Martin Construction, Inc.

Plain-English summary

Martin Construction was the general contractor on a sewer project where a subcontractor's owner was killed in a trench cave-in. OSHA cited Martin as the controlling employer for six alleged excavation violations, including unsafe access, an edge spoil pile, inadequate inspections, and deficient cave-in protection. The judge held that the multi-employer worksite doctrine applied because Martin had authority to coordinate subcontractors and stop unsafe work. Even so, OSHA did not prove that Martin actually or constructively knew of five cited conditions. The competent-person inspection item also failed because evidence of other trench violations did not prove that required daily inspections were not performed, so all six items were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.651(c)(2), 1926.651(j)(2), 1926.651(k)(1), 1926.652(a)(1), 1926.652(d)(2), 1926.652(g)(1)(iii)
• Outcome: All six serious excavation items were vacated, and no penalties were assessed.
• Key point: Controlling-employer status allowed the citation, but it did not relieve OSHA of proving the general contractor's knowledge and each item's substantive elements.

Full text (OSHRC public release)

                              United States of America
           OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                 1924 Building - Room 2R90, 100 Alabama Street, SW
                             Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 06-0700
Martin Construction, Inc.,
Respondent.

Appearances:

      Amy Walker, Esquire, Atlanta, GA
      For Complainant

      J. Burruss Riis, Esquire,Mobile, AL
      For Respondent

Before: Administrative Law Judge Stephen J. Simko, Jr.

                                  DECISION AND ORDER

      Martin Construction, Inc., is a general contractor engaged residential and commercial

construction. In January 2006, Martin Construction was engaged in a construction project in
Wetumpka, Alabama. The company had subcontracted with Southern Plumbing and Electric
(Southern Plumbing) to install the sewer line on the project. On January 26, 2006, Southern
Plumbing owner Harold Scott was killed when an area of the excavation in which he was working
caved in. Occupational Safety and Health Administration (OSHA) compliance officer Brian Smith
arrived at the site the following day and conducted an inspection. Following his inspection, the
Secretary issued citations to Martin Construction and subcontractors, Southern Plumbing and
Strickland Brothers, who performed earth-moving and excavation work on the project. No Martin
Construction employees were exposed to hazardous conditions on the site; the Secretary issued the
citation to the company under the multi-employer worksite doctrine.
 The citation issued to Martin Construction alleges six serious violations of the Occupational
Safety and Health Act of 1970 (Act). The standards cited are found in 29 C. F. R. Part 1926, Subpart
P–Excavations. The citation alleges Martin Construction violated the following standards:
Item 1–29 C. F. R. § 1926.651(c)(2), for failing to provide a safe means of egress from an
excavation so as to require no more than 25 feet of lateral travel for employees.
Item 2–29 C. F. R. § 1926.651(j)(2), for failing to place the spoil pile at least 2 feet from the
edge of the excavation.
Item 3– 29 C. F. R. § 1926.651(k)(1), for failing to have a competent person make daily
inspections of the excavation.
Item 4–29 C. F. R. § 1926.652(a)(1), for failing to have an adequate protective system in the
excavation.
Item 5–29 C. F. R. § 1926.652(d)(2), for failing to use and maintain manufactured equipment
in a manner consistent with the recommendations of the manufacturer and in a manner preventing
employee exposure to hazards.
Item 6–29 C. F. R. § 1926.652(g)(1)(iii), for failing to protect employees from the hazard of
cave-ins when entering or exiting areas protected by shields.
Martin Construction argues the citation should be vacated for several reasons, the two most
significant being that the Eleventh Circuit, to which this case could be appealed, has not recognized
the multi-employer worksite doctrine, and that Martin Construction had no knowledge of any
hazardous conditions on the site.
This case went to hearing in Mobile, Alabama, on August 15 and 16, 2006. The parties have
filed post-hearing briefs. Items 1, 2, 4, 5, and 6 of the citation are vacated because the Secretary
failed to establish Martin Construction knew of the violative conditions at the site. Item 3 is vacated
because the Secretary failed to prove noncompliance with the cited standard.

