Pospiech Contracting, Inc.

Plain-English summary

Pospiech Contracting installed underground utilities at a Florida construction project. OSHA found employees had entered a vertical-sided Type C soil excavation measured at 6 to 6½ feet deep without a protective system. The company argued that the excavation was less than 5 feet deep, that it lacked knowledge, and that any violation resulted from unpreventable employee misconduct. The judge credited OSHA's measurements, imputed the pipe foreman's knowledge to the company, and found that the safety program in effect at the time contained no excavation or trenching rules. Because a prior final order involved the same standard and cave-in hazard, the judge classified the violation as repeat. The citation was affirmed, and the proposed $8,000 penalty was reduced to $5,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1)
• Outcome: The repeat excavation citation was affirmed, and the proposed penalty was reduced from $8,000 to $5,000.
• Key point: A misconduct defense fails when the employer's operative safety program contains no work rules addressing its core excavation work.

Full text (OSHRC public release)

               UNITED STATES OF AMERICA
   OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,
Complainant
v. OSHRC Docket No. 07-1619
Pospiech Contracting, Inc.,
Respondent.

Appearances:

      Kristina T. Harrell, Esquire, Office of the Solicitor, U.S. Department of Labor, Atlanta, Georgia
               For Com plainant

      Kevin K. Dixon, Esquire, Law Office of Kevin K. Dixon, P.A., Inerness, Florida
              For Respond ent

Before: Administrative Law Judge Ken S. Welsch

                                       DECISION AND ORDER
      Pospiech Contracting, Inc., (PCI) installs underground utilities. In August 2007, PCI was

installing underground utilities for a new Wal-Mart under construction in Hudson, Florida. As
Occupational Safety and Health Administration (OSHA) compliance officer Christos Nicou was
driving past the site on August 27, 2007, he observed workers on scaffolding and on the structure’s
roof without fall protection. Nicou stopped and conducted an inspection of the site. During his
investigation, Nicou saw a trench in the area of the parking lot that PCI had excavated. Nicou took
photographs and measurements of the trench. Based on his inspection, the OSHA issued a citation
to PCI on September 25, 2007, charging the company with a repeat violation of 29 C. F. R.
§ 1926.652(a)(1) for failing to provide an adequate protective system for employees working in an
excavation. The citation proposed a penalty of $8,000.00. PCI timely contested the citation.

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The court held a hearing in the matter on February 26, 2008, in Tampa, Florida. The parties
stipulated jurisdiction and coverage (Tr. 4-5). After the hearing, the court issued an order on
February 29, 2008, allowing the evidentiary record to remain open for the limited purpose of
receiving PCI’s written safety program in effect at the time of the inspection. PCI submitted its
program on March 6, 2008. In an order dated March 14, 2008, the court admitted the written safety
program into evidence as PCI’s Exhibit R-5a.
The parties have filed a post-hearing brief. PCI asserts the excavation was not more than
5 feet deep, and thus required no protective system. If the excavation is found to have exceeded
5 feet in depth, PCI claims it had no knowledge of the condition. It asserts the affirmative defense
of unpreventable employee misconduct.
As discussed below, the court affirms the citation and assesses a penalty of $5,000.00.
Background
PCI’s corporate office is in Inverness, Florida. Case Contracting was the general contractor
for a new Wal-Mart under construction in Hudson, Florida. Case Contracting hired PCI to install
the underground utilities for the project (Tr. 183, 281).
On August 27, 2007, compliance officer Nicou was driving past the Wal-Mart site when he
observed workers on the roof area, as well as workers on a scaffolding system. The workers were
not using any form of fall protection. (These workers were not PCI employees.) Nicou parked his
car and went to Case Contracting’s jobsite trailer, where he met with James Farmer, Case’s jobsite
superintendent and Timothy Walker, Case’s project manager (Tr. 20, 228). Farmer accompanied
Nicou as he conducted a walkaround inspection of the site (Tr. 21-22).
As Nicou and Farmer exited the Wal-Mart building and walked towards the south side, they
saw a trench in the parking lot area which had been dug by PCI earlier that day (Tr. 22). PCI
employee Esteban Padre was sitting in a backhoe next to the trench’s south side (Tr. 34) . The rest
of PCI’s crew had gone to lunch (Exh. C-1; Tr. 24-25, 47).
PCI pipe foreman Christopher Larratt supervised the crew that included Padre, Ishmial
Zumaro, Marcello, Lazarus, and Phillipi (Tr. 239). At 11:00 a.m., day of the inspection, Larratt’s
crew had dug the excavation with a backhoe to repair a damaged 2-inch irrigation pipe that PCI had
installed several months earlier. Larratt was the designated competent person on the project. He did

