J. B. Coxwell Contracting, Inc.

Plain-English summary

J. B. Coxwell Contracting was building an underground concrete junction box for a highway storm drain system in Florida. OSHA cited the company for four excavation violations after employees worked in an excavation about 6 feet 8 inches deep. The judge affirmed a serious violation because the available ladder served the junction box rather than providing safe egress, and affirmed a willful violation because three supervisors knowingly allowed work without cave-in protection. The judge rejected the company's employee-misconduct defense because its work rule, training, and monitoring did not adequately prevent the conduct. Two other citation items were vacated because the Secretary did not prove that water-control precautions were inadequate or that an employee worked beneath a suspended pipe. Penalties of $1,000 and $19,000 were assessed, for a total of $20,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.651(c)(2); 29 C.F.R. § 1926.651(h)(1); 29 C.F.R. § 1926.651(e); 29 C.F.R. § 1926.652(a)(1)
• Outcome: The safe-egress and cave-in-protection items were affirmed, the water-accumulation and suspended-load items were vacated, and $20,000 in penalties was assessed.
• Key point: Supervisors' mistaken belief that a wide excavation did not require cave-in protection did not excuse knowingly allowing employees to work in it.

Full text (OSHRC public release)

               UNITED STATES OF AMERICA
   OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,
Complainant
v. OSHRC Docket No. 06-1228
J. B. Coxwell Contracting, Inc.,
Respondent.

Appearances:

      Robert Lewis, Jr., E squire, Office o f the Solicitor, U .S. Department of Lab or, Atlanta, G eorgia
              For Com plainant

      Eric J. Holshouser, Esquire, Coffman, Coleman, Andrews, & Grogan, Jacksonville, Florida
               For Respond ent

Before: Administrative Law Judge Ken S. Welsch

                                        DECISION AND ORDER

      J. B. Coxwell Contracting, Inc. (JBC) is engaged in the business of heavy highway

construction. On March 20, 2006, JBC was constructing an underground concrete junction box for
a storm drain system in Green Cove Springs, Florida, when the excavation was inspected by
Occupational Safety and Health Administration (OSHA). As a result of the OSHA inspection, JBC
received serious and willful citations on July 7, 2006, alleging violations of OSHA’s excavations
standards at 29 C.F.R. § 1926.650 et seq. JBC timely contested the citations.
The serious citation alleges JBC violated 29 C.F.R. § 1926.651(c)(2) (Item 1) for the lack of
a safe means of egress from the excavation; 29 C.F.R. § 1926.651(h)(1) (Item 2) for failing to
prevent water accumulation in the excavation; and 29 C.F.R. § 1926.651(e) (Item 3) for suspending
a 1,900 pound concrete pipe above the head of an employee. The serious citation proposes total
penalties of $4,544.00.

                                                         1

The willful citation alleges JBC violated 29 C.F.R. § 1926.652(a)(1) (Item 1) for failing to
utilize adequate cave-in protection for employees working in an excavation 6 feet 8 inches in depth.
The willful citation proposes a penalty of $45,000.00.
The hearing was held in Jacksonville, Florida, on January 23, 2007. The parties stipulated
jurisdiction and coverage (Tr. 4-5). Post hearing briefs were filed on May 14, 2007.
JBC denies the alleged violations and asserts it was in compliance with OSHA’s excavation
standards. JBC also denies the willful classification and claims unpreventable employee misconduct
as to the alleged violation of § 1926.652(a)(1) (Tr. 26-27).
For the reasons discussed, the Secretary failed to establish the alleged serious violations of
§ 1926.651(h)(1) (Citation 1, Item 2) and § 1926.651(e) (Citation 1, Item 3). JBC’s unpreventable
employee misconduct is rejected. The serious violation of § 1926.651(c)(2) (Citation 1, Item 1) and
the willful violation of § 1926.652(a)(1) (Citation 2, Item 1) are affirmed. A total penalty of
$20,000.00, is assessed.
The Inspection
JBC’s business is heavy highway construction which includes installing underground storm
drain systems. In business since 1983, JBC has offices located in Jacksonville, Florida. JBC
employs approximately 500 employees (Tr. 242, 277).
In 2006, JBC contracted to enhance the storm drain system and to resurface the road for
almost a three mile section of U.S. Highway 17 (Orange Street) in Green Cove Springs, Florida.
JBC designated Larry Porterfield as project superintendent. Project pipe foreman Spessard (Shep)
Preslar and backfill foreman Dowaine Vason also worked at the project. The three supervisors were
also designated “competent persons” (Tr. 25-26, 32-33, 184, 217, 225, 227, 231, 242).1
On March 20, 2006, JBC’s crew was working at the intersection of U.S. Highway 17 and
Walberg Street in Green Cove Springs, Florida. The crew was constructing a underground concrete
junction box in an excavation and beginning to install the drain pipe going north from the junction
box (Exhs. R-1A, R-2; Tr. 220-222).

