Daisy Construction Company

Read the official release (oshrc.gov)

Plain-English summary

Daisy Construction was installing underground conduit during a road project when employees worked for hours in a trench more than seven feet deep with vertical walls and no cave-in protection. The foreman and the acting superintendent both saw the work, knew trench protection was required, and did not stop it, even though a trench box was nearby. The judge rejected Daisy's unpreventable employee misconduct defense because the company had not adequately communicated, monitored, or enforced its trench safety rules. A prior citation for the same cave-in standard at the same project, together with the supervisors' training and experience, supported the willful classification. The judge affirmed one serious training violation and two grouped willful trench violations, reducing the proposed penalties to $59,000 total.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.21(b)(2); 29 C.F.R. § 1926.651(k)(2); 29 C.F.R. § 1926.652(a)(1)
• Outcome: One serious training item and two grouped willful cave-in-protection items were affirmed, with penalties reduced to $59,000 total.
• Key point: Supervisory participation in an open trench hazard, combined with a prior citation and weak enforcement of safety rules, supported willfulness and defeated the employee misconduct defense.

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. 10-2248

DAISY CONSTRUCTION COMPANY,

              Respondent.

APPEARANCES:
John A. Nocito, Esquire, U.S. Department of Labor, Philadelphia, Pennsylvania
For the Complainant.

   Edward Stepp, Director of Risk Management Services, Daisy Construction Company
          Wilmington, Delaware
          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”) under section 10(c) of the Occupational Safety and

Health Act of 1970, 29 U.S.C. § 651, et seq. (“the Act”). The Occupational Safety and

Health Administration (“OSHA”) inspected a work site of Daisy Construction Company

(“Daisy” or “Respondent”) on April 29, 2010. The site was located in Dover, Delaware,

where Respondent was engaged in trenching work. The inspection resulted in Respondent

being issued one serious citation and one willful citation. Respondent contested the
citations and the proposed penalties. The hearing in this matter took place in Wilmington,

Delaware, on August 23, 2011. Both parties have filed post-hearing briefs. (Tr. 15-21;

JX-1, ¶¶ 13-14).

                                  The OSHA Inspection

    Respondent has been in business for about 39 years. It is a Delaware corporation,

and its corporate office is in Newport, Delaware. Its work involves highway and road

construction. Daisy owns more than 200 pieces of heavy construction equipment. The

project at issue, called the South Governors Avenue project (“the project”), involved a

2.25-mile-long area. Part of the project required installing PVC plastic conduit pipe

underground so that overhead cables could be replaced with underground cables. (Tr. 31-

32, 68, 106, 124, 178; CX-3, CX-4, p. 7, CX-6, p. 3, CX-8, p. 3).

    On April 29, 2010, OSHA’s Area Director (“AD”) for the Wilmington office,

Domenick N. Salvatore, received a complaint about employees being in an unprotected

trench at the work site.1 The trench was located at South Governors Avenue and Dover

Street, Dover, Delaware (“work site” or “project site”). OSHA Compliance Officer

(“CO”) Lester Paul Kessler arrived at the project site at about 1:15 p.m. on April 29. He

saw an employee in the trench, which had no protection in it, and he photographed what

he saw.2 He observed another individual standing next to the edge of the trench. He

learned that person was Randy Drake, Daisy’s foreman and competent person at the site.3

The CO presented his credentials and asked Mr. Drake to have the employee exit the

trench. Mr. Drake did so, and the CO began his inspection. He measured the trench and

1
All dates in this decision will refer to the year 2010, unless otherwise indicated.
2
The CO’s photographs are CX-4, pp. 1-29.
3
A competent person is “one who is capable of identifying existing and predictable hazards in the
surroundings, or working conditions which are unsanitary, hazardous, or dangerous to employees, and who
has authorization to take prompt corrective measures to eliminate them.” 29 C.F.R. § 1926.650(b).
found it to be about 23 feet long and 6.5 feet wide. Its walls were vertical. Its depth was 7

feet 3 inches at one end, 7 feet 4 inches at the other end, and 8 feet 1 inch in the middle.4

The CO considered the soil in the trench to be Class C, the least stable soil, as it was

previously disturbed soil.5 Daisy had previously excavated the soil to install water and

sewer lines. The trench was also located at a busy intersection, which could affect the

soil’s stability. There was a trench box a few feet away from the trench. Daisy had not

put the box in the trench that day. (Tr. 50-51, 68, 96-111, 145-49; JX-1, ¶ ¶ 3-6, CX-2,

CX-3, p. 1, CX-4, p. 18).

     On April 29, CO Kessler interviewed Michael Moore, the Daisy employee who

had been in the trench, and Bill King, Daisy’s excavator operator. Mr. Moore said that he

had not attended any trenching training classes conducted by Daisy. Mr. Moore also said

that he had begun working in the trench that day at about 9:00 a.m.6 He told CO Kessler

that the trench was approximately 7 to 7 ½ feet deep. Mr. King said that he did not get

any training or classes, on trenching or other subjects, from Daisy. Mr. King stated that

the trench box had not been used due to a concern that it could have broken the sewer

main in the trench. The CO also interviewed Silvano DelSignore, Daisy’s general

superintendent at the site.7 Mr. DelSignore told him he had arrived at the site around

10:00 a.m., he was aware there was an employee in the trench, and he did not think the

trench was that deep. He said he had not used the trench box as he had feared it would

break the utility lines in the trench. Finally, the CO interviewed Mr. Drake, who stated

4
Respondent admits Messrs. DelSignore and Maruca knew that the trench was in excess of 5 feet in depth
and not in stable rock. (CX-10, p. 3; JX-1, ¶¶ 4, 10).
5
CO Kessler stated that Class C soil is a sandy type of granulated soil that does not hold together because it
lacks clay composites. (Tr. 100, 103; CX-4, p. 3).
6
According to Mr. Moore, the trench box was not used as it was “a pain in the butt.” (Tr. 113-14; CX-11).
7
Mr. DelSignore was evidently not present when the CO first arrived at the site. (Tr. 134-35, 194-97).
that Mr. DelSignore had been at the site and knew the employee was in the trench.8 Mr.

Drake also stated that Mr. DelSignore had been at the trench site on and off throughout

the day.9 (Tr. 41, 111-18, 136; CX-3, CX-11, CX-12).

