Ed Taylor Construction Co.

Plain-English summary

Taylor Construction employees entered a 24-foot-deep access shaft to close a valve for an artificial lake at an Atlanta office project. Three supervisory employees died after being overcome by an oxygen-deficient atmosphere during the initial entry and rescue attempts. Two related citation items had already been affirmed by the Eleventh Circuit. On remand, the Commission considered whether Taylor's safety program used competent people for worksite inspections. Although Taylor had a generally extensive safety program, its designated inspectors were not capable of identifying the existing and predictable confined-space hazard at this site. The Commission affirmed the remaining serious violation and increased its penalty from $200 to $500.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. §§ 1926.20(b)(1), 1926.20(b)(2), and 1926.21(b)(6)(i)
• Outcome: Serious inspection-program violation affirmed with a $500 penalty.
• Key point: A safety program does not satisfy the competent-person requirement when its inspectors cannot identify a predictable hazard present at the specific worksite.

Full text (OSHRC public release)

Docket No. 88-2463

SECRETARY OF LABOR,

Complainant.

v.

ED TAYLOR CONSTRUCTION CO.,

Respondent.

OSHRC Docket No. 88-2463

DECISION

Before: FOULKE, Chairman; WISEMAN and MONTOYA,
Commissioners.

BY THE COMMISSION:

This case has been before the Commission previously
following a remand by the United States Court of Appeals for the Eleventh Circuit.[[1]] In
its decision, the Eleventh Circuit affirmed two of the three citation items at issue
before it, but remanded the case for further proceedings with respect to the third. That
item (citation no. 1, item 2) alleges a serious violation of 29 C.F.R. � 1926.20(b)(1) in
that the Respondent, Ed Taylor Construction Company ("Taylor"), "did not
enforce and maintain a safety program which provided for frequent and regular inspections
of jobsites, materials and equipment [with such inspections to be] made by a competent
person . . " For the reasons stated herein, we conclude that Commission
Administrative Law Judge ("ALJ") Paul L. Brady did not err in finding and
concluding that Taylor failed to comply with the terms of the cited standard. We therefore
uphold his decision to affirm the contested citation item. However, we modify his assessed
penalty of $200 and assess a more appropriate penalty of $500 for this serious violation.

Factual Background

The citation at issue resulted from OSHA's
investigation of multiple fatalities at the Central Park office complex construction
project in Atlanta, Georgia. This project involved the erection of a 20-story office
building and a multi-level parking garage. Taylor is a general contractor that normally
limits its operations to the erecting of commercial structures, such as multi-story
buildings. On this project, however, another general contractor had been given the
contract for constructing the office building and parking garage. Taylor's separate
contract with the owner was a "hardscape" contract. Thus, it was responsible for
the concrete landscaping work on the project, including most notably the construction of a
large artificial lake or pond at the. bottom of the hill on which the of office complex
was being built.

Because Taylor had no prior experience under a
"hardscape" contract, it did almost all of its work on this project through
subcontractors, keeping only a skeletal staff of approximately three of its own employees
at the site. One of Taylor's subcontracts was with J & R Excavation, Inc., which had
responsibility for constructing a "special purpose access shaft" or
"manhole." The sole purpose of this shaft was to provide access to a valve at
the bottom of the shaft. This valve was connected to a pipe that linked the artificial,
concrete-lined lake to a storm drainage system. When the valve was opened, it allowed the
lake to be drained so that the lake could be cleaned or repaired. Closing the valve made
it possible to fill the lake.

The access shaft that J & R built was 24 feet
deep and 4 feet in diameter. It had a single opening at the top that was 24 inches in
diameter, but a manhole cover was placed over that opening, thereby creating a complete
enclosure. Inside, the shaft was gravel-based, concrete-lined, and empty, except for the
valve at the bottom and an "access ladder"' (apparently rungs attached to the
concrete wall) leading down to the valve. Because the shaft was not connected to a sewer
or otherwise expected to contain liquids, the witnesses at the hearing consistently
characterized it as a "dry shaft" as opposed to a "sanitary manhole. [[2]]

On this record, it appears likely that Taylor
employees only entered the manhole on two occasions. The manhole was constructed by J
& R in January 1988. Since Taylor was responsible for overseeing this work, project
manager Giannini was probably correct in speculating (in a written witness statement given
to OSHA) that project superintendent Garren had entered the manhole in January to assure
himself that it was being (or had been) constructed in accordance with the contractual
specifications.[[3]] Thereafter, it seems likely that the manhole remained closed from the
time it was completed in January until Garren and two other Taylor employees entered it on
August 19, 1988 There is no evidence in this record to suggest otherwise.

