Piping of Ohio, Inc. (ALJ decision, April 5, 1993)

Plain-English summary

Piping of Ohio was replacing a water line in two excavations at an Ohio steel plant. The judge found that employees lacked adequate trench-safety instruction, did not have a safe means of exit, and were not protected by inspections from a qualified competent person. The judge also found that the trench walls were too steep for the Type B soil. That cave-in protection item was not willful because the Secretary did not prove heightened awareness or conscious disregard, but it was repeated because of a prior final order for a substantially similar trench violation. The four violations were affirmed with total penalties of $10,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.21(b)(2); 29 C.F.R. § 1926.651(c)(2); 29 C.F.R. § 1926.651(k)(1); 29 C.F.R. § 1926.652(a)(1)
• Outcome: Three serious trenching items affirmed; cave-in protection item reclassified from willful to repeated; $10,000 in total penalties
• Key point: General warnings to use common sense did not satisfy the duty to train employees in specific excavation hazards and requirements.

Full text (OSHRC public release)

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

FAX
COM (292, 634--4008 f-X (202, E34-JO08

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 91-3481
PIPING OF OHIO, INC.
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Re ort in the above referenced case was docketed with the Commission on Marc ii 4, 1993. The decision of the Judge will become a final order of the Commission on April 5, 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 24, 1993 in order to ermit sufficient time for its review. See Commissron 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 Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington. D.C. 20210

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 nghts may contact the Commission’s Executive Secretary or call (202) 634-7950.
FOR THE COMMISSION

Date: March 4, 1993
DOCKET NO. 91-3481
NOTICE IS GikEN TO THE FOLLOWING:

Daniel J. Mick. ENI.
Counsel for R&i~hl Trial Liti ation
Office of the Solicitor, U.S. DOf
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

William S. Kloepfer
Assoc. Re ional Solicitor
Office of tfl e Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

Albert T. Brown, Jr., Esq.
Brown & Warnock
2550 Kroger Bldg.
1014 Vine Street
Cincinnati, OH 45202

James D. Burroughs
Administrative Law Jud e
Occupational Safety an 8 Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

00103034674:05
 ~UPATl()hiAL SAFETYAND HEACTH REVIEW COMMISSION 1366 PEKMREE STREEI, NE. SulTE240
AnANTi& GEORGU 3mls3119

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SECRETARY OF LABOR,
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Complainant
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v. OSHRC Docket NOe91-3481
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PIPING OF OHIO,
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Respondent.
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Appearances:

Christopher J. Camey, Esquire
Albert T. Brown,Jr., Esquire
Office of the Solicitor
Brown & Warnock
U. S. Department of Labor
Cincinnati, Ohio
Cleveland, Ohio
For Respondent
For Complainant

Before Administrative Law Judge James De Burroughs

DECISION AND ORDER

Piping of Ohio, InCe(Piping), specializes in underground construction (Tr. 122). In
November of 1991, it was engaged in the replacement of a water line at the Armco Steel plant in Middleton, Ohio (Tr. 92). Compliance Officer John Boylan commenced an inspection of the plant on November 21, 1991. On December 3, 1991, Piping was issued a serious and a willful citation, which have been timely contested. In-item 1 of Citation No. 1 (serious), Piping is alleged to have violated 8 1926.21(b)(2), for failure to instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his or her work environment, Item 2 charges Piping with a violation of 0 1926.651(c)(2), for failure to provide a means of safe egress for employees from an excavation. Item 3 alleges a violation of 6 1926.65l(k)( I), for failure to have a competent person conduct daily inspections of the excavation. Citation No. 2 (willful) alleges a violation of 0 1926.652(a)(l), for failure to provide an adequate protective system for employees working in the excavation. On May 8, 1992, the Secretary amended the complaint to allege, in the alternative, that item 1 of Citation NO.2 was either repeated or serious.
Piping denies that it violated any of the cited standards. It seeks dismissal of the
allegations on the assertion that (1) the complaint was not timely filed, and (2) the Commission has no jurisdiction. It contends that it was not engaged in a business affecting commerce.
Facts

