PDC, Inc.

Plain-English summary

PDC employees installed a gas line in a trench beside a Georgia highway that ranged from four and a half to eight and a half feet deep. The trench had no ladder or other safe means of egress, and workers exited by placing their hands on the ground and jumping from the shallow end. The judge affirmed that item as serious because the trench was in unstable soil near traffic vibrations and employees needed a rapid escape route in case of a cave-in. PDC admitted the trench also lacked required sloping or shoring, but proved that its foreman's conduct departed from a comprehensive, repeatedly communicated, and enforced safety program. The cave-in-protection item was therefore vacated as unpreventable employee misconduct, while the egress item was affirmed with a $675 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.651(c)(2) and 1926.652(a)(1)
• Outcome: The safe-egress item was affirmed for $675; the cave-in-protection item was vacated.
• Key point: A strong safety program may establish unpreventable supervisory misconduct for one violation, but it does not excuse a separate hazardous condition that the employer fails to disprove.

Full text (OSHRC public release)

       -
                                 UNITED    STATES OF AMERICA
           OCCUPATIONAL    SAFETY         AND HEALTH           REVIEW    COMMISSION
                                     1825 K STREET NW
                                         4TH FLOOR
                                WASHINGTON,   DC 20006-l       246


                                                                                       FAX.
                                                                                       CofVl   (202)    634-4008
                                                                                       FTS (202)       634-4008

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET w
NO. 91-3312
PIPELINE DISTRIBUTION CONTRACTORS
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 April 8? 1993. The decision of the Judge
will become a final order of the Commissron on May 10, 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 etition should be received by the Executive Secretary on or before
April 28, P993 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 cp.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew 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 Liti ation
                      Of%lce of the Solicitor, U.S. DOY
                      Room S4004
                      200 Constitution Avenue, N.W.
                      Washington, D.C. 20210

4 If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.

Date: April 8, 1993
DOCKET NO. 91-3312
NOTICE IS GI%N TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH.
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Ms. Bobbye D. Spears
Re ional Solicitor
Ofke of the Solicitor, U.S. DOL
Suite 339
1371 Peachtree Street, N.E.
Atlanta, GA 30309

                    .

Jerold A. Mueller, Esquire
2900 South 166th Street
New Berlin, WI 53151

James D. Burroughs
Administrative Law Jud e
Occupational Safety an if Health
Review Commission
Room 240 *
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

00110112323:04
 UNITEDSTATES OF AMERICA
OCCUPATIONALSAEI-Y AND HEALTH REVIEW COMMISSION
1365PEACHTREESTREET,N-E-, SUITE 240
A-A, GEORGIA 30309-3119

PHONE: FAX:
COM (404) 3474197 COM (404) 347-0113
FTS (404) 347-4197 FTS (404) 347-0113

                                                      ..

SECRETARY OF LABOR, l
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                                                      l




                  Complainant,                        ..
         ,                                             ..
                  v.                                  l
                                                      l      OSHRC Docket No. 91-3312
                                                      0
                                                      .

PDC, INC., .0
.9
Respondent. .
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                                                      .

Appearancezx

       Channah S. Broyde, Esquire                            Jerold A. Mueller, Esquire
       Larry A. Auerbach, Esquire                                 Milwaukee, Wisconsin
           Office of the Solicitor                                      For Respondent
           U. S. Department of Labor
           Atlanta, Georgia
                 For Complainant

Before: Administrative Law Judge James D. Burroughs

                                    DECISION AND ORDER


       PDC, Inc. (PDC), contests a two-item citation alleging serious violations              of the

Occupational Safety and Health Act of 1970 (Act). Item 1 of the citation alleges a violation
of 6 1926.651(c)(2), for failure to provide a ladder or other safe means of egress in a trench
that was more than 4 feet deep. Item 2 alleges a violation of 8 1926.652(a)(l), for failure
to adequately shore or slope a trench in which employees were working. PDC denies that
it failed to provide a safe means of egress from the trench. PDC admits that the trench was
not sloped or shored in compliance with 9 1926.652(a)(l), but contends that the violation
was the result of unpreventable employee misconduct.
PDC works in the underground gas distribution industry (Tr. 109). The company was
installing a gas line along Highway 20 near Cumming, Georgia, on November 20,1991, when
William Harrington, a compliance officer for the Occupational Safety and Health
Administration (OSHA), drove by (Tr. 7-8, 24-25). Harrington could see the hard hats of
two men who were working in the trench (Tr. 8). Harrington stopped and conducted an
inspection of the site. As a result of his inspection, the citation which is the subject of this
proceeding was issued by the Secretary on November 27, 1991.