     As a result of the inspection, Daisy was cited for a serious violation of 29 C.F.R. §

1926.21(b)(2), for failing to instruct employees in the recognition and avoidance of

unsafe conditions relating to trenching and excavation work. It was cited for a willful

violation of 29 C.F.R. § 1926.652(a)(1), for allowing an employee to work in an

unprotected trench. It was also cited for a willful violation of 29 C.F.R. § 1926.651(k)(2),

as the competent person had permitted employees to work in an unprotected trench.

                                           Jurisdiction

     The parties have stipulated that Respondent is an employer with employees that is

engaged in a business affecting commerce within the meaning of sections 3(3) and 3(5)

of the Act, 29 U.S.C. §§ 652(3) and (5). The parties have also stipulated that the

Commission has jurisdiction of this proceeding under section 10(c) of the Act, 29 U.S.C.

§ 651, et seq. (Tr. 15-16, 20; JX-I, ¶¶ 1-2, 24-25). The Court finds, therefore, that the

Commission has jurisdiction of the parties and the subject matter of this proceeding.

8
At the hearing, Mr. Drake testified that the excavation for the conduit had to be backhoed before the night
of April 29. He also testified that the project manager, Sam [Maruca], visited the work site in the morning
and told him to get the work done before he came back or the state inspector saw them there. (Tr. 77-78;
CX-3, p. 9, CX-8, p. 3).
9
Later, CO Kessler also interviewed Messrs. Cannon and David Brian Detterbeck, as well as Mr. Drake for
a second time. Mr. Detterbeck was a cable splicer with Cable Construction Group that had a contract with
Comcast to perform the same type of inspection that Mr. Cannon performed for Verizon. He testified at the
hearing that while at the work site at about 12:30 p.m., April 29, he saw Mr. Moore in the trench where
there was no protection. He also said that he had seen Daisy employees working in other unshored trenches
that were deeper than 5 feet. (Tr. 123, 141-43). Mr. Cannon told the CO that Mr. Moore was responsible
for measuring each vault at the work site to determine how deep to dig the trench. (CX-3, p. 6).
 The Secretary’s Burden of Proof

    To prove a violation of an OSHA standard, the Secretary must demonstrate that:

(1) the standard applies, (2) its terms were not met, (3) employees were exposed to the

violative condition, and (4) the employer either knew of the condition or could have

known of it with the exercise of reasonable diligence. Astra Pharm. Prod., 9 BNA OSHC

2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).

                         Willful Citation 2, Items 1a and 1b

    Willful Item 1a alleges a violation of 29 C.F.R. § 1926.652(a)(1). That standard

states as follows:

    Each employee in an excavation shall be protected from cave-ins by an
    adequate protective system designed in accordance with paragraph (b) or
    (c) of this section except when:
    (i) Excavations are made entirely in stable rock; or
    (ii) Excavations are less than 5 feet (1.52m) in depth and examination of
    the ground by a competent person provides no indication of a potential
    cave-in.

    The parties have stipulated that the cited standard applies and that its terms were

not met. The parties have further stipulated that the exceptions to the cited standard do

not apply in this case. That is, exceptions (i) and (ii) above do not apply here because the

excavation was not made entirely in stable rock and it was greater than 5 feet in depth.

Finally, the parties have stipulated that Respondent is not contending that a protective

system in compliance with 29 C.F.R. §§ 1926.652(b) or (c) was being used at the site on

the day of the OSHA inspection. (Tr. 19; JX-I, ¶¶ 16-20, 26).

    Willful Item 1b alleges a violation of 29 C.F.R. § 1926.651(k)(2). That standard

provides, in relevant part, that:

    Where the competent person finds evidence of a situation that could result
    in a possible cave-in … exposed employees shall be removed from the

hazardous area until the necessary precautions have been taken to ensure
their safety.

    The parties have stipulated that the cited standard applies and that its terms were

not met. (Tr. 19-20; JX-I, ¶¶ 21-22, 26).

    The parties’ stipulations further establish the third and fourth elements of the

Secretary’s burden of proof as to Items 1a and 1b, i.e., employee exposure to the cited

condition and employer knowledge of the condition. In those stipulations, Daisy has

admitted that two supervisors knew that employees were working in the trench without

any cave-in protection in place.10 (Tr. 16-17; JX-I, ¶¶ 5-10). Daisy asserts, however, that

Mr. Drake was the person responsible for the violations, noting the testimony of Mr.

DelSignore. (R. Brief, pp. 8-9). Mr. DelSignore testified he went to the site between 9

a.m. and 10 a.m. on April 29, saw employees in the trench without a trench box, and got a

ladder and had the employees exit the trench.11 Mr. Drake had gone to get a ladder

himself, and when he returned, Mr. DelSignore allegedly told Mr. Drake to put the trench

box in the trench before letting any employees go back in. Mr. DelSignore also testified

he left before ensuring the box was put in, as he had to check on other areas of the project

as well as another project. He did not return to the trench site until that afternoon, after he

got a call about OSHA being there. (Tr. 210-17, 222-23, 226).

    It is clear from the above that Mr. DelSignore’s testimony was not consistent with

the statements he made to the CO at the time of the inspection. It was also not consistent

with Mr. Drake’s testimony. The Court observed the demeanor of these three witnesses

10
The CO’s testimony and photographs also demonstrate employee exposure and supervisory knowledge
of the condition. When the CO arrived at the site, Mr. Drake was standing near the edge of the trench and
was watching as Mr. Moore worked in the unprotected trench. (Tr. 97-98, 101-05; CX-4, pp. 2-4, 6-7).
11
Mr. DelSignore stated he went to the trench site because he got a call from a “Sam Laroughe” telling him
there were employees in a trench without a trench box. (Tr. 210).
as they testified, including their facial expressions and body language, and found the CO

to be a credible and convincing witness. Mr. Drake was also a credible witness, for the

most part, and his testimony was largely consistent with what he told the CO during the

inspection. Mr. DelSignore, on the other hand, was not a reliable witness in significant

respects. Besides the foregoing, he testified that he did not tell the CO he had gotten the

employees out of the trench that morning because he “didn’t know [he] needed to.” (Tr.

212). He further testified that he had signed the CO’s “form” as the CO said he would

have him “arrested” if he did not. (Tr. 213). He agreed that instead of staying to ensure

the trench box was installed, he “walked away” from the situation. (Tr. 216). He also

agreed that it “look[ed] like” Mr. Drake did not follow his instructions, even though Mr.