In the interim between these two entries, the work of
Taylor and its subcontractors under the "hardscape" contract was basically
completed in March or April, when the contractors finished backfilling around the manhole.
Taylor therefore removed its regular work crew from the project site. However, at that
time, it was not possible for Taylor or anyone else to fill the lake, because the county
had imposed significant water use restrictions in response to a drought. These
restrictions were lifted in August 1988.

Upon being notified of this fact, Taylor put together
a special work crew, consisting of three of its own supervisory employees and two
temporary "day laborers," which returned to the Central Park worksite in early
or mid-August to finish the remaining work on the project. Specifically, the crew was
instructed to examine, clean, and repair "a rather huge black liner" that
covered the bottom of the lake. It was then expected to take the steps necessary to fill
the lake with water, including descending to the bottom of the manhole shaft to close the
drain valve and turning on a pump to activate the flow of the water.

While there is no eyewitness account in this record
of the events leading up to the worksite fatalities, it seems clear from the evidence that
was introduced that the accident occurred when assistant project superintendent Geeslin
was sent into the manhole to close the valve, so that the lake could be filled. Geeslin's
autopsy report strongly suggests that, while he was descending into the manhole, he lost
consciousness due to a lack of oxygen; fell from the access ladder; and, as a result,
suffered a broken neck. According to their autopsy reports, the other two deceased
employees, project superintendent Garren and labor foreman Bohler, were then similarly
overcome when they attempted to rescue Geeslin.

Subsequently, the medical examiner determined that
all three of these employees had died as a result of their exposure to an oxygen-deficient
atmosphere ( i.e. , "asphyxiation" caused by a "vitiated"
atmosphere). For the first two employees into the shaft, the examiner also listed a second
cause of death--"immersion in water." Thus, the autopsy reports demonstrate
that, at the time of the fatalities, there was an undetermined amount of mud and water at
the bottom of the shaft. We might assume that these conditions played some role in the
development of the oxygen-deficient atmosphere inside the manhole. However, this would
only be speculation on our part. Neither party made any effort to establish how the water
and mud got into this "dry shaft" or how the oxygen-deficient atmosphere was
created.

The Law of the Case

As a result of its investigation of this accident,
OSHA issued, and Taylor later contested, a citation alleging three serious violations of
the Act, each based on the circumstances surrounding the accident. OSHA further proposed
penalties of $1000 for each of these alleged violations. As indicated at the outset of
this decision, two of these citation items are no longer before us because they have been
affirmed by the United States Court of Appeals for the Eleventh Circuit. Ed Taylor
Constr. Co. v. OSHRC, 938 F.2d 1265, 1272 (11th Cir. 1991). That decision also
resolved several of the factual and legal issues that had previously been in dispute
between the parties, and the court's resolution of those issues is now binding on us as
"the law of the case." See, e.g., American Cyanamid Co. , 9 BNA
OSHC 2052,1981 CCH OSHD � 25,504 (No. 77-3752,1981); Stewart-Warner Corp . ( I.B.E.W.,
Local 1031 ), 8 BNA OSHC 1316,1980 CCH OSHD � 24,472 (No. 78-5910-E, 1980) (lead and
concurring opinions).

Citation no. 1, item 3, alleged a violation of 29
C.F.R. � 1926.21(b)(6)(i) in that employees at the Central Park worksite were required to
enter into a "confined space," as defined in � 1926.21(b)(6)(ii), even though
they had not been instructed as to the hazards involved in confined space entry, the
necessary precautions to be taken, and the use of personal protective and emergency rescue
equipment.[[4]] As noted by the Eleventh Circuit, Taylor did not contest the allegation
that it had failed to provide such instructions. 938 F.2d at 1268. That factual issue is
therefore settled in these proceedings. In addition, the court's affirmance of this item
constitutes a binding legal conclusion that the manhole in question was a "confined
space" as defined by the Secretary, see supra note 4, i.e. , it was
a "space having a limited means of egress, which [was] subject to the accumulation of
toxic or flammable contaminants or [which had] an oxygen deficient atmosphere."