From November 19 to November 23, 1991, Piping was engaged in removing the old water line between steam pits Nos. 52 and 54 at the Armco Steel plant in Middleton, Ohio, and replacing it with a 14.inch feed line (Tr. 9192,210)e Piping had an ongoing relationshipA with Armco. It had performed more than ten excavations for Armco in the past (Tr. 682683). In order to replace the old water line, Piping had to excavate two trenches, one between steam pit No. 54 and steam pit No. 53 (the east trench), and the other between steam pit Noe 53 and steam pit No. 52 (the west trench). The project had a November 23, 1991, deadline (Tr. 92).
The pipe replacement began at steam pit NOe 54 and proceeded west to steam pit
No. 52. The water line had to be p~euure tested after it was installed, so the trenches were left open until the completion of the project (Tr. 97)e A steam pipe ran along the entire length of the south wall of both trenches (Tr. 6566,269). Concrete pier caps were located intermittently around the steam pipe (Tr. 269, 540). There were no pier caps along the

2 north waiFof the trenches. A nitrogen utility line was located at the base of the north wall. The edting water line was located between‘ the nitrogen line and the steam pipe (Tr. 269).
Piping’s contractual duty involved removal and replacement of an existing water line (Tr. 92). Each piece of pipe was approximateIy 21 feet long (Tr. 148-149). Piping would weld three pieces of pipe together above ground and then place the resulting 63.foot long section into the trench and weld it with a previousIy laid section of pipe. Two employees, Damon AuviI and Rob Yost, were required to weld connections in the trenches (Tr. 194-195). A third employee, Rick Lewis, was required to prime and tape weld connections while in the trenches. Lewis patched portions of the new pipe that had been scratched while being fished through the steam pits (Tr. 123, 125431).
On November 20, 1991, George Kratzer, the business agent for L,ocal 290 of the Ironworkers Union, absented an employee wearing a welding hood in the east excavation near steam pit No. 53 (Tr. 11, 16). Because Kratzer believed that the walls of the trench were not sufficiently sloped, he notified OSHA that he had observed a possrble safety hazard (Tr. 21-22).
Jim Sweeney, an industrial hygienist with the Cincinnati, Ohio, OSHA area office, was at Armco’s plant that day performing a health inspection. During his inspection, Sweeney received a message from his supervisor instructing him to inspect Piping’s excavation as a possible imminent danger (Tr. 47). Sweeney went to the excavation site where work had ceased for the day (Tr. 52). Sweeney took three photographs of the site (Exhs. C-11, C-12, C-13), and then reported his findings to his area office (Tr. 67).
The next day, November 21, 1991, OSHA Compliance Officer John Boylan arrived at Piping’s worksite and conducted an inspection (Tr. 257). On December 3, 1991, two citations were issued to Piping that gave rise to the present case.

The Late Filing of the Secretarv’s Complaint Is Not Grounds for Dismissal

At the beginning of the hearing, Piping moved to dismiss the Secretary’s complaint on the grounds that it was untimely filed (Tr. 5). The motion was denied (Tr. 10). Piping raises the issue again in its post-hearing brief. Where an employer can make “a more