Drake knew he could have been fired for insubordination. (Tr. 223, 226). Based on the

Court’s credibility determinations and the noted testimony, the Court will credit the

testimony of the CO and Mr. Drake over that of Mr. DelSignore.12

     According to Mr. Drake, Daisy began digging the trench at about 8:00 a.m. on

April 29. Mr. DelSignore was there for at least part of the digging work. Around 9:00

a.m., Mr. DelSignore told Mr. Drake to get a trench box, and Mr. Drake did so. Mr.

12
Another reason for crediting Mr. Drake’s testimony is that it was corroborated in significant part by
another witness, Michael Cannon. Mr. Cannon, the general foreman for Danella Line Service, was at the
trench site that day to inspect the conduit placement for Verizon. He saw Respondent’s employees,
including laborer Mr. Moore, digging in the trench without any cave-in protection with Messrs. DelSignore
and Drake standing nearby about 9:30 a.m. for 15 to 20 minutes. Mr. Cannon testified that he observed
some rock and dirt flowing into the excavation. He stated that Respondent should have used a trench box
sitting about 5 feet away because of the excavation’s depth and the unstable situation. He was concerned
that a telephone pole with overhead power lines being held up by a Dover Electric utility truck adjacent to
the excavation might slide into the hole. He was also concerned that the vibration from the traffic and
heavy machinery on the adjacent roadway could affect the excavation. Mr. Cannon also testified that his
supervisor, Chris Strobel, visited the work site on April 29 and the two of them discussed their observations
of Respondent’s employees working in an unprotected trench. After departing the work site, Mr. Strobel
called Mr. Cannon and told him to expect a “visitor” at the work site. Mr. Cannon stated that CO Kessler
showed up at the work site between 1:00 p.m. and 2:00 p.m. and that Respondent’s employees worked in
the unprotected trench throughout the morning beforehand. He also stated that he later learned that Mr.
Strobel had called OSHA. (Tr. 29-63, 101, 105; JX-1, ¶ 9, CX-4. pp. 1, 6-8).
Drake then went to get a ladder. When he returned, employees were in the trench, Mr.

DelSignore was standing nearby, and the trench box was not being used.13 Mr. Drake said

that Mr. DelSignore did not order the employees out or tell him to do so, and he did not

tell him to use the trench box. He also said that if Mr. DelSignore had told him to use the

box, he would have, as Mr. DelSignore was his supervisor that day and the “big boss.”14

He stated that employees were in the trench for about three hours total; Mr. DelSignore

was there “off and on” during that time. He further stated that there should have been

protection in the trench but that the trench box could not be used.15 Mr. Drake testified

that Respondent did not use any protection in the trench because he and “Everybody

wanted to get it [the job] done.”16 (Tr. 68-79, 82; CX-3).

     Another aspect of Mr. DelSignore’s testimony must be examined. Mr. DelSignore

has been with Daisy for 30 years. He has been the operations manager for four to five

years and before then was a superintendent. He testified that on April 29 he was replacing

Dathan Booth, the project superintendent assigned to the subject project.17 He further

testified that on April 29, he had to check on that project and another project. He also had

to attend to his operations manager duties. Mr. DelSignore stated that as the general

superintendent that day, he was responsible for checking on projects that had either a

superintendent or a foreman. A project superintendent is responsible only for the specific

project to which he is assigned. Mr. DelSignore said that many projects have only a

13
Mr. Drake said that the employees had gotten a ladder to use before he got back. (Tr. 71-74).
14
Mr. Drake testified that he thought Mr. DelSignore was the general superintendent, but others referred to
him as project manager. He stated that Mr. DelSignore reported to the company’s owner and President,
Leonard Iacono. (Tr. 69, 197-98; CX-8, p. 3).
15
Mr. Drake testified the box was too wide and the trench could not be widened to accommodate it; there
were also utilities in the way. (Tr. 74-75, 78). Despite this testimony, the box was put in the trench while
the CO was there. (Tr. 109-11, 214-15). Photographs also show the box in the trench. (CX-4, pp. 27-29).
16
When interviewed, Mr. Drake told the CO that he wanted to get the job done so that he could let Dover
Electric Company release the telephone pole that it was holding. (CX-3, p. 8).
17
Mr. Booth was absent on April 29 due to a family emergency. (Tr. 191-92).
foreman and do not have a superintendent. He also said he was not that familiar with the

subject project and did not know how deep the cited trench was. He noted that the

foreman at a job site is in “direct charge of the day-to-day operations,” including safety.

He agreed, however, that a superintendent has overall, day-to-day responsibility for

safety. If a superintendent sees an unsafe condition or practice, he has a duty to correct it.

According to Mr. DelSignore, he was a competent person in trench safety, he had OSHA

training, and he was familiar with Daisy’s safety manual, which covers trenching and

references the OSHA standard. (Tr. 79-80, 116, 176-77, 191-200, 206-08, 216-26).

       Daisy notes that Mr. Drake, as the foreman, was directly responsible for safety at

the work site. It suggests Mr. DelSignore did not have the same level of responsibility,

due to the brief period he was at the trench site, his other duties on April 29, and the fact

he was part of Daisy’s administrative staff. (R. Brief, pp. 8-9). The Court disagrees. Mr.

DelSignore testified that a superintendent, upon seeing an unsafe condition or practice,

has a duty to correct it.18 (Tr. 199-200). And Mr. Drake testified that Mr. DelSignore was

his supervisor that day and the “big boss” and that if he had told him to use the trench

box he would have done so.19 (Tr. 68-69, 76). Further, Mr. Booth testified that when he

was out of town, Mr. DelSignore replaced him. Mr. Booth agreed that Mr. DelSignore

18
Respondent’s manual outlining staff responsibilities states as follows:

       The superintendents have overall day-to-day responsibility for safe, efficient operations on all
       projects. Their safety responsibilities include, but not limited to:

       · Analyze job specifications and the project site for possible safety hazards, and with the assistance
       of the safety director, they will pre-plan each job to eliminate recognized safety hazards.…

       · Inspect each job for unsafe practices and conditions. Correct any unsafe practices or conditions
       and explain the reason for the correction.
       (Tr. 183-86, 190, 199-200; CX-8, pp. 8, 12, RX-B).

19
Mr. Cannon also testified Mr. DelSignore was Mr. Drake’s supervisor at the work site on April 29. (Tr.
41).
was the project superintendent on April 29 and thus would have had overall responsibility

for safety on the project.20 (Tr. 181-88). Based on the record, the Court finds that Messrs.