More specifically, in affirming this citation item,
the court reasoned as follows: (a) the manhole at issue was a "confined space"
because it was an "open top space more than 4 feet in depth" and such spaces are
expressly included within the standard's coverage; (b) because the manhole fell within
this category, the standard itself establishes that it was subject to the accumulation of
toxic contaminants or the creation of an oxygen-deficient atmosphere; and, implicitly, (c)
independent proof of this fact by the Secretary was therefore not necessary. 938 F.2d at
1272. Based on this reasoning, the court rejected Taylor's principal defense to this
citation item, i.e. , its claim that "the manhole was not a 'confined space'
because experienced contractors in the Atlanta area did not recognize such a manhole as a
space subject to the accumulation of toxic contaminants or having an oxygen-deficient
atmosphere." Id . In essence, the court held that, because of the express
terms of the standard, it was "irrelevant" whether employers in Taylor's
industry would have recognized that this particular manhole was one that was subject to
the creation of a toxic, flammable, or oxygen-deficient atmosphere.

In affirming the second of the three citation items
before it, the court employed similar reasoning. Citation no. 1, item 1, alleged a
violation of section 5(a)(1) of the Act, 29 U.S.C. � 654(a)(1), in that Taylor failed to
adopt and implement a "confined space entry procedure" before its employees
entered the manhole on August 19, 1988.[[5]] Specifically, the Secretary charged that
Taylor did not test the atmosphere (for air contaminants and oxygen deficiency) before
permitting its employees to enter the manhole, did not have emergency rescue equipment
available, and did not provide mechanical ventilation. Again, the Eleventh Circuit
correctly noted that Taylor did not challenge the Secretary's factual claims, and these
factual matters are therefore settled. 938 F.2d at 1268. In addition, the court's
affirmance of this citation item constitutes a binding legal conclusion that the confined
space entry hazard created by the employees' entry into the shaft was a "recognized
hazard" within the meaning of section 5(a)(1).

In defending against this charge, Taylor had sought
to prove that the hazard at issue was not "recognized" by its industry. It
defined its industry as those employers that are engaged in commercial construction but
not utility work. It then elicited considerable testimony at the hearing to the effect
that non-utility construction employers do not "recognize" the hazard created by
"dry shaft" manholes. See id . The court, however, held in essence that
it could give no weight to this testimony because of the Secretary's adoption of the
confined space entry hazard standard cited in item 3 and discussed above. See supra
note 4. In the court's view, this standard gave the entire construction industry
constructive notice "that any manhole, 'sanitary' or 'dry,' that is twenty-four feet
in depth and four feet in diameter is a potential hazard." Id . at 1272.
Therefore, it reasoned, whether employers in Taylor's industry actually recognized the
hazard is "irrelevant" since the constructive knowledge provided by the standard
rendered the hazard "recognized" as a matter of law. Id .

The third contested citation item at issue before the
court was the alleged violation of 29 C.F.R. � 1926.20(b)(1) that is now before us on
review. The cited standard and its companion, which is incorporated by reference, provide
as follows:

� 1926.20 General safety and health
provisions.

(b) Accident prevention responsibilities .
(1) It shall be the responsibility of the employer to initiate and maintain such programs
as may be necessary to comply with this part.

(2) Such programs shall provide for frequent and
regular inspections of the job sites, materials, and equipment to be made by competent
persons designated by the employers.

The key term "competent persons" is
defined, at 29 C.F.R. � 1926.32(f), as follows:

(f) Competent person means 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.

At the hearing, the OSHA compliance officer explained
the basis of this allegation (citation no. 1, item 2), as follows:

The employer didn't have frequent and regular
inspections which would have pointed out to them during the course of their inspections
that they were going to have to enter a 24 vertical foot manhole that had been closed up,
according to Mr. Giannini, since January. . . and held the possibility of having an oxygen
deficient atmosphere or other problems.

. . . .

[A "competent person" within the meaning of
the cited standard] who looked at [the] 24 vertical foot manhole with a 2 foot wide
opening at the top that has been closed 8 months, as I was told it was closed, from
January to mid-August, would have reason to believe that there definitely could be oxygen
deficiency .... [That person would have tested the atmosphere]. They would have [thereby]
determined that there was an oxygen deficiency and I assume that they would have taken
some corrective measures.

. . . .