     1
     A “competent person” is “one who is capable of identifying existing and predictable hazards in the

surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has
authorization to make promp t corrective measures to elim inate them.” 29 C.F.R. § 192 6.32 (f).

                                                      2

At approximately 9:00 a.m., Clay County Fire and Rescue Captain Eugene East drove to the
worksite and observed the excavation. Captain East described the excavation as a large opening with
a concrete junction box in the middle. He estimated the excavation was 8 feet deep and 20 feet
across in both directions. East saw approximately five employees in the excavation constructing the
junction box. He did not observe shoring, a trench box, or other cave-in protective systems. East
saw fissures and sloughing off along the excavation’s walls. He also testified there was water in the
bottom of the excavation which he estimated was 6 inches deep around the junction box. A ladder
was seen against an excavation wall which employees used to access the excavation. Based upon
his observations of the excavation, Captain East telephoned the Jacksonville OSHA office
(Exhs. J-2A-2H, C-8, C-9; Tr. 143-148, 155, 158, 162, 165, 167, 180). As part of his training in
trench rescue, East is familiar with OSHA’s excavation requirements (Tr. 142).
OSHA safety compliance officer Peter Lasavage, who was assigned the referral, arrived at
the excavation site at approximately 1:45 p.m., on March 20, 2006, to conduct an inspection. Upon
his arrival, Lasavage observed employees in the excavation working around the storm drain junction
box. The excavation was located in the center of Highway 17. Lasavage’s measurements of the
excavation were 20 feet wide, 21 feet long, and 6 feet, 8 inches deep. He classified the soil as
Class C soil. Lasavage described the walls of the excavation as almost vertical and not shored or
benched. While conducting the inspection, Lasavage testified he observed an employee climbing
the east wall of the excavation using a shovel as a prop. He did not see a means of egress from the
excavation. The ladder was leaning against the junction box in the center of the excavation.
Lasavage observed water in the bottom of the excavation although he did not consider it an amount
sufficient to make the excavation unsafe (Tr. 28, 30-31, 34, 36-37, 39-40, 43-44, 78, 82-83, 101).
Lasavage concluded the onsite OSHA inspection at approximately 5:30 p.m. (Tr. 35).
As a result of the OSHA inspection, the serious and willful citations for alleged violations
of the excavation standards were issued to JBC on July 7, 2007. For their failure to exercise proper
judgements, JBC gave letters of reprimand and suspensions for one week without pay to
superintendent Porterfield and foreman Preslar. Foreman Vason received only the reprimand letter
(Exhs. R-4, R-5, R-6 R-7; Tr. 194, 200, 235, 237, 266-267, 289-291).

                                             3

Discussion
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., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

   There is no dispute OSHA’s excavation standards at Subpart P, § 1926.650 et. seq. are

applicable to JBC’s worksite in Green Cove Springs, Florida, on March 20, 2006. Also, JBC does
not dispute that its employees were working in the excavation constructing the junction box and its
supervisors were at the excavation aware of its condition.
Serious Citation No. 1, Item 1 - Alleged Violation of § 1926.651(c)(2)

   The citation alleges the ladder was positioned in the excavation to access the junction box

and not as a means of egress from the excavation. Section 1926.651(c)(2) provides:
Means of egress from trench excavations. 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.