DelSignore and Drake were both responsible for safety at the site, that both were aware

by direct observation that employees were working in the unprotected trench, and that

neither took the necessary safety measures to protect the employees from a cave-in.21

      Whether the Violations were due to Unpreventable Employee Misconduct

     Daisy contends that all of the violations in this case were due to the unpreventable

employee misconduct of Mr. Drake, the foreman at the site. (R. Brief, pp. 3-6). The Third

Circuit, where this case arose, has noted with approval the Commission’s test for proving

unpreventable employee misconduct, i.e.:

     (1) the employer had established rules designed to prevent the violation;
     (2) it adequately communicated the rules;
     (3) it took steps to discover violations of the rules; and
     (4) it enforced the rules when violations were discovered.

Pa. Power & Light Co. v. OSHRC, 737 F.2d 350, 358 (3d Cir. 1984)(“PP&L”). In PP&L,

the Third Circuit held that the Secretary may not shift to the employer ultimate risks of

nonpersuasion where the inference of an employer’s knowledge of conduct violating the

Act is raised only by supervisory misconduct.22 In so holding, the Third Circuit stated:

20
Whether Mr. DelSignore on April 29 was a general superintendent, as he stated, or the project
superintendent, as Mr. Booth stated, he was responsible for employee safety at the trench site. Mr.
DelSignore admitted superintendents have overall and day-to-day responsibility for safety. (Tr. 198-99).
21
In light of Mr. Drake’s testimony, the Court specifically finds that Mr. DelSignore had the employees
enter the trench while Mr. Drake was looking for a ladder. (Tr. 71-74).
22
The parties have stipulated that Daisy has the burden of proving unpreventable employee misconduct on
the part of Mr. Drake. (Tr. 20; JX-I, ¶ 23). Generally, courts are not bound by stipulations pertaining to
questions of law. See Mintze v. Am. Gen. Fin. Serv., Inc., 434 F.3d 222, 228 (3d Cir. 2006) (“[Court] not
bound by the parties’ stipulations concerning questions of law”). This stipulation of law by the parties is
inconsequential since the Court finds that there is insufficient evidence to support any unpreventable
employee misconduct defense. The Secretary prevails in this matter regardless of which party has the
burden of proof concerning unpreventable employee misconduct. The Court finds that the evidence shows
that Daisy failed to exercise reasonable care to prevent the violations at issue because of inadequacies in its
safety precautions, training of employees, and supervision. See PP&L, 737 F.2d. at 358. The Court also
 In cases where the Secretary proves that a company supervisor had
knowledge of, or participated in, conduct violating the Act, we do not
quarrel with the logic of requiring the company to come forward with
some evidence that it has undertaken reasonable safety precautions….We
do hold, however, that the Secretary may not shift to the employer the
ultimate risk of non-persuasion in a case where the inference of employer
knowledge is raised only by proof of a supervisor’s misconduct. The
participation of the company’s own supervisory personnel may be
evidence that an employer could have foreseen and prevented a violation
through the exercise of reasonable diligence, but it will not, standing
along, end the inquiry into foreseeability.

737 F.2d at 357-58.

    In this case, the Secretary has clearly shown that two Daisy supervisors knew of

the trenching violation and did nothing to correct it.23 In fact, it was Mr. DelSignore, Mr.

Drake’s superior, who had the employees enter the unprotected trench to begin working

while Mr. Drake was searching for a ladder. In light of this evidence, and consistent with

the Third Circuit’s holding above, the Court will examine the evidence to see whether it

shows that Daisy had undertaken reasonable safety precautions.

    The record shows that Mr. Drake has worked in construction for 30 years. He had

been with Daisy about a year and a half at the time of the inspection. Mr. Drake received

Daisy’s safety manual when he began working for the company, but no one asked him if

he had read it or understood it. Daisy sent Mr. Drake to a safety course that addressed

excavation, trenching and soil mechanics on February 25, 2010. It also sent him to a 10-

hour OSHA course in construction safety and health on March 25, 2010. Mr. Drake went

to a Daisy supervisors’ meeting held on April 3, 2010. The supervisors’ meetings usually

include discussions of safety and policy procedures. (Tr. 65-67, 82-84, 194; RX-F).

notes that Daisy had the opportunity and motivation to present evidence in support of its unpreventable
employee misconduct defense in light of its stipulation.
23
Mr. DelSignore admitted he knew there was an unsafe condition at the work site. He also agreed a trench
box should have been used in the trench. (Tr. 216, 221-22; CX-8, p. 4). Daisy also admitted that Mr. Drake
knew that the trench’s depth and condition required a protective system. (JX-1, ¶ ¶ 7-9, CX-10, p. 3).
 The record also shows that on May 3, 2010, Daisy sent Mr. Drake a notice that

advised him that he was suspended pending the company’s internal investigation of the

circumstances at the subject site. It also advised him that the failure to provide workers

with adequate protection in the trench violated section H of Daisy’s safety policy, which

covers trenching and excavations. On May 10, 2010, Daisy sent Mr. Drake another notice

informing him that it was terminating his employment. The notice stated that in spite of

the training he had received, Mr. Drake had “blatantly disregarded” worker safety by not

providing a protective shoring system in the trench.24 Before he was fired by Daisy, Mr.

Drake went back to work for his previous employer, where he had worked for 15 years.

(Tr. 65, 80-81; RX-A).

    Section H of Daisy’s safety manual addresses trenching and excavations. The

Secretary notes that Exhibit RX-C, p. H-2, includes a provision for protective systems in

trenches that references OSHA’s excavations standard and requires supervisors to refer to

the OSHA standard “for guidance to comply with this plan.” She thus concludes that

Daisy’s manual included work rules designed to prevent the trenching violation. (S.

Brief, p. 20).

    As to Daisy’s communication of its rules, the foregoing describes the training Mr.

Drake received and the fact that he was given a copy of Daisy’s safety manual. Mr. Drake

testified, however, that no one asked him if he had read or understood the manual. (Tr.

66). Mr. DelSignore had also received OSHA training, and he was familiar with the

24
Daisy admits that Mr. Drake directed its employees to connect pipe in the trench without the protection
of a shoring system. (CX-10, p. 17). Mr. Drake admitted that Respondent could have shored, laid the ditch
back, or used a trench box to protect the employees in the trench. (Tr. 86-87; RX-C). Likewise, CO Kessler
testified that employers could use hydraulic shoring or sloping to protect their employees where a trench
box could not be used. (Tr. 111). The photographs at Exhibit CX-4, pp. 27-29, taken by CO Kessler at the
end of his inspection, show Daisy using a trench box in the excavation when backfilling. CO Kessler stated
that Daisy did not have to widen the trench before inserting the trench box into the excavation. (Tr. 109-
11).
safety manual. (Tr. 206-08). Messrs. Drake and DelSignore were competent persons in

trenching and excavations, and both had 30 years of experience in construction work. (Tr.