[W]ith regard to the manhole, they knew at least the
day before that they would be entering, the day of the accident would be the last day on
the job site. The frequent and regular inspection should have at least pointed out at that
time that they were going to enter into the 24 foot manhole and that precautions would
need to be taken.

In fact, as the witness suggested, it is undisputed
on this record that Taylor knew, prior to August 19, 1988, that it would have to send an
employee into the manhole to close the valve so that the lake could be filled. Both
company president O'Neill and project manager Giannini acknowledged at the hearing that
they were personally aware of this necessity prior to the fatal accident.

In his decision in this case, Commission Judge Brady
affirmed all three of the citation items that have been described above. In its decision,
the Eleventh Circuit formulated Judge Brady's holding with respect to this remaining
citation item--citation no. 1, item 2--as follows: "The ALJ found that while Taylor
provided for regular inspections of the Central Park site, the persons conducting the
inspections were not 'competent'." As discussed more fully in our Order on Remand of
October 18, 1991, the court set aside Judge Brady's finding and remanded the case to us
for further proceedings with respect to item 2.

Strictly speaking, the court's mandate to us was
limited to a requirement that we give "consideration" to Taylor's
previously-filed petition for discretionary review (PDR) as it related to item 2. This we
did prior to issuing our Order on Remand, as we noted in the order itself. Nevertheless,
in our review of this case, we have also given considerable weight to the guidance
provided by the court in its discussion of the merits of this citation item.

As the following passage indicates, the Eleventh
Circuit clearly viewed the central unresolved issue with respect to item 2 to be a factual
(or evidentiary) issue rather than a legal issue:

At the hearing, OSHA presented uncontested testimony
that none of the inspections identified the manhole in question as a potential hazard.
That, however, was the only evidence that inspectors were incompetent. There was some
evidence that the inspectors were well trained and fully competent.

While the Secretary certainly presented sufficient
evidence to permit the Review Commission to find that the inspectors were not
"competent" within the meaning of the regulations, we could not so find as a
matter of law ....

938 F.2d at 1271. Consistent with the court's view,
we have fully examined the entire record, including the evidence identified by the court,
to determine whether Judge Brady's key finding--that the inspectors who conducted Taylor's
worksite inspections were not " competent"--is supported by the preponderance of
the evidence. See id . at 1270 (distinguishing between Commission and appellate
court review of factual findings). For the reasons stated herein, we conclude that the
record does support the judge's finding, and we therefore reinstate that finding.[[6]]

The Competence of Taylor's
Inspectors

In resolving this issue, our starting point must be
the Secretary's definition of "competent person," which we have quoted above. In
pertinent part, � 1926.32(f) provides that a "competent" person is one
"who is capable of identifying existing and predictable hazards in the surroundings
or working conditions." Here, there can be no doubt that there was an "existing
... hazard" at Taylor's workplace within the meaning of this definition. The Eleventh
Circuit's decision establishes, as the law of the case, that Taylor's three employees were
exposed to a confined space entry hazard when they entered the special purpose access
shaft at the Central Park office complex project, initially for the purpose of closing the
valve at the bottom of the shaft.

The question therefore becomes whether that hazard
was "predictable." Again, the Eleventh Circuit's decision clearly points to the
proper resolution of this issue. As indicated, the court expressly held that the hazard in
question was a "recognized hazard" within the meaning of section 5(a)(1) of the
Act. It also concluded that the entire construction industry, and not just
utility contractors, had been given constructive notice of this hazard by the Secretary's
adoption of 29 C.F.R. � 1926.21(b)(6), the standard that requires construction
contractors to train their employees in the recognition and avoidance of such confined
space entry hazards. See supra note 4. However, the court stopped short of
finding that the hazard was predictable.

We must determine whether the hazard was predictable
based on the evidentiary record. As indicated previously, both the company president and
the project manager conceded at the hearing that they were personally aware, prior to
August 19, 1988, that it would eventually be necessary to send a work crew back to the
construction site to fill the lake and that, as part of this process, a Taylor employee
would have to enter the manhole to shut the valve. In addition, project manager Giannini
at least was aware that the manhole had not been opened since completion of the concrete
structure in January. Given this evidence, and combining it with the constructive notice
provided by the OSHA standards, we have no difficulty in finding and concluding that the
hazard created by the employees' entry into the 24-foot-deep manhole was
"predictable." As the compliance officer stated, in her unrebutted opinion
testimony, a "competent person" within the meaning of the cited standard
"who looked at [the] 24 vertical foot manhole with a 2 foot wide opening at the top
that has been closed ... from January to mid-August, would have reason to believe that
there definitely could be oxygen deficiency."