   CO Lasavage testified he observed an employee walking up the east wall to exit the

excavation (Exh. J-1C; Tr. 54). He opined the employee used a shovel as a prop in climbing the
almost vertical wall because there was no ladder for egress from the excavation (Tr. 54). The ladder
was leaning against the junction box to assist the employees in constructing the box (Tr. 55, 61).
Foreman Preslar acknowledged the employee used the wall to exit the excavation instead of a ladder
(Exhs. C-2, C-3; Tr. 56, 59).

                                              4

JBC argues the cited standard does not apply because it only applies to “trench excavation”
and compliance officer Lasavage described it as an “excavation” with its width greater than its depth
(JBC Brief, p. 7; Tr. 44). A “trench excavation” is defined at 29 C.F.R. § 1910.650(b) as:
a narrow excavation (in relation to its length) made below the surface
of the ground. In general, the depth is greater than the width, but the
width of a trench (measured at the bottom) is not greater than 15 feet
(4.6 m). If forms or other structures are installed or constructed in an
excavation so as to reduce the dimension measured from the forms or
structure to the side of the excavation to 15 feet (4.6 m) or less
(measured at the bottom of the excavation), the excavation is also
considered to be a trench.

   The excavation was 20 feet wide, 21 feet long, and 6 feet, 8 inches in depth. Based on these

measurements, the worksite was an excavation. Section 1926.650(b) defines an “excavation” as
“any man-made cut, cavity, trench, or depression in an earth surface, formed by earth removal.”
In the center of the excavation, JBC was constructing a cement junction box which was
6 feet, 8 inches square and 5 feet, 6 inches high (Tr. 245). Because the junction box reduced size
of the excavation from the sides to less than 15 feet, the excavation dug by JBC is also considered
a “trench excavation.” Therefore § 1926.651(c)(2) does apply in this case.
JBC’s argument that if applicable, the employee was less than 4 feet deep when observed by
Lasavage is immaterial to finding a violation. Lasavage testified the employee was at the bottom of
the excavation (Tr. 54). He also saw another employee exit the excavation the same way (Tr. 58).
Regardless of whether the employee was at the bottom of the excavation or on the side, the standard
requires a safe means of egress when the excavation is 4 feet or more. The standard’s application
is not based on where the employee is located in the excavation; but rather, upon the depth of the
excavation. See, Ford Development Corp., 15 BNA OSHC 2003, 2011 (No. 90-1505, 1992) aff’d,
16 F.3d 1219 (6th Cir. 1994), (the cave-in protection standard is violated when employees were
working on top of a pipe 3 ½ feet deep in an excavation over 5 feet deep).
JBC’s argument that climbing the walls of the excavation was a safe means of egress is also
rejected. The standard contemplates a means such as a ladder, ramp, or stairway to exit the
excavation; not the almost vertical wall of the excavation in this case. JBC agrees the walls were

                                              5

not sloped to 34 degrees which is the maximum allowable slope for excavations less than 20 deep
in Class C soil (JBC Brief, p. 3; Tr. 222). See § 1926, App B, Table B-1.
JBC’s claim employees could travel from the top of the junction box to the top of the trench
box is rejected as speculative and not shown by the record. No witness discussed this method as the
designated means of egress.
JBC, through its superintendent and foremen who were present on site, knew the condition
of the excavation and that its employees were working in the excavation to construct a junction box
without a means of egress. A.L. Baumgartner Construction Inc., 16 BNA OSHC 1995, 1998
(No. 92-1022, 1994) (an employer is chargeable with knowledge of conditions which are plainly
visible to its supervisory personnel). When a supervisory employee has actual or constructive
knowledge of an unsafe condition, knowledge is imputed to the employer. Dover Elevator Co., 16
BNA OSHC 1281, 1286 (No. 91-862, 1993). Foreman Preslar acknowledged that an employee
climbed the wall of the excavation to exit. He stated that “when OSHA arrived they didn’t use the
ladder, they left the trench box and climbed the side of the trench walls.” (Exh. C-3, p. 2).
Without a ladder to egress the excavation, JBC’s violation of § 1910.651(c)(2) is properly
classified as serious. The violation is not de minimus as argued by JBC (JBC Brief, p. 8). JBC’s
noncompliance was not technical and did not provide employees a sufficient level of safety
protection as required by the standard. Erie Coke Corp., 15 BNA OSHC 1561, 1571 (No. 88-611,
1992).
A violation is serious under §17(k) of the Occupational Safety and Health Act (Act), if it
creates a substantial probability of death or serious physical harm and the employer knew or should
have known of the violative condition. In determining whether a violation is serious, the issue is not
whether an accident is likely to occur; it is rather, whether the result would likely be death or serious
harm if an accident should occur. Whiting-Turner Contracting Co., 13 BNA OSHC 2155, 2157 (No.
87-1238, 1989).
The supervisors of JBC were present at the excavation site. Foreman Preslar actually saw
the employee climbing the wall of the excavation (Tr. 56, 59-60). The supervisors’ knowledge of
the lack of a means of egress is imputed to JBC. The employee exiting the excavation by climbing
the wall because there was not a ladder, was subject to serious harm or death if there was an