65-68, 82-84,191, 196-97, 206-08). Despite their training, experience and qualifications,

they allowed employees to work in the cited trench without any cave-in protection.

     Daisy presented Exhibit RX-D, which contains copies of tool box safety talks

held at its job sites in April 2010. Mr. Drake testified that one-page topic sheets were

included in his paycheck envelopes. He indicated he led weekly tool box safety talks for

his crews at his work sites.25 (Tr. 66-67). Of the many documents in Exhibit RX-D, only

two represent that trenching safety was addressed. These two indicate that Mr. Stepp

gave a trenching safety talk at two sites at the subject project on April 2, 2010. Daisy

offered no evidence as to what specifically was covered in these talks. The CO testified

that tool box talks usually last only five to ten minutes. He further testified that while he

received copies of Daisy’s tool box talks during the inspection, the copies of the

trenching safety talks were not provided until later, during discovery.26 (Tr. 122, 137-40;

CX-3).

     In addition to the above, the CO testified that when he interviewed them, Messrs.

Moore and King both said they had received no training from Daisy. (Tr. 112-14, 136;

GX-11-12). Mr. Moore, the employee in the trench when the CO arrived, clearly required

25
The first page of Exhibit RX-D appears to be a list of Daisy supervisors showing each date in April 2010
on which the specified supervisors gave tool box talks at their job sites. Mr. Drake’s name is on the list, but
there are no dates to indicate he gave tool box talks that month. There are also no documents in Exhibit
RX-D to show he gave any such talks that month.
26
Mr. King’s name does not appear on any Daisy training sign-in sheets and Mr. Stepp told the CO that
Daisy had no training records for Mr. King. (CX-3, p. 2, RX-D). There is no record of Mr. King receiving
any training at Daisy. (CX-7, p.8, CX-8, p. 6). In the absence of any such written record, the Court finds
that Daisy did not adequately instruct Mr. King in the recognition and avoidance of unsafe conditions and
the regulations applicable to his work environment to control or eliminate any hazards or other exposure to
illness or injury as of the date of OSHA’s inspection. See U.S. ex rel. Compton v. Midwest Specialties, Inc.,
142 F.3d 296, 303 (6th Cir. 1998) (the absence of a record of an event is probative of the fact that the event
did not occur); Wiley v. U. S., 20 F.3d 222, 227 (6th Cir. 1994) (same).
training in trenching safety. Mr. King, the excavator operator, also required such training,

in that his job at the site involved digging the trench. The Secretary points to all of the

foregoing in support of her assertion that Daisy did not adequately communicate its work

rules. She also points to the fact that Messrs. Drake and DelSignore, the competent

persons at the site, permitted employees to work in the unprotected trench. The Secretary

cites to circuit court precedent which has held that “negligent behavior by a supervisor or

foreman which results in dangerous risks to employees under his or her supervision …

raises an inference of lax enforcement and/or communication of the employer’s safety

policy.” Danis-Shook Joint Venture XXV, 319 F.3d 805, 811 (6th Cir. 2003).27 (S. Brief,

pp. 20-25). The Court agrees and finds that Daisy did not adequately communicate its

work rules in regard to trenching safety.28 See Complete Gen. Constr. Co., 20 BNA

OSHC 1412, 1416 (No. 02-1896, 2003), aff’d No. 03-4456, 2005 WL 712491 (6th Cir.

Mar. 29, 2005) (finding that employer was not entitled to employee misconduct defense

because it did not adequately communicate its trench safety program to its employees

where weekly tool box meetings did not sufficiently focus on trench safety rules and

employer did not ensure that employees actually read and understood the contents of the

safety manual); see also Schuler-Haas Elec. Corp., 21 BNA OSHC 1489 (No. 03-0322,

2006) (rejecting claim of employee misconduct due to inadequate communication of

27
Where the supervisor commits the violation, “the proof of unpreventable employee misconduct is more
rigorous and the defense is more difficult to establish since it is the supervisor’s duty to protect the safety of
employees under his supervision.” Archer-Western Contractors Ltd., 15 BNA OSHC 1013, 1017 (No. 87-
1067, 1991) (“A supervisor’s involvement in the misconduct is strong evidence that the employer’s safety
program was lax”). Here, Daisy failed to take feasible precautions to prevent the violations, including
adequate instruction and supervision of its supervisors. See CBI Serv., Inc., 19 BNA OSHC 1591, 1603
(No. 95-0489, 2001) (finding inadequate proof of unpreventable supervisory misconduct where employer
failed to establish it took feasible precautions, including adequate supervision of supervisor).
28
See Butch Thompson Enters., Inc., 22 BNA OSHC 1985, 1991-93 (No. 08-1273, 2009) (rejecting
employer’s supervisory misconduct defense in part because supervisors’ participation in violation was
evidence of poor communication and implementation of a safety program).
work rule where employer did not establish it provided hazard recognition training). (S.

Brief, p. 22).

    As to whether Daisy took steps to discover violation of its rules, the Secretary

notes that Exhibit RX-C (section H of Daisy’s safety manual) includes a “Trenching

Inspection Checklist.” Exhibit RX-C requires the checklist to be completed at least daily.

(See RX-C, p. H-3). The checklist requires the foreman to document the trench’s

dimensions and to evaluate the soil type and the best protective system to use in the

trench. It also requires, inter alia, noting the presence of any hazardous conditions and

keeping spoil piles and equipment at least 2 feet from the edge of the trench. The

checklist must be signed by the competent person. A note at the bottom of the checklist

states as follows:

    All unsafe conditions must be corrected prior to trench entry. If any
    hazardous conditions are observed, the trench must be immediately
    evacuated and no one allowed to re-enter until corrective action has been
    taken.

    The Secretary points out that there is no evidence that a checklist was

completed for the subject trench or, for that matter, that a checklist had ever been

completed for any of Daisy’s trench sites. Mr. DelSignore testified that he was not

aware that the checklist was required for trenching jobs. Further, despite his 30

years with Daisy, he admitted that he had never even seen the checklist until it was

shown to him at the hearing. (Tr. 208-09; RX-C; S. Brief, pp. 23-24).