                                         Discussion

   In January 2006, Martin Construction was the general contractor for a project in Wetumpka,

Alabama, referred to both as the Love Lane Completion and the Love Lane Extension.
Subcontractor Strickland Brothers performed earth-moving work for Martin Construction and

                                             -2­

excavation work for subcontractor Southern Plumbing. Martin Construction superintendent Jamie
Thomas was on the site every day. Martin Construction president Phillip Martin was on the site
several times a week.
Southern Plumbing was an unincorporated sole proprietorship owned by Harold Scott.
Martin Construction had subcontracted work to Southern Plumbing on a regular basis for the
previous 10 years. Subcontracts with Martin Construction accounted for approximately half of
Southern Plumbing’s work.
Southern Plumbing began work on the sewer line on January 19, 2006. The installation plan
called for Southern Plumbing to install a series of manholes known as “doghouses.” Southern
Plumbing had already installed two doghouses and was in the process of installing the third on
January 26. That day, the open portion of the trench was 110 feet long. Employees entered and
exited the trench by accessing two ramps at the east end of the trench. The trench was 11 feet deep
where it began, then reached a depth of 12 feet in the area where a trench box was located. The
trench box was 20 feet long , 4 feet wide, and 8 feet tall, and was located approximately 11 feet from
the bottom of the ramp near the east end of the excavation. The trench was 7a feet wide and its
walls were nearly vertical. The spoil pile was located at the edge of the south side of the trench. The
trench was excavated in Type B soil.
Scott and a Strickland Brothers employee were in the trench installing the third doghouse at
the west end, about 60 feet from the bottom of the ramp. They were approximately 29 feet from the
trench box. At approximately 12:30 P.M., the right side of the area around the third doghouse
collapsed. Scott was killed in the cave-in. The Strickland Brothers employee survived.
Compliance officer Brian Smith arrived at the site the next day. Smith originally classified
the inspection as a fatality inspection, but upon learning the victim was the sole owner of an
unincorporated company, he determined no employee was killed in the accident. Smith then
categorized the inspection as a Trench National Emphasis Program (NEP) inspection. Smith took
photos, measurements, soil samples, and conducted on site interviews. Based upon his
recommendations, the Secretary issued the citation that gave rise to this proceeding.

                                             -3­

Application of the Multi-Employer Worksite Doctrine in the Eleventh Circuit

     Under Commission precedent, an employer who either created or controls a hazardous

condition has a duty under § 5(a)(2) of the Act, 29 U.S.C. § 666(a)(2), to protect not only its own
employees, but those of other employers engaged in a common undertaking. Anning-Johnson, 4
BNA OSHC 1193, 1199 (No. 3694, 1976); Grossman Steel, 4 BNA OSHC 1185, 1188 (No. 12775,
1975). This is known as the multi-employer worksite doctrine.
Final decisions of the Review Commission can be appealed by an aggrieved party to the
United States court of appeals for the circuit in which the violation is alleged to have occurred or
where the employer has its principle office. An adversely affected party other than the Secretary may
also appeal to Court of Appeals for the District of Columbia Circuit. Section 11(a) and (b) of the
Act; 29 U.S.C. § 660(a). “Where it is highly probable that a case will be appealed to a particular
circuit, the Commission generally has applied the law of that circuit in deciding the case, even
though it may clearly differ from the Commission’s law.” Kerns Brothers Tree Service, 18 BNA
OSHC 2064, 2067 (No. 96-1719, 2000). Alabama, where the Love Lane Completion project was
located, is in the Eleventh Circuit. Martin Construction contends the citation should be vacated
because “the multi-employer doctrine has not been recognized by the Eleventh Circuit” (Martin’s
brief, p. 1). The Eleventh Circuit itself has not accepted or rejected the doctrine. Shortly after it was
created, however, it declared that cases decided by the Fifth Circuit before October 1, 1981, to be
precedent for the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981).
Martin Construction relies on a 1975 case decided by the Fifth Circuit Court of Appeals,
Southeast Contractors v. Dunlop, (512 F.2d 675) (5th Cir. 1975). The court, in a one-paragraph
opinion, states:
We are in agreement with the well-reasoned dissent of Chairman Moran of the
Occupational Safety and Health Review Commission in this matter, and especially
with that portion pertaining to the general rule that a contractor is not responsible for
the acts of his subcontractors or their employees[.]