                       Item 1: Alleged Violation of (j 1926.65lM2~


      The Secretary charged PDC with violating 8 1926.651(c)(2), which provides:
      A stairway, ladder, ramp or other safe means of egress shall be located in
      trench excavations that are 4 feet (1.22 m) or more in depth so as to require
      no more than 25 feet (7.62 m) of lateral travel for employees.
      The trench was 27 feet long and 14 feet wide.         At its shallowest end, the’ trench

measured 4 feet 6 inches deep. At its deepest point, where the employees had been
working, the trench was 8 feet 6 inches deep (Tr. 9). Since the trench was beside the
highway and subject to vibrations, Harrington’s main concern was the possibility that the
walls of the trench would collapse (Tr. 9). There was no ladder in the trench, but there was
one available on the site (Tr. 17).
When Harrington arrived at the site, two employees were working in the trench. He
observed both employees exit the trench. In order to exit, the employees went to the
shallow end of the trench (See Exh. C-2) and placed their hands on the ground above the
trench for support. They then jumped out of the trench (Tr. 40-41). Harrington observed
that there was no incline at the place where they exited. The trench ended in a wall, not
a ramp (Tr. 41).
Clinton Odom, a laborer for PDC, was one of the men that Harrington saw in the
trench. Odom testified that a ladder was not needed in the trench because the employees

                                           2

could “just walk right up the thing” (Tr. 48). Odom stated that he had no trouble exiting
the trench (Tr. 49).
Harrington’s opinion regarding the need for a ladder in the trench is credited above
that of Odom’s. Harrington measured the trench and determined that there was no incline
at the end of the trench where the employees exited. He observed the employees put their
hands on the ground above the trench for support when exiting the trench. The
photographs of the trench introduced at the hearing bear out Harrington’s testimony (Exhs.
C-1 through C-6). The Secretary has established that PDC was in violation of
$ 1926.651(c)(2).
The hazard created by PDC’s failure to have a ladder in the trench is that employees
working in the trench would be unable to exit the trench quickly in the event of a cave-in
(Tr.18). The risk of a cave-in was very real because, as will be discussed C@YZ,the trench,
which was dug in previously disturbed Type C soil, was neither sloped nor shored. The risk
was further exacerbated by the fact that the trench was dug alongside a highway subject to
vibrations caused by the highway’s traffic. Trench cave-ins present a high risk of death to
employees who are unfortunate enough to be in the trench at the time. Serious injuries are
also a common result of cave-ins. PDC’s violation of 0 1926.651(c)(2) was serious.

                     Item 2: Alleged Violation of 8 1926.652(a)(l]


   PDC was charged with violating 8 1926.652(a)(l),            which provides in pertinent part:
   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 . . . .
   The trench was neither sloped nor shored (Tr. 11). The soil in which the trench was

dug had been previously disturbed. Three previously installed pipelines were uncovered in
the course of digging PDC’s trench (Tr. 10,37). Harrington took a soil sample and used it
to conduct a sedimentation test which, in his opinion, established that the soil was Type C,
the most unstable soil classification (Tr. 15, 26, 37). The trench was dug parallel to
Highway 20 where vibrations from the traffic could affect the soil’s stability. Harrington

