Manter Co., Inc.

Plain-English summary

Manter Company excavated a nine-foot-deep trench to install a valve on an existing water main at a restaurant property in Woburn, Massachusetts. Employees had no ladder or stairway and climbed a wet, steep Type C soil bank that was partly blocked by a backhoe, so the ALJ affirmed the safe-egress item and assessed $450. The trench also lacked adequate sloping, shoring, or another protective system. Manter could not raise a greater-hazard defense for the first time at the hearing over the Secretary's objection. The judge found the protective-system violation serious but not willful because the company president credibly believed the trench was stable and had entered it himself. He reduced that item from willful to serious, cut its proposed penalty from $10,500 to $1,500, and assessed $1,950 in total for the two litigated items.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.652(c)(2) and 1926.652(a)(1)
• Outcome: The egress item was affirmed as serious with a $450 penalty; the protective-system item was reduced from willful to serious with a $1,500 penalty.
• Key point: Unsafe trench access and the absence of a protective system were proved, but the evidence did not show the heightened awareness required for a willful classification.

Full text (OSHRC public release)

                        UNITED   STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

                                                                            FAX:
                                                                            COM (202) 6064050
                                                                            FTS (202) 606-5050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-0260
MANTER CO., 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 July l 8, 1993. The decision of the Judge
will become a final order of the Commission on August 27, 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 b the Executive Secretary on or before
August 1-P, 1993 in order to ermit suf f!icient time for its review. See
Commission Rule 91, 29 C. 8 .R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-34 19
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
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: July 28, 1993
DOCKET NO. 92-0260
NOTICE IS GIVEN TO THE FOLLOWING:

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

Albert H. Ross, Esq.
Re ional Solicitor
Of&e of the Solicitor U S DOL
One Congress Street, ilth Floor
P.O. Box 8396
Boston, MA 02114

Barrett Metzler, Esq.
Northeast Safety Management
PO Box 330733
West Hartford, CT 06110

Richard W. Gordon
Administrative Law Jud e
Occupational Safety an f Health
Review Commissron
McCormack Post Office and
Courthouse, Room 420
Boston, MA 02109 4501

00107318990:01
 UNlTED
STATES
of AhERKiA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFlCE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSETI-S 021094501
(617) 223-9746

                                                        ..

SECRETARY OF LABOR, ..
..
Complainant, ..
: OSHRC Docket No. 92-0260
v. ..
..
MANTER COMPANY, INC. ..
..
Respondent. ..

                                                        ..

Appearance:

   Ralph Minichiello, Esq.                              Barrett Metzler, CSP
          Office of the Solicitor                               Northeast Safety Management, Inc.
          U.S. Department of Labor                              West Hartford, CT
                    For Complainant                                      For Respondent

Before: Administrative Law Judge Richard W. Gordon
DECISION AND ORDER

   This proceeding    arises under 5 10(c) of the Occupational     Safety and Health Act of

1970, 29 U.S.C., et seq., (“Act”), to review citations issued by the Secretary pursuant to 6
9(a) of the Act and a proposed assessment of penalty thereon issued pursuant to 6 10(c) of
the Act.
BACKGROUND

   On November       25, 1991, the Occupational       Safety and Health        Administration