3 pa~icula&d showing of prejudice followinga hearing on the merits,” a renewal of the motion may be made. see T~ZW,S Mas~nv, Inc., 11 BNA OSHC 1835, 1837, 1983-84CCH OSHD ll 26,803 (No. 82.955, 1984). The adequacy of the evidence is insufficient to warrant a finding favorable to Piping.
Two citations were issued to Piping on December 3, 1991. Piping filed its notice of contest on December 10,199l. The Secretary notified the Commission of her receipt of the notice of contest on December 26, 1991. In accordance with CommissionRule 2200.34(a), the Secretary had until 30 days after she filed the notice to the Commission (until Monday, January 27, 1992) to timely file a complaint. The complaint was filed on February 3, 1992, a week late. Secretary’s counsel explained that the delay in filing was the result of a clerical error (Tr. 7-8).
Piping contends that the tardiness in filing is in itself sufficient reason to dismiss the complaint. The decision of whether failure of a party to meet a filing deadline merits a default judgment against that party is a discretionary ruling for the judge. Rule 2200.41(a) states that, when a party moves for dismissal against the other party for failure to comply with the rules, “the Commission or Judge, in their discretion, may enter a decision against the defaulting party” (emphasis added).
Motions to dismiss based on the late filing of the Secretary’s complaint are not new to the Commission. While a multitude of such motions have been filed with the Commission and its judges, few have been granted. In the recent case of Ford DevelopmentCorporation,
15 BNA OSHC 2003, 1992 CCH OSHD 1
(No. 90-1505, 1992), the Commission
reiterated the elements necessary for a favorable ruling on behalf of the employer. The Secretary failed to transmit Ford’s notice of contest to the Commission within fifteen working days, as required by Commission rules. The notice of contest was transmitted seven days late. The judge found this delay to be the innocuous result of a clerical error, and he denied the motion. The Commission upheld the judge’s denial.
The Commission stated: “A demonstration of prejudice to the employer and contumacious conduct by the Secretary are among the more significant factors to take into account.” The case of Taas Masonry, Inc., supra, was cited for the proposition that the employer must establish prejudice to it or contumacious conduct on the part of the Secretary

4 before djssssd js warranted. JTheCommission considers dismissala harsh sanction and till not grant a motion to dismiss without an adequate showing of these factors.
The Secretary’s conduct is not properly characterized as contumacious. The delay
.
has been attributed to a clerical error, not from any desire to deliberately delay the proceeding. The Commission’s rules of procedure are designed to achieve prompt and orderly adjudication under the Act. It expects all parties to comply with the rules, but will not grant motions to dismiss for failure to follow the rules in the absence of a showing of prejudice or contumacious conduct.’ The goal of the Act is to improve the safety and health of employees. Granting of such motion on procedural grounds defeats that purpose.
Piping has not shown that it was prejudiced by the delay. The motion is denied.

Piping Was Enga_gedin a Business
Affectimz Interstate Commerce

Section 3(S) of the Act provides that, among other things, an employer is “a person
engaged in a business affecting commerce.” Commerce, according to 0 3(3) of the Act, “means trade, traffic, commerce, transportation, or communication among the several States, or between a State and any place outside thereof. . . .” Piping contends that the Commission does not have jurisdiction over it because the company performed work only in Ohio and, thus, was not engaged in “commerce” within the meaning of 0 3(3) of the Act. The use of the words “affecting commerce” indicates that Congress intended to exercise fully its constitutional authority under the commerce clause.
It is well settled that the Secretary has the burden of pleading and proving jurisdiction. Several Commission and judicial decisions make it clear that it is quite easy to prove that an employer is engaged in a business affecting commerce.
In MzrshaU v. Anchorage Plastering Co., 570 F.Zd Ml (9th Cir. 1978), the ninth circuit found that an employer was engaged in a busincu affecting commerce because it hired employees at a union hall, used the telephone and mail, and purchased supplies from out of state. In United States V.Dye Construction Co., 5 10 F.2d 78 (10th Cir. 1975), the record reflected that Dye

1 The Commission and its judges, where ~us~llad, may impose other saactiom for failure to follow procedural rUkS.

5 had purchased several items of heavy equipment and trucks produced by out of state sources. The court concluded (510 F.2d at 83):
The use of supplies which are part of commerce has been held sufficient. See Kiatzenbach v. Mcclwtg, 379 U.S. 294,85 S. Ct. 11,13 LEd.2d 20 (1964) and Von Socbn’gHospital,Inc. v. NLRB, 465 F.2d 173 (7th Cir. 1972). Since it is irrelevant then whether Dye itself was engaged in commerce, we are constrained to hold that its activities are such as to just@ the regulation in question.