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observed some loose clods of soil falling into the trench when a truck passed by on the
highway (Tr. 27).
PDC admits that the trench was not shored or sloped and that it should have been
(Tr. 105, 140). PDC contends, however, that the violation of 0 1926.652(a)(l) is the result
of unpreventable employee misconduct on the part of its foreman, Randy Collins.
“In order to establish the affirmative defense of unpreventable employee misconduct,
an employer must show that the action of its employee was a departure from a uniformly
and effectively communicated and enforced work rule.” H. B. Zachy Company, 7 BNA
OSHC 2202,2206,1980 CCH OSHD ll 24,196 (No. 76.1393,198O). In claiming that Collins,
a foreman, was the employee who engaged in the unpreventable misconduct, PDC sets itself
a formidable goal:
Because the behavior of supervisory personnel sets an example at the
workplace, an employer has--if anything--a heightened duty to ensure the
proper conduct of such personnel. Second, the fact that a foreman would feel
free to breach a company safety policy is strong evidence that implementation
of the policy was lax.
Floyd S. pike El&. Contractor,Inc. v. OSAHRC, 576 F.2d 72, 77 (5th Cir. 1978) (quoting
National Realtyand Constr. Co. v. OSAHRC, 489 F.2d 1257, 1268 n. 38 (D.C. Cir. 1973)).
For a number of years, PDC has engaged the services of MRM, Inc., a safety services
contractor (Tr. 81). h4RM helped PDC to develop and implement its safety program and
policy (Tr. 65). The safety program includes yearly eight-hour seminars (Tr. 76). The 1989
safety seminar included a lecture on trench safety given by James Kurth, who is employed
by MRM as a safety manager for PDC (Exh. R-10; Tr. 63,82). Randy Collins attended the
1989 seminar, as evidenced by his signature on the attendance sheet (Exh. R-10; Tr. 78).
Kurth also lectured PDC’s foremen on the changes in the excavation standard on April 21,
1990. Collins attended the lecture (Exh. R-4; Tr. 69). The Excavation Safety Guide, which
was issued to the foremen at the lecture, includes a section entitled “SLOPING AND
SHORING: Competent person’s guide to the proper method for each type of soil (A, B,
or C)” (Exh. R-4). Collins also attended PDC’s 1991 Trench Safety Workshop, which
included instruction in soil classification, sloping and shoring (Exh. R-6; Tr. 73-75). PDC’s
crews attend weekly tool box talks where safety is discussed (Exh. R-3; Tr. 67).

                                            4

PDC has a written procedure for progressive disciplinary actions (Exh R-15, p. 3).
PDC established a board of review to investigate alleged safety infractions and to decide on
any disciplinary action to be taken (Tr. 92). The company also gives out awards based on
safety performance and equipment maintenance; no awards are given based on production
(Tr. 92). On May 29, 1990, Delaine Nelson, president of MRM, and James McIntyre,
president of PDC, jointly issued a strongly worded memo to all managers and foremen at
PDC. The memo referred to several safety infractions discovered during a safety inspection
conducted by one of the company’s safety inspectors. The memo concludes (Exh. R-15,
.
P . 2) .
We’re not playing games. Who’s fooling who?

     It costs more to contest a citation than to stop and take precautionary
     measures in these situations. And . . .

                                       IT IS THE LAW!!

     Our company policy is as follows:

             “If any employee must enter an excavation 5’ or over, it will be
             sloped or shored, have a ladder in it and the spoil z         be
             moved back 2’ from the edge of the ditch.”

     There are no short cuts ............

             Measures will be taken!!!!!

The copy of the memo entered as Exhibit R-15 is dated June 11, 1990, and is signed by
Randy Collins.
PDC has established that it has a well-developed, comprehensive safety program in
place. Joseph Camp, a capable and highly respected former area director for OSHA,
examined PDC’s safety program and talked with its president. Camp praised the program
as “very good and very effective” (Tr. 115). He was of the opinion that PDC had
adequate work rules covering sloping and shoring.
The evidence establishes that the work rules were repeatedly communicated to Randy
Collins. As to enforcement of the work rules, following the OSHA inspection, Collins was

                                              5

brought up before PDC’s board of review. PDC’s president McIntyre explained the
disciplinary action taken against Collins (Tr. 138-139):
The result was that we felt that Randy was negligent and we made a decision
that Randy needed three days off without pay and that we’d come up with
some other things that he was going to need to do. He needed to research
to know why he was wrong. He needed to stand up in front of our foremen’s
meeting--in front of our foreman at the foremen’s meeting and explain this
whole situation and go over it and go over it with them what he could have
done so that this wouldn’t have happened.

      And we made a decision that we needed to remove him from our field
      operations and take him out of that decision-making process so that he’s not
      out there and so that this doesn’t happen, so that we don’t have an accident.


