not show effective enforcement or discipline for its trench rule. The serious violation was affirmed, and the penalty was reduced from $1,500 to $1,000 based on the company's size, clean history, and the employees' brief exposure.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1)
• Outcome: The serious excavation violation was affirmed, and the proposed $1,500 penalty was reduced to $1,000.
• Key point: A written trench rule did not establish unpreventable misconduct without proof that the employer monitored and enforced the rule.

Full text (OSHRC public release)

                                                            :

SECRETARY OF LABOR, :
Complainant, :
:
v. : OSHRC Docket No. 97-381
:
V & W CONSTRUCTION & SERVICE CO., :
Respondent. : E-Z
:

APPEARANCES:

      Marsha Semon, Esquire                                         William T. Reed, Esquire
        Office of the Solicitor                                        Oswald and Reed
        U. S. Department of Labor                                      Pascagoula, Mississippi
        Birmingham, Alabama                                         For Respondent
              For Complainant

Before: Administrative Law Judge Ken S. Welsch

                                       DECISION AND ORDER

      V&W Construction & Service Company (V&W) is a section 8(a)1 small business

contractor from Moss Point, Mississippi. Its principal business is environmental projects such as
hazardous waste cleanup and asbestos removal. On February 14, 1997, the Occupational Safety
and Health Administration (OSHA) inspected V&W’s excavation site at the National Guard base
in Jackson, Mississippi. As a result of the inspection, V&W received a serious citation for failing
to secure the walls of the excavation from possible cave-in as required by 29 C.F.R. §
1926.652(a)(1). OSHA proposes a penalty of $1,500.2 V&W timely contested the citation.

      The case was assigned to E-Z trial proceedings pursuant to Review Commission Rules

200-211, 29 C.F.R. §2200.200-211. On May 12, 1997, a hearing was held in Jackson,
Mississippi. V&W stipulates that at all times relevant to this proceeding, it was an employer

      1
       Section 8(a) of the Small Business Act, 15 U.S.C. §637(a).
      2
     Originally, the penalty proposed was $2,000. At hearing, the Secretary reduced the proposed penalty to