The court’s conclusion recognizes that a business does not have to be engaged in interstate commerce to affect commerce.
In Avakis Painting Co., 9 BNA OSHC 1226, 1981 CCH OSHD II 25,157 (NO.
76-4774, 1981), the Commission found that the use of products manufactured out of state that had moved in commerce was sufficient to establish jurisdiction. The Commission stated (9 BNA OSHC at 1227):

• • l It is sufficient to note that the record establishes Respondent’s use of products manufactured out of state that had moved in commerce. An employer’s use of goods produced out of state has been held to “affect” interstate commerce under the Act. UnitedStates v. Dye Con~~~tiotz CO, supm. See also Kakenbach v. McCZung,379 U.S. 294 (1964).

There is no logical way Piping can be construed as having a business not affecting commerce. ft was fulfilling a contract with Armco which affected competition. The fact it was performing the job affected the market for others in the industry. Competition had to adjust to a diminishing market. Loss of a market for goods or services has a profound affect on commerce. Even activity that is purely intrastate in character may affect commerce among the states. Piping was performing work for Armco Steel, which is a major steel company, owned in part by a Japanese corporation (Tr. 110). Piping used the U. SoPostal Service and telephones in conducting its business operations. It made long-distance calls and forwarded letters to out-of-state businesses (Tr. 112-113). It owned a welding truck purchased in Kentucky and a boom truck purchased in Pennsylvania (Tr. 92-93). Piping’s actions in performing work for an international company, and in purchasing equipment from out-of-state, indisputably affected commerce.
The motion is denied.

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Citation No. 1
Item 1 - Alleged Violation of 5 1926.211b)f2) The Secretary charged Piping with the violation of 8 1926.21(b)(2) in that Rob Yost, Damon Auvil, Rick Lewis, and Rob Huntsberger were not adequately instructed in the avoidance of unsafe conditions and the standards for working in excavations. The standard provides:
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.
This standard requires, at a minimum, that employees receive instruction in safe work habits applicable to his work environment. This includes instructions on how-employees may recognize and avoid unsafe conditions. NationalIhdurthl Cot~~ctibn, I’. v. OSHRC, 583 F.2d 1048 (8th Cir. 1978).
Piping did not have a written safety program (Tr. 135436). Boylan inteniewed Piping’semployees and ascertained that they were unfamiliar with changes in the excavation standard and that any safety training they had was inadequate for compliance with the standard (Tr. 320-324). Piping held informal Wednesday evening meetings at Tom Moore’s house, at which the employees turned in their time cards. The meetings were not mandatory (Tr. 136, 171).
Rick Lewis was a laborer for Piping. Lewis had no prior experience in undergiound construction before he was hired by Piping (Tr. 122). When he was hired, he received no written safety rules (Tr. 135). Lewis descriied his verbal training: “I was told what to look for before I got in the ditch. . . . Cracked banks, loose dirt, and anything that was unsafe” (Tr. 138). When asked specifically what kind of training he had that taught him how to recognize an unsafe condition, Lewis replied, “Just that the bank was falling or cracking. You could look at it and tell” (Tr. 139). Lewis stated that he had no other safety training (Tr. 139). Lewis admitted that at the time of Boylan’s inspection, he had not been informed by Piping of changes in the excavation standard (Tr. 141).

7
 Robert Yost was a welder for Piping. Like Lewis, Yost had no previous experience working in underground construction before he started working with Piping (Tr. 161462). Yost testified that his safety training at Piping consisted of being told “to watch and keep an eye for looseness and cracking or anything. If you see anything falling in, let them know, l 0 0 It was just generally they would tell you to keep an eye on it all the time for any changes” (Tr. 169).
Damon Auvil, a welder with Piping, also had no previous experience in underground construction (‘II. 205). Like Lewis and Yost, Auvil stated that his training entailed king told to look out for dangers (Tr. 213). Auvil agreed that the training was “a common sense type of training” (Tr. 214). Auvil was vague when asked about the sloping requirements for different soil classifications (Tr. 221):
Q.: When you are confronted with a Type C classification of soil, how sloped should the walls be? How should the walls be sloped?