                                               6

emergency requiring prompt egress (Tr. 55). The excavation was approximately 7 feet deep and the
walls were almost vertical.
A serious violation of §1910.651(c)(2) is established.
Serious Citation No. 1, Item 2 - Alleged Violation of § 1926.651(h)(1)
The citation alleges JBC did not provide a means to prevent water accumulations in the
excavation. Section 1926.651(h)(1) provides:
Employees shall not work in excavations in which there is
accumulated water, or in excavations in which water is accumulating,
unless adequate precautions have been taken to protect employees
against the hazards posed by water accumulation. The precautions
necessary to protect employees adequately vary with each situation,
but could include special support or shield systems to protect from
cave-ins, water removal to control the level of accumulating water, or
use of a safety harness and lifeline.

   OSHA’s citation as to the accumulation of water in JBC’s excavation is based on the

observations of Captain East of Clay County Fire and Rescue. Captain East testified he saw water
accumulation around the junction box under construction. He estimated the accumulation was less
than 6 inches in depth based upon not being able to see the employees’ feet in the water (Tr. 64,
165). East did not observe any de-watering equipment at the excavation (Tr. 165). Although
Lasavage saw some water accumulation during his OSHA inspection in the afternoon, he did not
consider it sufficient to support a violation of §1926.651(h)(1) (Tr. 43, 63).
JBC does not deny the accumulations of water at the excavation. According to JBC, the
water occurred when it opened an existing storm drain in order to tie in the new line (Tr. 231). JBC
claims it took measures to prevent or to remove water accumulations. Superintendent Porterfield
testified he implemented three measures to reduce the water accumulation. In addition to installing
an underground sock drain and placing sand bags in active storm drains to prevent water from
flowing into the new sections, a 3-inch diaphragm pump was installed to draw down the water table
prior to constructing the cement junction box (Tr. 231-232).
The testimony of Porterfield is not contradicted by the Secretary’s witnesses. Neither Captain
East nor compliance officer Lasavage asked JBC about its methods to remove water accumulations
(Tr. 116, 165). Although, JBC’s contracts for de-watering equipment appear dated after OSHA’s

                                              7

inspection on March 20, 2006, Porterfield’s testimony about a de-watering system is not refuted by
the Secretary’s evidence. Porterfield’s testimony is also supported by the fact the water
accumulation lowered from approximately 6 inches in depth to a “no violation” accumulation
observed by Lasavage in less than 4 hours (Exh. R-3; Tr. 261). The Secretary failed to show that
these de-watering systems were not adequate or that there was a hazard to employees posed by the
water accumulation in this case.
The record fails to establish a violation of § 1926.651(h)(1).
Serious Citation No. 1, Item 3 - Alleged Violation of § 1926.651(e)
The citation alleges a 1,900 pound concrete pipe was suspended by digging equipment over
the head of an employee in the excavation. Section 1910.651(e) provides:
No employee shall be permitted underneath loads handled by lifting
or digging equipment. Employees shall be required to stand away
from any vehicles being loaded or unloaded to avoid being struck by
any spillage or falling materials. Operators may remain in the cabs
of vehicles being loaded or unloaded when the vehicles are equipped
in accordance with § 1926.601(b)(6), to provide adequate protection
for the operator during loading and unloading operations.

