Cranberry Realty/Parsippany Office Plaza

Plain-English summary

Cranberry Realty's owner acted as his own general contractor and hired workers to dig a sewer-connection trench on company property. OSHA found the trench was more than five feet deep in soil requiring cave-in protection, lacked that protection, and had not been inspected by a competent person. The company did not contest the existence or classification of the violations and asked only for lower penalties. The judge treated the unprotected trench as a significant hazard but noted the company's three-person size, the brief duration of the work, and the exposure of only one or two employees. He rejected OSHA's use of the owner's annoyance during the inspection as evidence of poor good faith and rejected reliance on earlier citations that had been dropped as a history of violations. Both items were affirmed, but the proposed penalties of $1,400 and $7,000 were reduced to $500 and $1,500, respectively.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.651(k)(1) (competent-person excavation inspections) and § 1926.652(a)(1) (cave-in protection)
• Outcome: Affirmed. Both trench violations were affirmed, with total penalties reduced from $8,400 to $2,000.
• Key point: Penalty assessment must distinguish evidence of actual safety good faith and final violation history from an employer's irritation with an inspection or earlier allegations that did not become violations.

Full text (OSHRC public release)

                        UNITED STATES OF AMERICA
            OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION


 SECRETARY OF LABOR,
           Complainant,
                       v.                                      Docket No. 99-2255
 CRANBERRY REALTY/PARSIPPANY
 OFFICE PLAZA,
            Respondent.


Appearances: Margaret A. Temple, Esq.
             Office of the Solicitor of Labor
             U. S. Department of Labor
                    For Complainant

               Maurice Soussa, pro se
                     For Respondent

BEFORE: MICHAEL H. SCHOENFELD,
               Administrative Law Judge




                                 DECISION AND ORDER


       This case arises under the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651 -
678 (1970) (the Act). The only issue before the Commission is the amount of civil penalties to be
assessed.
       Respondent is a realty company with three employees. Its owner undertook to be his own
general contractor, hiring two laborers and a backhoe owner/operator to dig a trench on property he
owned. His purpose was to connect a building he owned on the property to the city sewer lines. He
directed and supervised the work directly. The trench was dug on the morning of October 26, 1999.
By that afternoon a Compliance Officer (CO) from the Occupational Safety and Health Administra-
tion (OSHA) appeared at the site. OSHA had been called by a supervisor from the local sewer
authority. The CO found conditions he believed to be violations of the Construction Safety
Standards. It is alleged that Respondent failed to have a competent person inspect the trench (29
C.F.R. § 1926.651(k)(1)) and that there was no adequate protection against cave-ins (29 C.F.R. §
1926.652(a)(1)). The Secretary seeks penalties of $1,400.00 and $7,000.00, respectively, for the
two violations.
       Complainant’s witnesses at the May 16, 2000, hearing in Newark, New Jersey, provided
reliable and unrebutted evidence that Respondent was engaging in construction, that the trench was
more than 5 feet deep, that it was in soil which required protection against cave-ins, that such
protection was lacking, that employees were exposed to the conditions and that Respondent knew
of the conditions. Thus, Complainant has made a prime facie case for both violations.
       Respondent seeks not to refute the existence or classifications of the violations but asks for
a reduction in the penalties sought by the Secretary.
         The four factors to be considered in determining appropriate penalties are the size of the
employer’s business, the gravity of the violation, the good faith of the employer and the employer’s
prior history with OSHA. Each element is considered below.
       Respondent is not in the construction business but has undertaken at least one other building
project. Respondent’s size is exceedingly small. It employs only three people and those doing the
construction work were hired solely for that job. The gravity of the violation of a trench left
unprotected and subject to possible to collapse cannot be taken lightly since trench collapse represents
a very significant danger to those in the trench. As Complainant’s summary pointed out, “it only
takes one minute to have a cave-in.” (Tr. 66) Yet, only one, or perhaps two, employees were in the
trench for a short period of time. The trench was open for considerably less than one day. As to
good faith, Respondent’s displeasure with the activities of OSHA and the inspection of his work site
were improperly taken by the CO as a demonstration of a “lack of responsibility or poor attitude.”(Tr.
42-51) An employer’s annoyance with an OSHA inspection is irrelevant to its dedication to employee
safety. Moreover, there is no evidence that Respondent sought to delay, sidetrack or prevent the
inspection by the CO.    Respondent’s good faith towards employee safety is, however, called into
question by the evidence that he was warned of the need for cave-in protection by the utility
supervisor and apparently did nothing. Lastly, Complainant’s failure to give Respondent any
reduction or credit based on its history is unacceptable. There is some indication that on a prior


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occasion during which Respondent undertook construction activities, its work site was inspected and
citations of some kind were issued. It appears, however, that those matters were “dropped.” The
CO improperly considered these facts as showing a history of prior “violations.” (Tr. 47) They were
not violations, they were merely allegations of violations.
         While not delving into the philosophy or purpose of penalties under the Act, suffice it to say
that a harsh monetary penalty would be of little learning value for this Respondent who has merely
dabbled in construction on occasion. Moreover, there would be little or no deterrent effect generated
by imposing harsh penalties on a realty broker, inasmuch as he is not a fugleman in the local
construction industry . Imposing a significant penalty, however, would seem likely to persuade
Respondent to hire a professional contractor in the future.
         Based on the above considerations, I find that a penalty of $500.00 is appropriate for the
failure to have a competent person inspect the trench (Citation 1, Item1) and that a penalty of
$1,500.00 is appropriate for the failure to have adequate protection in the trench (Citation 1, Item
2).
         Accordingly, IT IS ORDERED that:
         1. Citation 1, Item 1, is AFFIRMED. A civil penalty of $ 500.00 is assessed therefor.
         2. Citation 1, Item 2, is AFFIRMED. A civil penalty of $ 1,500.00 is assessed therefor.




                                                                     /s/
                                                       Michael H. Schoenfeld
                                                       Judge, OSHRC
Dated:          6/19/00
                Washington, D.C.




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