     The Commission has expressly addressed the effect of Southeast Contractors on the

application of the multi-employer worksite doctrine in the Eleventh Circuit. In McDevitt Street

                                               -4­

Bovis Inc., 19 BNA OSHC 1108, 1112 (No. 97-1918, 2000), the employer cited Southeast
Contractors and two tort cases decided by the Fifth Circuit in support of its position that the Fifth
Circuit (and by extension, the Eleventh Circuit) has rejected the multi-employer worksite doctrine.
The Commission disagreed, stating (citations and footnotes omitted):
Although Southeast Contractors was originally a Commission proceeding, it was
summarily decided and issued before the Commission even adopted the multi-
employer doctrine. . . . Indeed, as noted, the Fifth Circuit has not reviewed any
Commission decisions on multi-employer liability since the Commission adopted the
doctrine. Accordingly, we find the Fifth Circuit cases relied upon by McDevitt do
not preclude us from following Commission precedent here.
The D.C. Circuit has also not expressly accepted or rejected the multi-
employer worksite doctrine, but has raised doubts about its validity. . . . Since the
D.C. Circuit has yet to decide the issue of multi-employer liability, we will apply our
precedent in this case.

   Following McDevitt, the court will apply Commission precedent to the instant case.

                         The Multi-Employer Worksite Doctrine

   The Commission has determined that a general contractor, such as Martin Construction, is

responsible for violations of other employers, such as Southern Plumbing and Strickland Brothers,
where it could reasonably be expected to prevent or detect and abate the violations due to its
supervisory authority over the worksite. Centex-Rooney Construction Co., 16 BNA OSHC 2127,
2130 (No. 92-0851, 1994). This duty applies to an employer even if its own employees are not
exposed to the hazard. Flint Engineering & Construction Co., 15 BNA OSHC 2052, 2055 (No. 90­
2873, 1992).
The Secretary does not claim that Martin Construction created the hazardous conditions at
the Love Lane Completion site. She argues, however, that the company controlled the site by virtue
of its supervisory authority, and could have taken steps to abate any hazardous conditions. Phillip
Martin is the president of Martin Construction. His testimony establishes that Martin Construction
had sufficient supervisory control of the site to prevent and abate any excavation standard violations
(Tr. 202-204):

   Q:        Martin Construction had a superintendent at this work site almost all of the
             time that there was work being performed there, didn’t they?

                                             -5­

Martin: Yes.

Q: And you, yourself, you personally were there several times a week on average right?

Martin: Yes. In and out.

Q: One of the things that your superintendent did was keep track of the man
hours and the equipment that was used, including in the trench that Southern
Plumbing was digging; is that right?

Martin: He kept track of most everything out there, yes.

Q. Okay. And part of what he kept track of was the work that was being done
by Southern Plumbing; is that right?

Martin: Part of what he what?

Q. Part of what he kept track – you said he kept track of everything out there,
most everything out there. Part of what he kept track of was the work that
Southern Plumbing was doing?

Martin: Yes.

Q. And Martin Construction was responsible for coordinating the work, all the
subcontractors at the work site, right?

Martin: Yes.

Q. And as part of that responsibility, that coordinating responsibility, Martin
could instruct its subcontractors when to begin work and when to stop work,
right?

Martin: Yes.

Q. Martin Construction had the authority to dictate where its subcontractors
could place materials, didn’t it?

Martin: Yes.

Q. Martin also had the authority to dictate where its subcontractors could put
their equipment; is that right?

Martin: Yes, ma’am.

                                    -6­

Q. And if someone at Martin Construction observed a subcontractor doing
something unsafe, Martin Construction had the authority to make the
subcontractor stop, didn’t it?

    Martin: Yes.

    The Secretary properly cited Martin under the multi-employer worksite doctrine.

                                        The Citation

    The Secretary has the burden of proving each violation by a preponderance of the evidence.
            In order to establish a violation of an occupational safety or health standard,
    the Secretary has the burden of proving: (a) the applicability of the cited standard,
    (b) the employer’s noncompliance with the standard’s terms, (c) employee access to
    the violative conditions, and (d) the employer’s actual or constructive knowledge of
    the violation (i.e., the employer either knew or, with the exercise of reasonable
    diligence could have known, of the violative conditions).