Auvil: Way, way back, I mean, way back where you should have a box or something in there.

Q.: If the soil is classified as Type B soil, how should the walls be sloped?

Auvil: You have to get on the job and learn it that way. That’s what you have to do.

Q.: Should the walls be sloped?

Auvil: Yes, they should.

Q.: How should they be sloped?

Auvil: It is hard to say. It is just common sense. You could tell whether that ditch is safe or not.
Robert (Chief) Huntsberger was the equipment operator on the Amco Steel project (Tr. 603). He stated that he sometimes slopes trenches he is digging to a degree that he believes is safe, but that is less than what the excavation standard requires (‘I’r.613-614).
The testimony of Piping’s employees establishes the Secretary’s case that they did not receive adequate instruction in the recognition and avoidance of safety hazards. They were unaware of the requirements of the excavation standard. Piping’s employees were relying on intuition, and not specific guidelines, to tell them whether or not a trench was safe. Telling employees to watch out for hazards is not the same as instructing them in the recognition and avoidance of hazards. Piping was in violation of 0 1926.21(b)(2).

Item 2: S 1926.6WcM2)

The Secretary alleged that Piping violated 6 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 east and west excavations were each approximately 7 feet deep (Tr. 275.276), 11 feet wide at the top (Tr. 298), and 5 feet wide at the bottom (Tr. 2%). Each trench was approximately 200 feet long (Exh. C-l; Tr. 193-194). Lewis, Yost, and Auvil were each in the east trench on November 20, 1991 (Tr. 125, 162-163,207). No ladder was provided for egress from the trench (Tr. 134). The employees edited the trench by stepping onto the water line and hoisting themselves onto a pier cap along the south wall. The distance f$om the top of the water line to the pier cap was 3 to 4 feet (Tr. 133, 167, 212-213, 328).
On November 21, 1991, Auvil and Yost were working in the west trench, approximately 15 feet from steam pit No. 53 (Tr. 258,261). Boylan observed them exit the trench by walking up the south side of the trench, which was sloped at a 34’ angle (Tr. 264, 328). The’initial step to the sloped portion of the south wall was 2 feet. Loose soil was on the south wall (Tr. 329). The ramp was inadequate to comply with the standard. The soil was loose, and the initial step in gaining egress from the trench was in excess of 2 feet.
The violation is affirmed.

Item 3: d 1926.65l[ku

Section 1926.651(k)(1) provides:

Daily inspections of excavations, the adjacent areas, and protective systems shall be made by a competent person for evidence of a situation that could result in possrble cave-ins, indications of failure of protective systems, hgdous atmospheres, or other hazardous conditions. An inspection shall

9 beconducted by the competent person prior to the start of work and as needed throughout the shift. Inspections shall also be made after every rainstorm or other hazard increasing occurrence. These inspections are only required when employee exposure can be reasonably anticipated.
Section 1926.650(b) pr&ies that “Cm.tent penon 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 t&e prompt corrective measures to eliminate them.” Thomas Moore is the secretary and treasurer for Piping (Tr. 91). He was the designated competent person at the site. The Secretary proceeded on the theory, based on Boylan’s testimony, that Moore was not present at the site on November 20, 1991. (Tr. 336, 339). Moore testified that Boylan must have misunderstood him during their interview. Boylan stated that he was on the site on November 20, but not the entire day (Tr. 97-98).
In her post-hearing brief, the Secretary proceeds on the theory that, even if Moore was present every day of the project, he was not a competent person within the meaning of the standard. Moore told Boylan that he had not seen a copy of the 1989 excavation standard (Tr. 336). Moore was unaware of the changes in the standard (Tr. 338). “Evidence that the employees were unaware of particular safety requirements, because of a lack of specifWnstruction, establishes a violation.” R & R Builders, Inc., 15 BNA OSHC 1383, 1390,
. 1992 CCH OSHD f
(No. 91-282, 1992).
Moore had the authority to take corrective action to eliminate hazards. He conducted a visual inspection of the trenches every day (Tr. 686). Subpart P, Appendix A(c)(l), requires that the competent person classify the soil as either Stable Rock, Type A, Type B, or Type C soil. Appendix A(c)(2) requires the competent person to make the classification “based on at least one visual and at least one manual analysis.” Moore classified the excavation soil as Type A. As will be discussed, infizz, the soil was actually Type B. When asked if he had made any tests of the soil, Moore replied, “Other than visual, no, sir” (Tr. 701).
The Secretary has established that Moore was not a competent person within the meaning of the standard. He was not aware of changes made in the excavation standard, and he failed to follow the required procedure for the classification of soil.

