Kilby & Gannon Construction Services, LLC
Willful trenching violations affirmed
Apply this to your situation
This order from 2012 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Kilby & Gannon employees installed drainage pipe in a type-C-soil trench at a parking-garage project. Two workers entered the trench even though it was more than five feet deep, lacked a trench box or adequate sloping, and had no safe egress point within 25 feet. The foreman knew the excavation rules, had been warned about unprotected excavations, and directed the employees into the trench despite knowing a trench box was needed. The judge found that the company's limited sloping and post-inspection abatement did not establish good faith. Both violations were affirmed as willful and serious, with penalties of $21,000 each.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.651(c)(2); 29 C.F.R. § 1926.652(a)(1)
- Outcome: Both willful and serious trenching violations were affirmed, with a total penalty of $42,000.
- Key point: A foreman's decision to send workers into a known unprotected trench after repeated warnings supports willful violations for inadequate egress and cave-in protection.
Full text (OSHRC public release)
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, D.C. 20036-3457
SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 10-0755
KILBY & GANNON CONSTRUCTION
SERVICES, LLC,
Respondent.
APPEARANCES:
Matthew M. Sullivan, Esquire, New York, New York
For the Secretary
Sean M. Wettig, Esquire, Albany, New York
For the Respondent
BEFORE: Dennis L. Phillips
Administrative Law Judge
DECISION AND ORDER
This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 659(c) (“the Act”). The Occupational Safety and Health Administration (“OSHA”)
inspected a worksite of Kilby & Gannon Construction Services, LLC (“Respondent” or “K&G”)
in Troy, New York on February 5, 2010. As a result, OSHA cited K&G for two willful
violations of its excavations standard and proposed a total penalty of $42,000.1 K&G filed a
timely notice of contest, bringing this matter before the Commission. In its answer to the
Secretary’s complaint, K&G admitted it is organized in and does business in New York as a
domestic limited liability company engaged in construction work, specifically excavation work.
K&G generally denied the remaining allegations and asserted ten affirmative defenses in its
answer.2 A two-day hearing was held in Schenectady, New York on April 6-7, 2011. Both
parties have submitted post-hearing briefs.
Background
K&G’s primary place of business is Albany, New York. Hudson Valley Community
College (“HVCC”) hired U.W. Marx, Inc. (“Marx”) as its construction manager to oversee the
construction of a new 800-car parking garage at its campus (“worksite”).3 HVCC also hired
LeChase Construction Services, LLC (“LeChase”) as the prime contractor for excavation work,
including the removal of existing drainage pipe and installation of new drainage pipe.4 LeChase
then subcontracted with K&G for the excavation work and utility installation at the worksite.
Clough Harbour Associates (“CHA”) was the architect of record that prepared the project’s
1
The Secretary’s complaint classified the citation items as both willful and serious. (Complaint at ¶¶ VII, VIII; Tr.
269).
2
K&G listed ten affirmative defenses, numbered 1 through 10, in its answer: 1) failure to state a claim for which
relief may be granted, 2) isolated employee misconduct, 3) good faith effort to protect employees from hazards, 4)
violations were not willful, 5) K&G neither knew nor could have known of hazards, 6) provisions of the Act do not
apply and the Commission has no jurisdiction, 7) the citations reference the wrong or invalid legal standards, 8)
citations are unenforceably vague as applied, 9) citations fail to describe the nature of each alleged violation with
sufficient particularity, and 10) compliance with the cited standards is infeasible or impossible. K&G has argued
and/or briefed defenses 3 through 5 above. The Court finds that K&G has abandoned the remaining asserted
defenses. Manganas Painting Co., Inc., No. 93-1612, 1996 WL 478959, *13 (O.S.H.R.C. A.L.J., Aug. 23,
1996)(consolidated) (“Respondent's failure to identify evidence or present any argument furthering its mere
statement of an affirmative defense constitutes, for all practical purposes, an abandonment of the defense or, at least,
a failure to carry its burden. The argument is rejected.”), aff’d on other grounds, 273 F.3d 1131 (D.C. Cir. 2001).
3
The worksite on HVCC’s campus is located at 80 Vandenburgh Avenue (U.S. Route 4) within the Town of North
Greenbush, Rensselaer County, New York. The worksite was located north of South Drive and south of Brahan
Hall, Fitzgibbons Center, and the Lang Technical Building. (GX 41).
4
Much of LeChase’s work at the worksite included placing rebar, pouring concrete and overseeing the excavation.
(Tr. 125).
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Grading and Drainage Plan, C-300, that was issued on March 24, 2008 (“Grading and Drainage
Plan”). (Tr. 20-23, 37-38, 91, 160, 359; GX 44).
At 1:20 p.m., February 5, 2010, OSHA received a telephone complaint that employees
were working in an unprotected trench at the worksite.5 OSHA Compliance Officer (“CO”)
Andrew Reed went to the worksite to investigate this complaint and found two K&G employees
working in a trench. CO Reed took photographs of K&G employees in the trench from an
adjacent building at the worksite. (Tr. 55-68, 277-78; GX 3-10, 39).
On the day of the inspection, there were five K&G employees on the site: Tom Gannon,
foreman; Robert Shaw, foreman and excavator operator; Jim Romano, equipment operator; Chris
King, laborer; and Andy Guthorn, laborer.6 K&G was installing a 24-inch-diameter drainage
high density polyethylene pipe between catch-basin five (“CB-5”) and an existing manhole at the
worksite.7 The west end of the trench, by CB-5, was approximately 5 feet deep. The trench was
on a hill, so it became deeper at its east end. This portion of the drainage system represented the
end of that phase of the project and “[K&G] wanted to get the thing in. It was a Friday.” (Stip.
3; Tr. 57, 98, 409-12; GX 38, pp. 61, 66, 78).
The Cited Standards
Citation 1, Item 1
This item alleges a willful violation of 29 C.F.R. § 1926.651(c)(2), which states:
5
29 C.F.R. § 1926.650(b) defines a trench excavation 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 (4.6m) or
less (measured at the bottom of the excavation), the excavation is also considered to be a trench.” The excavation
here is a trench excavation because it was 50 to 60 feet long, its depth ranged between 5.5 to 7 feet, and its width,
which varied, was not greater than 15 feet. (Tr. 86-89, 104). For clarity, the cited trench excavation will be referred
to as a “trench.” Any other excavation on the HVCC worksite will be referred to as an “excavation.”
6
Tom Gannon will be referred to as Foreman Gannon to avoid confusion with his brother, Bob Gannon. Bob
Gannon is an officer for K&G. (Tr. 360-61).
7
The existing manhole, marked with a letter “C” at GX 44, p. 2, is about 85 feet east of CB-5. (Tr.70-71; GX 44).
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(2) 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 (7.62m) of lateral travel for
employees.
Citation 1, Item 2
This item alleges a willful violation of 29 C.F.R. § 1926.652(a)(1), which states:
(a) Protection of employees in excavations. (1) 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.
Jurisdiction
The parties have stipulated that K&G was engaged in a business affecting commerce and
was an employer within the meaning of sections 3(3) and 3(5) of the Act, 29 U.S.C. §§ 652(3)
and 655(5).8 The Court concludes the Commission has jurisdiction over the parties and subject
matter in this case.
The Secretary’s Burden of Proof
To establish a violation of an OSHA standard, the Secretary must prove that: (1) the
cited standard applies; (2) the terms of the standard were violated; (3) one or more employees
had access to the cited condition; and (4) the employer knew, or with the exercise of reasonable
diligence could have known, of the violative condition. Astra Pharm. Prod., Inc., 9 BNA OSHC
2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).
Stipulated Facts
The following stipulated facts were set forth in the parties’ Joint Pre-Hearing Statement:
- The soils at the site had the OSHA designation of Class C soils.
8
The parties’ Joint Pre-Hearing Statement stipulates that sections 3(3) and 3(5) of the Act, 29 U.S.C. §§ 652(3) and
655(5), apply to K&G. (Tr. 354-55; GX 32, p. 4)
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2. On February 5, 2010, Respondent’s foreman Tom Gannon observed Andy Guthorn and Chris
King, two of Respondent’s employees, working inside of the excavation without a trench
box, or a ladder to provide a means of egress from the excavation.
-
Robert Shaw was a foreman and competent person on the worksite on February 5, 2010.
-
Thomas Gannon was a foreman and competent person on the worksite on February 5, 2010.
-
Foreman Gannon gave the instructions to employees who were observed working inside the
excavation on February 5, 2010.
-
Respondent had utilized cave-in protection at the worksite in connection with its work prior
to February 5, 2010.
-
When Respondent started its excavation work near STMH # 4 prior to February 5, 2010, a
representative from LeChase Construction Services, LLC asked whether Kilby & Gannon
intended to use a shield in that portion of the excavation. 9
-
No ladders were used in the excavation on February 5, 2010.
(Tr. 354).
The Relevant Testimony
CO Andrew Reed
At approximately 2:00 p.m., CO Reed arrived at the worksite. He entered the
Fitzgibbons Center building which was adjacent to and just north of the trench at issue. From
that building’s second floor stairwell, he observed and photographed a trench in which K&G was
installing storm drainage pipes. The open trench was about 50 to 60 feet long and ran from the
west to the east. Two employees, later identified as Chris King and Andy Guthorn, were working
9
STMH refers to a storm manhole on the site.
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in the trench’s deeper east end. One was working with a shovel. The other was holding a grade
rod.10 (Stip. 2; Tr. 55-60, 67-69, 245-46, 279-80; GX 3).