Atlantic Battery Co., 19 BNA OSHRC 2131, 2138 (No. 90-1747, 1994).
Applicability of the cited standards to the cited conditions and employee exposure are not
at issue. The trench at the Love Lane Completion location was subject to OSHA’s excavation
standards. An employee of Strickland Brothers was exposed to any hazardous conditions existing
in the trench.
Compliance with the cited standards and employer knowledge are at issue. Martin
Construction contends the trench was in compliance with the terms of the cited standards, and that
it had no knowledge of any violative conditions.

                 Alleged Serious Violation of 29 C.F.R. § 1926.651(c)(2)

    The Secretary contends Martin Construction violated 29 C.F.R. § 1926.651(c)(2), which

provides:
A stairway, ladder, ramp or other safe means of egress shall be located in
trench excavations that are 4 feet (1.22 m) or more in depth so as to require
no more than 25 feet (7.62 m) of lateral travel for employees.

                                              -7­

In Citation No. 1, Item 1, the Secretary alleges:

A stairway, ladder, ramp or other safe means of egress was not located in trench excavations that
were 4 feet (1.22 m) or more in depth so as to require no more than 25 feet (7.62m) of lateral travel
for employees:

   (a)     Love Lane Extension - On January 26, 2006, the controlling employer Martin
           Construction, Inc. failed to ensure that its sub-contractor Southern Plumbing and
           Electric provided its employees with a safe egress. Southern Plumbing employees
           installed a precast manhole at one end of the trench that was approximately 110 feet
           in length and 12 feet in depth with near vertical wall. One egress ramp was available
           on the opposite end of the excavation.

   The trench was approximately 110 feet long and 12 feet deep. The only means of entering

and exiting the trench was via a ramp that began approximately 60 feet from where Scott and the
employee were working when the trench collapsed. Martin claims, “[T]he evidence at trial
established that the distance from the ramp to the trench box in place was only 11 feet” (Martin
Construction’s brief, p. 10). Since it is undisputed that the two men were working approximately
29 feet from the other end of the 20-foot long trench box, Martin Construction’s argument is
irrelevant. The workers were required to travel more than twice the length allowed by the standard
to exit the trench. The Secretary has established noncompliance with the terms of 29 C.F.R. §
1926.651(c)(2).
The Secretary argues Martin Construction had actual knowledge on January 26, 2006, that
employees were required to travel more than 25 feet to access the ramp. Superintendent Thomas was
at the site that day. He was working at another area of the project, approximately 100 yards away
from the trench. The trench had been excavated that morning; the cave-in occurred around noon.
Thomas did not testify. The Secretary adduced no evidence showing that Thomas actually observed
the trench.
Phillip Martin stated he arrived at the site that day shortly after noon. He parked, walked
over towards the trench, and began a conversation with an engineer. Martin estimated he had been
on the site for a “minute or so,” (Tr. 213) when he “heard all the commotion, the yelling,” (Tr. 214­
215) as the trench caved in.

                                            -8­

The Secretary disputes Phillip Martin’s time line. She called Dennis Hughes, a waste water
superintendent for Wetumpka Waterworks. He was at the site the day of the cave-in. Hughes
testified he saw Martin on the site as he was leaving for lunch. When Hughes returned
approximately 35 minutes later, Martin was still on the site. The second time Hughes saw him,
Martin was standing 15 to 20 feet from the trench, talking to the engineer. The trench caved in
approximately 30 seconds after Hughes drove up.
The Secretary contends that if Martin was on the site for at least 35 minutes, instead of the
“minute or so” he claims, he had enough time to observe the trench with all its deficiencies.
Hughes’s testimony, however, fails to establish that Martin actually viewed the trench (Tr. 233-234,
emphasis added):
Q: Okay. When was the first time you saw Mr. Martin at the work site?

   Hughes:         Well, I got there about a quarter after eleven when they were putting
                   down a couple of extensions of pipe and I saw him somewhere on the
                   project at the time because I know him when I see him. There was
                   two or three projects going on at the same. Road work was going on.
                   And best I remember, he was between the road work and where we
                   were, but at that time he was not over there where we were at.