   The Secretary relies on the written statement of lead pipe fitter Isreal Hernandez as the sole

basis for this alleged violation (Exh. C-1; Tr. 70). In his statement, Hernandez indicates that at
11:00 a.m., a 1,900 pound concrete pipe was lifted by digging equipment over the head of an
employee in the excavation. Hernandez was directing the lift. CO Lasavage did not observe the
incident when he was on site.
At the hearing, Hernandez did not deny making the statement, although he could not
remember making the statement and was unable to read it (Tr. 214, 216).
From observing Hernandez and reviewing his testimony, it is clear to the court that
Hernandez’s understanding of English was minimal. When asked his full name and spell his last
name, Hernandez testified “I don’t understand it literally in English” (Tr. 213). He lacked the ability
to read English. He could not recite the English letters to spell his name. Also, his demeanor during
his testimony suggested someone who was impressionable and easily manipulated by any person in
authority.

                                              8

Accordingly, the court is not giving weight to Hernandez’s signed statement. The written
statement lacks specific details about the incident and what prompted the statement. It was not
shown what questions were asked or that Hernandez understood the questions and actually meant
his response to be what Lasavage recorded. Hernandez’s statement lacks corroboration. Even if the
incident occurred, the record fails to establish JBC knew or should have known of the incident.
Hernandez’s lead pipe fitter position was not shown to be supervisory whose knowledge is imputed
to JBC.
Without Hernandez’s statement, a violation of § 1926.651(e) is not established.
Willful Citation No. 2, Item 1 - Alleged Violation of § 1926.652(a)(1)

     The citation alleges JBC failed to utilize a cave-in protection system to protect employees

in an excavation 6 feet, 8 inches in depth. 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 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.

     The parties agree the soil at the excavation in issue was Class C soil.2 According to JBC, it

considers all soils in Florida as Class C (Tr. 247). JBC does not assert and the record does not show
the excavation was dug in stable rock or was less than 5 feet in depth. Therefore, the excavation was
not exempt from the cave-in protection requirements of § 1926.652(b) or (c).
The excavation was 21 feet long, 20 feet wide, and 6 feet, 8 inches deep. The excavation’s
walls were almost vertical; not sloped to 34 degrees (Tr. 222). JBC does not dispute the excavation
lacked a cave-in protection system such as proper sloping or shoring (Tr. 78, 82, 222, 266-267).
Although a trench box was present on site, it was not used in the excavation (Tr. 223).

     2
        Class C soil is considered cohesive soil with an unconfined compressive strength of 0.5 ton per square foot

(tsf) or less or granular soils including gravel, sand, and loamy sand or submerged soil or submerged rock that is not
stable o r material in a slop ed, layered system where the layers dip into the excavation. App endix A, to S ubp art P, §
1926.650 et. seq.

                                                        9

In the center of the excavation, JBC was constructing a cement junction box where several
drain pipes were joined (Tr. 243). The junction box was 6-feet, 8-inches square and approximately
5 feet, 6 inches high (Tr. 245).
JBC stipulates a violation of § 1926.652(a)(1). JBC does not dispute the depth of the
excavation exceeded 5 feet and it did not have the required cave-in protection (Tr. 20). There is no
dispute employees were in the excavation constructing the junction box. Porterfield stated six
employees were in the excavation (Exh. C-4, pp. 1-2).3 Vason and Preslar agreed that three
employees were working in the excavation (Exhs. C-2, C-11, p. 3, C-12, p. 1).
JBC argues that because the supervisors were adequately trained in excavation safety and it
enforced all policies relating to excavation safety, the supervisors’ knowledge of the violative
condition should not be imputed to JBC (JBC Brief, p. 11). However, if their knowledge is imputed,
JBC asserts a violation is still not appropriate based on supervisory employee misconduct.
Generally, the actual knowledge of a foreman or other supervisory employee is imputed to
the employer. Superior Electric Co., 17 BNA OSHC 1635, 1637 (No. 91-1597, 1996) (“When a
supervisory employee has actual or constructive knowledge of the violative conditions, that
knowledge is imputed to the employer, and the Secretary satisfied her burden of proving knowledge
without having to demonstrate any inadequacy in the employer’s safety program.”). An employer
can avoid imputation of knowledge based on supervisory misconduct by establishing that it “took
reasonable measures to prevent the occurrence of the violation.” Dover Elevator Co., supra. at 1286.
In this case, JBC concedes that despite its training and enforcement efforts, project
superintendent Porterfield misapprehended what the OSHA cave-in protection standard requires.
Porterfield testified he erroneously believed the standard applied only to trenches and not this
excavation because of its size; 20 feet wide, 21 feet long (JBC Brief, p. 12).

