S.K. Construction Company (ALJ decision, October 4, 1993)

Read the official release (oshrc.gov)

Plain-English summary

S.K. Construction was repairing a sanitary sewer in Middletown, Ohio. A newly promoted foreman briefly entered a 13-foot-deep excavation without the required protective system while a worker was retrieving equipment to widen a trench box. OSHA alleged a willful trench-protection violation and proposed a $12,250 penalty. The judge found that the foreman's conduct was unpreventable employee misconduct because he had competent-person training and detailed trench-safety materials, the company closely supervised the project, and there was no evidence of a broader pattern of unsafe trench work. The company treated the incident seriously, issued a written warning, and later demoted the foreman. The citation was vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1)
• Outcome: The alleged willful trench-protection violation and proposed $12,250 penalty were vacated.
• Key point: A supervisory employee's isolated violation may be unpreventable misconduct when the employer proves adequate rules, training, supervision, enforcement, and no reason to anticipate the lapse.

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

PHONE: ‘AX

COM(202)606-5100
CCM ~2C2)3X-5050
FTS(202)606-5100
FTS i2021606-5050

SECRETARY
OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2480
SK. CONSTRUCTION COMPANY
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 September 2, 1993. The decision of the Judge will become a final order of the Commission on October 4, 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 September 22, 1993 in order to permit sufficient time for its review. See Commission Rule 91, 29 C.F.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. 20036-3419
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

/ff$ti 4!hGJtRfswtc/
Date: September 2, 1993 ’ Ray H. Darling, Jr.
Executive Secretary

DOCKET NO. 92-2480
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

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

‘Roger Sabq, Esq.
Schottenstem, 20x & DUM
41 South Hi h Street
Columbua, %H 43215

John H. Frye, III
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00103376240:05

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) 60&5050
FE (202)606-5050

..

SECRETARY OF LABOR, ..
..
Complainant,
..
..
v. .. Docket No. 92-2480
..
SK CONSTRUCTION,
..
..
Respondent.
..
..

Appearances:
Gary R. Williams, Esq.
Roger L. Sabo, Esq.
Office of the Solicitor
Schottenstein, Zox & Dunn
U.S. Department of Labor
Columbus, Ohio
Cleveland, Ohio
For Complainant
For Respondent

Before: Administrative Law Judge John H Frye, III

INTRODUCTION

This matter is before the Commission pursuant to Section 10 (c) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 0 651 et seq.) (Act). Respondent is an employer engaged in a business affecting interstate commerce as defined by section 3 (5) of the Act and has employees as defined by Section 3 (6) of the Act and the standards and regulations promulgated thereunder. As the result of a June 16, 1992, inspection by the Occupational Safety and Health Administration (OSHA) at Respondent’s Middletown, Ohio, worksite, Respondent was cited for one willful violation

of 29 C.F.R. 6 1926.652(a)(l) that requires that each employee in an excavation must be protected by adequate protective systems. Prior to trial, the Secretary amended the complaint to plead, in the alternative, a serious violation of the Act. Trial took place on January 22, 1993, in Cincinnati, Ohio.

OPINION
SK Construction Company (SK), a family-owned business, is a general contractor located in Middletown, Ohio, and is engaged primarily in heavy highway, underground, utility, bridge, and building construction. SK operates in the Southwestern part of Ohio. (Tr. 138, 193.) Howard Richard “Dick” Smith is a founder and President of SK His three sons seIve as vice presidents with the following responsibilities:
Scott Smith is the Safety Director with responsibility for overall company safety policy and compliance with OSHA and other government safety and health regulations;
James E. Smith is in charge of operations; and Dan Smith runs the office, performs estimates, and is in charge of customer relations.
In 1992, SK received a time and materials contract to repair a sanitary sewer at a
branch office of Bank One in Middletown, Ohio. The repair was placed under the ’ direction of Clifford “Terry” King, who had been with SK for approximately three and one-half years and had been hired in as a “top man” on the pipe crew and then promoted to pipelayer who “runs the ditch and calls the shots.” King had worked in trenches as deep as forty-two feet and had been certified at a competent person training , program in Columbus, Ohio.
This was the first project for King as a crew foreman for SK Construction. King
had previously worked for a competitor for approximately eight years and served as a labor foreman for three and one-half years of that time, overseeing up to as many as 22 employees. (Tr. 69-72.) King’s prior supervisor at SK, Gayland Proctor, indicated that he had never had occasion to discipline King for safety violations and found him to be very competent in safety matters. Proctor highly recommended King to be a foreman on