$1,500 because of a computer error (Tr. 6, 157).
engaged in a business affecting commerce within the meaning of §3(5) of the Occupational Safety
and Health Act (Act).
The Inspection
In September 1996, the Mississippi National Guard contracted with V&W to remove and
replace six underground oil water separators and three underground collection tanks at Thompson
Field, Jackson, Mississippi. The contract is to be completed by August 1997 (Exh. R-3; Tr. 148).
The oil water separator prevents jet fuel from leaking into the water system and is being upgraded
to double-wall separators for environmental purposes (Tr. 57, 83). To perform the contract,
V&W used two employees, Lee Woulard, brother of one of V&W’s owners, and Darrell Legans,
equipment operator. The employees were supervised on-site by Darrin Miles (Tr. 38, 57, 106).
The job requires digging a trench to the appropriate depth, removing the old separator, placing a
concrete slab in the bottom of the trench, pouring in a layer of sand, placing the new separator on
the slab, securing it with straps bolted to the slab, and replacing the dirt in the trench (Tr. 85).
The contract’s accident prevention plan requires that “sides of all excavations in which employees
are exposed to danger from moving ground shall be guarded by a support system, sloping, or
benching of the ground or other equivalent means.” Also, it requires that excavations in the
vicinity of existing buildings “will not be carved below the existing foundation until underpinning
and shoring have been installed” (Exh. C-9, p. 8).
On February 13, 1997, V&W excavated and removed the old oil water separator adjacent
to the engine shop (Tr. 85). The old separator had been installed in approximately 1980 (Tr. 86).
The trench was 9 feet deep, 8 feet wide at the top, 7 feet wide at the bottom, and 16 feet long
(Tr. 16). One side of the trench was adjacent to the foundation wall of the engine shop, and the
other side ran along a 4-inch thick concrete sidewalk. The trench extended 4 feet below the
foundation wall. Along the sidewalk side of the trench, there was an exposed 8-inch storm
drainage pipe buried approximately 4 feet deep (Exhs. C-1 through C-6; Tr. 26, 59). According
to V&W, shoring was used during the removal of the old separator. However, because of the
size of the concrete slab and the new separator, the shoring was removed at approximately 4:30
p.m. on February 13 (Tr. 108-109, 120). The concrete slab, sand, and the new oil water separator
were placed in the trench. Before finishing work on February 13, Darrell Legans entered the
unshored trench briefly to place the straps over the separator and on the four to six bolts
protruding from the concrete slab (Tr. 57, 84, 120-121). A ladder was placed in the trench for
Legans to use (Tr. 121).
On February 14, 1997, Major Roger Gerrard, deputy base civil engineer, observed the
trench upon arriving for work at 6:30 a.m. V&W was not on-site (Tr. 86). He observed the new
separator with straps on the bolts, but the nuts not tightened down (Tr. 87). He also noted that
dirt was sloughing off from under the foundation of the engine shop and from around the drainage
pipe. A chain was wrapped around the drainage pipe and secured to a loader approximately 4 feet
from the sidewalk side of the trench. Major Gerrard returned to his office to prepare a report for
the contracting officer (Exh. C-2; Tr. 87-88).
Upon arriving at the site at 7:30 a.m. with Woulard and Legans, Darrin Miles, V&W’s
project supervisor, noted the “additional back fill material or additional caving in on the tank”
(Tr. 111). He decided to telephone his office for instructions on how to proceed (Tr. 111, 120).
At approximately 8:00 a.m., Major Gerrard and Lt. William Markham, contract specialist
with the National Guard, went to the trench site and observed Woulard standing in the bottom of
the trench next to the separator (Exh. C-6; Tr. 65-66, 88). Woulard testified that he was standing
at the bottom of the ladder attempting to retrieve a chain which had fallen into the trench while
lifting the separator (Tr. 126). Woulard exited the trench (Tr. 70, 89). Major Gerrard and Lt.
Markham proceeded to locate Darrin Miles who was standing approximately 200 feet from the
trench (Tr. 70, 89-90, 111). The three men returned to the trench site and saw Woulard in the
bottom of the trench at the ladder (Exh. C-6; Tr. 70, 112). Miles assumed that Woulard had
entered the trench to tighten the nuts on the bolts in order to secure the separator to the slab (Tr.
112-113). Miles instructed Woulard to exit the trench (Exh. C-7; Tr. 71).
Upon returning to his office, Major Gerrard telephoned OSHA. Safety Specialist
Nathaniel Williams received the call and arrived at the trench site at approximately 9 a.m. (Tr. 14,
57). He observed that the trench was dug in previously disturbed soil and there was “sloughing
off” from the sides of the trench. He also noted different colorations of the soil, the soil’s high
moisture content, and the chain attached to the loader holding the drainage pipe (Tr. 17-18, 26).
He classified the soil as Type C and saw no sloping, shoring, or other protective system to prevent
cave-ins (Tr. 16-17, 23). No employees were in the trench during Williams’ inspection (Tr. 57).
 As a result of the inspection, V&W received a citation for violating § 1926.652(a)(1)for
failing to protect the walls of the excavation from cave-ins by an adequate protective system
designed in accordance with §§ 1926.652(b) and 1926.652(c). In addition to contesting the
alleged violation, V&W asserts that the inspection was the result of harassment; it was not in
accordance with OSHA’s procedures; and the employees were not complying with V&W’s safety
rules when entering the unshored trench.
Discussion