(“OSHA”), issued to Respondent, Manter Co., Inc. (“Manter”), two citations - a seven item
serious violation and a one item willful violation. At the hearing, the parties advised the
undersigned that all but two items had been settled. Subsequent to the hearing, the parties
submitted a settlement agreement which I approved in its entirety in accordance with its
terms. The remaining items, Serious Citation No. 1, item no. 6 for which a penalty of $450
was proposed, and Willful Citation No. 2, item no. 1 for which a penalty of $10,500 was
proposed’, are the subject of this decision.
By filing a timely notice of contest, Manter brought this proceeding before the
Occupational Safety and Health Review Commission (“Commission”). A hearing was held
in Boston, Massachusetts on March 15, 1993. The parties have submitted their briefs and
this matter is now ready for decision.
DISCUSSION
On November 1, 1991, Manter, a construction company that performs excavations,
was the contractor on the property of Weylu’s Restaurant in Woburn, Massachusetts.
Manter was installing a post indicator valve onto an already existing water main. In order
to reach the water main, Manter excavated a trench that measured 9 feet deep, 10 feet wide
and 14 feet long. Manter asserts that prior to excavation, it determined through telephone
calls to the local water company and to “Dig Safe”, a pipe locating organization, that two
water pipes and two gas pipes should be in the immediate excavation location.
Excavation began on October 31, 1991, at 8:00 am and continued until November 1,
1991. The credible evidence supports a finding that during this two-day project Manter had
four individuals working on the job site: two laborers, Andrew Bouchard and Terry Brown;
Manter foreman and backhoe operator John “Hoyt” West; and the son of the owner of
Manter, Barry Manter, who was identified by all employees on site, including Foreman West
and Barry Manter, himself, as the supervisor on the job.
On November 1, 1991, while on his way to conduct an unrelated inspection, OSHA
Compliance Officer (“CO”) John Yanovitch observed Manter’s excavation operation. As
required by an OSHA national emphasis program, Mr. Yanovitch stopped to investigate
whether the trenching was being conducted in accordance with OSHA regulations. Mr.
Yanovitch made observations, took measurements and obtained a soil sample from the spoils
pile on the side of the trench. As a result of his inspection, CO Yanovitch issued two
citations. What follows is a discussion of the two items that were not settled.

1 At the hearing, the parties moved to amend the complaint to allege in the alternative a serious violation
of 29 C.F.R 8 1926.652(a)(l). The motion to amend is granted.

                                                 2

A. Serious Citation No. 1, item no. 2
This item alleges a violation of 29 C.F.R. 0 1926.652(c)(2) for failing to provide a
stairway, ladder or other safe means of egress in a trench excavation that was more than 4
feet in depth. The excavation in question was 9 feet deep, 10 feet wide and 14 feet
long. CO Yanovitch did not see a stairway or ladder in use inside the excavation or on the
work site. The record reveals that the natural slope on the north side of the trench was the
only means of egress. In fact, CO Yanovitch saw two Manter employees exiting the
excavation by climbing, with great difficulty, up its north bank. Additionally, Warren Manter
testified that the north slope was the means of exit and was used by him the day before the
OSHA inspection.
The credible evidence demonstrates that the soil on the north bank, like the rest of
the trench, was Type C. This finding is supported by the laboratory analysis of the soil
sample and the expert testimony of geologist and civil engineer Wilbar Hoxie. However,
instead of a 34 degree slope which is the angle of repose for Type C soil, the slope was at
a 60 degree angle. Moreover, the soil forming the trench bank was wet and slippery. from
more than 1.5 inches of rain. Additionally, the backhoe used to dig the trench was parked
at the lip of the north bank, partially blocking the top of the bank.
The credible evidence supports a finding that the configuration, condition and
composition of the soil, as well as the presence of equipment, made the north bank of the
trench an unsafe means of exit. Manter’s challenge to CO Yanovitch’s training and
experience is without merit. Accordingly, this item is affirmed and a penalty of $450 is
assessed.
B. Willful Citation No. 2, item no. 1
This item alleges a violation of 29 C.F.R. $ 1926.652(a)(l) for not providing each
employee working in an excavation over 5 feet in depth and consisting of Type C soil, with
either the appropriate slope - at an angle steeper than one and one-half horizontal to one
vertical (34 degrees measured horizontally) - as defined in 29 C.F.R. 0 1926.652(b)(l)(i) or
an adequate protective system as defined in 29 C.F.R. 8 1926.652(c).
CO Yanovitch measured the depth of the excavation to be 9 feet. While unable to
actually measure the angle of the walls because of the instability of the trench, CO