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not take a soil sample to determine its classification, but he worked under the assumption that all
Florida soil is Type C soil. After Larratt dug out the excavation with the backhoe, Esteban and
Ishmial used hand shovels to clear the soil around the pipe. At no time did Larratt or any of the other
employees measure the depth of the excavation. After lunch (and after Nicou’s inspection) Zumaro
put a coupling on the pipe to finish the repair. The entire repair project lasted approximately two
hours, including the half-hour lunch break that was underway when Nicou and Farmer arrived at the
site. (Exh. C-4; Tr. 184, 238-239, 249, 251-252, 254).
Although no one was in the excavation when Nicou and Farmer arrived, they both observed
footprints in the bottom of the trench (Exhs. C-2 & C-6; Tr. 48). With Farmer present, Nicou took
depth measurements of the excavation, using a steel measuring tape (Tr. 27). Nicou measured the
north and the south sides of the excavation at 6 feet deep, and the east side at 6½ feet deep. The west
side measured 4½ feet deep (Tr. 27-28). Nicou paced out the length and width of the excavation and
estimated it to be 6 feet long and 5 feet wide (Tr. 50-52). Based on the feel and the appearance of
the soil, Nicou concluded it was Type C soil. Nicou also took a soil sample and later sent it to the
OSHA Technical Center in Salt Lake City, Utah, for analysis. The lab results confirmed Larratt’s
assumption and Nicou’s conclusion: the excavation was dug in Type C soil (Exh. C-5; Tr. 30-31).
After Nicou finished inspecting the excavation, Farmer held a closing conference in Case’s
jobsite trailer with the four subcontractors Nicou believed to be in violation of OSHA’s standards.
Representing PCI was pipe foreman Larratt, as well as its general superintendent Kenny Rose and
superintendent Frank Newborn (Tr. 55, 172, 230-231). During PCI’s closing conference, Larratt
disputed Nicou’s contention that employees had entered the excavation (Tr. 59-60). Nicou, Farmer,
and the three PCI representatives went back to the excavation, which was still open. More footprints
were evident in the excavation. In the presence of the three PCI supervisory personnel, Nicou
measured the depth of the north side of the trench, again finding it to be 6 feet (Tr. 62-64). Neither
Larratt, Rose, or Newborn disputed the measurement, nor did any of them measure the depth for
himself (Tr. 175, 254-255).
In reviewing PCI’s history, Nicou discovered that PCI had previously been cited for a
violation of § 1926.652(a)(1) on February 8, 2005. Based on this previous violation, OSHA issued
the citation in this case to PCI for a repeat violation on September 25, 2007. Upon receipt of the

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citation, PCI hired two companies, Central Testing Laboratory and Thomas LaSenna Surveying, Inc.,
to determine the depth of the excavation at the time of the inspection (Tr. 193, 206). By the time the
companies conducted their tests, the parking lot had been paved. Each company took one sample
from a location of the excavation specified by PCI (Tr. 199-200).
The Citation
The Secretary has the burden of proving the 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 OSHC 2131, 2138 (No. 90-1747, 1994).
Item 1: Alleged Repeat Violation of § 1926.652(a)(1)
The citation alleges:
At the site, employees were in progress of water piping installation in a
trench measured and found to be 5 feet wide by 6 feet long and 6.5 feet deep at the
north, south and east side. The west side was 4.5 feet deep. The trench walls were
vertical and no protection was provided against possible cave-ins.

   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) Excavation 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.

   PCI’s primary argument is that § 1926.652(a)(1) does not apply in this case because the

excavation falls under the exception in § 1926.652(a)(1)(ii), i.e, the excavation was less than 5 feet
in depth.
Applicability
Nicou measured the excavation on two separate occasions, both times finding it to be over
5 feet deep except for the west side (Tr. 27-28, 62-64). PCI took no measurements of the excavation,

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either before or after Nicou’s initial inspection (Tr. 175, 254-255). The Secretary submitted a signed
statement from Farmer dated October 16, 2007, in which he states he observed Nicou measure the
depth of the excavation on the two separate occasions. Farmer corroborated Nicou’s testimony that
the excavation was over 5 feet deep and the trench walls “were not sloped. There [they] were cut
vertical” (Exh. C-6, p. 3).
PCI countered with an undated affidavit in which Farmer avers he “observed the OSHA
representative make no more than two (2) measurements of the excavation from the side of the work
site” and that the excavation “did not appear to be greater than five (5) feet in depth” (Exh. R-3)1.
PCI made much of the “two measurements” issue at the hearing and in its post-hearing brief, even
though the Secretary cleared up any confusion in her examination of Nicou (Tr. 151):
Q.: It came up a couple of times, Mr. Dixon brought up that in your inspection
file, it refers to two measurements?