Several photographs taken by CO Reed show that Foreman Gannon was standing beside
the trench observing Messrs. King and Guthorn as they worked in the trench’s deeper east end.11
One of the photographs [GX -7] shows Messrs. Deyo and Baker standing near one another
adjacent to the trench. Another photograph [GX 10] shows Foreman Gannon in the trench.
There was no trench box for cave-in protection and no ladder for a means of egress. A Kubota
excavator was operating on the north edge of the trench. A front-end loader with a bucket full of
crushed stone material was nearby. A Link-Belt excavator was removing soil at the trench’s east
end. 12 The CO testified that the large equipment near the trench introduced a surcharge load
which reduced the stability of the soil. (Tr. 57, 60-68, 281-282, 340; GX 3-10).
After taking the photographs, CO Reed returned to his vehicle and drove closer to the
trench area. As he approached, he saw Messrs. King and Guthorn still in the trench, but they had
moved west to its middle section, about 15 to 20 feet east of CB-5. One employee was operating
a vibratory tamping unit (“tamper”) next to “fairly significant overhanging” soil on the south
face of the trench.13 The other employee was holding a shovel. (Tr. 69, 79-80, 286-87; GX 11,
GX 15, GX 44).
CO Reed identified himself and asked who was in charge. Mr. Tom Gannon stepped
forward and identified himself as the foreman and competent person. The CO asked if the
10
A grade rod is an incrementally-marked engineering rod that can be used to take measurements, such as a specific
depth in a trench.
11
CO Reed took photographs GX 3 - GX 10 over the course of less than 5 minutes. (Tr. 68-69; GX 3 - GX 10).
Photograph GX 4 shows a K&G employee working in the east end of the trench, which was the project’s deepest
excavation by K&G. (GX 4, GX 38, pp. 78-79).
12
Track marks on the ground at the east end of the trench, which are marked with an “A” on exhibit 4, were made
by the tracks of K&G’s Link-Belt excavator. (Tr. 61).
13
CO Reed later learned that the overhanging face to the south extended almost the entire length of the trench prior
to his arrival at the worksite. (Tr. 78). He testified that “there is no provision for allowing an unsupported
overhanging face to remain at the edge of an excavation.” (Tr. 339).
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employees could get out of the trench, after which Messrs. King and Guthorn walked out of the
trench’s west end near CB-5. (Stip. 4; Tr. 70-72, 297-98).
When questioned by the CO about the lack of cave-in protection in the trench, Foreman
Gannon answered that protection was not needed because no one was working in the eastern
deep end of the trench. Because the CO had just photographed Messrs. King and Guthorn in the
deep east end of the trench, he again asked if any employees had been working in that area.
Foreman Gannon repeated that no employees had been working in the deep east end of the
trench. When the CO showed him a photograph in the camera with Messrs. King and Guthorn in
the deep east end, Foreman Gannon admitted the employees had been working in the deep east
end of the trench. He admitted that the two workers had “just been in there for a few minutes to
… take some measurements.”14 (Tr. 71-72).
Foreman Gannon told CO Reed that the egress area was at the west end of the trench near
CB-5. In their depositions, both Foremen Gannon and Shaw identified the egress point as being
near CB-5 at the west end. The CO had identified that point as being the only safe means of
egress for the two employees; however, they were working in the deep east end of the trench 40
to 50 feet away.15 CO Reed testified that in order to exit the trench, the workers had to traverse
the length of the trench and pass by a particularly hazardous overhanging face on the
14
After speaking with Foreman Gannon, CO Reed interviewed Messrs. Guthorn and King. They told CO Reed that
they were laying pipe and backfilling. They told CO Reed that there was no reason that they should have to work in
the excavation without any protection because it was dangerous. CO Reed stated that they seemed grateful that
OSHA was looking out for them. (Tr. 245-46).
15
CO Reed testified that he did not observe a stairway, any ladders, or a ramp within 25 feet of where he saw
employees working as means of egress from the excavation. He further testified:
Q: … How far would you estimate the employees would had to have traveled to get out of the excavation, from
when you saw them from the window of the stairwell?
A: I’d say it was about 50 feet.
Q: How do you know it was that distance?
A: Well, it looked like there were two – I think as I recall two lengths of pipe installed in the trench. Those are 20
foot sections. And the employees were at the far end. … beyond the end of the pipe taking a grade measurement or
something. So I’d say 40 – 50 feet.
(Tr. 244-45).
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excavation’s south side. He stated that the workers could be exposed to a hazard of being struck,
buried, or engulfed by collapsed material if a collapse were to occur. He stated that soil was
“very heavy” and workers could suffer broken bones and internal injuries if they were struck
mid-body by collapsed material. (Tr. 244-45, 269-71, 287, 329-30; GX 37, pp. 102-03, GX 38,
pp. 98-99).
CO Reed used K&G’s grade rod to take depth measurements. The first, which was 5.5
feet, was taken in the mid-section of the trench where the employees had been working with the
tamper when CO Reed asked them to exit the trench.16 The second, which was 7 feet, was taken
toward the trench’s deep east end where CO Reed, at the second floor stairwell, saw
Respondent’s employees, Messrs. Guthorn and King, working.17 CO Reed testified that this
measurement was taken where fill and material sloped downward toward the center of the trench
and not at the deepest point in the trench which was deeper than seven feet. He also testified that
the excavation would have been deeper since bedding material was placed below the pipe.
Foreman Gannon was with the CO for both measurements, and he did not dispute them. CO
Reed also testified that the excavation became deeper moving from west to east to allow water to
flow through the pipe by gravity. (Tr. 86-90, 101-02, 245, 293-294, 331; GX 40, p. 1).
The CO observed that the walls of the east end had been cut back at about a 45-degree
slope for a distance of 15 to 20 feet.18 He estimated the trench was 6 to 8 feet wide at the top
near CB-5 and “maybe 15 feet wide” in the eastern sloped area. The walls in the middle of the
trench, where the employees had been with the tamper and the shovel, were vertical. An
16
The first measurement was taken from the excavation’s north side down to the level where the fill had already
brought the level up to the top of the pipe, where the shovel is leaning on the trench’s north face in GX 17 at “F”.
(Tr. 87-88; GX 17).
17
The second measurement was taken where the scraper blade is on the back of the excavator in GX 17 at “A”. (Tr.
87-89).
18
The degree of the slope was an estimate based on his observation, as well as his experience with inspections
involving trenches. (Tr. 285-86).
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overhang on the south wall in this same area is marked “B” in GX 11. The area marked “C” in
GX 12 shows a portion of the south wall that had collapsed. CO Reed testified that the collapsed
soil in the trench indicated that the soil may be “unstable.” He stated that, “It wasn’t a safe
trench to enter.” CO Reed also testified that the excavation could be more dangerous and less
stable because he observed “several pieces of heavy equipment that were located at various times
close to the edge of the excavation.” (Tr. 79-85, 104-05, 244, 254, 285-88, 290, 292-93, 338-40;
GX 17, 26).
Foreman Gannon told the CO the soil was type C. The foreman also said that K&G
would normally slope back or use a trench box in type C soil. 19 He stated there was no trench
box on site as they did not know the trench would be so deep. (Tr. 72).
CO Reed interviewed Respondent’s excavator operator, Mr. Shaw, during the
inspection. 20 Foreman Shaw confirmed the soil was type C and that normally K&G would either
slope the walls back or use a trench box. He told CO Reed that he was running the pipe from
CB-5 to the manhole that was underneath the large Link-Belt excavator at that time. (marked
“H” in GX 17). Foreman Shaw also observed a discussion earlier that day between Foreman
Gannon and Mr. Wayne Deyo, an HVCC employee and representative who worked side by side
with Marx on the project. Afterwards, Foreman Gannon told Mr. Shaw to cut back the walls of
the trench at its east end “a little.” Foreman Shaw told the CO that K&G did not have a trench
box at the site. He explained that this was because it was unrealistic to rent a trench box for a
19
Foreman Gannon told CO Reed that when working in type C soil, K&G “would require either shoring, or [a]
trench box, or to cut it back or slope it back.” CO Reed testified that he later learned that K&G had removed shoring
from the worksite. (Tr. 72).
20
Mr. Shaw was also one of Respondent’s foreman and “competent person” at the worksite. A competent person is
defined as: “. . . 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 take prompt
corrective measures to eliminate them.” 29 C.F.R. § 1926.32(f). (GX 31, p. 13, GX 34, p. 11).
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couple of hours of work on a Friday afternoon before Super Bowl weekend. (Tr. 26-27, 246-50,
319; GX 17, GX 38, p. 79).
Later that afternoon, Bob Gannon, one of K&G’s owners, arrived at the worksite and met
with CO Reed. CO Reed told Bob Gannon that there were four or five problems with the
excavation; including a deep area that was not sloped appropriately, the absence of a trench box,
vertical faces, undermined areas, and poor egress. Bob Gannon agreed there were safety
problems with the trench, admitted that K&G’s employees had gotten ahead of themselves on
this project, and hoped OSHA would go easy on him. Bob Gannon told the CO that a trench box
was ordered for the next work day, Monday. Near the end of his inspection, CO Reed, Wayne
Williams, Marx’s Project Manager, and Dennis Gilmore, Marx’s Safety Director, looked at the
trench. Mr. Gilmore told CO Reed that he [Mr. Gilmore] thought it was a pretty bad trench and
K&G should know better.21 CO Reed returned to the site the following Monday and found that a
trench box was installed in the trench. (Tr. 252-56, 266, 302, 305-07).