                                            3

Yanovitch estimated the angle of both the east and west walls of the trench to be
approximately 85 degrees, instead of the 34 degrees required by the standard. He further
testified that for the two hours he was at the job site, he did not observe a trench box,
shoring, sheeting or bracing of any kind while employees of Manter were working in the
excavation.
By allowing its employees to enter an excavation over 5 feet deep in Type C soil with
improper sloping and no provision for a protection system of any kind, Manter exposed its
employees to a serious hazard, the potential cave-in of the excavation. Manter
attempted to raise for the first time at the hearing the affirmative defense of greater hazard.
Manter explained as a reason for the lack of proper sloping or other adequate protection
that an unlocated gas pipe2 existed at the time of the OSHA inspection and Manter was
afraid of rupturing it. Thus, employees were placed in the ditch to guide the backhoe in its
digging. However, Manter is barred from raising this defense because of its failure to
affirmatively plead it, particularly given the fact that the Secretary objected to its being
raised at trial. See Dole v. Williams Enterprises, 876 F.2d 186, 189490 (CA DC 1989).
To establish that Manter’s violation of this standard is willful, the Secretary bears the
burden of proving that the violation was committed with either an intentional disregard of
the requirements of the Act or plain indifference to employee safety. To meet this burden,
it is not enough for the Secretary to show that an employer was aware of the conduct or
conditions constituting the alleged violation; such evidence is already necessary to establish
any violation, serious or nonserious. A willful violation is differentiated by heightened
awareness of the illegality of the conduct or conditions and by a state of mind of conscious
disregard or plain indifference when the employer committed the violation. WiZZiamsEnterp.,
13 BNA OSHC 1249, 1256-57, 1986-87 CCH OSHD ll27,893, p. 36,589 (No. 85-355, 1987).
See also General IMotors Corp., Electra-Motive Div., 14 BNA OSHC 2064, 2068, 1991 CCH
OSHD ll 29,240, p. 39,168 (No. 82-630, 1991).

2 Manter did not raise this affirmative defense of greater hazard in its pleading. The first time Manter
mentioned both the presence of the alleged undiscovered gas pipe and the defense of greater hazard was at
the hearing.

                                                4

Although this is a close case, I am not persuaded that the Secretary has met his
burden in establishing a willful violation. There is a conflict in the evidence on this point.
While the Secretary believes that he has established willfulness beyond a reasonable doubt,
I am not convinced of this. Mr. Warren Manter, president of Manter, testified that he
believed the walls of the trench were stable based on his observation and testing of the walls
and on his forty-two years of excavating experience. While I do not agree with Mr. Manter’s
opinion regarding the safety of the subject trench, I did find him to be a knowledgeable and
credible witness. Further, Mr. Manter entered the trench in question himself. I do not
believe that he would have done that if he believed the trench to be unsafe. Accordingly,
I find that the Secretary has established a serious violation, but not a willful violation. This
item is affirmed as a serious violation and the penalty is reduced to $1,500.3
Section 17(j) of the Act requires the Commission to find and give “due consideration”
to the size of the employer’s business, the gravity of the violation, the good faith of the
employer, and the history of previous violations in determining the assessment of an
appropriate penalty. Upon consideration of these factors, I have determined that a total
penalty of $1,950 is appropriate.

                 FINDINGS      OF FACT AND CONCLUSIONS                   OF LAW

      Findings of fact and conclusions of law relevant and necessary to a determination               of

the contested issues have been made above. Fed. R. Civ. P. 52(a). All proposed findings
of fact and conclusions of law inconsistent with this decision are hereby denied.

                                             ORDER

      1. Serious Citation     No. 1, item no. 6 is AFFIRMED               and a penalty of $450 is

ASSESSED.

3 The proposed penalty for this item was $10,500. OSHA arrived at this figure by starting with an original
proposed penalty of $5,000, and applying a 60% reduction for size and a 10% reduction for history resulting
in a proposed penalty of $1,500. OSHA then applied a multiplier of 7 for willfulness resulting in the $10,500
proposed penalty.

                                                  5

2. Willful Citation No.2, item no. 1 is REDUCED to Serious and AFFIRMED and
a penalty of $1,500 is ASSESSED.

                                                   RICHAEkD W. GORDON
                                                    Judge, OSHRC


        July   22,   1993

Dated:
Boston, Massachusetts