       Nicou: Correct.

       Q.: And, that the statement provided by Mr. Farmer and other employees of
       Pospiech Contracting say that they witnessed you taking the two measurements.
       What is your understanding of what two measurements means?

       Nicou: Two instances of making measurements.

       Q.: And, when you say, “two instances,” what is two instances?

       Nicou: One when we first approached the trench, myself and Mr. Farmer; and the
       second time when the entire company was present; management from Pospiech, the
       general contractor and myself were present at a second measurement.

       Q.: So, you wouldn’t, then, say that the two instances refer to your only dropping
       your tape twice?

       Nicou: No, I did a lot more than two.




   1

   Farmer’s handwritten statement is factually detailed. Farmer’s undated affidavit contains five short
   statements written very much in the manner of a lawyer. T he only statement at od ds with Nico us’
   testimony is that the excavation “did not appear” to be deeper than 5 feet. B ecause we have N icou’s
   actual measurements, Farmer’s assertion of his percep tion of the excavation is irrelevant.

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Even assuming PCI’s claim that Nicou made only two measurements were true, it is still two
more measurements than PCI made and it is sufficient to establish the excavation was deeper than
5 feet. Farmer was present during both instances of measurement and he wrote in his statement that
“the east side was measured by the compliance officer and it was about six and a half feet” (Exh.
C-6, p. 3). In his undated affidavit, Farmer states the excavation “did not appear” to be greater than
5 feet in depth, but he also took no measurements. The only measurements taken of the excavation
the day of the inspection were those taken by Nicou. As such, this evidence is unrefuted and
establishes the Secretary’s prima facie case for this element.
PCI’s insistence that the excavation was less than 5 feet in depth raises several questions.
Nicou took the first set of measurements in front of Farmer, who agrees in his signed statement that
the excavation was deeper than 5 feet. Farmer raised no objection and noted no disagreement with
the measurements in his statement. Then Nicou again measured the excavation in front of Farmer,
as well as Larratt, Rose, and Newborn,2 respectively the pipe foreman, the general superintendent,
and the superintendent for PCI. Why, if Nicou’s measurement was inaccurate, did not one of the
three men representing PCI in supervisory capacities raise an objection? Why did no one from PCI
take a measurement himself? If Nicou’s measurement showed the depth to be less than 5 feet, or if
any of the men perceived Nicou’s measurement to be inaccurate, the logical response would be to
raise an objection at that time. The record shows no one did so.
Instead, several months after Nicou’s inspection3, PCI hired Central Testing Laboratory to
take an augur boring and Thomas LaSenna Surveying, Inc. to take a core boring of the an area of the
now blacktopped parking lot that PCI had again excavated. Both borings hit “natural soil” at less

   2

   In his testimony, Newborn stated he did not remember N icou taking a depth measurement of the
   excavation (Tr. 174-175). This is contrary to the testimony of Nicou and the written statement of
   Farm er, and is given no credibility.
   3

   PCI complained throughout the hearing and in its post-hearing brief that, “Due to the delay in the
   employer receiving notification they were unable to measure the trench, photograph the trench, o r test
   for soil impaction” (PCI’s brief, p. 4). Nicou inspected the excavation on August 27, 2007 . The
   Secretary issued the citation on September 25, 200 7, just shy of a month later. Section 9(c) of the
   Occupational Safety and Health Act of 1970 (Act) provides: “No citation may be issued under this
   section after the expiration of six months following the occurrence of any violation.” The Secretary was
   well within the statutory six m onths fo r issuing the citation. The best time to have measured the trench,
   photographed the trench, and tested for soil impaction was on August 27, before PCI itself backfilled
   the trench. There was no delay in issuing the citation.