After the inspection, CO Reed obtained a copy of the Grading and Drainage Plan. The
Grading and Drainage Plan indicated the size of the structures to be installed, the elevations and
contours of the existing terrain, and the lengths and depths of all excavations required to connect
the new drainage pipes to the underground structures. The subject trench was for the installation
of pipe between CB-5 and an existing manhole. Based on the Grading and Drainage Plan
drawing, the CO testified the trench would need to be 5 feet deep for the CB-5 structure at the
west end.22 The CO further testified that the Grading and Drainage Plan drawing indicated the
21
Mr. Gilmore also told CO Reed that this should be an automatic willful. (Tr. 266).
22
CO Reed testified that the Grading and Drainage Plan showed that CB-5 at the western end of the trench was at
least about five feet deep. (Tr. 91-93, 99-100; GX-44).
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east end of the trench would need to be at least 10 feet deep to connect a pipe to the existing
manhole. 23 (Tr. 22, 90-95, 100-01; GX 44).
CO Reed concluded his direct testimony by explaining the basis for classifying the items
as both willful and serious and how the proposed penalty amounts were determined. (Tr. 269-
76). During cross examination, CO Reed testified that he was told by Messrs. Perrotti, Williams
and Gannon that K&G was close to completing the project at the time of his inspection. 24 (Tr.
305).
During rebuttal, making reference to 29 C.F.R. Part 1926, Subpart P, App. B, CO Reed
testified that OSHA’s rule as to how employers are required to treat layered soil, where different
soil types are present in an excavation, is to default to the least stable type of soil present within
the layer. He testified that there was type C soil marked at “M” above the rock line on the north
side of the excavation shown in photograph GX 17. He testified that the photograph showing the
north side of the excavation “doesn’t really depict stable rock, as far as layering is concerned.”
He also testified that where there is type C soil above rock, he would “expect that slope would be
sloped back to a stable slope approximately one and a half on one” and that translates into 34
degrees. CO Reed testified that neither the north nor south sides of the excavation looked like
they had been sloped to 34 degrees. (Tr. 448-51, 454; GX 17).
Wayne Williams
Wayne Williams, Marx’s project manager at the site, was generally there every day. 25
Mr. Williams verified the purpose of the Grading and Drainage Plan. He stated that the plan was
23
During his March 3, 2011 deposition, Mr. Shaw stated that the excavation at the manhole was seven and a half
feet deep. (GX 38, pp. 68-69). Mr. Shaw did not testify at the hearing.
24
During his March 3, 2011 deposition, Mr. Shaw stated that the project was “almost finished” by February 5, 2011.
He stated that K&G only had to install an additional 60 linear feet of pipe in the excavation. (GX 38, p. 60).
25
He was responsible for working with HVCC’s facilities director, Mr. Steve Cowan, on facilities master plan
projects that included about $200 million in capital improvement projects at HVCC from 2008 to 2013. (Tr. 36-37,
41).
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incorporated into the contract for the project and that all contractors had to use it to bid on the
contract.26 Mr. Williams identified Daily Work Logs prepared by Mr. Deyo and maintained by
Marx, including one for February 5, 2010 that indicated that four K&G employees were working
at the worksite.27 He also identified an Inspector’s Daily Report that was prepared by SJB
Inspector Adam Baker for February 5, 2010. He testified that Marx was not responsible for
overall worksite safety; each prime contractor had its own safety program. Mr. Williams further
testified that on one occasion prior to OSHA’s February 5, 2010 inspection he was contacted by
either Mr. Deyo or an SJB inspector about an unprotected excavation by K&G near the
southwest corner of the building at the worksite.28 Mr. Williams was told that K&G was
preparing to put a worker into an excavation that was “quite deep.” He then contacted LeChase
Superintendent Fred Perrotti to have him check the excavation.29 Mr. Perrotti did so and a
couple of days later told Mr. Williams that K&G set up a trench box to protect any worker
entering the excavation. Mr. Williams testified that he visited the worksite and confirmed that a
trench box was in place. (Tr. 19, 21-23, 26-32, 37-38, 44-45; GX 44, GX 46, GX 48).
Mr. Williams observed the cited trench later in the day, after the CO had finished his
inspection. He saw an open trench which appeared to be 30 to 40 feet long and 5 or 6 feet deep.
He noted the trench was deeper to the east, about 8 feet. He estimated the width of the trench was
about four feet at the bottom and six to eight feet at the top. He did not see any trench boxes or
ladders in the trench. Although he did not recall seeing a dirt ramp, he acknowledged that a
26
Mr. Williams testified that LeChase received a copy of the Grading and Drainage Plan; as well as the
Geotechnical Investigation dated January 23, 2009 prepared by Tectonic before beginning the project. (Tr. 25; GX
41, GX 44).
27
The Daily Work Logs showed the building’s footprint, where work was being performed, and the number of
workers performing it. (Tr. 28; GX 48).
28
It was CO Reed’s understanding that this incident occurred a few weeks before his inspection. (Tr. 251).
29
Mr. Williams contacted LeChase as it was the prime contractor for the excavation work. The practice was for
LeChase to thereafter contact K&G because it was LeChase’s obligation to direct the work of its subcontractor. (Tr.
32-33, 46).
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worker could probably walk out of the trench’s west end near CB-5 with relative ease.30 (Tr. 34-
36).
Bernard Hassett
Bernard Hassett, an Engineering technician and employee of SJB Enterprises Services
(“SJB”), performed soil and concrete testing at the HVCC worksite.31 This included taking soil
for compaction tests inside K&G’s excavations. (Tr. 29, 112-13).
A few weeks before the OSHA inspection, Mr. Hassett saw a K&G employee, Kevin
Lansing, at the worksite attempting to put an extension ladder inside an excavation for a catch
basin or manhole that had no cave-in protection and was 16 to 18 feet deep.32 Mr. Hassett asked
Mr. Lansing if he was planning to climb down into the excavation where there was no shoring,
benching or trench box, or anything to keep the soggy soil present from falling in. Mr. Lansing
said he believed that he had to and he would be fired if he did not.33 Mr. Hassett told Mr.
Lansing he was going to report the excavation and to “stall” and not enter it. Mr. Hassett
testified that he was later told that work was stopped in that area of the excavation until it could
be shored up or benched properly. Mr. Hassett then called Mr. Williams, a Marx contact he
reported to at the worksite.34 Mr. Hassett recalled that Mr. Lansing thanked him later for telling
30
29 C.F.R. § 1926.650(b) states that “Ramp means an inclined walking or working surface that is used to gain
access to one point from another, and is constructed from earth or from structural materials such as steel or wood.”
31
SJB provides geotechnical and environmental drilling and construction testing services to clients in New York,
and elsewhere. HVCC hired SJB to conduct special inspections and ensure the parking garage complied with New
York’s construction codes. Mr. Williams testified that at least one SJB inspector was at the worksite every day. (Tr.
28-29; GX 46).
32
Mr. Hassett identified Mr. Lansing as a laborer. (Tr. 119).
33
Mr. Hassett testified, in part: “I said are you going to go down there? And he said yeah, I have to. And I said, you
know, you’re crazy. I said it’s dangerous. The hole was very deep. … I’m guessing 16 to 18 feet deep. … And so he
said well I have to go down there. I said well if you do, you know, and something happens, do you want to lose your
life over it? He said well if I don’t go down there I’m going to get fired. … So I said in the meantime try to like find
something to do, or stall or whatever, because he was afraid, you know, not to go down there. He didn’t want to get
in trouble. But at the same time I was not going to, you know, let that happen, just in case something did happen,
because there was no way of getting out of the hole if it collapsed. You couldn’t do it.” (Tr. 116-17).
34
Mr. Hassett testified that he called Mr. Williams as he found the K&G foremen, Mr. Shaw and Foreman Gannon,
unapproachable. (Tr. 121-22, 126).
- 13 -
someone about the excavation because he “was scared to go down there, but … didn’t want to
get fired.” (Tr. 115-21, 126-27).
Adam Baker
Adam Baker took over from Mr. Hassett as SJB’s Engineering technician and soil
inspector at the site in early February 2010. On the day of the OSHA inspection, he arrived at
the worksite at 7:00 a.m. to conduct soil compaction tests wherever K&G was continuing pipe.35
Specifically, he was at the worksite to perform visual observation and in-place density tests on
storm line backfill. He observed K&G loading a tractor trailer to remove a “dig box” and other
items from the worksite.36 He observed K&G placing the storm line in the trench. Later that
morning, Mr. Baker refused to enter the trench to collect soil samples after he saw that the walls
of the trench were basically straight and undermined. He told Foreman Gannon he would not go
into an unsafe trench. Foreman Gannon did nothing in response. Mr. Baker then told Mr. Deyo
about his concern. (Tr. 132-37, 142-43, 154-56). Mr. Baker testified:
They have already been stopped a couple of times. They got stopped by Bernie
[Hassett] once and they got stopped by Wayne [Deyo] once. And then when it
got to where I felt unsafe I just told [him] that they shouldn’t be in there and I
don’t want to be in there. And Wayne told me it would be taken care of. And we
went out and he had a talk with them. And that’s when they started to slope it a
little bit. (Tr. 156).
Mr. Baker testified that the trench was about 10 feet at its deepest point. He recorded his
observations and concerns in his February 5, 2010 Inspector’s Daily Report, noting the “[t]rench
starts 45 foot east of CB-4 and ends 60 foot east of CB-5. Most of which was done with total
disregard for specifications . . . [n]o dig boxes being used, trench is over 5 foot deep.” (Tr. 142-
44, 173; GX 46).
35
This was his first day at the worksite. (Tr. 136).
36
Mr. Baker described the “dig box” as a square box that could be used in an excavation around a manhole or a
catch basin to protect workers. (Tr. 148-49).