    The Secretary also notes that Exhibit RX-E, which Daisy submitted to

demonstrate that it inspected its work sites for safety hazards, was insufficient.

Exhibit RX-E contains four documents entitled “Safety Compliance Inspection

Weekly Summary Report.” The reports summarize the site inspections Mr. Stepp
performed during April 2010. Only two of the inspections relate to the subject

project. Those inspections took place on April 12 and 13, 2010. (S. Brief, pp. 24-

25). The Court agrees with the Secretary. The subject project was a three-year

undertaking, and it involved an area about 2.25 miles long. (Tr. 32, 178). The offer

of documents that show only two inspections of such an extensive project is simply

inadequate to establish effective monitoring of the project for trenching safety

hazards. Put another way, in this case, two site visits do not constitute a diligent

effort to discover violations.29

     In regard to whether Daisy enforced its safety rules when violations were

detected, the Secretary contends that Daisy did not. She asserts that Daisy’s failure

to effectively enforce its trench safety rules is most readily apparent by the fact that

two Daisy supervisors did not follow those rules at the subject work site. Again, the

Court agrees. As set out previously, “negligent behavior by a supervisor or foreman

which results in dangerous risks to employees under his or her supervision … raises

an inference of lax enforcement and/or communication of the employer’s safety

policy.” Danis-Shook Joint Venture XXV, 319 F.3d at 811. (S. Brief, pp. 25-27).

     Finally, the Secretary points out that there is no evidence that Daisy had

implemented a disciplinary program to deal with violations of its safety rules. She

notes that an employer may show effective enforcement of its rules where it has a

progressive disciplinary program and where it has actually administered and

consistently enforced the discipline set out in its policy. See, e.g., Pace Constr.

29
See Reynolds, Inc., 19 BNA OSHC 1653, 1656-57 (No. 00-0982, 2001) (finding insufficient evidence to
establish that employer attempted to discover violations at a year-long project involving 20 employees,
even though there were three safety audits, because there was no other evidence of a more frequent effort to
oversee the safe operations of the project).
Co., 14 BNA OSHC 2216, 2217-20 (No. 86-758, 1991). (S. Brief, p. 27). Exhibit

RX-A, discussed above, shows Mr. Drake was suspended and then terminated for

his failure to provide adequate protection for the employees working in the trench.

But, as the Secretary notes, disciplinary action after an OSHA inspection or citation

is only relevant when viewed in conjunction with pre-citation disciplinary action.

See, e.g., McGuire & Bennet, Inc., 15 BNA OSHC 1878, 1878-79 (No. 91-0312,

1992). (S. Brief, pp. 27-28). Here, there is no evidence that shows that Daisy even

had a disciplinary policy or that it had ever before issued any disciplinary notices to

employees or supervisors for violations of company safety rules. For this reason,

and for all of the reasons discussed herein, the Court concludes that there is

insufficient evidence to demonstrate that Daisy undertook reasonable precautions to

prevent the trenching violation in this case. The evidence shows that Daisy failed

to: 1) adequately communicate its work rule, 2) take sufficient steps to discover

violations, and 3) effectively enforce its work rules. The Secretary has thus met her

burden of proof in regard to showing the alleged violations of 29 C.F.R. §§

1926.652(a)(1) and 1926.651(k)(1).

                        Whether the Violations were Willful

     The above-noted violations have been characterized as willful.30 (Tr. 150-

51). As the Secretary notes, a violation is willful if committed “… with intentional,

knowing or voluntary disregard for the requirements of the Act, or with plain

indifference to employee safety.” Valdak Corp., 17 BNA OSHC 1135, 1136 (No.

30
AD Salvatore testified about the reasons the violations were classified as willful, including a citation
issued on September 4, 2008 for not providing an adequate protective system in accordance with 29 C.F.R.
§ 1926.652(a)(1) for employees working in an excavation at the subject project site. (Tr. 150-54; JX-1, ¶¶
11-12, CX-14 through CX-15).
93-239, 1995, aff’d, 73 F.3d 1466 (8th Cir. 1996); Falcon Steel Co., 16 BNA

OSHC 1179, 1181 (Nos. 89-2883 & 89-3444, 1993). A willful violation is

differentiated by heightened awareness of the illegality of the cited condition and

by a state of mind of conscious disregard or plain indifference. Hern Iron Works,

Inc., 16 BNA OSHC 1206, 1214 (No. 89-433, 1993) (citing Williams Enters., 13

BNA OSHC 1249, 1256-57, (No. 85-355, 1987)).31 (S. Brief, p. 10).

    As the Secretary indicates, Daisy was well aware of OSHA’s excavations

standard. Daisy has been in business for 39 years. Its business involves road and

highway construction and includes sewer and water line construction. (Tr. 124;

GX-3, p. 9). Daisy’s safety manual contains a section on trenching and excavation

which references OSHA’s excavations standard. See RX-C. Daisy has trench boxes

of varying sizes and other equipment to protect employees who work in trenches.

(Tr. 86-88). The company has used trench boxes on prior jobs, and it used trench

boxes at times on the subject project. (Tr. 181; GX-8, p. 4; S. Brief, pp. 10-11).

    As set out previously, Messrs. DelSignore and Drake were competent

persons in trenching and excavation work. Both had 30 years of construction

experience, and both had attended the OSHA 10-hour course in construction. That

course included trenching and excavation. (Tr. 65-68, 82-84, 191, 206-08). Mr.

DelSignore testified that he was familiar with Daisy’s safety manual, which covers

trenching and excavation. (Tr. 207-08). The Court agrees with the Secretary that, in

view of the type of work the company performs and the training, experience and

31
See also V.I.P. Structures, Inc., 16 BNA OSHC 1873, 1875 (No. 91–1167, 1994) (“Willful conduct by
an employee in a supervisory capacity constitutes a prima facie case of willfulness against his or her
employer unless the supervisory employee’s misconduct was unpreventable”).
knowledge of Messrs. DelSignore and Drake, Daisy had a heightened awareness of

the OSHA standards cited in this case. See Fiore Constr. Co., Inc., 19 BNA OSHC

1408, 1409 (No. 99-1217, 2001) (affirming willful violation where foreman had a

heightened awareness of the requirements of § 1926.652(a)(1) based upon his 12

years of excavation work experience, completion of a 40-hour OSHA excavation

course, and his testimony that he knew OSHA’s standards required him to use a

trench box). (S. Brief, p. 11).

