Yenter Companies

Plain-English summary

Yenter Companies relocated historic buildings and had employees constructing a wall near the bottom of an excavation about 15 feet high. OSHA observed rocks and excavated material within two feet of the edge, creating a falling-material hazard, and the company foreman was present. Judge Robert A. Yetman found OSHA's evidence minimal but sufficient, particularly because Yenter chose not to present a case to rebut it. He affirmed the serious spoil-placement violation but found severity, probability, and extent low. The proposed $1,575 penalty was reduced to $100.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.651(j)(2).
• Outcome: Serious excavation spoil-placement violation affirmed with a $100 penalty.
• Key point: Thin but unrebutted evidence can establish a violation when it shows employees predictably working below loose materials stored within two feet of an excavation edge.

Full text (OSHRC public release)

                                                      |

SECRETARY OF LABOR, |
Complainant, |
|
v. |
|
YENTER COMPANIES, | OSHRC DOCKET
| NO. 98-2083
Respondent. |
|

APPEARANCES:

    For the Complainant:
                    Kim Pritchard Flores, Esq., U.S. Department of Labor, Office of the Solicitor, Kansas City,

Missouri.
For the Respondent:
Rodney L. Smith, Esq., Freeborn & Peters, Denver, Colorado

Before: Administrative Law Judge Robert A. Yetman

                                      DECISION AND ORDER

      This proceeding arises under §10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.

§651, et seq. (the Act) to review a citation issued by the Secretary of Labor pursuant to §9(a) of the Act
and a proposed assessment of penalty thereon issued pursuant to §10(a) of the Act.
On November 4, 1998, Yenter Companies, was issued one Serious citation alleging a single
violation of the standard set forth at 29 CFR 1926.651(j)(2) as amended.
A penalty in the amount of $1,575 was proposed by the Secretary.
Respondent filed a timely notice of contest and this matter was assigned for E-Z Trial Proceedings
pursuant to Commission Rule 29 CFR 2200.200 et seq. A hearing was conducted on May 11, 1999 and,
in accordance with Commission Rule 209(f), a decision was issued from the bench affirming the citation
as a serious violation and assessing a penalty in the amount of $100.00. Findings of fact and conclusions
of law as required by Commission Rule 90(a) are set forth at transcript pages 100 to 106 attached hereto.
All findings of fact relevant and necessary to a determination of the contested issues have been
made as required by Fed. R. Civ. P. 52(a). Respondent admits jurisdiction. All proposed findings of fact
and conclusions of law inconsistent with this decision are denied.

                                           ORDER
    Serious Citation No. 1, Item No. 1, alleging a violation of 29 CFR 1926.651(j)(2) is affirmed

and a penalty in the amount of $100.00 is ASSESSED.

                                                                 Robert A. Yetman
                                                                 Judge, OSHRC

Date:

                                               2

DECISION

   THE COURT:         Please be seated. I have had an opportunity to review the evidence and I am

ready to rule from the bench.
In this case, jurisdiction has been admitted. Respondent is engaged in business affecting
commerce. It is a construction firm and, on the day of the inspection, was engaged in work activities
related to the relocation of existing historical buildings.
As a result of an inspection by OSHA, Respondent was issued a citation listing one serious
violation of 29 C.F.R. §1926.651(j)(2) (as amended).. And that standard reads as follows: "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 two feet 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 combina-
tion of both, if necessary." A penalty in the amount of $1,575.00 was originally proposed for the
violation. The Secretary now proposes a penalty in the amount of $1,417.00.
In order to prove the violation, the Secretary must establish the following: One, that the cited
standard applies to the work activity; two, that the employer failed to comply with the terms of the
standard; three, that the Respondent’s employees had access to the hazardous condition, and, four, that
Respondent knew or with the exercise of reasonable diligence could have known of the violation. I
cite Astra Pharmaceuticals, 681 F.2d 69. It’s a First Circuit case, 1982, see also Gary Concrete
Products, 15 BNA 1051.
The Secretary must prove the violation by a preponderance of the evidence; that is, that the
conclusion is more probably true than not based upon the evidence. Ultimate Distribution Systems, 10
BNA 1596, 1982. It’s not a very stringent test that has to be met by the Secretary. The facts in this
case are that the compliance officer came on the worksite and observed a wall of an excavation
approximately 15 feet high. The photograph in evidence, Exhibit C-3, shows the wall and two
individuals standing near the excavation wall. The names of the employees have not been established;
however, employees interviewed during the investigation stated that they were in the excavation during
their work activity. The photographs and the video show rocks