                                    Preliminary Matters

Harassment

   V&W asserts that OSHA’s inspection was the result of Major Gerrard’s personal

animosity towards V&W and its part-owner, Willie Woulard. According to Willie Woulard,
Major Gerrard had ongoing verbal disagreements and difficulties with him during contract
negotiations and V&W’s contract performance (Tr. 149-151). He likened Major Gerrard’s action
to a “personal vendetta” (Tr. 151). In challenging Major Gerrard’s safety concerns, V&W
presented evidence that Major Gerrard allowed the base plumber to work in an excavation
without shoring or sloping three weeks prior to the hearing (Exhs. R-1, R-2; Tr. 114-115). Major
Gerrard, although not V&W’s contracting officer, acknowledged prior disputes involving safety
concerns with V&W. He admitted to being present when the base plumber entered a partially
unshored trench (Tr. 93, 95).
There is no assertion, nor does the record show, that OSHA acted improperly or in an
unreasonable manner in its inspection of V&W’s trench site. See § 8(a) of the Act, 29 U.S.C.
§ 657(a). The allegation of harassment involves the motives of Major Gerrard in reporting the
trench to OSHA. Willie Woulard’s testimony regarding verbal disagreements and difficulties
involve matters with the National Guard. It is not shown that there was any unlawful motivation
in Major Gerrard’s contact with OSHA. Even if personal animosity existed, it does not change
the nature of the violative conditions found by OSHA during the inspection, and for the most part,
not disputed by V&W. Willie Woulard acknowledges that the trench was a “dangerous
situation” (Tr. 149, 152). V&W’s allegation of harassment is not sufficient to invalidate the
inspection. See Reich v. Kelly-Springfield Tire Co., 13 F.3d 1160 (7th Cir. 1994). Even an
improper motivation on the part of a person filing a complaint is not itself sufficient grounds for
invalidating an OSHA inspection. Quality Stamping Products, 7 BNA OSHC 1285, 1289, 1979
CCH OSHD ¶ 23,520, p. 28,504-05 (No.78-235, 1979). Under the Act, OSHA has the duty to
inspect work sites even though the inspection is not in response to an employee complaint. See
Adams Steel Erection, Inc., 13 BNA OSHC 1073, 1986-87 CCH OSHD ¶ 27,815 (No. 77-3804,
1987) ( an anonymous complaint). The issue is not who filed the complaint or his motivation.
Rather, the issue is whether there is a reasonable basis to assume the alleged conditions in the
complaint exist at the workplace. The complaint by Major Gerrard alleged employees were
exposed to a risk of cave-ins (Tr. 13-14). His complaint was supported by OSHA’s findings.
V&W does not dispute that there was no shoring; an employee was in the trench; or that it was a
dangerous situation (Tr. 108, 112, 149). OSHA was justified in responding to the complaint.
Accordingly, V&W’s request to dismiss the citation based on harassment is denied.
Validity of the Inspection