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than 5 feet (Tr. Exhs. R-1 & R-2; Tr. 193-217). PCI chose a spot approximately 25 feet from the
southwest corner of the Wal-Mart and excavated there. Each company took one boring
(Tr. 203, 211).
Representatives of the Secretary were not present at either of these borings. PCI presented
no photographs to show the conditions of the later excavation. Nicou testified the walls of the
original excavation were uneven. The west wall of the excavation measured 4½ feet. It is possible
the borings came from this section of the original excavation, and uncertain whether they came from
an area where Nicou measured the excavation to be deeper than 5 feet. Furthermore, the area was
paved for a parking lot between the day of the inspection and the time when the companies took the
boring samples. The ground had been scraped and leveled before paving. Workers were in the
process of scraping the parking lot the day of the inspection (Tr. 28). The depth of the natural soil
likely changed once the scraping was completed. The evidence of the borings is too speculative to
be of probative value. They were taken months after the original excavation and in markedly
changed conditions. They are given no weight in determining the depth of the excavation.
The Secretary has established § 1926.652(a)(1) applies to the excavation at issue.
Noncompliance
For excavations greater than 5 feet in depth, the standard requires employers to protect
employees from cave-ins by “an adequate protective system designed in accordance with paragraph
(b) or (c) of this section.” Paragraph (b) of § 1926.652(a) addresses the design of sloping and
benching systems. Paragraph (c) addresses the design of support systems, shield systems, and other
protective systems. It is undisputed that PCI did not use a trench box, sloping, or any other
protective system in the trench (Tr. 67-68).4
The Secretary has established PCI failed to comply with the terms of the standard.

   4

   The excavation was not purposefully sloped but, as Nicou stated, “On the side where the excavator
   was, because of the excavated material dropping on the side, there was material there where there was
   a slope, but it wasn’t an effort to slope the trench” (Tr. 33-34). For an excavation that is 6 feet deep
   in Type C soil, the standard requires a slope of 32 degrees. A slope of 32 degrees would result in the
   top of the trenc h wall being 9 feet away from the toe of the trench (Tr. 69). The width of the
   excavation at issue was 5 feet at the top and 2½ to 3 feet at the toe (Tr. 52).

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Employee Exposure
Nicou did not observe any employees in the excavation the day of his inspection, but both
he and Farmer observed footprints at the bottom of the excavation the first time they viewed it, and
more footprints the second time (Exhs. C-2 & C-6; Tr. 48). Padre told Nicou that both he and
Zumaro had been in the excavation (Tr. 26-27). Larratt denied any PCI employees were ever in the
excavation, claiming they repaired the pipe from outside of it (Tr. 59-60). Aside from the
implausibility of such a repair, Larratt contradicted himself at the hearing when asked how the
excavation differed from the conditions shown in Exhibit C-2 (Tr. 251-252, emphasis added):
Larratt: Well, when they went in there again and they were actually in the hole
work[ing] again, this was cleaned up in the back area a little bit more, and the back
edge was knocked down a little bit more.

    Q.: And, you said when they got back down in the trench–what kind of work were
    they doing? Was that after lunch?

    Larratt: Yes, that was after lunch.

    Q.: What kind of work were they doing after lunch?

    Larratt: They put a coupling on the pipe there that was cut.

   Padre and Zumaro were in the excavation both before and after lunch. PCI argues that they

did not stand at the bottom of the excavation, but stood on the water pipe. Assuming such an
implausible scenario occurred, the Secretary has still established PCI’s employees were exposed to
the hazard of a cave-in.
The safety standard is implicated by the depth of a particular trench, without regard
to an individual worker’s precise location in it. The notion that having workers
stand on a laid pipe within the trench is a satisfactory method of protecting them
from the risk of cave-ins is nonsense.

P. Gioioso & Sons, Inc. v. OSHRC, 115 F. 3d 100, 109 (1st Cir. 1997).
Knowledge
Larratt was PCI’s pipe foreman. He personally operated the backhoe to excavate the trench
(Tr. 246-247). He directed his crew to repair the water pipe. Larratt testified his crew members only
work under his direct supervision (Tr. 239). “When a supervisory employee has actual or
constructive knowledge of the violative conditions, that knowledge is imputed to the employer, and