Turning again to the language of � 1926.32(f), we
must now determine whether the persons responsible for conducting Taylor's workplace
inspections at the Central Park construction project site--company president O'Neill, vice
president and safety director Fleitz, project manager Giannini, and project superintendent
Garren--were "capable of identifying" this "existing and predictable"
confined space entry hazard. As the Secretary correctly points out in her review brief,
the testimony of Taylor's own witnesses clearly establishes that they were not. Cf.
Capform, Inc., 13 BNA OSHC 2219, 2221-22, 1987-90 CCH OSHD � 28,503, p. 37,776 (No.
84-556, 1989), aff'd without published opinion , 901 F.2d 1112 (5th Cir. 1990)
("Capform itself appears convinced that [its jobsite superintendent] Pelletier was
not a 'competent person' [since it] relies on Pelletier's testimony that he had never had
responsibility for inspecting the condition of soil in excavations and argues that
Pelletier 'lacks . . . expertise in soils-related areas'.") (ellipsis in original).

In particular, we rely upon the following testimony
as support for our finding that Taylor's workplace inspectors were not "capable of
identifying" the confined space entry hazard presented by the special purpose access
shaft. Company president O'Neill testified that Taylor had had no prior experience with
entering manholes like the one at issue in this case. He further testified that, to the
best of his knowledge, no employee of Taylor had been aware prior to August 19 that the
manhole at the Central Park worksite presented an asphyxiation hazard or any other safety
problem. More specifically, he asserted, nobody in the company had been aware of the
presence of an oxygen-deficient atmosphere in the manhole or was knowledgeable generally
about confined spaces.

Concerning his own personal knowledge, O'Neill
claimed that he had been unaware prior to August 19 that OSHA considered "dry
shaft" manholes to be confined spaces and that OSHA required atmospheric testing and
protective equipment when employees entered such shafts. He further stated that he had not
even been aware that an oxygen deficiency could be discovered in a manhole by using an
instrument to conduct atmospheric testing. The company president acknowledged his
awareness of the hazard of methane gas in sewers, but stated that he had had no such
concern about the dry shaft at issue here. He testified that he had not noticed anything
during his workplace inspections that gave him cause for concern about the manhole, but he
also admitted that he had probably not even looked at the shaft since "we were
totally unaware of the confined space issue."

Project manager Giannini's testimony about his level
of awareness prior to the accident is similar. He admitted that, during the course of his
experience, he had become aware of the hazards associated with sanitary sewer manholes.
Thus, he was aware of the possibility of air contamination or reduced oxygen levels in some
manholes. However, he strongly denied that he had had any awareness, prior to August 19,
that there was a possibility that air contaminants could accumulate in the Central Park
manhole or that that particular manhole otherwise posed a hazard to employees. [[7]]

The testimony outlined above compels the conclusion
that the employees designated by Taylor as its workplace safety inspectors on the Central
Park project were not "capable of identifying" the confined space entry hazard
presented by the special purpose access shaft.[[8]] We therefore find that those employees
were not "competent persons" within the meaning of � 1926.20(b)(2).

In so finding, we expressly reject Taylor's arguments
on review. Taylor first contends that the Secretary's evidentiary showing in this case is
inadequate to sustain her burden of proving a violation of the cited standard under
"clear Commission precedent." In support of this claim, the employer cites and
discusses six unreviewed administrative law judge decisions that, taken as a whole, stand
for the following propositions: (a) the Secretary bears the burden of proving an alleged
violation of section 1926.20(b) (1) & (2); (b) because these standards are directed to
the soundness of an employer's safety program and/or its inspection program, the Secretary
must prove a deficiency or defect in the employer's safety or inspection program in order
to establish a violation; and (c) the Secretary's burden is not met merely by showing the
occurrence of an accident or the existence of hazardous conditions at a worksite because
even the best safety program cannot insure against such events.