   OSHA classified the inspection of V&W as a nonformal complaint from the National

Guard (Tr. 46). V&W asserts that as a nonformal complaint, the Area Director is required to
notify the employer by letter of the complaint and allow the employer to respond before
conducting an on-site inspection (Tr. 142). It is undisputed that V&W was not notified in writing
prior to OSHA’s inspection.
OSHA’s internal written procedures for conducting inspections, OSHA Instruction
CPL 2.103, Field Operations Manual (FOM), Chapter 1, section C.7.a (Sept. 26, 1994), provides
that “if a decision is made to handle a serious nonformal complaint by letter, a certified letter shall
be sent to the employer advising the employer of the complaint items and the need to respond to
OSHA within a specified time.” The plain wording of the FOM permits the Area Director to
exercise discretion in scheduling on-site inspections even for nonformal complaints. The FOM
allows the Area Director to schedule an on-site inspection if the nonformal referral identifies a
hazard of a potentially high gravity in nature, and the inspection can be performed with efficient
use of resources. Id. at section C.7.d (2). An unprotected excavation which is 9 feet deep
certainly presents a hazard of potentially high gravity. As Williams explained, trenching is one of
OSHA’s national emphasis programs requiring an inspection (Tr. 55).
The Review Commission, in Mautz & Oren Inc., 16 BNA OSHC 1007 (No. 89-1366,
1993), rejected a similar argument regarding a nonformal complaint from the Army Corps of
Engineers. The Commission concluded that section 8(a) of the Act gives OSHA the authority to
conduct inspections in response to nonformal complaints and that OSHA’s internal written
procedures do not give an employer particular rights or defenses in adjudicatory proceedings.
See also FMC Corp., 5 BNA OSHC 1707, 1710, 1977-78 CCH OSHD ¶ 22,060, p. 26,573 (No.
13155, 1977)(The guidelines provided by the FOM are intended to promote internal efficiency
and not to create an administrative straightjacket.).
Accordingly, V&W’s request to dismiss the citation because of an invalid inspection is
denied.
The Citation
Alleged Violation of § 1926.652(a)(1)
In litigating an OSHA citation, the Secretary has the burden of proving a violation of a
safety standard by a preponderance of the evidence. The Secretary must show that (1) the cited
standard applies to the alleged condition; (2) the terms of the standard were not complied with;
(3) employees were exposed to or had access to the violative condition; and (4) the employer
knew or could have known of the violative condition with the exercise of reasonable diligence.
Seibel Modern Mfg. & Welding Corp., 15 BNA OSHC 1218, 1221-22, 1991-93 CCH OSHD ¶
29,442, p. 39,678 (No. 88-821, 1991). In contesting the citation, V&W asserts that it did not
know the employee was in the unshored trench.
The citation alleges that V&W failed to protect the walls of an excavation from possible
cave-in by sloping, shoring, or other protective means. Section 1926.652(a)(1) provides:
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 the section.3

      V&W does not dispute, and the record supports a finding, that § 1926.652(a)(1) is

applicable to V&W’s trench at the National Guard base. An “excavation” is defined as any
man-made cut, cavity, or trench formed by earth removal. See 29 C.F.R. § 1926.650(b). The
trench dug by V&W was 9 feet deep, 16 feet long, 8 feet wide at the top, and 7 feet wide at the
bottom. It was dug in previously disturbed soil. There was dirt sloughing off from the walls of
the trench and around the 8-inch drainage pipe. Also, the trench was dug to a level below the

      3
      The two exceptions to requiring a protective system in an excavation involve stable rock or a trench less than

5 feet deep which are not applicable in this case.
foundation wall of the engine shop (Exhs. C-1 through C-6). The lack of sloping, shoring or
other protective system to prevent cave-ins on February 13 and 14, 1997, is also not disputed.4
V&W was aware of the lack of protective systems at the trench, and employees were observed in
the trench by the project supervisor on at least two occasions. Safety specialist Williams classified
the soil at the excavation as Type C5 soil. V&W’s part owner and its project supervisor on-site
do not dispute that the condition of the trench was “hazardous” and “dangerous” (Tr. 121, 149,
152).
The issue remaining to establish a violation is whether V&W knew or should have known
of the employees in the trench. Miles was not present at the trench when Lee Woulard entered
the trench on February 14. He was on the telephone approximately 200 feet away (Tr. 111).
Miles was aware of the hazardous condition of the trench, the sloughing off of dirt into the trench,
and that two employees were at the trench site (Tr. 111, 121). He testified that he did not instruct
Woulard to enter the trench (Tr. 121). However, there is no dispute that Woulard entered the
trench twice on February 14, 1997.
An employer is chargeable with knowledge of conditions which are plainly visible to its
supervisory personnel. A.L. Baumgartner Constr., Inc., 16 BNA OSHC 1995, 1998, 2000, 1994
CCH OSHD ¶ 30,554 (No. 92-1022, 1994). Miles was within 200 feet of the trench site. He was
aware of the condition of the trench and the lack of shoring, sloping or other protection. The
trench was in plain view (Tr. 14). Further, Miles knew a ladder was in the trench (Tr. 121).
There is no evidence that Miles instructed the employees not to enter the trench (Tr. 121). Miles
failed to exercise reasonable diligence in avoiding violative conditions. See Flint Engineering &
Constr. Co., 15 BNA OSHC 2052, 2056, 1991-93 CCH OSHD ¶ 29,923 (No. 90-2873, 1992).
In that V&W failed to exercise reasonable diligence, constructive knowledge of Woulard’s
presence in the trench is imputed to V&W. Additionally, the record establishes V&W had actual
knowledge of an employee’s exposure in the unshored trench on February 13. Miles
acknowledged being present when Darrell Legans entered the trench on the evening of February