     Another basis for finding heightened awareness is the fact that Daisy was

previously cited in 2008 for a violation of 29 C.F.R. § 1926.652(a)(1) at the same

project at issue here.32 That citation became a final order of the Commission on

December 8, 2008. (GX-14, p.1, GX-15, JX-I, ¶¶ 11-12; S. Brief, p. 12).

     The Court further agrees with the Secretary that the actions of Messrs.

DelSignore and Drake on April 29, 2010, show Daisy’s conscious disregard of the

cited OSHA standards and its own safety manual, as well as plain indifference to

employee safety.33 (S. Brief, pp. 12-19). The cave-in hazard was in plain view and

32
See Reynolds, Inc., 21 BNA OSHC 1581, 1590 (No. 05-0023, 2006) (finding heightened awareness of
the need for cave-in protection based on history of prior citations involving § 1926.652(a)(1) and
knowledge that excavation was 5 feet deep, walls were vertical, and fact that a trench box was on site, but
was not used). See also Lanzo Constr. Co., Inc., 20 BNA OSHC 1641, 1649 (No. 97-1821, 2004) (finding
willful violation of § 1926.652(a)(1) where employer had a heightened awareness of the requirements of
the standard in that its safety manual incorporated the excavation standard and its superintendent admitted
that a trench box was used at another site because of a previous citation). S. Brief, p. 11; Reynolds, Inc., 19
BNA OSHC at 1657 (finding willful classification appropriate based in part upon fact that employer had
been previously cited for violations of § 1926.652(a)(1)). A prior citation for the same standard is proof of
the employer’s intentional disregard of or plain indifference to its safety obligations under the Act. Id.
33
See Butch Thompson Enters., Inc., 22 BNA OSHC at 1992-94 (violation of § 1926.652(a)(1) was willful
where two of employer’s competent persons knew trench was 13 feet deep, had vertical walls, and was dug
in previously disturbed Type C soil next to a busy roadway, but yet allowed employees to enter the trench);
B.S. Carter Constr., Inc., 21 BNA OSHC 2073, 2077 (No. 06-0343, 2006) (finding plain indifference to
support a willful trenching violation where employer knew the trench lacked cave-in protection, had been
in the excavation business for 30 years, and was cited before for a violation of 29 C.F.R. § 1926.652(a)(1)
under very similar circumstances). (S. Brief, p. 17).
was open and obvious.34 The CO’s testimony establishes the depth of the trench

and its hazardous condition (i.e., it was 7 to 8 feet deep, had vertical walls and

previously-disturbed soil, and was located next to a busy intersection).35 Mr.

Drake’s testimony establishes the essential facts of what occurred on the morning

of April 29, 2010. In particular, the digging of the trench began around 8:00 a.m.

Mr. Drake was present during that activity, and Mr. DelSignore was there for at

least part of the digging work. At about 9:00 a.m., Mr. DelSignore told Mr. Drake

to get a trench box, and Mr. Drake did so. Mr. Drake then went to get a ladder.

When he got back, employees were already working in the trench, Mr. DelSignore

was standing nearby, and the trench box was not being used. Messrs. DelSignore

and Drake did not discuss the trench box. And, while Mr. DelSignore was at the

trench site off and on during the three-hour period employees were in the trench, he

never told Mr. Drake to use the trench box or to have the employees exit the trench.

(Tr. 68-82). In fact, as specifically found previously, Mr. DelSignore had the

employees enter the trench while Mr. Drake was off looking for a ladder. As also

found previously, Messrs. DelSignore and Drake were aware by direct observation

that employees were working in the unprotected trench, and neither took the

necessary safety measures to protect the employees from a cave-in.36

     The Secretary cites to a number of cases in support of her contention that

the violations were willful. The Court finds two of these cases to be particularly

34
See Boring & Tunneling Co. of Am., Inc., No. 80-2571, 19 WL 18996, at *7 (O.S.H.R.C.A.L.J. June 29,
1981) (finding that violation of 29 C.F.R. § 1926.652(b) for failure to protect trench that was 24 feet long, 9
feet 6 inches wide, and 20 feet deep, was an open and obvious hazard).
35
Mr. Cannon described the soil as sandy. (Tr. 45).
36
Mr. Drake testified that he had previously seen Daisy employees working in unprotected trenches before
April 29. (Tr. 80-81).
significant.37 In one, the Commission upheld the judge’s willful classification; the

foreman had been trained as a competent person to identify trenching hazards, and

he knew the condition violated OSHA standards, but decided to remove the trench

boxes and send employees into the unprotected trench. Rawson Contractors, Inc.,

20 BNA OSHC 1078, 1081-82 (No. 99-0018, 2003). (S. Brief, p. 16). In the other,

the Seventh Circuit upheld the Commission’s final order that adopted the judge’s

finding of a willful violation; the competent person allowed employees to work in

an unprotected trench that was 10 to 11 feet deep, had vertical walls, and was in

Type B and Type C soil. Globe Contractors, Inc. v. Herman, 132 F.3d 367, 372-73

(7th Cir. 1997). (S. Brief, p. 18). On the basis of the evidence of record, the

violations of the cited standards are affirmed as willful.

                                 Penalty Determination

     The Secretary has proposed a grouped penalty of $63,000.00 for Items 1a

and 1b of Willful Citation 2. In assessing penalties, the Commission must give due

consideration to the gravity of the violation and to the size, history and good faith

of the employer. See section 17(j) of the Act, 29 U.S.C. § 666(j). Gravity is

generally the primary factor to consider. Orion Constr., Inc., 18 BNA OSHC 1867

(No. 98-2014, 1999).

     AD Salvatore issued the citations in this case. He testified that he reviewed

the investigative file and followed the procedures in OSHA’s Field Operations

Manual to arrive at the proposed penalty of $63,000.00. He considered the

37
See also DeWitt Excavating, Inc., No. 10-1515, 2011 WL 3394941, at *9-10 (O.S.H.R.C.A.L.J. June 1,
2011) (willful violation of § 1926.652(a)(1) was established where employer was in excavation business
since 1954, its superintendent and foreman were competent persons who knew the trench needed cave-in
protection (it had vertical walls and was over five feet deep, was located next to a busy roadway, and was
dug in previously disturbed Type-C soil), and the company was cited before for a similar violation.
violations to have high severity. At least one employee was working in the trench

for several hours. If a cave-in had occurred it would likely have resulted in long-

term incapacitation or death. He considered the probability of harm to be greater.