While we do not disagree with any of these basic
principles, see R & R BuiIders, Inc ., 15 BNA OSHC 1383, 1991 CCH OSHD �
29,531 (No. 89-282, 1991), we reject Taylor's argument in this case for two reasons.
First, it is well settled that, contrary to Taylor's assertion, the cases it has cited do
not constitute precedent binding on the Commission, because they are all unreviewed
judge's decisions. E.g., Mosser Constr. Co , 15 BNA OSHC 1408, 1411 n.3, 1992 CCH
OSHD � 29,546, p. 39,902 n.3 (No. 89-1027, 1991). More importantly, the cases cited by
Taylor are all distinguishable from the case that is now on review.

As the Secretary correctly points out in her review
brief, the fatal flaw in Taylor's reasoning is the employer's claim that the alleged
violation at issue here is based solely "on the existence of the substantive
violations involving the manhole [ i.e. , the two violations already affirmed by
the court] and the accident itself":

[S]eparate and apart from evidence that the manhole
was not inspected and that an accident occurred, there is ample record evidence that
respondent's supervisory personnel who conducted the inspections did not know that dry
manholes could be dangerous. Indeed, it was Taylor's defense that neither it nor other
contractors knew about the hazard. It is this admitted lack of knowledge on the part of
respondent's inspectors which proves that the inspectors were not "competent
persons" within the meaning of the standard.

We fully agree.

Also without merit is Taylor's contention that the
citation item must be vacated because the evidence it introduced in its defense
establishes that it had adopted and implemented a workplace inspection program prior to
the accident, as required under the cited standard, while "the ALJ's finding [of
noncompliance] is based solely on the fact that Taylor's acknowledged comprehensive safety
program did not address one particular hazard." There is indeed some basis for this
claim. Thus, it is undisputed on this record that, as a general matter, Taylor had already
adopted and implemented an adequate safety program prior to August 19, 1988, including a
program of regular and frequent workplace inspections. Accordingly, we must emphasize that
our holding in this case should not be construed as a wholesale condemnation of Taylor's
safety program or as a broad ruling on the overall competency of Taylor's safety
inspectors. [[9]] Instead, this case was tried, and it has been decided, on a far narrower
theory.

In summarizing her arguments on review, the Secretary
alleged that "Taylor violated 29 C.F.R. 1926.20(b)(1) because its inspection program
as well as the competence of its inspectors did not extend to the hazard of asphyxiation
in dry manholes, which was responsible for the deaths of three of respondent's
employees." We have agreed with this argument as it relates to the competence of the
safety inspectors. Under the clear terms of section 1926.32(f), the fact that Taylor's
workplace safety inspectors were not "capable of identifying" an "existing
and predictable" hazard at the Central Park worksite requires us to find that they
were not "competent persons" within the meaning of section 1926.20(b)(2). The
fact that they may have been well qualified to identify other safety hazards at that
workplace, or at other workplaces, does not preclude us from entering this finding. On the
contrary, applying the Secretary's standards as she has written them to the facts of this
case neither requires us nor permits us to make a general assessment of the qualifications
of Taylor's employees (in terms of their training and experience) to be safety inspectors.
We accordingly have made no effort to perform such an evaluation.

For the reasons stated, the judge's finding that
Taylor failed to comply with the competency requirement of section 1926.20(b)(2), as
incorporated into the cited standard, section 1926.20(b)(1), is affirmed.

Penalty Assessment

The Secretary proposed a penalty of $1000 for the
alleged serious violation of 29 C.F.R. � 1926.20(b)(1). Although he did not state any
basis for his determination, other than a general reference to the statutory criteria for
penalty assessment, [[10]] Judge Brady assessed a penalty of only $200. We conclude,
however, that that amount is inadequate in view of the gravity of the violation and the
employer's lack of good faith, and we therefore assess a penalty of $500. The gravity of
this serious violation, see section 17(k) of the Act, 29 U.S.C. � 666(k), is clear. As
the compliance officer credibly testified, if Taylor had provided a "competent
person" to inspect the Central Park office complex worksite, that inspector in all
likelihood would have foreseen that an employee was eventually going to be exposed to a
confined space entry hazard and would have taken the necessary precautions, including
atmospheric testing and the providing of personal protective and emergency rescue
equipment, to insure that an injury did not occur when the employee entered the manhole.
Three wholly preventable workplace fatalities would thereby have been avoided. As for the
statutory "good faith" factor, we must balance the commendable measures Taylor
has taken to establish a company-wide safety program, including a program of regular and
frequent workplace inspections, with the clearly inadequate measures taken to implement
that program at the Central Park worksite. On balance, we conclude that this statutory
criterion  weighs against Taylor. The employer's efforts to insure the safety of its
employees at this particular worksite were clearly deficient.