     4
       V&W does not raise the affirmative defense of infeasibility in failing to comply with the shoring or other

protective requirements of § 1926.652(a)(1).
5
Type C soil is considered the most unstable soil and is defined at Appendix A, §1926.652. V&W does not
dispute the classification. Further, since there was no sloping, shoring or bracing at the excavation which is required for
any soil classification except for solid rock, the soil classification is not important to this decision.
13 to place the straps over the separator (Tr. 120-121). The exposure of Legans and Woulard to
the unprotected trench is sufficient to establish V&W’s knowledge of the violative condition.
Accordingly, a violation of § 1926.652(a)(1) is established.
Unpreventable Employee Misconduct Defense
V&W asserts that the employees violated its safety rules when they entered the unshored
trench. Lee Woulard acknowledged that working in an unshored trench violated V&W’s safety
rules. Darrin Miles testified that V&W has a strict written policy against employees working in an
unshored trench. The policy has been in effect for at least five years and is communicated to
employees (Tr. 107, 149).
An employer may defend against a violation of a safety standard by establishing the
affirmative defense of unpreventable employee misconduct. In order to prevail, the employer
must show that it (1) has established work rules designed to prevent the violation, (2) has
adequately communicated the work rules to its employees, (3) has taken steps to discover
violations, and (4) has effectively enforced the work rules when violations have been discovered.
Capform Inc., 16 BNA OSHC 2040, 2043, 1993-95 CCH OSHD ¶ 30,589, p. 42,358 (No. 91-
1613, 1994); Nooter Constr. Co., 16 BNA OSHC 1572, 1578, 1993-95 CCH OSHD ¶ 30,345, p.
41,841 (No. 91-237, 1994).
The Secretary does not dispute that V&W maintained a safety program, including a safety
rule prohibiting employees from entering unprotected trenches. Although a copy of the safety
rules was not made part of the record, safety specialist Williams described V&W’s safety program
as “average” (Tr. 45). There was no citation issued to V&W for an inadequate safety program.
Lee Woulard, the employee in the unshored trench on February 14, acknowledged that he was
aware of the safety rule and had received safety training (Tr. 125-126). His explanation for being
in the trench was to retrieve a chain which had fallen into the trench while installing the new
separator.
Even assuming V&W has an adequate safety rule prohibiting employees from working in
an unprotected trench, and such rule was communicated to employees, V&W’s employee
misconduct defense still fails. There is no showing that the safety rule was enforced by V&W,
and steps were taken to discover violations of the safety rule. V&W offers no evidence of its
enforcement of safety rules including showing a disciplinary program for violations of the rules.
Lee Woulard has been employed by V&W for ten years and is the brother of its part owner (Tr.
124-125). It is not shown that Woulard was reprimanded or suffered any repercussion for
entering the trench. Woulard did not show concern about being disciplined. In fact, Woulard is
currently supervising work at another site (Tr. 119). On February 13, the record is also clear that
Darrell Legans entered the unshored trench with the knowledge of Miles, project supervisor (Tr..
120-121).
To prove adequate enforcement of its safety rule, an employer must present evidence of
having a disciplinary program that was effectively administered when work rule violations
occurred. Capform, Inc.,16 BNA OSHC at 2043, 1993-95 CCH OSHD at p. 42,358 (evidence
that one of two employees in violation was “chewed out”was not sufficient); A.P. O’Horo Co., 14
BNA OSHC 2004, 2008, 1991-93 CCH OSHD ¶ 29,223, pp. 39,129-30 (No. 85-369, 1991)
(evidence showed “no set policy on enforcement”). Here, the record fails to show that V&W has
a policy of enforcement or disciplinary action for violations of safety rules.
Also, V&W offered no evidence as to steps taken to uncover violations of its rules.
V&W has “an obligation to inspect the work area, to anticipate hazards to which employees may
be exposed and to take measures to prevent the occurrence.” Frank Swidzinski Co., 9 BNA
OSHC 1230, 1233, 1981 CCH OSHD ¶ 25,129, p. 31032 (No. 76-4627, 1981). The lack of
protection from cave-ins was open and clearly observable. There was a ladder in the trench
providing access.
Accordingly, a defense of unpreventable employee misconduct is not established