   Q:             Okay. At some point did he - - when you say “where we were at,”
                  were you at the trench?

   Hughes:         I was at the trench.

   Q:              Okay. And at some point, did you observe Mr. Martin going to the
                   trench?

   Hughes:         He could have been coming towards - - I remember seeing him in that
                   area. And it seems like to me he was coming towards that area when
                   I left, but he may not have been. But it seemed to me that he was
                   coming that direction when I left to go to lunch, and that was about
                   five to twelve.

   Q:              At that point, when you saw Mr. Martin at the work site, in
                   general, how far was he from the trench before you went to lunch?

   Hughes:         He probably was, I don’t know, somewhere’s around two hundred
                   feet or so, I guess, in that area. Because he was with the road work
                   people or had just drove by where they were at, and he had just got
                   out and was doing some talking. There were several people in that
                   general area at that time.

                                            -9­

The Secretary’s argument that Martin must have observed the trench is speculative. Hughes
could not testify with any certainty that Martin actually walked over to the trench while Hughes was
at lunch. Hughes’s testimony establishes only that Martin arrived on a large worksite where several
different projects were proceeding, and that Martin stopped and spoke with several people. At no
point does Hughes state that he observed Martin actually looking into the trench. The Secretary has
failed to establish that Martin Construction had actual knowledge of noncompliance with 29 C.F.R.
§ 1926.651(c)(2).
Neither did the Secretary establish that Martin had constructive knowledge of the violation.
To prove constructive knowledge, the Secretary must show that the employer could have discovered
the violative condition with the exercise of reasonable diligence. "Whether an employer was
reasonably diligent involves a consideration of several factors, including the employer's obligation
to have adequate work rules and training programs, to adequately supervise employees, to anticipate
hazards to which employees may be exposed, and to take measures to prevent the occurrence of
violations." Donohue Indus., Inc., 20 BNA OSHC 1346, 1349 (No. 99-0191). However, in
exercising reasonable diligence, a general contractor may rely in part upon the assurances of a
subcontractor to protect against hazards.”In many situations in the workplace, it is natural for an
employer to rely upon the specialist to perform the work related to the specialty in accordance with
OSHA standards.” Sasser Electric & Manufacturing Company, 11 BNA OSHC 2133, 2137 (No.
82-178, 1984).
In this case, Martin Construction relied on its subcontractors to safely perform the work in
which they specialized. Martin Construction employees do not excavate trenches or install sewer
lines. Excavating a trench in accordance with OSHA’s excavations standards is a skill that Martin
Construction’s subcontractors reasonably could be expected to have and to use. Martin Construction
had worked with Southern Plumbing for the previous 10 years without incident. Southern Plumbing
had no history of OSHA violations. It is determined that reasonable diligence did not require Martin
Construction to anticipate and discover the violative conditions found in the trench. The alleged
violation of 29 C.F.R. § 1926.651(c)(2) is vacated.

                                           -10­

Alleged Serious Violation of 29 C.F.R. § 1926.651(j)(2)

   The Secretary charges Martin Construction with the violation of 29 C.F.R. § 1926.651(j)(2),

which provides:
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 (.61 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.

   In Citation No. 1, Item 2, the Secretary alleges:

Protection was not provided by placing and keeping excavated or other materials or equipment at
least 2 feet (.61 m) 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)     Love Lanes Extensions - On January 26, 2006, the controlling employer Martin
           Construction, Inc., failed to ensure that its sub-contractor Southern Plumbing and
           Electric protected its employees from cave-in hazards. Southern Plumbing and
           Electric employees installed a precast manhole and 8 inch diameter sewer line in a
           trench that was approximately 110 feet in length and 12 feet in depth with the
           excavated material (spoils pile) placed at the edge of the South wall of the trench.