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Alfredo (Fred) G. Perrotti, III
Fred Perrotti, LeChase’s superintendent at the site, was there on a daily basis. LeChase
subcontracted the excavation work to K&G. This included digging excavations for the garage’s
foundation and storm drainage pipes. (Tr. 158-61, 362).
Mr. Perrotti testified that sometime before OSHA’s inspection, Mr. Williams called him
about a deep, unprotected excavation. Mr. Perrotti then went to the excavation and asked
Foreman Gannon whether an employee would be working in it. Foreman Gannon told Mr.
Perrotti no one had and that he was going to get a trench box, which was brought in the next
morning. (Tr. 167-68, 176; GX 37, pp. 28-29). Respondent ultimately placed a piece of steel
inside the excavation as shoring. (Tr. 186, 251, 255).
On the day of the OSHA inspection, Mr. Perrotti observed the trench while CO Reed was
there. Mr. Perrotti estimated the trench to be 30 to 40 feet long, 9 to 12 feet deep, 20 or 24 feet
wide at the top, and 4 or 5 feet wide at the bottom. Mr. Perrotti described that the trench’s
sloping began about 4 feet from the bottom. His Daily Quality Control Report for February 5,
2010, noted that the trench was not properly benched and there was no trench box. (Tr. 170-
174; GX 47, p.2).
Wayne Deyo
Wayne Deyo, an HVCC employee, was assigned to observe the project on a daily basis. 37
He testified that about two weeks before OSHA’s inspection he saw an excavation by K&G at
the starting point for the drainage line at the west end of the worksite, identified with a “B” on
GX 44, that he was concerned about. It was over 8 feet deep, and in one area it had a
37
Mr. Deyo worked at HVCC for about 28 years as an adjunct instructor and lab assistant with the civil engineering
construction technology and physical plant departments. He has taught classes in surveying, construction materials,
building construction, construction safety and drafting. He holds a civil engineering, technology two-year degree
from HVCC. (Tr. 181, 196).
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“squareish” structure box with a ladder inside it. The structure box was not a trench box. Mr.
Deyo was concerned that someone might have been in the unprotected part of the excavation
because of footprints in the soil. He saw no one inside the excavation at that time, but he
notified Mr. Williams about his concerns. (Tr. 27-28, 181-82, 185-86, 197-98, 203-06; GX 44).
On the day of the OSHA inspection, Mr. Deyo first observed the trench after lunch. He
testified that it was 8 to 10 feet, or more, deep at the east end, the top part of a wall was
overhanging and “the walls of the trench [were] falling in underneath.” He told Foreman
Gannon that the trench was unsafe and left a voice message with Mr. Williams to let him know
that he was not going to let anyone get into the trench. He believed the trench posed an
“imminent danger.” Mr. Deyo believed that K&G needed to bench the sides of the trench, as
well as use a trench box. Mr. Deyo stated that the notes from his daily log showed that Foreman
Gannon told him a trench box was not needed if no one was going into the trench. After this
exchange, Mr. Deyo “went inside for a few minutes, and when [he] came back they benched the
sides somewhat. It still was not safe but it was better than it was.” He testified that K&G still
needed to step or cut the excavation further back. He believed that K&G cut the faces of the
trench back because they were falling in by themselves and because of his expressed concern.
After OSHA arrived, Mr. Deyo recorded his observations and interactions with K&G in his daily
log by drawing a picture, which depicted the overhanging faces of the trench walls. Next to his
drawing he wrote: “[t]rench unsafe[.] [f]alling in under frozen area[.] . . . I asked if they had a
trench box[.] [r]eply don’t need one if we are not in trench. How do you like that.[?] After that
they cut back the top[.] OSHA on site[.]” (Tr. 187-91, 199, 210-12, 226; GX 48, pp. 20-21).
Mr. Deyo testified that he observed K&G employees entering and leaving the trench, as
well as working on the entire length of the pipe including at the deeper east end. He stated that
- 16 -
an employee could get out by exiting the shallower [west] end by CB-5. He indicated that an
employee would still have to “jump up like 3 feet” and that there was not “a ramp or anything
like that to get out.” He clarified that if employees walked out of the trench to the west of CB-5,
it could be less than 3 feet. (Tr. 215-17, 225-26).
Dennis Gilmore
Dennis Gilmore, Marx’s safety director for the past five years, has taken multiple OSHA
training courses and is an outreach safety trainer through Georgia Tech. He also served as the
Director of Safety with Tougher Industries, a piping company that did “a lot of excavations,” for
15 years. Mr. Gilmore went to the HVCC worksite when he was notified that OSHA was there.
He guessed that the trench’s depth was at least 5 to 6 feet. 38 He testified that he did not see any
sloping or benching. Because the soil was undermined and dirt was falling in, he believed that it
would not be safe for employees to enter and work in the trench. 39 Mr. Gilmore also testified that
he saw no ladder, steps, or ramp in the trench. (Tr. 235-41).
38
Mr. Gilmore testified:
Q: Did you take any photographs?
A: No, sir.
Q: Did you take any notes or anything?
A: No, I just looked at the trench itself, starting on the far end where they began to dig it, then looking up towards
the deeper end. I mean in my best judgment it was at least five to six feet deep. And it wasn’t that wide. That’s
why I could tell there was no shoring or sloping.
(Tr. 240-41).
39
Mr. Gilmore testified:
Q: How come it wouldn’t be [safe]?
A: Because of the frost line. You see that up above the trench level, right near the top where the frost level would
go two feet down, that soil had been undermined and the trench was like dirt falling in. …
Q: What does that indicate to you when you see a trench with dirt falling in?
A: It’s unsafe.
Q: Okay, Why is it unsafe?
A: Because you could get buried in there. It only takes a small amount of dirt to cover you up. …
(Tr. 238-39).
- 17 -
James Kilby
James Kilby, K&G’s general manager, testified that Bob Gannon was an officer for K&G
and that Robert Shaw and Tom Gannon were the foremen for the HVCC project. He stated that
K&G performed all phases of site work, including grading of land, utility installation, and
parking lot construction. Mr. Kilby indicated that excavations were a major portion of K&G’s
work. He indicated that LeChase subcontracted with K&G to dig building foundations and
install all the utilities and amenities for the HVCC project. He stated that K&G provides its
employees with safety training and prepared a safety and health plan specifically for the HVCC
worksite. He also stated that the written safety plan had limited information on excavation safety
because K&G uses outside training for that topic.40 (Tr. 360-63, 395-96, 400; GX 35).
Mr. Kilby further testified that he went to the worksite on February 8, the Monday
following the OSHA inspection, to observe the assembly of the trench box and provide
information to CO Reed.41 He stated that the trench box was 8 feet tall with 20 foot long panels
and five foot spreaders. Mr. Kilby testified that K&G owned 3 trench boxes; but stated that it
rented trench boxes for use on the HVCC project as it did not own a trench box to put in manhole
structures. Bob Gannon ordered a trench box the afternoon of CO Reed’s inspection from A. J.
Vel, LTD. He stated that OSHA had not inspected K&G prior to February 5, 2010. Mr. Kilby
also testified that LeChase paid K&G an additional amount for rock excavated within the area 40
feet east of CB-5. (Tr. 364-70, 386-92; GX 17, 49, RX H).
40
Mr. Kilby stated that additional training was provided after the OSHA inspection, but he acknowledged that
documentation of that training was not provided to the Secretary. (Tr. 401-02).
41
He stated that he visited the worksite at least once a month. (Tr. 363).
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Thomas (Tom) Gannon
Tom Gannon was a foreman and competent person for K&G at the worksite. He is hired
seasonally by K&G, from December to April. He has been with K&G since it opened, about 6
years. He has been involved in excavation work for 16 years. He has also, for the past nine
years, overseen excavations as a foreman for Callanan Industries (“Callanan”), a highway
construction company. He has received in-house training from Callanan, and he has both led and
attended tool box talks on workplace safety with K&G employees. (Tr. 406-08, 441; GX 37, pp.
11-16, 21, 26-27).
Foreman Gannon stated that there were five K&G employees at the worksite on February
5, 2010, himself and Messrs. Shaw, Romano, King, and Guthorn. Foreman Gannon testified that
when CO Reed arrived at the site, K&G employees were in the trench using the tamper. He said
the employees then exited the trench at CO Reed’s direction and that no more work was done in
the trench that day. He contacted Bob Guthorn, K&G’s project manager, by telephone to notify
him that an OSHA inspector was on site. Later, Bob Guthorn and Bob Gannon came to the
worksite. Foreman Gannon was present when the CO took measurements of the trench with a
grade rod. He did not disagree with CO Reed’s measurements of the trench. (Tr. 293-94, 411-
17, 422-23, 426-28).
Foreman Gannon further testified that there were two full sections of pipe plus a “stub”
of pipe in the trench. He said the total length of pipe in the trench was over 40 feet, since each
full section of pipe was 20 feet long.42 He testified that K&G employees were exiting the trench
from the west end, by the CB-5 structure. He believed they could have also exited from the
trench’s deeper east end. (Tr. 426, 428-29; GX 17).
42
Foreman Gannon could not give an estimate of the length of the “stub” portion of pipe. (Tr. 428-29).
- 19 -
Foreman Gannon stated that the south and east sides of the trench were sloped, as those
areas were less stable. They did not slope the entire south side of the trench as the soil closer to
the CB-5 structure was frozen. According to Foreman Gannon, the north side of the trench was
composed of rock and frost, and it was “much more stable.”43 He said the soil was frozen 2 feet
down from the surface on both the north and south sides of the trench. He also said that a line of
rock ran along the length of the trench on the north side. 44 (Tr. 418-21; GX 17).