     3
       During the hearing, JBC argued Exhibits C-4 and C-11 should be suppressed be cause Porterfield and

Vason were not allowed to have a management representative present when interviewed by Lasavage on March 27,
200 6 (Tr. 56, 194 , 229, 26 3). The re is no obje ction to Po rterfield and V ason statemen ts on M arch 29 , 2006 because
representatives were present during these interviews (Exhs. C-5, C-12 ). Exhibit C-4 and C -11 were ad mitted into
evide nce b ased on Lasavage’s denial that he did no t allow represe ntatives; the failure of Porterfield and V ason to
exerc ise their right to refuse to be interviewed; and, the lac k of prejudice sho wn by J BC (Tr. 92, 2 30). Also, it is
noted Porterfield and Vason did not dispute anything in their statements (Tr. 194).

                                                        10

JBC’s knowledge is established by showing knowledge of the physical conditions
constituting the violation; it is not required that it understood the physical conditions were actually
hazardous. Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995). JBC does not
dispute its supervisory personnel on site were aware of the conditions of the excavation at the time
of OSHA’s inspection. Both the project superintendent and foremen were designated competent
persons. The superintendent and foremen were present at the excavation while the work was
performed on March 20, 2006, and thus were aware of the excavation’s physical condition and its
lack of cave-in protection.
As supervisors, their knowledge of lack of cave-in protection is imputable to JBC.
Unpreventable Employee Misconduct
JBC asserts the violation of § 1926.652(a)(1) was due to unpreventable supervisory/employee
misconduct (Tr. 20-21, 26). To establish the affirmative defense of unpreventable employee
misconduct, JBC must show (1) it has established work rules designed to prevent the violation, (2)
it has adequately communicated the rules to its employees, (3) it has taken steps to discover
violations; and (4) it has effectively enforced the rules when violations have been discovered.
Nooter Construction Co., 16 BNA OSHC 1572, 1578 (No. 91-0237, 1994).
When supervisory employees are involved in the alleged misconduct, the defense is more
difficult to establish since it is the supervisors’ duty to protect the safety of employees under their
supervision. Archer-Western Contractors, Ltd., 15 BNA OSHC 1013, 1017 (No. 87-1067, 1991).
“In cases involving negligent behavior by a supervisor or foreman which results in dangerous risks
to employees under his or her supervision, such fact raises an inference of lax enforcement and/or
communication of the employer’s safety policy.” Danis-Shook Joint Venture XXV, 19 BNA OSHC
1497 (No. 98-1192, 2001), aff’d 319 F.3d 805, 811 (6th Cir. 2003).
Although JBC has a written safety program, provides safety training to employees, invests
in safety equipment, and disciplines wrongdoers, JBC failed to show its work rules, training, and
monitoring of this worksite was adequate to address noncompliance in this case (Exhs. R-8, R-9;
Tr. 284-285). JBC’s unpreventable supervisory/employee misconduct defense is rejected.
JBC’s failure to comply with the cave-in protection requirements was not solely due to
superintendent Porterfield’s misconduct. JBC had three supervisors (a project superintendent, senior