Order

Accordingly, we affirm citation no. 1, Item 2. We
assess a penalty of $500 for this serious violation of the Act.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: June 18, 1992

FOOTNOTES:

[[1]] See Commission's order on Remand (Oct.
18,1991).

[[2]] The repeated references in the autopsy reports
of the deceased employees to "sewers" and "sewer shafts" must be
viewed, in light of the record as a whole, as factual errors. The clear preponderance of
the evidence establishes that this manhole was not a sewer shaft or in any way connected
to a sewer.

[[3]] Both Giannini and Garren were long-time
employees of Taylor. Project superintendent Garren was one of the three employees who died
in the accident at issue. He had been the highest-level supervisory employee at the
worksite on a full-time basis, with authority over all of Taylor's employees and
subcontractors. He had also been the Taylor employee who bore primary responsibility for
onsite project safety at the Central Park worksite. These duties included monitoring job
safety on a daily basis. Project manager Giannini, who also had been assigned safety
responsibilities on this project, was Garren's supervisor. Giannini's duties, however,
were not restricted to this one project, and his contact with the site was therefore
limited to occasional visits, "usually a couple of times a week."

[[4]] The cited standard and its critical definition
section provide, as follows:

� 1926.21 Safety training and education.

.......

(b) Employer responsibility--

......

(6)(i) All employees required to enter into confined
or enclosed spaces shall be instructed as to the nature of the hazards involved, the
necessary precautions to be taken, and in the use of protective and emergency equipment
required....

(ii) For purposes of paragraph (b)(6)(i) of this
section, "confined or enclosed space" means any space having a limited means of
egress, which is subject to the accumulation of toxic or flammable contaminants or has an
oxygen deficient atmosphere. Confined or enclosed spaces include , but are not
limited to, storage tanks, process vessels, bins, boilers, ventilation or exhaust ducts,
sewers, underground utility vaults, tunnels, pipelines, and open top spaces more than
4 feet in depth such as pits, tubs, vaults, and vessels.

(Emphasis added).

[[5]] Section 5(a)(1), the Act's "general duty
clause," requires each employer to "furnish to each of his employees employment
and a place of employment which are free from recognized hazards that are causing or are
likely to cause death or serious physical harm to his employees."

[[6]] In her review brief, the Secretary correctly
argues that � 1926.20(b)(2), the standard that is incorporated by reference into the
cited standard, � 1926.20(b)(1), has "[t]wo basic aspects":

First, the standard prescribes what must be
done, i.e ., "frequent and regular inspections of job sites, materials, and
equipment." Second, the standard prescribes who is to do it, i.e. ,
"competent persons."

(Emphasis in the original). Taylor, she argues, has
not complied with either of then requirements.

Our conclusion, infra , that Taylor violated
the "who" requirement of � 1926.20(b)(2) fully supports our affirmance of the
citation item at issue. Accordingly, we need not reach the Secretary's alternative
argument that Taylor also violated the standard's "what" requirement.

[[7]] In view of this unrebutted testimony, we agree
with Taylor's argument on review that Judge Brady erred in finding that Giannini was
"aware of the possibility of air contaminants and reduced oxygen in the manhole "
(emphasis added). That finding is hereby set aside.

[[8]] The fact that the three deceased employees were
all supervisors--indeed, as indicated supra note 3, Garren was the management
representative who had primary responsibility for safety at this worksite--provides
further support for our conclusion. That these three employees all entered the shaft
without taking any precautions whatsoever is strong circumstantial evidence that they were
not "capable of identifying" the hazard to which they were exposing themselves.

[[9]] During the hearing, Taylor attempted to
introduce into evidence several documents that had been identified as safety-related
materials distributed by the company to its project superintendents. The judge rejected
those documents as exhibits. Nevertheless, after reviewing them, he noted for the record
that Taylor had "an extensive safety program." Based on our review of the
evidence, we agree with this assessment.

[[10]] Section 17(j) of the Act, 29 U.S.C. � 666(j),
provides that "[t]he Commission shall have authority to assess all civil penalties
provided in this section, giving due consideration to the appropriateness of the penalty
with respect to the size of the business of the employer being charged, the gravity of the
violation, the good faith of the employer, and the history of previous violations."