Griffin Contracting, Inc.

Plain-English summary

Griffin employees worked in a six-foot-deep utility excavation where one wall was near vertical and lacked shoring, benching, or an adequate slope. OSHA's laboratory confirmed that the fissured soil was Type B, and an employee was observed within 18 inches of the unprotected wall. The ALJ rejected Griffin's challenges to the inspector's measurements, soil classification, and excavation experience. He affirmed the serious cave-in-protection citation and reduced the proposed penalty from $2,500 to $2,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1)
• Outcome: The serious citation was affirmed, and the proposed penalty was reduced from $2,500 to $2,000.
• Key point: Every excavation wall that presents a cave-in hazard must be protected, even when the other walls are adequately sloped or otherwise safe.

Full text (OSHRC public release)

               UNITED STATES OF AMERICA
   OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,
Complainant
v. OSHRC Docket No. 07-0788
Griffin Contracting, Inc., Simplified Proceedings
Respondent.

Appearances:

      Kristina T. H arrell, Esquire, Office o f the Solicitor, U .S. Department of Lab or, Atlanta, G eorgia
               For Com plainant

      Luis A. Ram irez, Jr., R epresentative, Griffin Contracting, Inc., Savannah, Geo rgia
               For Respond ent

Before: Administrative Law Judge Ken S. Welsch

                                        DECISION AND ORDER
      Griffin Contracting, Inc. (GCI) contracted to install the underground utilities at a construction

site for a new CVS Pharmacy in Port Wentworth, Georgia. On March 27, 2007, while the GCI crew
was working in an excavation near an existing underground junction box, Occupational Safety and
Health Administration (OSHA) Compliance Officer Elizabeth Freeman who was driving to another
inspection site, observed the excavation lacked cave-in protection along the “near” vertical north
wall. She stopped and conducted an inspection. As a result of the OSHA inspection, GCI received
a serious citation on April 20, 2007.
The citation alleges GCI violated 29 C. F. R. § 1926.652(a)(1) by failing to shore or slope
the north wall of the excavation. A penalty of $2,500.00 is proposed. GCI timely contested the
citation.
The case was designated for Simplified Proceedings pursuant to Commission Rule 203(a).
The hearing in Savannah, Georgia was held on August 1, 2007. GCI was represented by safety

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consultant Luis A. Ramirez, Jr. (Tr. 5). The parties stipulated jurisdiction and coverage (Tr. 6-7).
They filed post hearing statements of position.
GCI denies the violation. GCI claims the record fails to establish the north wall of the
excavation was vertical (GCI’s Statement of Position, August 28, 2007; Tr. 126-127). GCI, also,
questions the competence of Freeman, an industrial hygienist, to recognize excavation hazards;
Freeman’s failure to conduct a manual test to determine the soil classification; and the accuracy of
a tape measure to measure the depth of the excavation. GCI presented no witnesses and offered no
exhibits of its own in support its arguments (Tr. 124).
As more fully discussed, a serious violation of § 1926.652(a)(1) is affirmed and a penalty of
$2,000.00 is assessed.
BACKGROUND
GCI is in the business of site preparation and the installation of underground utilities. Its
office is located in Savannah, Georgia. GCI employs approximately 70 employees and has been in
business for six years (Prehearing Conference Order; Tr. 55, 126).
In March 2007, GCI contracted with Fortney & Weygandt, a general contractor, to install the
underground utilities including sanitation, storm drains and water pipelines at a construction site for
a new CVS Pharmacy in Port Wentworth, Georgia. GCI utilized approximately nine employees on
the project (Tr. 28, 61, 62, 64).
On March 27, 2007, a GCI crew of three employees under the supervision of foreman Wayne
Conner was digging an excavation from an existing underground concrete junction box1 to connect
a new storm water drain pipe (Tr. 28, 41, 62). Using an excavator, Conner dug the excavation
approximately 16 feet in length and 6 feet in depth east from an existing junction box (Tr. 23, 32).
To assist in obtaining measurements for the new pipeline and to remove the loose dirt from around
the junction box, two employees entered the excavation with shovels (Tr. 40, 41-42, 53). Foreman
Conner was inside the junction box with surveying equipment to “grade out” the excavation (Tr. 75).
At approximately 1:30 p.m., while driving to another inspection site, OSHA compliance
officer Freeman, an industrial hygienist, saw the excavation (Exhs. C-1, C-2; Tr. 14, 15-16, 29, 58).