                                              11

foreman, and pipe foreman) on the project who were aware of the lack of cave-in protection. The
three supervisors were also designated the “competent persons” who should have known the
excavation cave-in protection requirement for this project (Tr. 32, 33, 74).
Porterfield erroneously believed the excavation was safe without cave-in protection because
of its size. Foreman Preslar stated he thought the site looked safe because “the hole was so large”
(Exh. C-3, p.2). Foreman Vason testified he was unaware it violated OSHA standards because of
the size of the excavation (Tr. 199). However, Vason recognized the excavation was unsafe because
of the vertical walls (Tr. 191). He did not tell anyone or take corrective action because he did not
believe it was his responsibility (Tr. 192). He speculated that “if I had voiced my opinion to him
[Superintendent Porterfield] at the time of him performing his job, tempers might have flared, and
I just minded my business and went to the other end” (Tr. 192).
JBC does not dispute the excavation should have had a cave-in protective system. The
erroneous interpretation by superintendent Porterfield and foremen show a lack of adequate training.
JBC’s work rule in this case generally refers the employees to OSHA’s excavation regulations. The
work rule states:
Employees will not enter excavations in excess of five feed deep,
except in cases where the excavation conforms to the requirements of
the OSHA regulations. This shall include placing excavation spoil at
least two feet away from the excavation. (Exh. R-8, p. 8, III-C).

The work rule allowed the superintendent to avoid requiring cave-in protection for employees
working in an excavation in excess of 6 feet, 8 inches in depth. Based on his training, Porterfield
mistakenly decided the excavation did require cave-in protection (Tr. 223). Despite his reprimand,
Porterfield still believes the excavation complied with OSHA standards even though JBC
acknowledges cave-in protection should have been installed (Tr. 20, 237). Porterfield’s
misunderstanding reflects serious deficiencies in JBC’s training and work rules.
Based on the number of supervisors/employees involved in the misconduct, an employer is
not entitled to argue unpreventable misconduct. “Where all the employees participating in a
particular activity violate an employer’s work rule, the unanimity of such noncomplying conduct
suggests ineffective enforcement of the work rule.” Gem Industrial Inc., 17 BNA OSHC 1861, 1865
(No. 93-1122, 1996) aff’d, 149 F.3d 1183 (6th Cir. 1998). In addition to the three supervisors, there

                                             12

were at least three employees in the excavation who apparently did not comply with JBC’s work
rule.
With regard to its disciplinary program in this case, JBC disciplined the supervisors for
failing to exercise proper judgement; not for violating OSHA standards or a JBC’s work rule
(Tr. 273, 291, 293). This tacitly shows JBC’s recognition of deficiencies in its work rule and
training.
Willful Classification
JBC’s violation of § 1926.652(a)(1) is classified as “willful.” The Review Commission
considers “[i]t is well settled that a willful violation is one committed with intentional, knowing or
voluntary disregard for the requirements of the Act, or with plain indifference to employee safety.”
Continental Roof Systems, Inc., 18 BNA OSHC 1070, 1071 (No. 95-1716, 1997). It is not enough
for the Secretary to show an employer was aware of the conduct or conditions constituting the
alleged violation. “A willful violation is differentiated by heightened awareness of the illegality of
the conduct or conditions and by a state of conscious disregard or plain indifference when the
employer committed the violation.” Hern Iron Works, Inc., 16 BNA OSHC 1206, 1214 (No. 89-433,
1993).
JBC argues the superintendent believed in good faith that cave-in protection was not required
in such a large excavation. Porterfield stated “I feel the trench box was not necessary due to the
width of the excavation which allowed us to have...an excess of 1 to 1 ½ slope” (Exh. C-4, p.1).
Porterfield testified he did not intentionally violate the standard or put employees at risk of an unsafe
condition (Tr. 224).
JBC’s good faith argument in this case, however, does not excuse it of the willful violation
of §1926.652(a)(1). The test of good faith for these purposes is objective--whether the employer’s
belief concerning a factual matter, or concerning the interpretation of a rule, was reasonable under
the circumstances.” General Motors Corp., Electro-Motive Division, 14 BNA OSHC 2064, 2068
(No.82-630 et al., 1991). An employer’s good faith disregard of the regulations is irrelevant under
the intentional disregard or plain indifference test. See Fluor Daniel, 19 BNA OSHC 1529, 1534
(No. 96-1729, 2001) aff’d 295 F.3d 1232, 1246 (11th Cir. 2002). Also, an employer’s good faith
belief that its alternative program was superior to OSHA’s requirement is irrelevant to willful
characterization and holding employer committed willful violation because it knew of the standard
but chose not to comply. Reich v. Trinity Industries, Inc. 16 F.3d 1149, 1155 (11th Cir. 1994).