Foreman Gannon remembered telling the CO the trench was in type C soil. 45 In his
deposition, he stated it was K&G’s policy to treat all excavations as if they were in type C soil;
he stated, however, that may not be what he personally believed.46 He said he believed the
trench was safe for an employee to work in since it was very stable to the north and cut back to
the south.47 Foreman Gannon admitted in his deposition that he knew the east end of the trench
would be 10 feet deep, according to the Grading and Drainage Plan. He also admitted he knew,
when digging a trench 5 feet or more in depth, that it was necessary to use a trench box. (Tr.
425-26, 433-36, 444-45; GX 37, pp. 33-36, 111-12, 121-26, GX 44).
Foreman Gannon stated that he was not aware of the need to finish a particular area of the
drainage pipe project by February 5. He said he had been disciplined by K&G after the
43
Foreman Gannon said he knew of the rock on the trench’s north side as K&G had to excavate part of it. Mr.
Kilby also testified that K&G had received additional payment for the excavation of rock in the trench to the east of
CB-5. (Tr. 373-95, 421; RX H).
44
Foreman Gannon indicated the location of the rock layer by drawing a line (“L”) on GX 17. He stated that there
was no rock on the excavation’s south side. (Tr. 420-22, 437-38; GX 15).
45
K&G admits that the excavation had been previously dug, backfilled, and compacted in accordance with the
project specifications prior to February 5, 2010. (GX 32, p. 5).
46
The Court noted that Foreman Gannon was evasive when answering questions during the Secretary’s cross-
examination. This was particularly apparently when he answered questions about his previous statements to CO
Reed, his deposition testimony, and his reasons for sloping or not sloping the trench.
47
Foreman Gannon also testified that he previously testified at his December 8, 2010 deposition that he did not
think that it was safe to walk in the trench down toward the east end beyond the pipe. (Tr. 445; GX 17, 37, pp. 126-
27, 191).
- 20 -
inspection, but that no one at K&G told him why he was disciplined. 48 The discipline was two
weeks off without pay. (Tr. 424, 439-41.)
Citation 1, Item 1 – Alleged Willful Violation of § 1926.651(c)(2)
K&G was engaged in excavation work to install a new drainage system at the HVCC
worksite. The trench was at least 40 to 50 feet in length. The Secretary has established the
trench was greater than 4 feet in depth. (S. Br. 10-11). Both parties agree that K&G employees
were working in the trench on the day of the OSHA inspection. (Stip. 2). On the basis of the
record, the Court finds that the cited standard applies to K&G’s work at the site.
The cited standard requires a safe means of egress at no more than 25 lateral feet of
travel. 29 C.F.R. § 1926.651(c)(2). The parties have stipulated that there was no ladder for
egress from the trench. (Stip. 2). K&G contends that the west end of the trench was sloped
enough to constitute a dirt ramp for employees to safely leave the trench. (R. Br. 11). The
Secretary agrees that the west end of the trench provided a safe means of egress. (S. Br. 14).
Here, K&G employees King and Guthorn were working in the east end of the trench. (Tr. 57-60;
GX 3). The Secretary contends that an employee working at the east end would have to travel
more than 25 feet to exit at the west end. (S. Br. 14). K&G contends an employee could have
safely exited from both the west and east ends of the trench; therefore, an employee would not be
farther than 25 feet from an exit. (R. Br. 11-12). For the reasons that follow, the Court finds the
west end of the trench, by CB-5, was the only safe means of egress.
48
Foreman Gannon testified:
Q: That’s not answering my question. Just please answer my question. You must have been told the reason why
you were receiving two weeks of[f] with no pay. Can you just tell the Court –
A: Actually, no. I wasn’t.
Q: Oh, so you’re telling the Court –
A: I wasn’t given a reason. It was –
(Tr. 439).
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K&G contends that the 45-degree slope at the east end of the trench was a safe means of
egress.49 K&G relies on Foreman Gannon’s trial testimony to show that it was possible for
employees to exit at the deep east end of the trench.50 (R. Reply Br. 3-5; Tr. 426). CO Reed,
however, testified that the east end of the trench was not a safe means of egress. (Tr. 298-99).
While Foreman Gannon’s testimony indicates he believed an employee could egress at the east
end, no evidence was adduced to show an employee had used that area for exiting the trench. To
the contrary, the employees exited at the west end of the trench.
K&G also relies on a prior Commission decision to support is contention that the sloping
at the east end provided safe egress. C.J. Hughes Constr., Inc., 17 BNA OSHC 1753, (No. 93-
3177, 1996) (“Hughes”). (R. Br. 12). Hughes included testimony from an employee who had
used the dirt ramp to walk upright from the trench. The Commission credited this testimony and
found the Secretary had not provided adequate proof of a violation. Id. at 1754-56.
In contrast to the trench in Hughes, the trench in this case did not have a designated ramp
at its east end.51 Rather, it had walls sloped at 45 degrees.52 No one attempted to use the east
end of the trench as an egress point. Further, the trench in Hughes was 4.5 feet deep at its
deepest point and 20 to 21 feet long. Id. at 1753. Here, the east end of the trench, which K&G
contends was a safe egress point, was over 7 feet deep. As noted, while Foreman Gannon opined
49
K&G cites to Kenko, Inc. to support its position that a 45-degree slope is safe. Kenko, Inc., No. 97-0925, 1998
WL 453638 (O.S.H.R.C. A.L.J., June 30, 1998) (ALJ found the dirt pile was safe egress because the compliance
officer testified that he would have used it for egress.). Such is not the case here.
50
Foreman Gannon testified:
Q: And Mr. Gannon, on February 5, 2010, how were employees – how were Kilby & Gannon employees getting
in and out [of] that excavation?
A: They would come out by structure A [CB-5].
Q: Okay. And was there any other way for them to get out of the excavation?
A: They could go out down the other end by G there I believe.
Q: So when you say the other end –
A: The east end.
(Tr. 426).
51
The Court finds that there was no ramp that permitted an individual to walk upright out of the east end of the
excavation.
52
CO Reed testified that the trench’s east end was not properly sloped. (Tr. 285-86, 451).
- 22 -
that employees could have exited at the east end, CO Reed believed the east end of the trench did
not provide a safe means of egress. (Tr. 88-90, 285-86, 288, 298-99, 426; GX 17; S. Br. 11, 15;
R. Reply Br. 4-5; S. Reply Br. 2).
The Court credits the testimony of CO Reed over that of Foreman Gannon. CO Reed is
an experienced OSHA CO who has inspected many trenches. Further, the Court observed the
demeanor of these two witnesses on the stand and found the CO’s testimony to be honest and
forthright. Foreman Gannon, on the other hand, was evasive at times, and some of his testimony
was simply not believable. Where the testimony of these two witnesses is in conflict, the
testimony of CO Reed will be credited over that of Foreman Gannon.
In support of her position, the Secretary refers to an OSHA interpretive letter to describe
the intent of the egress requirement.53 (S. Reply Br. 2). The letter notes, for example, that an
aluminum form is not a safe means of egress because of the “slipping, tripping, or falling risk.”
It states that 29 C.F.R. § 1926.651(c)(2) “contemplates a means of egress that permits a quick
and easy means of escape in case of an emergency.”54
An interpretation by the Secretary is given deference when it is reasonable, as long as it
“sensibly conforms to the purpose and wording of the regulation[ ].”55 Union Tank Car Co., 18
BNA OSHC 1067, 1069 (No. 96-0563, 1997) (quoting Martin v. OSHRC, 499 U.S. 144, 151
(1991)). As noted, the preamble for the excavations standard states that the purpose of the egress
requirement is to “provide employees working down in a trench with a safe means of escape
53
The letter references the preamble to the final rule for Subpart P (Excavations) and states that “[T]his requirement
[29 C.F.R. § 1926.651(c)(2)] is intended to provide employees working down in a trench with a safe means of
escape in case of an emergency.” (54 Fed. Reg. 45,918, Oct. 31, 1989.)
54
OSHA’s May 11, 2004 letter of interpretation to Charles O. Engelken can be found at:
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24839.
55
Factors to consider in evaluating the reasonableness of the Secretary’s interpretation are the consistency of the
interpretation, quality of the policy rationale, and adequacy of notice. Union Tank, 18 BNA OSHC at 1069.
OSHA’s website reveals that this is the only interpretation of this particular regulation since the final rule’s
publication on October 31, 1989.
- 23 -
from the trench in case of an emergency.” 54 Fed. Reg. 45,894, 45,918 (Oct. 31, 1989). This
point is further clarified in OSHA’s letter which notes that the egress point cannot have its own
hazards (slipping, tripping) and must provide an escape from the trench excavation that is “quick
and easy.” The Court finds that the Secretary’s interpretation is reasonable, and gives deference
to that interpretation.
The Secretary asserts that the east end of the trench was not a safe means of egress. (S.
Reply Br. 2). The Court agrees. The east end of the trench was not sloped for the purpose of
providing egress for employees. Given the soil type and the angle of the east end, an employee
would be subject to the risk of slipping or falling, which could prevent a safe escape from the
trench in an emergency. The Court finds the east end of the trench was not a safe area for
egress.56
The Secretary must demonstrate that employees had access to the cited condition. The
Secretary may show employee access through either actual employee exposure, or by showing
that “while in the course of their assigned working duties . . . [employees] will be, are, or have
been in a zone of danger.” Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2003 (No. 504, 1976).
The test of whether an employee would have access to the “zone of danger” is “based on
reasonable predictability.” Id.; Kokosing Constr. Co., Inc., 17 BNA OSHC 1869, 1870 (No.