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the Secretary satisfies [her] burden of proving knowledge without having to demonstrate any
inadequacy in the employer’s safety program.” Superior Electric Co, 17 BNA OSHC 1635, 1637
(No. 91-1597, 1996).
PCI repeatedly argues that Nicou somehow compromised his inspection by failing to notify
PCI’ corporate shareholders at the time of the inspection. PCI states, “The inspector did not notify
upper management, even though he said it was normal practice to do so” (PCI’s brief, p. 9). This
is a distortion of Nicou’s testimony. Nicou stated that a foreman is considered a representative of
management, “and he becomes the eyes and ears of the company. Decisions that the foreman makes
are decisions of the company” (Tr. 143). Nicou said it was OSHA’s policy to get in touch with a
higher management official than a foreman. In this case, Nicou met with PCI’s general
superintendent Rose and its superintendent Newborn. Both men represented upper management of
PCI (Tr. 144). It was not Nicou’s responsibility to notify anyone else from PCI.5
The Secretary has established that PCI had actual knowledge of the violative conditions of
the excavation. She has proven her prima facie case.
Unpreventable Employee Misconduct Defense
PCI contends that if the court finds a violation, it was the result of employee misconduct on
the part of Larratt. In order to establish the affirmative defense of unpreventable employee
misconduct, an employer is required to prove (1) that it has established work rules designed to
prevent the violation, (2) that it has adequately communicated these rules to its employees, (3) that
it has taken steps to discover violations, and (4) that it has effectively enforced the rules when
violations are discovered. Precast Services, Inc., 17 BNA OSHC 1454, 1455 (No. 93-2971, 1995),
aff’d without published opinion, 106 F. 3d 401 (6th Cir. 1997).
The safety program PCI submitted at the hearing contains an extensive section outlining
PCI’s work rules for excavation and trenching. It was dated two months after Nicou’s inspection
(Exh. R-5).

   5

   Indeed, PCI vice-president and chief operating officer M ichael Hartman testified it was R ose’s
   respo nsibility to notify the corporate office of the inspection. PCI verbally reprimanded R ose and
   Newbo rn for failing to do so (T r. 287).

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The court left the record open for 10 days after the hearing to allow PCI time to submit its
safety program in effect at the time of the inspection. PCI did so, with a document designated as
Exhibit R-5a.
Exhibit R-5a does not contain a single reference to excavations or trenches. There are no
work rules relating to excavations. From a reading of this safety program, no one would know that
PCI ever works with excavations, much less that it is the company’s specialty.
PCI offered no other evidence that it had established work rules relating to adequate
protective systems in excavations, or that any such rules were effectively communicated to its
employees. Not only did PCI not take steps to discover violations, after upper management was
directly confronted with a tape-measured depth of 6 feet in the excavation, they still refused to
acknowledge the excavation was in noncompliance with § 1926.652(a)(1). No employees were
disciplined for the violative conditions of the excavation at issue.
PCI has failed to establish its employee misconduct defense.
Repeat Classification
The Secretary alleges the violation is a repeat, based upon a citation issued by the Secretary
to PCI on February 8, 2005. A violation is considered a repeat violation “if, at the time of the alleged
repeat violation, there was a Commission final order against the employer for a substantially similar
violation.” Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979).
Item 6 of citation no. 1 of the February 2005 citation charged a violation of § 1926.652(a)(1),
the same standard at issue in this case (Exh. C-7). The citation arose from an inspection conducted
on November 9, 2004, of an excavation that was 48 feet long by 25 feet wide by 10 feet, 6 inches,
deep. The soil was Type C soil (Exhs. C-7 & C-8). The parties entered into an Informal Settlement
Agreement on February 25, 2005. No modifications were made to the citation, but the parties agreed
to a slight reduction in penalty (Exh. C-10; Tr. 98-99).
“A prima facie case of substantial similarity is established by a showing that the prior and
present violations were for failure to comply with the same standard.” Superior Electric Company,
17 BNA OSHC at 1638. Both violations were of the same standard and created the same hazard:
death or serious injury by cave-in. In each case, PCI failed to provide an adequate protective system
for its employees in the excavation (Tr. 88-89).
The Secretary has established the violation was properly classified as repeat.

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Penalty Determination
The Commission is the final arbiter of penalties in all contested cases. In determining an
appropriate penalty, 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.
At the time of the inspection, PCI employed approximately 180 employees. Approximately
25 employees worked on the Wal-Mart site (Tr. 102). The Secretary had cited PCI previously for
violating the same standard at issue here. The Secretary adduced no evidence of bad faith on PCI’s
part.
The gravity was high. Nicou testified, “A square foot of dirt can weigh as much as 100 to
120 pounds. If that hit you on the side of your leg, it can cause you fractures” (Tr. 95). An employee
buried up to his chest could suffocate and die.
It is determined the appropriate penalty for this violation is $5,000.00.
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:
Item 1 of the citation, alleging a repeat violation of § 1923.652(a)(1), is hereby affirmed, and
a penalty in the amount of $5,000.00 is assessed.

                                                            \s\ Ken S. Welsch
                                                           KEN S. WELSCH
                                                           Judge

Date: June 30, 2008

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