                                                  3

and other materials at the top of the excavation wall. The compliance officer testified that the debris
from the excavation was placed within two feet of the top of the excavation.
As I indicated previously, in response to the motion to dismiss, the Secretary has provided a
minimum, but sufficient, evidence to satisfy the burden to establish a prima facie case that excavated
or other materials were stored within two feet of the edge of the excavation. Moreover, the compliance
officer stated that the rocks presented hazards of falling into the excavation. Further, Respondent’s
foreman was present and knew or should have been aware of the condition. This is the evidence
presented by the compliance officer. The Respondent has not rebutted this evidence; thus, I’m
compelled to find that the standard was violated as alleged.
The defense raised by the Respondent is that no employees were exposed to the violation. It is
not necessary to establish actual exposure of employees to the hazard. To prove a violation, the
evidence need only show that employees in the course of their duties will be or have been in the zone
of danger. In those cases where there’s no actual exposure, it is sufficient that the Secretary establishes
that it is reasonably predictable that employees have access to the hazardous conditions. I cite Phoenix
Roofing, Inc., a Review Commission case 1993-95 CCH in paragraph 30, 699. The evidence in
support of employee exposure consists of the compliance officer’s observations and photographs
depicting, at least in one instance, two individuals near the excavation wall. The evidence establishes
that Respondent’s employees were constructing a wall within five feet of the bottom of the excavation
wall. It is inferred that employees were required to move to various locations along the excavation
wall to perform their work activity. Thus, it is concluded that the Secretary has provided sufficient
evidence for employee exposure to support a prima facie case.
Notwithstanding my denial of Respondent’s motion to dismiss, Respondent has declined to
present a case in chief. This is a legitimate, but a risky defense tactic. As stated by the First Circuit
Court of Appeals in Astra Pharmaceuticals, 681 F.2d at 74:

                                                 4

While the Secretary had the burden of proving its case by substantial evidence,
what constitutes substantial evidence varies with the circumstances. The "evidence a
reasonable mind might accept as adequate to support a conclusion" is surely less in a
case like this is where it stands entirely unrebutted in the record by a party having full
possession of all the facts, than in a case where there is contrary evidence to detract
from its weight.

See also Noranda Aluminum, Inc. v. OSHA, 593 F.2d 811. It’s an Eighth Circuit case, 1979, "decision
to leave Secretary’s case unrebutted, is a legitimate but always dangerous defense tactic in litigation."
I cite also Stephensen Enterprises, Inc. v. Marshall, 578 F.2d 1021, a Fifth Circuit case, "thus thin as
the underlying evidence was, we find it sufficient in these circumstances." That finding is applicable in
this case. Although the Secretary has provided a minimum of evidence in support of the violation, it is,
in my view, sufficient to provide a prima facie case. I have nothing from Respondent, however, to
rebut that prima facie case.
Having found a violation, my next consideration is whether it’s a serious violation. The
evidence from the compliance officer is that falling rocks can, if any employee is struck, result in a
serious injury. Death, however, is not apparently a consideration in this case. Based upon the evidence
provided by the compliance officer, I find that this is a serious violation.
With respect to the penalty, the penalty is based upon a number of factors that were discussed
by the compliance officer, primarily the gravity of the violation. That consists of three items; the
severity of the resulting injury from the hazardous condition, the probability of injury, and the extent of
the violation. I find that all three factors provide a low incidence or probability. So the severity of the
resulting injury, I find to be low, the probability of an injury is low, and the extent of a violation is low
as well. The compliance officer provided a 10 percent
reduction for size, and, while he was on the stand, he also gave reduction credit for history. Based
upon all the evidence in this case, I find that a penalty in the amount of $100.00 is appropriate for the
violation. That concludes this hearing. Let’s go off the record.
(Whereupon, the proceedings were recessed at 1:50 p.m.)

                                                  5