92-2596, 1996) (citation omitted). There is no dispute that two K&G employees, Messrs.
Guthorn and King, were working in the east end of the trench on February 5, 2010. As
discussed supra, there was more than 25 feet of lateral travel from the nearest safe egress point.
There was no stairway, ramp, ladder or other safe means of egress within 25 feet of where these
56
See Pentecost Contracting Corp., No. 93-3788, 1995 WL 597426, at ** 7-8 (O.S.H.R.C. A.L.J., Oct. 6,
1995)(employees unable to walk upright out of the trench were not provided a safe means of egress).
- 24 -
two employees were working. (Tr. 244). The Court finds that employees were exposed to the
cited condition.
Finally, the Secretary must prove the employer either knew, or with the exercise of
reasonable diligence, could have known of the violative condition. Dun-Par Engineered Form
Co., 12 BNA OSHC 1962, 1965 (No. 82-928, 1986). The employer’s knowledge is established
by a showing of employer awareness of the physical conditions that constitute a violation.
Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079-1080 (No. 90-2148, 1995), aff’d without
published opinion, 79 F.3d 1146 (5th Cir. 1996). The Secretary need not show that an employer
understood or acknowledged that the physical conditions were actually hazardous. Id. “The
actual or constructive knowledge of a foreman or supervisor can be imputed to the employer.”
N&N Contractors, Inc., 18 BNA OSHC 2121, 2123 (No. 96-0606, 2000) (citation omitted),
petition for review denied, 255 F.3d 122 (4th Cir. 2001).
Knowledge of a hazard may be established where the violative condition and the
presence of employees are in a conspicuous location, or are otherwise readily observable.
Kokosing Constr. Co., 17 BNA OSHC at 1871; accord Hamilton Fixture, 16 BNA OSHC 1073,
1089, 1094, 1097 (No. 88-1720, 1993); Pride Oil Well Serv., 15 BNA OSHC 1809, 1814 (No.
87-692, 1992). Here, the record shows that Foreman Gannon was at the worksite and that he was
aware of the cited condition. 57 (Tr. 409-19; GX 17). The Court finds that through its foremen,
K&G knew employees were working in the east end of the trench, more than 25 feet away from
the safe egress point. The Secretary has established a violation of the cited standard.
57
K&G admits that Foreman Gannon instructed both of the exposed employees to enter and work inside of the
trench on February 5, 2010. (Stip. 5). GX 11 shows Foreman Gannon standing inside the middle of the trench
looking in the direction of the employees while they worked in plain view. Foreman Shaw, who operated the Link
Belt that day, was also in a position to see the employees working conspicuously inside the trench. The knowledge
of both of these foremen is imputed to K&G.
- 25 -
Citation 1, Item 2 – Alleged Willful Violation of § 1926.652(a)(1)
K&G was engaged in excavating a trench in order to install a new drainage system at the
HVCC worksite. The trench was more than 5 feet in depth and it was not made entirely in stable
rock. (S. Br. 10-11; Stip. 1). On the basis of the record, the Court finds that the cited standard
applies.
The terms of the cited standard require employees to be protected from a cave-in by an
adequate protective system. This can be accomplished through sloping, benching, or installing a
trench box or other shield-type system. The parties have stipulated that K&G did not use a
trench box or other shield-type system. They have also stipulated that the soil in the trench was
type C. (Stip. 1-2). The parties further agree that the eastern part of the trench was sloped at
approximately 45 degrees. (R. Br. 3; S. Br. 18-19). According to Appendix B of Subpart P, the
slope for type C soil cannot be steeper than 34 degrees, or one and one-half horizontal to one
vertical. 58 The Secretary has shown that the walls of the trench were not properly sloped. The
Court concludes that the trench was in violation of the cited standard.
There is no dispute that two K&G employees were working in the trench on February 5,
- One employee was operating a vibratory tamping unit directly underneath an
overhanging face on the south wall of the trench. (Tr. 69, 273-74, 284). The Court finds the
Secretary has shown actual exposure of employees to the cited cave-in hazard. The parties
stipulated that Foreman Gannon observed K&G employees working in the trench. (Stip. 2).
Finally, as discussed supra, the Secretary has shown that K&G knew of the condition of the
trench through Foreman Gannon. The Court finds the Secretary has established a violation of
the cited standard.
58
In his testimony, CO Reed stated that the standard does not require stable rock to be sloped; sloping would begin
with the soil above the rock layer. However, the rock layer in the trench would be included when determining the
trench’s depth. (Tr. 452-54).
- 26 -
Whether the Violations are Willful
The Secretary has characterized both violations as willful. Courts have held that “a
willful violation of the Act constitutes an act done voluntarily with either an intentional disregard
of, or plain indifference to, the Act’s requirements.” Conie Constr., Inc. v. Reich, 73 F.3d 382,
384 (D.C. Cir. 1995), citing Ensign-Bickford Co. v. OSHRC, 717 F.2d 1419, 1422 (D.C. Cir.
1983). A willful violation differs from a serious violation by a heightened awareness and either
conscious disregard or plain indifference. Williams Enterp., Inc., 13 BNA OSHC 1249, 1256-57
(No. 85-355, 1987). The Second Circuit, in which this case arises, has adopted the
Commission’s and OSHA’s definition of a willful violation as one “done either with an
intentional disregard of, or plain indifference to, the statute.” A. Schonbek & Co. Inc. v.
Donovan, 646 F. 2d 799, 800 (2d Cir. 1981).59 An employer that consciously disregards an
OSHA standard acts willfully even though it believes in good faith that the violation is not
hazardous to employees. Secretary v. Capital City Excavating Co., Inc., 712 F.2d 1008, 1010
(6th Cir. 1983). The Commission has held that a foreman who knowingly allows employees to
work without the necessary protective equipment has acted with intentional disregard. Rawson
Contractors, Inc., 20 BNA OSHC 1078, 1081-82 (No. 99-0018, 2003).60
59
The Second Circuit joined many other Courts of Appeals that had approved a similar definition of willfulness.
See, e. g., Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1167 (3d Cir. 1980); National Steel & Shipbuilding Co.
v. OSHRC, 607 F.2d 311, 313-16 (9th Cir. 1979); Georgia Elec. Co. v. Marshall, 595 F.2d 309, 318 (5th Cir. 1979);
Kent Nowlin Constr. Co. v. OSHRC, 593 F.2d 368, 372 (10th Cir. 1979); Cedar Constr. Co. v. OSHRC, 587 F.2d
1303, 1305 (D.C. Cir. 1979) (per curiam); Empire-Detroit Steel Div. v. OSHRC, 579 F.2d 378, 384-85 (6th Cir.
1978); Western Waterproofing Co., Inc. v. Marshall, 576 F.2d 139, 143 (8th Cir.), cert. denied, 439 U.S. 965
(1978); Intercounty Constr. Co. v. OSHRC, 522 F.2d 777, 779-80 (4th Cir. 1975), cert. denied, 423 U.S. 1072
(1976); F.X. Messina Constr. Corp. v. OSHRC, 505 F.2d 701, 702 (1st Cir. 1974).
60
K&G cites to Brock v. Morello Bros. Constr., 809 F.2d 161, 164 (1st Cir. 1987), to support its premise that its
conduct was neither so egregious nor so life-threatening as to apply an objective standard of willfulness. (R. Br. 7).
The comparison to Morello is misplaced. In Morello, the First Circuit did not establish a new threshold for
willfulness, but instead was determining the standard needed for a court of appeals to “require[] the agency to find
willfulness when the fact-finder itself had found the contrary.” The Morello court did not state that an “objective”
standard was the threshold for willfulness; the court was positing that when the hearing officer finds the violation to
not be willful, an objective standard might then be used for a court of appeals to require a finding of willfulness.
- 27 -
The Court finds that K&G knowingly violated 29 C.F.R. § 1926.651(c)(2). K&G’s own
safety program requires an employee to be familiar with and comply with OSHA’s construction
standards.61 (GX 35, p. 11-12). Foreman Gannon verified that he was trained to comply with
OSHA regulations when working for K&G and that a safe means of egress meant a ladder,
sloping, or at the clear end away from the trench. (GX 37, pp. 36-37). K&G has stipulated that
Foreman Gannon observed employees working in the trench. (Stip. 2). The Court finds that
K&G was aware of the cited standard and the condition of the trench.
The Court also finds that K&G had heightened awareness of the standard’s egress
requirement. Foreman Gannon admitted a ladder had previously been used for egress at the
HVCC worksite. He was familiar with the Grading and Drainage Plan drawings, which
indicated the expected length for the trench that day to be “85 LF” [linear feet]. (Tr. 22-23, 91;
GX 37, pp. 33, 121-22, 142-43, GX 44).
K&G contends that its conduct was not willful because the trench was not 10 feet deep
for its entire length. Further, it believes employees could have exited at the east end of the trench
and that the expected length, based on the Grading and Drainage Plan drawing at GX 44, was not
relevant. (R. Reply Br. 5-6). The assertion that the trench was not 10 feet deep for its entire
length is not dispositive on the issue of safe means of egress; the requirement applies to a trench
that is 4 feet or greater in depth. The Grading and Drainage Plan drawing at GX 44 demonstrates
The Court also stated that “an act may be ‘willful’ if the offender shows ‘indifference to the rules; he need not be
consciously aware that the conduct is forbidden at the time he performs it, but his state of mind is such that, if he
were informed of the rule, he would not care.” Id. Here, even though Foreman Gannon knew of the standards, he
did not care to comply with them even when warned by Messrs. Baker and Deyo during the morning of February 5,
2010.