    1
        The junction box had b een installed a couple months earlier by Coastal Grading (Tr. 33, 63).

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GCI had finished digging this portion of the excavation about 10 minutes prior to her arrival
(Tr. 28-29). Because of OSHA’s special emphasis program, Freeman parked her car and conducted
an OSHA inspection of the excavation (Tr. 17, 61).
Upon entering the project, Freeman observed a GCI employee standing in the excavation near
the junction box, within 18 inches of the north wall (Exhs. C-1, C-2, C-3; Tr. 74). From her
observation, she considered the north wall to be “near vertical” (Tr. 20, 21). Foreman Conner was
standing inside the uncovered junction box in the excavation (Tr. 16-17).
Freeman measured the depth of the excavation, using a metal tape measure in the location
where she had observed the employee, to be 6 feet, 4 inches (Exh. C-5; Tr. 22-23). Foreman Conner
agreed the excavation was 6 feet in depth (Tr. 23). Freeman estimated the excavation was 5 feet
wide at the bottom based on the size of the junction box which was 4 feet square (Tr. 25, 70). After
pacing the distance, she estimated the overall length of excavation to be 16 feet (Tr. 23). The first
six feet from the junction box were level and the remaining 10 feet were sloped toward the excavator
(Tr. 25-26).
Based on observing the soil, Freeman determined the excavation was dug in Type B soil
(Tr. 19, 31). She described the soil as cohesive, clumpy and moist. Although the junction box had
been installed previously and there was water in the excavation, Freeman was unable to classify the
soil as Type C. She was unable to determine the extent of the previously disturbed soil when the
junction box was built (Tr. 70, 118). Also, she understood the water in the excavation occurred only
when the junction box was opened (Tr. 69). Freeman did not perform a manual test such as thumb
penetration in classifying the soil (Tr. 68). Foreman Conner, who described the soil as sticky clay,
did not disagree with Freeman’s Type B classification (Tr. 26-27, 68-69).
From her observation, Freeman considered the south and east walls (faces) of the excavation
to be adequately slopped for Type B soil. She determined the west wall which contained the
concrete junction box could not pose a cave-in hazard (Tr. 20, 66-67).
Freeman believed, however, the north wall of the excavation provided inadequate cave-in
protection because it was “near” vertical (Tr. 20, 35). Although she had a clinometer,2 she did not

   2
       A “clinometer” is an instrument for measuring the angle of elevation.

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use it to determine the degree of the slope because she considered it unnecessary (Tr.21, 60). An
excavation in Type B soil requires a 45-degree slope. The north wall lacked shoring or benching
(Tr. 58).
Freeman’s classification of Type B soil was confirmed by the soil analysis of OSHA ‘s
Technical Center in Salt Lake City, Utah (Exhs. C-6, C-7, C-8; Tr. 77, 108). Although the cohesive
strength test suggested Type A soil, the Technical Center classified the soil as Type B because of the
fissures (cracks) observed in the soil sample (Exh. C-7; Tr. 118-119). Fissures in the soil indicate
the soil is unstable and that it could fall apart or cave in (Tr. 88).
Before Freeman left the site, GCI adequately sloped the north wall. It took only a “minute
or two” (Exh. C-4; Tr. 49-50). As a result of the OSHA inspection, GCI received a serious citation
for violation of §1926.652(a)(1) because the north wall of the excavation in Type B soil was not
properly slopped or shored (Tr.35).
DISCUSSION
The Secretary has the burden of proving, by a preponderance of the evidence, a violation of
a safety standard such as §1926.652(a)(1).
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).
It this case, there is no dispute as to elements (a), (c) and (d) of the Secretary’s burden of
proof. The excavation standards at Subpart P, §1926.650 et seq., applied to the excavation dug by
GCI on March 27, 2007. GCI was installing utility pipelines for a new construction project (Tr. 28,
62-63). GCI does not dispute that employees were in the excavation exposed to the condition and
its on-site foreman had actual knowledge of the excavation (Prehearing Conference Order,
July 9, 2007; Exh. C-1). Foreman Conner told Freeman that he and two other employees had been
in the excavation near the north wall (Tr. 41, 53). Conner was the senior employee on the site for
GCI (Tr. 74).

