Western Plains Construction (ALJ decision, March 24, 1993)

Plain-English summary

Western Plains Construction was installing storm sewer pipe in a trench in Tulsa, Oklahoma. OSHA found the south end of the trench about 9 feet 6 inches deep with vertical, unprotected walls. The company argued that the condition resulted from unpreventable misconduct by its superintendent, but the judge found that it had not shown adequately communicated and enforced trench-safety rules. The judge also found employee exposure because workers entered the trench to place pipe. The serious violation was affirmed with a $500 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1)
• Outcome: Serious cave-in protection violation affirmed with a $500 penalty
• Key point: Disciplining a supervisor after an inspection did not establish unpreventable misconduct without proof of effective work rules and enforcement before the violation.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006- 1246

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 91-2258
WESTERN PLAINS CONSTRUCTION
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on February 22, 1993. The decision of the Judge will become a final order of the Commission on March 24, 1993 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW. Any such petition should be received by the Executive Secretary on or before . March 15, 1993 in order to ermit sufficient time for its review. See Commission Rule 91, 29 C. P .R. 2200.91.
All further pleadings or communications
regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210

If a Direction for Review is issued bv the Commission, then the Counsel for
Regional Trial Litigation will represent the Depa rtment of Labor. hY Party
having qu.estions about revi ew rights may contact the Co mmission’ s Exe cutive Secretary or call (202) 6% 7950.
FOR THE COMMISSION

Date: February 22, 1993
Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 91-2258

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOK,
Room S4OO4
200 Constitution Ave., N.W.
Washington, D.C. 202 10

James E. White, Esq.
Re ional Solicitor
Of&e of the Solicitor U S DOL
525 Griffin Square Blhg.,‘Suite 501
Griffin & Youn Streets
Dallas, TX 752 f 2

John C. Harrington, Jr., Esq.
P.O. Box 54931
Oklahoma City, OK 73154

Stanley M. Schwartz
Administrative Law Jud e
Occupational Safety an B Health
Review Commissron
Federal Building, Room 7B11
1100 Commerce Street
Dallas, TX 75242 0791

00107498552 : 06
 UNITED STATES OF AMERICA
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1
OCCUPATIGNAL SAFETY AND HE4LTH REVIEW COMMISSION
,/
ROOM 7811, FEDERAL BUtDING
1100 cO!W!ERCE
DALLAS, TEXAS 75242-0791

FAX
PHONE.
COM (2’4) -6;’ 53’:
COM 314) 76'-5271
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..

SECRETARY l

OF LABOR,
.

.

.

..
Complainant,
..
.
V. . OSHRC DOCKET NO. 91032%
.
.

 WESTERN                PLAINS CONSTRUCTION,                            :

..
Respondent.
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APPEARANCES:

Janice L. Holmes, Esquire
John C. Harrington, Jr., Esquire
Dallas, Texas
Oklahoma City, Oklahoma
For the Complainant.
For the Respondent.

 Before:             Administrative      Law Judge Stanley M. Schwartz

DECISION AND ORDER

                This is a proceeding          brought    before      the Occupational       Safety   and Health     Review
 Commission               (“the Commission”)         pursuant       to section     10 of the Occupational      Safety ;~d

Health Act of 1970, 29 U.S.C. 5 651 et seq. (“the Act”).
On June 10, 1991, the Occupational Safety and Health Administration (“OSHX)

  inspected           an excavation      site at the intersection      of 51st and South Yale in Tulsa, Oklahom;l.

  where employees               of Respondent      were engaged         in installing   storm sewer piping; as a result,

  a citation          alleging a serious violation      of 29 C.F.R. 5 1926.652(a)( 1) was issued.            Respondent

  contested            the citation,   and a hexing      ws     held on January         17, 1992.