The trench was over 5 feet deep, and it was composed of previously disturbed,

Type C soil. The AD noted that a willful violation with high severity and greater

probability results in an unadjusted penalty of $70,000.00. (Tr. 127-29, 149-50,

154-61; CX-1 through CX-3, CX-16).

     AD Salvatore also testified about the adjustments that were made. He

determined that Daisy was entitled to a 10 percent reduction due to its size (about

150 employees).38 Daisy was not entitled to reductions for history or good faith,

however, because the violations were classified as willful. The resulting adjusted

penalty was $63,000.00. The AD noted that the penalties for Items 1a and 1b were

grouped, since the violations were related. (Tr. 161-65; JX-1, CX-3, CX-16).

     The Court finds that the full 20 percent reduction normally applied for an

employer of Daisy’s size is appropriate. The Court notes that Mr. Booth testified

that, despite this instance, Daisy always used a trench box where needed. He also

testified that Daisy had not experienced a trench cave-in. He said that no Daisy

worker had experienced a life threatening injury, or died on the job. (Tr. 181-82).

     The Court concludes that a substantial penalty for the willful items is appropriate,

especially in light of the hazardous condition of the trench and the likelihood of serious

injury or death if a cave-in had occurred. The Court finds it appropriate to reduce the

38
The AD said that the 20 percent reduction normally available for an employer of Daisy’s size was
reduced to 10 percent because of the gravity of the violation and its willful classification. (Tr. 162).
$63,000.00 penalty proposed by the Secretary to $56,000.00. A penalty of $56,000.00 is

assessed by the Court for these willful items.39

                              Serious Citation 1, Item 1

     This item alleges a violation of 29 C.F.R. § 1926.21(b)(2), for Daisy’s

failure to instruct employees in the recognition and avoidance of unsafe conditions

relating to trenching and excavation work. The cited standard states as follows:

     The employer shall instruct each employee in the recognition and
     avoidance of unsafe conditions and the regulations applicable to his work
     environment to control or eliminate any hazards or other exposure to
     illness or injury.

     The parties have stipulated that the cited standard applies. (JX-I, ¶ 15). As to the

second and third elements of the Secretary’s burden of proof, the Court finds that the

terms of the standard were not met and that employees were exposed to the cited hazard.

CO Kessler testified that when he spoke to them, Messrs. Moore and King both told him

that they had received no training from Daisy.40 (Tr. 112-15, 136; CX-3, CX 11, CX-12).

Mr. Moore plainly required training in the hazards of working in trenches, as he was the

employee the CO saw in the trench. Mr. King also required training in trenching work, as

he was the individual who had excavated the trench. The Court further finds that Daisy

39
Ho, 20 BNA OSHC 1361, 1379 (No. 98-1645, 2003) (consolidated), overruled on other grounds by E.
Smalis Painting Co., 22 BNA OSHC 1553, 1581 (No. 94-1979, 2009) (Commission has discretion to assess
the penalties it finds appropriate).
40
Mr. Moore’s signed statement is Exhibit GX-11. It states that he had worked for Daisy for two years and
he had had no classes in trenching; his training was on-the-job experience. Mr. King’s signed statement is
GX-12. It states that he had worked for Daisy for five years and that he had had no training or classes from
Daisy.
either knew or should have known that it had not trained Mr. King as required.41 The

Secretary has met her burden of proving a violation of the cited standard.42

     As with the willful violations, Daisy contends this violation was due to the

unpreventable employee misconduct of Mr. Drake, the foreman at the site. (R.

Brief, pp. 3, 5-6, 9-10). The Court has already found that Daisy did not show that it

had taken reasonable safety precautions to prevent the trenching violations in this

case. See PP&L, 737 F.2d at 358. In view of this finding, the Court concludes that

the record does not show that Daisy’s failure to adequately train Messrs. Moore and

King was caused by unpreventable employee misconduct.43 The alleged violation is

affirmed as serious, as it is clear that the failure to train employees in the hazards of

working in and around trenches could cause serious injuries or death. (Tr. 129-30).

     The Secretary has proposed a penalty of $4,000.00 for this item. AD Salvatore

testified that he determined this item to have high severity and greater probability,

resulting in a gravity-based penalty of $5,000.00. A 20 percent reduction was applied,

based on the company’s size, but no reductions were given for history or good faith. (Tr.

165-67; CX-3, CX-16). The Court finds it appropriate to reduce the proposed $4,000.00

penalty to $3,000.00. A penalty of $3,000.00 is assessed by the Court for this item.44

41
Daisy was cited in June 2007 for violating the same standard. (Tr. 126; CX-1, p.5)
42
See Revoli Constr. Co., Inc., 23 BNA OSHC 1697 (No. 10-0699, 2011) (finding that violation of §
1926.21(b)(2) established where record failed to demonstrate specific employee training in the recognition
and avoidance of unsafe conditions).
43
This conclusion is supported by the fact that Daisy was previously cited for violating 29 C.F.R. §
1926.21(b)(2) in 2007, which was before Mr. Drake began working for Daisy. (Tr. 65, 126; GX-3, p. 1).
44
See Ho, 20 BNA OSHC at 1379. The penalty reduction results from the Court being mindful that the
record includes a sign-in sheet reflecting Mr. Moore’s signature at a safety meeting on “Trenching Safety”
conducted by Mr. Stepp on April 2, 2010. (RX-D, at p. 4). This sheet, by itself, is insufficient to show that
Mr. Moore was adequately trained in the hazards of working in and around trenches; especially in light of
his testimony to the contrary.
 Findings of Fact and Conclusions of Law

   The foregoing decision constitutes the findings of fact and conclusions of

law in accordance with Federal Rule of Civil Procedure 52(a).

                                  ORDER

   1. Item 1 of Serious Citation 1, alleging a violation of 29 C.F.R. §

1926.21(b)(2), is AFFIRMED, and a penalty of $3,000.00 is assessed.

   2. Items 1a and 1b of Willful Citation 2, alleging violations of 29 C.F.R. §§

1926.652(a)(1) and 1926.651(k)(2), respectively, are AFFIRMED, and a penalty of

$56,000.00 is assessed.

                                         __/s/___________________________
                                           The Honorable Dennis L. Phillips
                                                 U.S. OSHRC Judge

Date: January 13, 2012
Washington, D.C.