Serious Classification

   In determining whether the violation of § 1926.652(a)(1) is serious within § 17(k) of the

Act, the record must show that V&W knew or should have known, with the exercise of
reasonable diligence, of the presence of the violation and there was a substantial probability that
death or serious physical harm could result from the condition.
As discussed, V&W knew of the lack of a protective system in the trench and knew or
should have known of employees’ exposure to the unshored trench. The lack of sloping or
shoring and employee exposure were visible and detectable by V&W.
 As for the expected injury, the issue is whether the resulting injury would likely be death
or serious harm if an accident should occur. Whiting-Turner Contracting Co., 13 BNA OSHC
2155, 2157, 1989 CCH OSHD ¶ 30,148, p. 41,478, n. 5 (No. 91-862, 1993). The failure to
provide adequate protection for the walls of a 9-foot deep trench exposed two employees to
possible cave-in which could have reasonably been expected to cause serious injury or death.
Although considered brief exposures by compliance specialist Williams, there is no way to predict
a possible trench cave-in or collapse. Williams determined the exposures to be ten minutes and
two minutes (Tr. 57). The duration of an employee’s exposure is not determined by the
seriousness of the violation; it relates rather to the gravity factor in assessing a penalty. H.H. Hall
Constr. Co., 10 BNA OSHC 1042, 1047, 1981 CCH OSHD ¶ 32,057 (No. 76-4765, 1981) (five
to ten minutes in an unsafe trench resulted in a serious violation and a $1,000 penalty). See also
Flint Engineering & Const. Co., 15 BNA OSHC 2052, 2056, 1991-93 CCH OSHD ¶ 29,923
(No. 90-2873, 1992).
Accordingly, a serious violation is established.
Penalty Consideration
The Commission is the final arbiter of penalties in all contested cases. Under § 17(j) of the
Act, in determining an appropriate penalty, the Commission is required to consider the size of the
employer’s business, history of previous violations, the employer’s good faith, and the gravity of
the violation. Gravity is the principal factor to be considered.
OSHA proposes a penalty of $1,500. V&W is a small employer with twenty employees,
three employees were working at the National Guard base (Tr. 156). V&W has been in business
for ten years and has no prior history of violations (Tr. 147, 157). Willie Woulard testified V&W
has had no accidents, lost work hours, or workers’ compensation claims (Tr. 147). OSHA
described V&W’s written safety programs as average. As for the gravity, the record establishes
that two employees were exposed to the unprotected trench and that their exposure was brief, ten
minutes and two minutes. The court finds a penalty of $1,000 reasonable.

                               FINDINGS OF FACT AND
                               CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
 ORDER

   Based upon the foregoing decision, it is ORDERED:
   1.      Item 1 of the serious citation, in violation of § 1926.652(a)(1), is affirmed and a

penalty of $1,000 is assessed.

                                          KEN S. WELSCH
                                          Judge

Date: June 13, 1997