      The Secretary contends that PDC was on notice that Collins should not have been

entrusted with the safety of its employees. McIntyre testified that Collins had failed to
follow PDC’s work rules before, and that there was “a chain of events” that indicated that
Collins may have had some problems performing his duties (Tr. 139). Collins had been
verbally reprimanded before the OSHA inspection for failing to place the spoil pile at least
two feet away from a trench. Collins underwent some personal problems that apparently
affected his judgment on the job (Tr. 141).
The resolution of this issue is not easy. PDC has established that it is a company with
an exemplary safety program and that it is committed to safety. PDC had developed
extensive safety rules and sought to communicate them to its employees through numerous
seminars, workshops, tool box talks, safety guides and memos. Collins was the recipient of
much of this safety instruction. PDC had a formal disciplinary procedure that was workable
and took disciplinary action following the OSHA inspection.
The Secretary challenges whether PDC took appropriate and expedited disciplinary
action against Collins. He argues that PDC had reason to believe that Collins was not
following the safety procedures in which he had been trained. Collins had been previously
reprimanded for failing to comply with PDC’s safety rules.
 Camp’s evaluation was based on his examination of the written materials and
discussion with company officials (Tr. 115417, 121). He did not examine any trenches or
conduct any inspections. Camp had no personal knowledge of the condition of any of the
trenches (Tr. 120421). He did not observe how employees were actually disciplined for
violations of safety. His review of the safety program and conversations with management
of PDC convinced him that the company had a commitment toward safety of its employees.
This Judge concurs in that assessment of the safety program.
The Secretary does not challenge the quality of the written safety materials or doubt
the personal sincerity of McIntyre or any other top company official. The Secretary
challenges the manner in which the written policies were actually implemented and enforced
at the worksite on a day-to-day basis. He notes that a company can have a good program
on paper and still be in violation of OSHA’s safety standards (Tr. 121).
The Secretary makes much of the fact that Collins had been reprimanded in the past
for failing to comply with PDC’s safety rules. He argues that because of this fact, PDC
should have been on notice that Collins may have had some difficulty in performing his
duties. Prior to the current violation, it was unreasonable for the Secretary to take the
position that PDC must assume that Collins would violate safety rules. Collins violated one
rule and was disciplined. There is no convincing evidence that PDC should have assumed
Collins would continue to violate safety rules. Appropriate disciplinary action had been
taken when the first violation was discovered. While past history is important on this
question, reliance cannot be made totally on this fact. Collins was appropriately disciplined
for the violation discovered with respect to soil being within 2 feet of the bank. PDC took
appropriate disciplinary action. If there is an assumption that a person is guilty of
continuing violations after he is determined to have committed the first violation, there is
no way an employer can absolve himself of responsibility.
Collins’ past conduct was explained very appropriately by McIntyre. He was deemed
a valuable employee and, when McIntyre realized that he had personal problems, PDC no
longer relied on his judgment in supervising employees. He was moved to the front office.
PDC took this action rather than firing Collins because he had been a good employee for
fifteen years and was important to the operation of the business. McIntyre recognized the

                                              7

fact that he was having personal problems that might interfere with his supervision and
authority. In view of the chain of events concerning Collins, reasonable action was taken by
the company.
The facts of this case are peculiar and call for a different conclusion than that
proposed by the Secretary. The Secretary’s argument assumes that an employee who
violates a safety rule and is disciplined is going to continue to violate safety rules. This
assumption is not supported by the evidence. PDC’s reliance on Collins to do his job was
reasonable under the circumstances.
The alleged violation and penalty are vacated.

                           PENALTY DETERMINATION


    The Commission is the final arbiter of penalties in all contested cases. Secretary v*

OSAHRC and InterstateGlass Co., 487 F.2d 438 (8th Cir. 1973). Under section 17(j) of the
Act, in determining the appropriate penalty the Commission is required to find and give
“due consideration” to (1) the size of the employer’s business, (2) the gravity of the
violation, (3) the good faith of the employer, and (4) the history of previous violations. The
gravity of the violation is the principal factor to be considered.
PDC employs approximately 120 people (Tr. 22). The company has no history of
previous violations (Tr. 24). PDC demonstrated considerable good faith in its aggressive
approach to safety. The gravity of the violation of 5 1926.651(c)(2) is extremely high, as the
likely result of not having a means of safe egress in the event of a cave-in is death.
Based upon the foregoing considerations, it is determined that the appropriate
penalty for item 1 is $675.
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).

                                           8

ORDER

    Based upon the foregoing decision, it is
    ORDERED:      (1) That item 1, alleging a violation of 9 1926.65 l(c)(2), is affirmed and

a penalty of $675 is assessed; and
(2) That item 2, alleging a violation of 5 1926.652(a)( 1), is vacated and
no penalty is assessed.

                                       /s/ James D. Burroughs
                                 JAMES D. BURROUGHS
                                 Judge

Date: March 31, 1993