61
“Safety Rules and Procedures That You Should Follow Include:
....
- Become familiar with OSHA 29 CFR 1926, construction industry regulations, which will be supplied to you.
Comply with these regulations on all job sites as well as other federal and/or state safety and health laws and
regulations.” (GX 35, pp. 11-12).- 28 -K&G’s advance notice that the trench’s length would be greater than 25 feet.62 As discussed
supra, the Court was not persuaded by Foreman Gannon’s testimony that the east end of the
trench was a safe area for egress.
The Court also finds that K&G knowingly violated 29 C.F.R. § 1926.652(a)(1). As noted
supra, K&G was aware of OSHA’s construction standards through its safety program and
training. K&G has stipulated that Foreman Gannon observed employees working in the trench.
(Stip. 2). Foreman Gannon knew that the eastern end of the trench, beyond the end of the pipes
that had already been laid, was deeper than 5 feet and was not safe to work in without a trench
box. (GX 37, pp. 34-36). Foreman Gannon was also aware that it is necessary to use a trench
box when digging 5 feet or more into the ground. (Tr. 71; GX 37, pp. 120, 123). The Court finds
K&G knew of the cited standard and the trench’s condition.
The Court further finds that K&G had a heightened awareness of the cited standard.
K&G admits it had previously used trench boxes or shields on the worksite. (Stip. 6; R. Reply Br.
9). In their depositions, Foremen Gannon and Shaw testified as to their knowledge that a trench
needed to have a trench box or be properly sloped. (GX 37, p. 123; GX 38, pp. 21-22). K&G
also had the Grading and Drainage Plan drawing which indicated the expected depth of 5 to 10
feet for the trench. (Tr. 91-93, 100-01; GX 44).
Foreman Gannon was reminded about the use of a trench box for previous HVCC
excavations, and had a discussion with Mr. Deyo about the trench on the day of the inspection.63
(Tr. 91-94,190-91). Just a few weeks before the OSHA inspection, Foreman Gannon had been
62
The Grading and Drainage Plan indicated the size of both existing and new structures that needed to be installed,
the elevations and contours of the existing worksite terrain, and the lengths and depths of all excavations that would
be dug to connect the new drainage pipes to the underground structures. (Tr. 22-23, 90, 97, 164, 166; GX 44).
63
K&G contends that the discussions between K&G employees and non-party witnesses about the use of a trench
box in previous excavations at the site are not relevant as employees never worked in those excavations without
cave-in protection. (R. Reply Br. 8-9). The Court finds these previous discussions are relevant to show a
heightened awareness of the requirement to use a protective system in a trench.
- 29 -
warned to use a trench box to protect Mr. Lansing from working in an unprotected excavation.
On the morning of February 5, 2010, Foreman Gannon was again told of an unprotected
excavation by Messrs. Deyo and Baker. The Court finds the testimony of Messrs. Hassett,
Baker, and Deyo, each of whom provided detailed accounts of their interactions with Foreman
Gannon, to be credible. All three describe K&G as being dismissive of employee safety. The
action taken by Foreman Gannon in response to these warnings was minimal as found a few hours
later by CO Reed. The trench was left in practically the same violative condition observed by CO
Reed when he first arrived at the worksite. The evidence demonstrates that K&G had a
heightened awareness of the need for cave-in protection for the trench at the worksite at the time
of OSHA’s inspection. Foreman Gannon knew that cave-in protection was required, but
nevertheless ordered employees to work inside the unsafe trench anyway. The Court finds that
the evidence shows that K&G was actually aware, at the time of the violative acts set forth in the
citation items, that these acts were unlawful. 64
K&G asserts it made a good faith attempt to comply with the standards, which negates a
willful characterization. (R. Br. 13-15). “If an employer has made a good faith effort to comply
with the Act’s requirements, a finding of willfulness is not justified, even though the employer’s
efforts are not entirely effective or complete.” Tampa Shipyards, Inc., 15 BNA OSHC 1533,
1541 (No. 86-360, 1992). K&G bears the burden of proof as to showing good faith. Morrison-
Knudsen Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1127 (No. 88-572, 1993). An
employer’s subjective belief that it is in compliance with OSHA standards is not sufficient to
overcome a finding of willfulness. The test is “an objective one -- whether the employer’s belief
64
See AJP Constr., Inc. v. Sec’y of Labor,357 F.3d 70, 74 (quoting Sec’y of Labor v. Propellex Corp., 18 BNA
OSHC 1677, 1684 (No. 96-0265, 1999)(to sustain a willful violation, “[t]he Secretary must show that the employer
was actually aware, at the time of the violative act, that the act was unlawful, or that it possessed a state of mind
such that if it were informed of the standard, it would not care.”).
- 30 -
concerning a factual matter or concerning the interpretation of a standard was reasonable under
the circumstances.” Williams Enterp., Inc., 13 BNA OSHC at 1259. “[A]n employer is not
necessarily spared from a finding of willfulness by taking any measure, regardless of how
minimal, to enhance employee safety.” J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2209 (No.
87-2059, 1993) (emphasis in original).
With respect to Citation 1, Item 2,65 K&G asserts that good faith is demonstrated by:
Foreman Gannon’s belief the trench was safe, the partial sloping of the trench, the trench’s depth
being greater than expected, and K&G’s abatement of the cited condition immediately after the
inspection. (R. Br. 13-14). As discussed infra, the Court finds that K&G’s efforts were not
sufficient to mitigate the willful characterization of this citation item. When confronted by Mr.
Deyo on the morning of February 5, 2010, Foreman Gannon told Mr. Deyo that a trench box was
not needed because no worker was going into the trench. This was untrue, just as Foreman
Gannon’s initial denial to CO Reed was untrue. These denials do not reflect good faith.
Similarly, the Court finds that Foreman Gannon’s minimal effort to cut back the excavation after
being told by Messrs. Deyo and Baker that the trench was unsafe was not a good faith effort to
comply with the standards or eliminate the hazards.66 The Court finds that the evidence shows
that Foreman Gannon did not have a good faith, reasonable belief that the trench was safe at the
time of CO Reed’s inspection.
K&G contends that sloping the walls of the trench shows a good faith attempt at
65
K&G offers little to show good faith regarding Citation 1, Item 1. It relies on Foreman Gannon’s testimony as to
a possible egress point at the east end of the trench. It also notes the trench was only 40 to 50 feet long instead of
the expected 85 feet. (R. Br. 11; R. Reply Br. 5). This evidence is insufficient to overcome the evidence
establishing that the violation was willful.
66
See e.g., Caterpillar Inc., 17 BNA OSHC 1731, 1733 (No. 93-373, 1996)(inadequate measures taken), aff’d 122
F.3d 437, 441-42 (7th Cir. 1997); V.I.P. Structures, Inc., 16 BNA OSHC 1873, 1875-76 (No. 91-1167, 1994) (efforts
did not “rise to the level of good faith sufficient to negate willfulness”). See also Secretary v. Union Oil, 869 F. 2d
1039, 1047 (7th Cir. 1989) (employer’s belief must have been “nonfrivolous.”), citing Brock v. Morello Bros.
Const., Inc., 809 F.2d 161 (1st Cir.,1987).
- 31 -
compliance. As noted supra, type C soil requires a slope of no more than 34 degrees. In the
trench at issue, the east end was sloped at roughly 45 degrees. The trench’s other walls were
almost vertical, and in one area, there was a soil overhang. Because the requirement for type C
soil is a maximum slope of 34 degrees, it is not objectively reasonable to believe that sloping one
area of the trench at 45 degrees, while leaving the other walls nearly vertical, constitutes
compliance with the requirements of the standard.
K&G also contends its foreman had a good faith, reasonable belief that the trench was
safe due to the presence of some rock and frozen soil. (R. Br. 14-15).67 Here, the excavation was
not made “entirely” in stable rock as required by the exception at 29 C.F.R. § 1926.652(a)(i).
CO Reed testified, and the photographs establish, that the excavation was not entirely in stable
rock. The southern trench wall had also partially collapsed. See Secretary v. Ford Dev. Corp., 15
BNA OSHC 2003, 2010-11 (No. 90-1505, 1992) (finding that the fact that a trench wall had
broken down in some way demonstrates its instability and holding solid rock exception
unavailable); Woolston Constr. Co., 15 BNA OSHC 1114, 1117 (No. 88-1877, 1991), aff’d No.
91-1413, 15 BNA OSHC 1634 (D.C. Cir. 1992) (“A trench wall composed of materials of
differing strengths is only as stable as its weakest component.”). Foreman Gannon’s lack of
good faith is further demonstrated by his initial denial to CO Reed that K&G workers were not
working in an unprotected excavation. Foreman Gannon only admitted that his denial was
67
K&G notes that the trench did not collapse over a three-day period and urges that it was reasonable to believe the
soil was stable and safe. (R. Br. 15). This argument is rejected. The standard does not require that a trench be in
imminent danger of collapse to merit cave-in protection for employees. CO Reed testified that it would be like
“playing Russian roulette with a loaded gun” for an employer to assume that because a portion of overhanging soil
in an excavation may be frozen the likelihood or probability of it collapsing would be reduced. CO Reed further
testified that “relying on the fact that the soil is frozen for protection of your employees would be I think a serious
mistake.” He also stated that “generally, OSHA does not consider the fact that the soil was frozen to reduce the
probability of a collapse hazard, due to the fact that it’s largely random and just not a reliable means of protection.”
(Tr. 324).
- 32 -
misleading after he was shown photographs, taken minutes before, that showed K&G employees
actually working in the unprotected excavation.