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Conner’s belief the excavation was safe is immaterial (Tr. 27). Conner’s knowledge of the
physical conditions constituting the violation is sufficient. A foreman’s understanding that the
physical conditions were actually hazardous is not required . Phoenix Roofing, Inc., 17 BNA OSHC
1076, 1079 (No. 90-2148, 1995). Conner knew the employees were working in the excavation and
the north wall lacked cave-in protection (Exh. C-1). He told Freeman the employees were in the
excavation to assist him measuring for the new pipeline (Tr. 40). When a supervisory employee,
such as Conner, has actual knowledge of the violative condition, his knowledge is imputed to the
employer, and the Secretary satisfies her burden of proving knowledge without having to
demonstrate inadequacy in the employer’s safety program. Superior Electric Co., 17 BNA OSHC
1635, 1637 (No. 91-1597, 1996). GCI has not asserted nor does the record show supervisory
employee misconduct. See Dover Elevator Co. 16 BNA OSHC 1281, 1286 (No. 91-862, 1993).
GCI’s sole dispute involves element (b) of the Secretary’s burden of proof; compliance with
the terms of §1926.652(a)(1). GCI argues the record does not establish the north wall was near
vertical because Freeman did not use a clinometer to determine the slope (Tr. 127). Also, GCI
challenges the competence of Freeman to conduct excavation inspections, her failure to perform a
manual test in determining the soil classification, and her use of a metal tape measure to measure the
depth of the excavation (GCI’s Statement of Position, August 28, 2007).
Item 1 - Alleged Violation of § 1926.652(a)(1)
The citation alleges GCI failed to utilize a cave-in protection system to protect employees
in an excavation 6 feet in depth. Section 1926.652(a)(1) provides:
Each employee in an excavation shall be protected from cave-in 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 excavation in issue was not exempt from the cave-in protection requirements of

§ 1926.652(b) or (c). GCI does not assert and the record does not show the excavation was dug in
stable rock or was less than 5 feet in depth.

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The excavation’s depth, width and length dimensions, the adequacy of the slopes of the east
and south walls, and the lack of a cave-in hazard at the west wall are established by the record and
not generally disputed. The excavation was approximately 16 feet long, 5 feet wide at the bottom,
and 6 feet deep (Tr. 23, 25, 70).
GCI argument regarding the use of a metal tape measure to measure the excavation’s depth
is rejected. There is no evidence the tape measure was bent when taking the depth measurement.
Foreman Conner was present during the measurement and agreed the excavation was 6 feet deep (Tr.
23). The requirement for cave-in protection is triggered by an excavation 5 feet or more in depth.
According to Freeman, the east and south walls of the excavation were adequately slopped
for Type B soil (Tr. 20, 66). The west wall which consisted of the concrete junction box did not pose
a cave-in hazard to employees (Tr. 67).
GCI’s argument regarding the soil classification because of Freeman’s failure to perform a
manual test is rejected. Freeman classified the soil as Type B soil based on her observations. Type
B soil is considered cohesive soil with an unconfined compressive strength of greater than 0.5 tons
per square foot (tsf) but less than 1.5 tsf or granular cohesionless soils including angular gravel, silt,
silt loam, sandy loam and in some cases silty clay loam and sandy clay loam and previously disturbed
soil unless otherwise classified as Type C soil. Also, included in Type B soil is soil that meets the
unconfined compressive strength or cementation requirements for Type A, but is fissured or subject
to vibration. Appendix A, to Subpart P, § 1926.650 et. seq.
Freeman’s Type B soil classification was confirmed by the soil analysis performed by
OSHA’s Salt Lake City Technical Center because the soil sample was fissured3 (Exhs. C-7, C-8; Tr.
19, 101, 106, 108, 119). Foreman Conner did not disagree with Freeman’s Type B classification (Tr.
27, 68-69). The use of a manual test at the site to classify the soil was not necessary.
The issue in this case involves the north wall. GCI does not dispute the north wall lacked
a cave-in protection system such as benching or shoring and that an employee was in the excavation
within 18 inches of the north wall (Tr. 58, 74).

    3
     Fissured me ans “a so il material that has a tendency to break along d efinite planes of fracture w ith little
    resistanc e, or a material that exhibits op en cracks, such as tension cra cks, in an expo sed surface.” App endix
    A to S ubp art P - “E xcavation.”