Background

      The     record     shows    the job at the site involved             digging    a trench        with a backhoe,

removing the 3 to 4-foot-deep abandoned gas piping, and installing Tfoot joints of storm

sewer piping. The backhoe picked up each joint of pipe, which was lowered into the trench by a cable and guided into place; the cable was then disconnected and the backhoe used to push the pipe into the previously-laid joint. An OSHA compliance officer (“CO”) went to the site pursuant to a referral received the morning of June 10.’ The CO arrived at the site

around midday and observed it from about 50 yards away across Yale for approximately thirty minutes; he saw an employee in a red T-shirt enter the south end of the trench, and another in blue coveralls bend over and hand some equipment to the employee in the trench. The CO took C-l and C-2, photos of these events.
It took the CO ten to fifteen minutes to drive across Yale to the site because traffic

was heavy and Yale had been reduced from four to two lanes. The CO met with the job
superintendent and then took photos of the trench and measured it with a 25.foot steel tape

measure. The trench was about 25 feet long and 12 feet across, and the sides were vertical and unprotected, except for the north end which was inclined due to backfilling in that area; the north end was 5 to 7 feet deep, and the south end, the basis of the citation, was 9 feet 6 inches deep. C-3 and C-4 depict the south end, and C-3 shows a ladder in that area.Q C-5
depicts the north end of the trench, and shows employees standing on the incline.
The CO concluded the soil at the site was type B and not type A because it had been
previously disturbed and was subject to vibrations from the nearby gas station and traffic on Yale and from the operation of the backhoe. The CO took a soil sample for analysis from

the west side of the trench
near the south end; he placed the sample in a plastic bag, sealed
the bag at the site, and mailed it to OSHA’s lab in Salt Lake City. C-7, the analysis results,

also classifies the soil as type B.

‘The referral was made by the Wage and Hour Division of the Department of Labor, which had an office near- the excavation, after an employee of that agency visited the site the morning of June 10. Respondent contends the inspection itself was improper. Hou~er, the record establishes the citation was based on the CO’s inspection of the site and met all statuton, and regulatoy requirements. 3

Decision

1926.652(a)( 1) p rovides 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.
Table B-l in Appendix B of the standard sets forth the following maximum allowable

slopes for excavations less than 20 feet deep:

Stable Rock
Vertical (90 degrees)
Type A
3/4: 1 (53 degrees)
Type B
1:l (45 degrees)
Type C
1 l/2: 1 (34 degrees)
Appendix B also provides for a maximum allowable slope of l/2:1 (63 degrees) for
short-term exposure, which applies to excavations in type A soils that are 12 feet or less in

depth and are not open for more than 24 hours. See Appendix B Definitions and Table B-1. There are no short-term exposure provisions for excavations in type B and C soils.
Although Respondent raises a number of issues regarding the propriety of the

analysis performed on the soil at the site, there is no need to reach those issues because the record clearly shows that other than the north end, the trench walls were vertical and did not conform to the standard. Moreover, Respondent itself concedes the trench violated the standard. Walter Weaver, the company vice president and project manager for Oklahoma operations, testified he went to the site on the morning of June 10 after the job

superintendent advised him a Wage and Hour representative was there checking the ace of an employee. Believing the site would be inspected, Weaver instructed the superintendent to slope the walls l/2:1 based on his conclusion the soil was type A and the trench would be

of short duration. He left satisfied the trench would be in compliance; however, when he

returned for the inspection he saw his instructions had not been followed and that the west
wall was vertical. Weaver testified the superintendent was disciplined by demotion to a

backhoe operator, and indicated he would probably not be employed by the company in the

future. (Tr. 58; 63-66; 81).
 4

Respondent’s primary contention is that the violation was the result of unpreventable
employee misconduct. To establish this affirmative defense, Respondent must show it both established and adequately communicated to employees work rules designed to prevent the violation. It must also show it made efforts to detect violations and effectively enforced its
rules when violations were discovered.
See, e.g., pride Oil Well Serv., 15 BNA OSHC 1809,
1816, 1992 CCH OSHD Yl29,807, pp= 40,585.86 (No. 87-692, 1992); Baytown Constr. Co., 1j BNA OSHC 1705, 1710, 1992 CCH OSHD ll 29,741, p. 40,414 (NO. 88-2912, 1992); and

cases cited therein.
Weaver testified he was familiar with the trenching standard, that he had attended