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The violation is affirmed.

Classification of Violations

The Secretary submits that the violations were serious within the meaning of section 17(k) of the Act. In order to prove a serious violation, the Secretary must show that there is a substantial probability that death or serious physical harm could result from the condition in question. The Secretary need not prove that an accident is probable. It is sufficient if an accident is possl’ble and the probable result would be serious injury or death. Brown & Root Inc., Power Plant Division,8 BNA OSHC 1055, 1980 CCH OSHD 124,275 (No. 763942, 1980). The Secretary must also establish that the employer-knew or with the exercise of reasonable diligence should have known of the existence of the violation. The knowledge element is directed to the physical conditions which constitute a violation. SouthwesternAcoustics & Specialty,Inc., 5 BNA OSHC 1091, 1977-78 CCH OSHD V 21,582 (No. 12174, 1977).
The failure to instruct in the recognition and avoidance of unsafe conditions exposed
employees to the possibility of a trench collapse. In such an event, employees could suffer death from crushing or suffocation. The violation of 5 1926.651(c)(2) would have denied employees a quick exit from the trench in the event of a cave-in. The violation of 0 1926.651(k)(1) also exposed employees to a cave-in. The misclassification of the soil resulted in the walls being inadequately sloped. The violations were serious.

Citation No. 2

Item 1: B 1926.652(al(U

The Secretary charged Piping with a willful violation of 8 1926.652(a)(l), which provides:

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

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(ii) Excavations are less than 5 feet (1.52 m) in depth and examination of the ground by a competent person provides no indication of a potential cave-in.
Boylan took three soil samples from the excavation (‘I’r.299). These samples were
sent to OSHA’s Salt Lake City laboratory, where they were an-d and classified as Type B soil (Tr. 454). Table B-1 of Subpart P, Appendix B, establishes that the maximum allowable slope for an excavation in Type B soil is 45’ from the horizontal. Boylan measured the north wall of the west trench and found its slope to be 520 (Tr. 264). The north wall of the east trench was 68” (Tr. 278).
The Secretary has established that Piping was in violation of 6 1926.652(a)(l). She alleged that the violation was willful. A violation of the Act is willful if “it was committed voluntarily with either an intentional disregard for the requirements of the Act or plain indifference to employee safety.” Simpler The Recorder Co., 12 BNA OSHC 1591, 1595, 1984-85 CCH OSHD 127,456, p. 35,572 (No. 82X,1985). Trial of the issue of willfulness focuses on the employer’s state of mind and general attitude toward employee safety to a greater extent than would trial of a non-willful violation. SewardFreight, 13 BNA OSHC 2230, 2234, 1989 CCH OSHD 1 28,509, p. 37,787 (No. 861691, 1989).
In Williams Enterprires,Inc., 13 BNA OSHC 1249, 198687 CCH OSHD 1 27,893 (No. 850355,1986), the Commission held=
It is not enough to show that an employer was aware of conduct or conditions constituting a violation; such evidence is necessary to establish any violation, serious or nonserious . . . A willful violation is differentiated by a heightened awareness--of the illegality of the conduct or conditions and by state of mind- conscious disregard or plain indifference. . . It is therefore not enough for the Secretary simply to show carekuness or lack of diligence in discovering or eliminating a violation. WiiDku, 13 BNA OSHC at 12561257,1986-87 CCH OSHD at p. 36,589.
E. L JonesandSons, Inc.,14 BNA OSHC 2129,2133,1991 CCH OSHD 129,264 (NO.
87-7, 1991). In CalartgCop, 14 BNA OSHC 1793, 1991 CCH OSHD 1 29,080, p. 38,870 (No. 85-319, 1990), the Commission reiterated the standard of review for deciding allegations of willful misconduct (citations omitted):