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GCI’s argument regarding the failure to use the clinometer is rejected (Tr. 127). Freeman
testified the north wall was “near” vertical based on her observation (Tr. 20). The issue for
compliance with the standard is not whether the wall was vertical but rather was the north wall
sloped in accordance with the requirement for Type B soil. Type B soil requires a maximum slope
of 1 : 1 (45 degrees) for compliance. At no place in the record, does GCI argue the north wall was
adequately sloped for Type B soil.
Freeman’s observation regarding the north wall as vertical is consistent with the photographs
taken of the excavation (Exhs. C-1, C-2, C-3; Tr. 20-21). A reasonable person particularly a trained
inspector is able to determine from observation whether an excavation’s wall was closer to vertical
(90 degrees) than adequately sloped (45 degrees) without the use of a clinometer. This record
establishes a prima facie case that the north wall was not adequately sloped or shored incompliance
with § 1926.652(a)(1). GCI offered no witnesses or exhibits to refute the observations of Freeman.
GCI’s challenge to Freeman’s competence as an industrial hygienist to conduct inspections
of excavations is also rejected. Freeman has been employed by OSHA in excess of seven years (Tr.
10). She has conducted approximately 40 inspections a year; 50 per cent of which were safety
inspections (Tr. 11, 14). Freeman estimated she has performed two excavation inspections a year
(Tr. 11). Additionally, she has received informal OSHA training on excavations including classroom
training and on the job training assisting senior compliance officers (Tr. 12-13). Prior to her
employment with OSHA, Freeman worked for the Mine Safety and Health Administration where
she received training on wall collapses in surface mining (Tr. 13). Her testimony regarding the
excavation in issue is accepted as competent.
Although only the north wall lacked cave-in protection, a violation of § 1926.652(a)(1) is
established. The standard contemplates that each wall of an excavation is protected from a cave-in
hazard. The potential cave-in hazard exists from any wall of an excavation more than 5 feet in depth.
See definition for “Cave-in” in § 1926.650(b). Also, see the definitions of “benching” “shoring,”
and “sloping,” with the use of the plural “walls.” The shoring and sloping diagrams show each wall
with cave-in protection. See Appendix B. Prior judges’ decisions consistently have found a
violation even if only one wall of an excavation lacked cave-in protection. See, Oklahoma Natural
Gas Co., 16 BNA OSHC 1278 (No. 90-1330, 1993); Southwestern Bell Telephone Co., 16 BNA

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OSHC 1021, 1022 (No. 91-1421, 1992); S & H Construction Co., 15 BNA OSHC 2094, 2096
(No. 91-0404, 1992); Underground Construction Inc., 14 BNA OSHC 1795, 1796 (No. 89-0216,
1990); and John R. Jurgensen Co., 13 BNA OSHC 1830, 1832 (No. 87-1249, 1988).
A violation of § 1926.652(a)(1) is established.
Serious Classification
The Secretary classified GCI’s violation of § 1926.652(a)(1) as serious. 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 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).
GCI’s foreman was present at the excavation and had actual knowledge of the lack of cave-in
protection including the inadequate slopping of the north wall (Exh. C-1; Tr. 16-17). Foreman
Conner dug the excavation, knew the employees were in the excavation, and participated in OSHA’s
inspection (Tr. 24, 53, 72). As a supervisor, foreman Conner’s knowledge of the lack of cave-in
protection along the north wall is imputed to GCI. The excavation was at least 6 feet in depth and
the north wall was not sloped or shored. An employee was observed within 18 inches of the north
wall (Tr. 74). If the wall collapsed, the employee was exposed to possible serious injury such broken
bones or death from asphyxiation (Tr. 51).
A serious violation of §1926.652(a)(1) is established.
Penalty Assessment
Section 17(j) of the Act requires the Commission to give “due consideration” to four criteria
when assessing penalties: (1) the size of the employer’s business, (2) the gravity of the violation,
(3) the good faith of the employer, and (4) the employer’s prior history of violations. 29 U.S.C.
§ 666(j). The gravity of the violation which is of primary consideration, “depends upon such matters
as the number of employees exposed, the duration of the exposure, the precautions taken against
injury, and the likelihood that any injury would result.” J. A. Jones Construction Co., 15 BNA
OSHC 2201, 2214 (No. 87-2059, 1993).

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The gravity in this case is moderate. Two employees were in the excavation for less than
10 minutes (Tr. 69). Freeman observed one employee in the excavation for less than one minute
(Tr. 40). Only the north wall of the excavation was not adequately sloped or otherwise protected
from cave in (Tr. 20, 58). Although properly classified as Type B soil, the soil compression strength
test qualified the soil for Type A. It was the observed fissures in the soil sample sent to the Salt Lake
City laboratory which classified the soil as Type B (Tr. 119).
GCI is entitled to partial credit for size with approximately 70 employees (Tr. 58). Three
employees including the foreman were involved in tie-in work at the junction box (Tr. 64). GCI is
entitled to credit for history because it has not received a serious citation within three years (Tr. 56).
Because it sloped the north wall before Freeman left the excavation, good faith credit is also
warranted (Exh. C-4; Tr. 32).
Having considered these factors, a penalty of $2,000.00 is reasonable for violation of
§ 1926.652(a)(1).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This 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 on the foregoing decision, it is ORDERED that:
A serious violation of 29 C. F. R. § 1926.652(a)(1) is affirmed and a penalty of $2,000.00
is assessed.

                                            /s/
                                            Ken S. Welsch
                                            Judge

Date: September 17, 2007

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