OSHA schools in trenching safety, and that he had conducted training in this regard for
company superintendents and foremen. (Tr. 79; 82-83). However, Respondent presented
no evidence that it had established work rules designed to prevent trenching violations.
Moreover, even assuming append0 that Respondent had such rules, that the superintendent in this case felt free to disobey specific instructions from his superior at a time he believed an OSHA inspection was likely indicates the work rules were not adequately communicated. This conclusion is supported by the Commission precedent set out supra, which held that a

supervisor’s involvement in misconduct is strong evidence of a lax safety program. Pn’nCrOil

Well at 1815 and p. 40,585; Baytowt Constr. at 1710 and p. 40,414. Respondent’s
disciplinary

measures after the fact are commendable, as are Weaver’s knowledge and training in the

trenching regulations. These factors will be considered for penalty purposes. Nevertheless, I

on the basis of the record and Commission precedent, Respondent has not met its burden

of showing unpreventable employee misconduct.
Respondent next contends there was no employee exposure to the unsloped trench.
However, Commission precedent is well settled that the Secretary need only show that “employees either while in the course of their assigned working duties, their personal

comfort activities while on the job, or their normal means of ingress-egress
to their assimed
2
workplaces, will be, are, or have been in a zone of danger.” Gilles & Cottirzg, hc., 3 BNA OSHC 2002,2003,1976 CCH OSHD ll 20,448, p. 24,425 (No. 504, 1976). Such proof is met here, and Weaver himself admitted that employees would have been in the trench when

placing pipe. (Tr. 69-70). Accordingly, employee exposure to the hazard is established. 5

    Respondent’s            final contention       is that       the violation cannot be classified as serious

because the possibility of death or serious injury was remote. Commission precedent is well

settled that the issue in determining whether a violation is serious is not whether an accident

is likely to occur, but rather, if an accident should occur, whether the result would likely be death or serious injury. Vance Corrstr., Inc., 11 BNA OSHC 1058, 1061, 1983-84 CCH

OSHD II 26,372, p. 33,454 (No. 79-4945, 1982). It is apparent from the evidence that had the walls of this particular trench caved in when employees were in it, the result would likely
have been death or serious injury. The violation is therefore properly characterized as

serious; however, Respondent’s contention does go to the gravity of the condition and will be considered in assessing an appropriate penalty.
The record shows the south end of the trench was 9 feet 6 inches deep, that the walls
in that area were vertical, that the soil in the trench was previously disturbed and subject to

vibrations, and that there was water in the trench.2 However, there was no conclusive

evidence of how the water got in the trench. Further, the record shows employees were not constantly in the trench and that work in the excavation was completed by the evening of June 11. Finally, there was no evidence of a history of previous violations, and the

undersigned has already noted Weaver’s knowledge and training and the company’s decisive action in regard to the superintendent. On balance, I find that the gravity of the condition was low to moderate, and that, giving due consideration to this factor and to the companv’sd

size, history and good faith, a penaltv 4 of $500.00 is appropriate for this citation item.

Conclusions of Law

       1. Respondent,          Western     PLins      Construction,       is engaged         in a business      affecting

commerce and has employees 1)Ithin the meaning of section 3(5) of the Act. The
Commission has jurisdiction of the parties and of the subject matter of the proceeding.
2. Respondent was in serious violation of 29 C.F.R. 5 1926.652(a)(l).

‘Although Weaver and the CO disaertcd strut how far away traffic was, R-l through R-4, Respondent’s own photos, indicate traffic was heavy &d nc’x enough to render the site subject to vibrations; moreover, the operation of the backhoe and the nearby gas srari& contributed to the likelihood of vibrations. 6

Order

On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:
1. Item 1 of serious citation number 1 is AFFIRMED, and a penalty of $500.00 is assessed.

Stanley M. Schwartz
Administrative Law Judge

Date: FEB 12 1393