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In this case, the excavation was 21 feet long, 20 feet wide and 6 feet, 8 inches in depth.
Based on his testimony, Porterfield made a conscious decision not utilize cave-in protection. His
belief that cave-in protection was not required lacks substantial basis in fact and law. The standard
by its terms applies to all excavations except in stable rock or less than 5 feet in depth. The cave-in
protection standard is not limited to trench excavation. The employees constructing the junction box
in the center of the excavation were exposed to a cave in hazard. The employees were within 6 - 7
feet of the excavation’s walls to construct the junction box and at the walls to egress from the
excavation.
JBC’s three supervisors made a knowing, voluntary decision to permit the employees to work
in the excavation that was not protected against cave-ins. The supervisors ignored OSHA’s clear
requirement which applies to all excavations; not just trenches. Other than the size of the
excavation, Porterfield did not identify his basis for not requiring cave-in protection such as lack of
employees’ exposure. The superintendent was on site most the day and the two foremen were on
site all day. It is noted JBC’s superintendent ignored the concerns of local Fire and Rescue who were
on site earlier that day. Superintendent Porterfield substituted his judgment for the provisions of the
excavation standard and therefore cannot escape the conclusion that he acted voluntarily with either
intentional disregard or plain indifference to the standard. See Western Waterproofing Co., Inc.
v. Marshall, 576 F.2d 139, 143 (8th Cir. 1978)(rejecting employer’s argument that willfulness was
negated because it unilaterally determined that compliance was not necessary). Also see,
J. A. M. Builders, Inc. v. Herman, 233 F.3d 1350, 1356-1357 (11th Cir. 2000)(even if the employer
believed in good faith that the workers had the skill and experience to avoid the hazards, it would
not excuse its intentional disregard or plain indifference to its own duties under OSHA).
A willful violation of § 1926.652(a)(1) is established.
Penalty Determination
The Review Commission is the final arbiter of penalties in all contested cases. In
determining an appropriate penalty under § 17(j) of the Occupational Safety and Health Act, 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.
JBC is not entitled to credit for size because it is a large employer with approximately 500
employees (Tr. 62, 277). However, JBC is entitled to credit for history and good faith. JBC has not

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received an OSHA citation in the proceeding three years. Its safety program is considered good with
written safety rules (Exh. R-8: Tr. 62, 284-285). JBC spends approximately $700,000.00 per year
on safety training, safety equipment, two full time safety managers and an outside consulting firm
to conduct site inspections (Tr. 284).
A penalty of $1,000.00, is reasonable for serious violation of § 1926.651(c)(2) (Citation
No. 1, Item 1). JBC had used a ladder earlier to egress the excavation. However, at the time of
OSHA’s inspection, the ladder was at the junction box and not available to egress the excavation.
Lasavage observed one employee climbing the vertical wall of the excavation which contained loose
soil to exit the excavation.
A penalty of $19,000.00, is reasonable for willful violation of § 1926.652(a)(1) (Citation
No. 2, Item 1). Employees were in an excavation which was 6 feet, 8 inches in depth. The
excavation lacked a cave-in protection system. Three supervisors were present and aware employees
were working in an unprotected excavation.
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 that:
1. Citation No. 1, Item 1, alleged serious violation of § 1926.651(c)(2), is affirmed and
a penalty of $1,000.00, is assessed.
2. Citation No. 1, Item 2, alleged serious violation of § 1926.651(h)(1), is vacated and
no penalty is assessed.
3. Citation No. 1, Item 3, alleged serious violation of § 1926.651(e), is vacated and no
penalty is assessed.
4. Citation No 2, Item 1, alleged willful violation of § 1926.652(a)(1), is affirmed and
a penalty of $19,000.00, is assessed.

                                                   ___/s/ Ken S. Welsch_______
                                                   KEN S. WELSCH
                                                   Judge

Date: June 29, 2007

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