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A fiiiding of willfulness is not justified if an employer has made a good ftith effort to comply with a standard, even though the employer’s efforts are not entirely effective or complete. . . Also, a violation is not willful if the employer had a good faith opinion that the violative conditions conformed to the requirements of the cited standard. However, the test of good faith for these purposes is an objective one--whether the employer’s belief concerning the interpretation of a standard was reasonable under the circumstances.
Piping’s violation of the cited standard does not rise to the level of willfblness. The Secretary has not shown that heightened awareness of the illegality of the inadequate sloping would ascend the violation to the realm of “willful.” In the alternative, the Secretary charged that the violation of 8 1926.652(a)(l) was repeated. “A violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.” PotlatchCop., 7 BNA OSHC 1061,1979 CCH C@HD II 23,294, po 28,171 (No. 16183, 1979).
Piping was cited for a violation of 8 1926.652(b) on October 24,1989 (Exh. C-16), for failure to shore or slope the sides of trenches in unstable or soft material 5 feet or more in depth. This violation of the standard is substantially similar to Piping’s violation of 0 1926.652(a)(l) in the present case. A settlement agreement affirming the citation as serious was entered on April 17, 1990 (Exh. C-17). A decision and order approving the settlement was issued and became a final order of the Commission on June 7, 1990 (Exh. C-17). The hazard presented by both violations is that of a cave-in. The violation will be affirmed as a repeated violation.

Penaltv Determination

The Commission is the final arbiter of penalties in all contested cases. Secretary v.
OSAHRC and IiztemateGlass Co., 487 F.2d 438 (8th Cir. 1973). Under section 17(j) of the Act, in determining an 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.

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At the time of the inspection, Piping had ten employees. Piping demonstrated good faith by fully cooperating with Boylan during his inspection (Tr. 364). Piping had been previously cited for a violation of the excavation standard (Exhs. C-16, C-17; Tr. 352). The hazard created by noncompliance with the provisions of the excavation standard was the possl’bilityof a fatal cave-in. The gravity of each of the violations was severe.
Upon due consideration of these factors, it is deteti that the following penalties are appropriate:
Citation No. 1

              Item                   Standard                    Penal8

              1               8 1926.21(b)(2)                    woo
              2               0 1926.651(c)(2)                   5ooo
              3               0 1926.651(k)(l)                   woo

Citation No. 2

              Item                  Standard                    Penalty

              1              0 1926.652(a)(1)                   $4,ooo

FINDINGS OF FACT AND CONCLUSIONS OF L&W

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).

ORDER

Based upon the foregoing decision, it is
ORDERED: (1) That item 1 of Citation No. 1, alleging a serious violation of
9 1926.21@)(2), is affirmed and a penalty of $2,000.00 is assessed;
(2) That item 2 of Citation No. 1, alleging a serious violation of 8 1926.651(c)(2), is affirmed and a penalty of $2,000.00 is assessed;

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 - -. (3) That item 3 of Citation No. 1, alleging a serious violation of 5 1926.65l(k)( 1)9 is afimed and a penalty of $2,000.00 is assessed; and (4) That item 1 of Citation No. 2, alleging a willful violation of 8 1926.652(a)(l), is affirmed as a repeat violation and a penalty of $4,OOO.OO is assessed.

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

Date: February 22, 1993

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