   Compliance officer Smith testified the spoil pile was at the southern edge of the excavation

(Tr. 82-83). Exhibits C-6 and C-8 are photographs that show the spoil pile at the immediate edge
of the excavation. The Secretary has established noncompliance with the terms of 29 C.F.R. §
1926.651(j)(2).
For the same reasons discussed above in relation to Citation No. 1, Item 1, the Secretary
failed to establish Martin Construction had either actual or constructive knowledge of the improperly
placed spoil pile. The company relied on Southern Plumbing’s specialized knowledge to implement
trench safety. The alleged violation of 29 C.R.F. § 1926.651(j)(2) is vacated.

                                            -11­

Alleged Serious Violation of 29 C.F.R. § 1926.651(k)(1)

    The standard at 29 C.F.R. § 1926.651(k)(1) provides:
            Daily inspections of excavations, the adjacent areas, and protective systems
    shall be made by a competent person for evidence of a situations 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.

    In Citation No. 1, Item 3, the Secretary alleges:

Daily inspections of excavations, the adjacent areas, and protective systems were not made by a
competent person for evidence of a situation that could have resulted in possible cave-ins, indications
of failure of protective systems, hazardous atmospheres, or other hazardous conditions:

           (a)     Love Lane Extension - From January 19 to January 26, 2006, the
                   controlling employer failed to ensure that its subcontractor Southern
                   Plumbing and Electric protected its employees from cave-in hazards.
                   Southern Plumbing employees were exposed to cave-in hazards while
                   laying 8 inch sanitary sewer steel pipes and setting three precast
                   manholes in a trench that ranged from 8 feet to 12 feet in depth with
                   near vertical walls. The employer did not have a competent person
                   knowledgeable in the different types of soil, OSHA excavation
                   regulations, hazards, and the limitations of protective system.

    Phillip Martin told Smith that Martin Construction did not have a competent person on site

and did not conduct safety inspections of the trench. The company relied on Southern Plumbing to
comply with the excavation standards. Smith testified that the only person on the site who had the
authority to conduct competent person inspections was Scott, but Smith determined that Scott was
not a competent person based on the condition of the trench. The Secretary presented no evidence
establishing whether or not Scott actually conducted inspections. No one from Southern Plumbing
testified.
The Secretary has failed to prove noncompliance with the terms of the standard. Evidence
of violations of other excavation standards alone is insufficient to establish a violation of the
standard requiring a competent person to make daily inspections. The alleged violation of 29 C.F.R.
§ 1926.651(k)(1) is vacated.

                                             -12­

Alleged Serious Violation of 29 C.F.R. § 1926.652(a)(1)

   The Secretary alleges Martin Construction violated 29 C.F.R. § 1926.652(a)(1), which

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

   In Citation No. 1, Item 4, the Secretary alleges:

Each employee in an excavation was not protected from cave-ins by an adequate protective system
designed in accordance with 29 C.F.R. 1926.652(c). The employer had not complied with the
provisions of 29 C.F.R. 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)     Love Lane Extension - One our about January 24 and January 26, 206, the controlling
           employer Martin Construction, Inc. failed to ensure that sub-contractor Souther
           Plumbing and Electric protected its employees from cave-in hazards, while setting
           a precast manhole in a trench that was approximately 12 feet deep with near vertical
           walls.

   Although Southern Plumbing had a trench box installed in the excavation on January 26, the

area where Scott and the Strickland Brothers employee were working was not protected by any
system. The trench box was approximately 29 feet away. The trench walls at that place where the
men were working were near vertical and almost 12 feet high. No attempt at sloping or benching
had been made. The Secretary has established noncompliance with 29 C.F.R § 1926.652(a)(1) for
January 26. The citation description also alleges that on January 24, employees were working in
the trench without adequate protection. January 24 was the date Southern Plumbing installed the
second doghouse. Phillip Martin testified that he saw the trench that day, and that the trench walls
were sloped. The Secretary attempts to use Martin’s testimony to prove the trench walls were
inadequately sloped on the 24th. When questioned about the degree of sloping, Martin stated it was
sloped 6 to 8 feet horizontally to 11 feet vertically. The Secretary contends this establishes improper
sloping because it does not meet the maximum allowable slope for Type B soil of 1:1.