K&G refers to Mr. Deyo’s testimony in an attempt to show that Foreman Gannon’s belief
that the trench was safe is objectively reasonable. (R. Reply Br. 9-11). On February 5, 2010,
Mr. Deyo saw employees working in the trench’s west end, where the walls were vertical. He
discussed his concerns about the safety of the trench with Foreman Gannon. K&G then sloped
the east end of the trench. Mr. Deyo testified that he still believed the trench was unsafe, but he
took no further action as he knew OSHA was on its way. (Tr. 189-191, 212-13). This shows
that Mr. Deyo did not share Foreman Gannon’s belief that the trench was safe. The Court finds
that Foreman Gannon’s belief the trench was safe is not objectively reasonable.
Additionally, K&G urges that Foreman Gannon did not expect the trench to be so deep.
(R. Br. 13). However, in his deposition, Foreman Gannon acknowledged he had seen the
Grading and Drainage Plan drawing which indicated the trench’s anticipated length and depth.
He also admitted that the trench’s deep end would require shielding or shoring as it would be
about 10 feet deep. (GX 37, pp. 33-36, 145-46, GX 44). CO Reed testified that, based on the
Grading and Drainage Plan drawing, the anticipated depth of the trench would be at least 5 feet
near CB-5 and 11 feet by the existing manhole. (Tr. 91-95; GX 44). This evidence shows that
K&G had an expectation that the trench would need cave-in protection to comply with OSHA
requirements. It is not objectively reasonable for Foreman Gannon to believe the depth was such
that no type of cave-in protection would be needed. Foreman Gannon testified that “I knew I
needed a trench box to get into this structure,” referring to the area in the trench beyond the end
of the pipe that is seen, for example, in the photograph at GX 14. Foreman Gannon explained
that “. . . at this point you’ll see the grade is changing fast. And at the structure, it’s very deep.
- 33 -
Well you can read it [the Grading and Drainage Plan]. It’s deep. It’s 10 feet deep. So I knew we
would need shoring at that point.” Similarly, Foreman Shaw testified that K&G had anticipated
using an 8 foot trench box in the deep east area where the employees worked beyond the two
installed pipes, but the company did not have an appropriately sized trench box at the worksite to
use. Foreman Shaw acknowledged that K&G was aware of the need for an 8 foot trench box
inside this trench before OSHA’s inspection. Despite knowing employees should not work inside
the deep end of the trench without a trench box, Foreman Gannon instructed K&G employees to
go inside and work. (Stip. 5; GX 14, GX 37, pp. 34-36, GX 38, p. 78; S. Br. 20-21).
K&G asserts that “there is simpl[y] no basis to conclude that Kilby & Gannon did not
rent a trench box prior to the inspection because it was the Friday before [Super Bowl]
weekend.” (R. Reply Br. 12). The trench “was not on the project’s critical path and . . . was on
schedule.” (R. Br. 14). This assertion is contradicted by K&G’s excavator operator, Mr. Shaw.
In his deposition, Mr. Shaw stated that this particular area of the drainage system represented the
end of that phase of the project and “[K&G] wanted to get the thing in. It was a Friday.” (GX
38, pp. 61, 66). During the inspection, Mr. Shaw told CO Reed that K&G was not going to get a
box for a couple of hours of work on the Friday before the Super Bowl weekend. This was a
deviation of K&G’s normal practice described by Mr. Shaw to either slope the walls or use a
trench box. (Tr. 246-50, 319-20).
Finally, K&G asserts that ordering a trench box the afternoon of the OSHA inspection
and using it the following work day demonstrates good faith. (R. Br. 13-14). The Commission
has found that post-inspection abatement “while commendable is simply not sufficient to negate
willfulness.” Anderson Excavating and Wrecking Co., 17 BNA OSHC 1890, 1894 (No. 92-
- 34 -
3684, 1997), aff’d, 131 F.3d 1254 (8th Cir. 1997). The Court finds ordering a trench box after
OSHA started its inspection is insufficient to demonstrate good faith. 68
For all of the above reasons, K&G has not met its burden of showing good faith in order
to negate the willful classification of the violations in this case. The Court finds that the
evidence shows that K&G did not have a good faith, reasonable belief that its conduct relating to
the citation items conformed to the law. The Court further finds that K&G did not make a good
faith effort to comply with the Act’s requirements. The Court finds the Secretary has properly
characterized the violations as willful. 69 Items 1 and 2 of Citation 1 are affirmed.70
Penalty Determination
Section 17(j) of the Act, 29 U.S.C. § 666(j), requires the Commission to give due
consideration to four criteria in assessing penalties: the size of the employer’s business, the
gravity of the violation, the employer’s good faith, and its prior history of violations. In J.A.
Jones Constr. Co., 15 BNA OSHC at 2214, the Commission stated:
These factors are not necessarily accorded equal weight; generally speaking, the
gravity of a violation is the primary element in the penalty assessment. [Citations
omitted]. The gravity of a particular violation, moreover, 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.
[Citation omitted].
68
K&G cites to Keco Indus., Inc., 13 BNA OSHC 1161 (No. 81-263, 1987) and B&B Plumbing, Inc., No. 99-0401,
2000 WL 781361 (O.S.H.R.C. A.L.J., June 9, 2000) to bolster its good faith argument. The first case, a
Commission decision, has facts very different from those here and does not avail K&G. There, the Commission
found that Keco did not ignore the requirements of the abrasive blasting standard at issue. Id. at 1169. Likewise,
the second case does not avail K&G. In B&B Plumbing, Inc., Judge Goldstein found that the applicable blueprints
called for a four feet deep trench and Respondent’s principal was surprised to learn that a portion of the trench was
deeper than five feet. Judge Goldstein also found that there was no evidence of instability in the trench and no
problem with sloughing off. B&B Plumbing, Inc., 2000 WL 781361, at ** 2, 4.
69
In its post-hearing brief, Respondent asserts that Citation 1, item 2 (cave-in protection) should be classified as a
serious violation with a reduction in the penalty to $2,100. (R. Br. 1).
70
The Secretary alleged the cited violations as both willful and serious. The Court finds the cited violations were
also serious violations within the meaning of § 17(k) of the Act. The Court affirms the citation items as both willful
and serious as alleged by the Secretary. See General Motors Corp., 22 BNA OSHC 1019, 1042 (Nos. 91-2834E &
91-2950, 2007).
- 35 -
In Calang Corp., 14 BNA OSHC 1789 (No. 85-0319, 1990), the Commission recognized
that a violation of the “OSHA trenching requirements warrants a substantial penalty because the
incidence of cave-ins is high, and the likelihood of death or severe injury to employees in a
collapsing trench is also high.” Id. at 1794. See also Performance Site Mgmt., 21 BNA OSHC
2115, 2120 (No. 06-1457, 2007) (“A cave-in of an excavation in excess of 5 feet in depth could
cause serious injury or death of an employee in the excavation.”).
The Secretary has proposed a penalty of $21,000 for each of the willful violations.71 CO
Reed testified that because a cubic yard of soil weighs over 2,500 pounds, which can cause
serious injury or death in the event of a cave-in, both citations were rated at a high severity.
Both of the violations were rated at a “greater” probability. This was based on the significant
distance the employees would need to travel from the east end of the trench to the egress point,
plus the overhanging face of the trench they would pass by in doing so. The cave-in probability
was increased due to the near-vertical walls in the non-sloped area of the trench, the overhanging
face in a part of the trench, and the operation of equipment including the excavator and the
tamper. (Tr. 273-74, 287, 321-23, 329-30). The Court has considered the CO’s testimony and
agrees with the Secretary’s gravity assessment.72
The Court has also considered K&G’s size, history, and good faith. K&G is a small
employer with no prior OSHA citations. In light of the willful nature of the violation, no credit
for good faith is due.73 The Court finds that the 60 % penalty reduction for company size and 10
71
OSHA based the $21,000 penalty on the statutory maximum of $70,000 (given the high severity and greater
probability) reduced by 70% (60% for company size plus 10% for history).
72
K&G contends that the gravity should be less because the width of the trench made it easier to travel through in an
emergency and the sloping of a portion of the trench, along with some rock and frozen soil, made the soil more
stable. (R. Reply Br. 14-15). The Court finds that these circumstances do not justify lowering the gravity.
73
K&G also contends that a penalty reduction for good faith should be applied based on its safety program, its
immediate abatement of the hazards, further employee training after the inspection, and the discipline of Foreman
Gannon. (R. Br. 10-11). The Court has considered these circumstances. However, no evidence was adduced to
- 36 -
% penalty reduction for history is appropriate. OSHA has already taken these factors into
account in the proposed penalty of $21,000 for each citation item. The Court finds the proposed
penalty appropriate. A penalty of $21,000 for each item is accordingly assessed. (Tr. 275-76,
326-27).
Findings of Fact and Conclusions of Law
All findings of fact and conclusions of law relevant and necessary to a determination of
the contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of
fact and conclusions of law inconsistent with this decision are denied.
ORDER
Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:
1. Citation 1, Item 1, alleging a willful and serious violation of 29 C.F.R. §
1926.651(c)(2), is AFFIRMED, and a penalty of $21,000 is assessed.
2. Citation 1, Item 2, alleging a willful and serious violation of 29 C.F.R. §
1926.652(a)(1), is AFFIRMED, and a penalty of $21,000 is assessed.
_/s/__________________________
The Honorable Dennis L. Phillips
U.S. OSHRC Judge
Dated: April 13, 2012
Washington, D.C.
document the additional training, and Foreman Gannon testified that he was not sure why he was disciplined. In
view of the record, there is no justification for a reduction for good faith.
- 37 -
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