                                             -13­

Martin testified that when he saw the trench on January 24, it was “at a glance” (Tr. 227).
He took no measurements, and he qualified his guesses as to the sloping with phrases like “maybe,”
“thereabouts,” and “approximately. I’m not sure” (Tr. 225-226). The Secretary adduced no other
evidence, photographic or otherwise, giving measurements for the trench walls that day. She has
failed to establish noncompliance with the cited standard for January 24.
For the reasons discussed in Item 1, the Secretary has failed to establish Martin Construction
knew that employees were not protected by an adequate system in the trench on January 26. The
alleged violation of 29 C.F.R. § 1926.652(a)(1) is vacated.

                Alleged Serious Violation of 29 C.F.R. § 1926.652(d)(2)

   The standard at 29 C.F.R. § 1926.652(d)(2) provides:
          Manufactured materials and equipment use for protective systems shall be
   used and maintained in a manner that is consistent with the recommendations of the
   manufacturer, and in a manner that will prevent employee exposure to hazards.

   In Citation No. 1, Item 5, the Secretary alleges:

Manufactured materials and equipment used for protective systems were not used in a manner that
would have prevented employed exposure to hazards:

   (a)     Love Lane Extension - On January 26, 2006, controlling employer Martin
           Construction, Inc. failed to ensure that its sub-contractor Southern Plumbing and
           Electric protected its employees from cave-in hazards. Southern Plumbing
           employees installed 20 feet sections of 8 inch diameter sewer line in a trench that was
           approximately 12 feet deep with near vertical walls. The Efficiency XLDF-820 serial
           number 128627 trench shield was placed approximately 4 feet below grade and was
           not sloped at a minimum of 1 to 1 as required by the shield manufacturer for B type
           soils.

   The trench box used in the excavation was 8 feet tall. The trench was 12 feet deep, leaving

4 feet of near vertical walls above the top of the trench box. Appendix B to Subpart P of OSHA’s
construction standards requires a trench box to extend at least 18 inches above the top of the vertical
side of the trench wall, and the unprotected part of the wall to have a maximum allowable slope of
¾:1. The Secretary has established the failure to use the trench box in a manner that would prevent
employee exposure to hazards.

                                             -14­

The Secretary failed to establish Martin Construction had actual or constructive 5 is
knowledge of Southern Plumbing’s improper use of the trench box, as discussed under Item 1. The
alleged violation of 29 C.F.R. § 1926.652(d)(2) is vacated.

              Alleged Serious Violation of 29 C.F.R § 1926.652(g)(1)(iii)

   The Secretary contends Martin Construction violated 29 C.F.R § 1926.652(g)(1)(iii), which

provides:
Employees shall be protected from the hazard of cave-ins when entering or
exiting the areas protected by shields.

   In Citation No. 1, Item 6, the Secretary alleges:

Employees were not protected from the hazard of cave-ins when entering or exiting the area
protected by shields:

   (a)     Love Lane Extension - On January 26, 2006, the controlling employer Martin
           Construction, Inc. failed to ensure that its sub-contractor Southern Plumbing
           protected its employees from cave-in hazards when accessing the Efficiency XLDF­
           820 trench shield protective system. Employees traveled a distance of approximately
           11 feet at a depth of 12 feet to reach the trench box.

   Employees entering and exiting the areas protected by the trench box were exposed to the

hazard of a cave-in from near vertical walls that were 12 feet high. The Secretary has established
noncompliance with 29 C.F.R. § 1926.652(g)(1)(iii).
As discussed above in relation to Item 1, Martin Construction had no actual or constructive
knowledge of Southern Plumbing’s noncompliance with this standard. The alleged violation of 29
C.F.R § 1926.652(g)(1)(iii) is vacated.

                              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.

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ORDER

  Based upon the foregoing decision, it is hereby ORDERED that:
  1. Item 1of the Citation is vacated, and no penalty is assessed;
  2. Item 2 of the Citation is vacated, and no penalty is assessed;
  3. Item 3 of the Citation is vacated, and no penalty is assessed;
  4. Item 4 of the Citation is vacated, and no penalty is assessed;
  5. Item 5 of the Citation is vacated, and no penalty is assessed;
  6. Item 6 of the Citation is vacated, and no penalty is assessed;




                                                        /s/
                                                        STEPHEN J. SIMKO, JR.

Date: March 5, 2007

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