2

construction projects. Vice President of Operations Jim Smith concluded he would be a competent foreman.
Because the sewer repair was to be billed on a time and materials basis,
management felt it constituted an appropriate job on which King could break in without the pressure of a fixed price contract. The crew working with Terry included Douglas McQueen, a member of Local 18 Operating Engineers in Dayton, Ohio. McQueen has operated equipment, including backhoes, for SK Construction for twenty-five years. (Tr. 121-22.) There were two laborers, Dave Jones and Darrin Palmer, who had each been with SK some three or four years. (Tr. 75-76.)
When King arrived at the Project on June 15, both Company President Dick
Smith and Vice President of Operations Jim Smith were there. President Dick Smith told Terry King that there were five things he wanted from him on the Project. The first three priorities were safety. Smith wanted King to be sure that no one got hurt on that Project. The fourth priority was to have the traffic using the drive-in window come through without hindrance. The fifth priority was quality; Smith wanted to do this only once. Smith told him not to worry about production. The Smiths then proceeded to give technical instructions on what and how to do the job. (Tr. 79, 205, 208-09.)
That day, the crew began to locate the sewer. They removed a tree that could
have been in the way, hauled it out, and cut some asphalt. Sewer trench boxes and trench shoring equipment were mobilized. Jim Smith returned to the Project some four or five times that day to assist in getting the Project started as well as to get the trench boxes on the site. (Tr. 78, 145-46.)
The crew began their excavation the following morning, June 16. King conducted
a soil test and determined that the soil was a type B. The crew put hydraulic shoring, with cylinders, into the trench following excavation. (Tr. 76-84.) President Smith visited the site that morning and observed that the shoring was in place. He assisted in determining the nature of the problem with the sewer. Smith returned to the Project, together with Company Vice President Dan Smith, around 12:30 or 12:45 that same day. He observed the shoring and found that all systems were in place. Smith instructed

3

Terry &ng to install a new manhole, repeated the statements he had made earlier about safety, and left the Project. (Tr. 2O8-12.) Because a manhole was going to be placed, it was necessary to widen the trench to approximately eight feet. The trench box at the location only had a four foot spreader, so one of the laborers went to get the additional spreaders required. (Tr. 82-

83 .>
After widening the trench, King decided it was necessary to go into the trench to
measure the outside diameter of the existing pipe so that he could order pipe to be installed the following day. He took another soil test, and with two individuals watching, placed a ladder into and entered the trench. The trench was 13 feet deep, roughly 13 feet from end to end, and 15 feet from comer to comer. Although King felt that the trench was safe, he did not want anyone else to go into it. (Tr. 20, 25-26, 85-87, 125-26.) As King was preparing to come out of the trench, he was addressed by CSHO John F. Boylan of OSHA
Mr. Boylan had observed the trench on the way to review another project and stopped to inspect it on his return. Boylan questioned King and was told that King went in only for a brief period so that he could check the outside diameter of a pipe. Boylan remained at the Project only for a short period of time because he was due back at his office. (Tr. 16-21.) As a result of Boylan’s visit, the Secretary cited SK for a willful violation of 29 CFR 0 1926.652(a) and proposed a fine of $12,250.
SK’s disciplinary program for safety violations consists of a verbal warning for minor infractions, a written warning for more serious infractions, and termination for repetitive or yet more serious infractions. King was given a written warning and subsequently, after completion of the sewer project, demoted to laborer. (Tr. 90-91, 167- 68, 151, 191, 214, 219.) There is no controversy with respect to the fact that the OSHA compliance officer found King inside the unprotected excavation. Respondent mounted three defenses to the citation at trial: first, that the violation was due to unpreventable employee misconduct; second, that the violation was de minimis; and third, there is no basis for a willful violation.

4

Unpreventable EmDlovee Misconduct me Commission and courts have recognized a so-called “unpreventable
employee

misconduct” defense under which the employer must demonstrate the existence of a thorough safety program which addresses the standard in question, is adequately communicated to employees, and is uniformly and effectively enforced. Brock V. LE. Myers Co., High Voltage Division, 818 F.2d 1270, 1277 (6th Cir. 1987), ce. denied, 484 U.S. 989, 108 S.Ct. 479 (1987); Floyd S. pike Electrical Contractor, Inc., 6 BNA OSHC 1675, 1677-1678 (1978).
Respondent argues that it has met this test. It points out that King had compiled
an outstanding work and safety record in his three years with SK, had not been disciplined for safety violations, and was highly recommended for the position of foreman. He had received competent person training and had tested the trench both that morning and prior to entering it. Prior to his coming to SK, he had been a superintendent for a competitor and oversaw as many as twenty-two people.
Company President Dick Smith visited the site on both the first and second day of the project to check on King’s progress and emphasize safety. It appears that King was following SK and OSHA safety requirements
up to the time he entered the unprotected excavation on the second day.
SK argues that clearly, King’s action was not foreseeable and was inconsistent with
his conduct of the project to that point. His dispatch of an employee to get wider shoring for the trench box clearly indicates that he recognized that protection against trench collapse was necessary. SK urges that it had no indication that King would choose to ignore safety requirements and enter the excavation.
Further, SK points out, King was disciplined for this activity with a written, rather than a verbal warning. SK also states in its brief that King was demoted from a laborer-foreman at the end of this Project to a regular laborer, a position he continued to hold through the time of the hearing. It is, however, unclear precisely when this may

5
have occurred. SK notes that King was not the only individual who had been disciplined by SK for violation of safety rules.’
SK argues that, while the Secretary may criticize its overall safety policy as not sufficiently broad, it must be noted that King had attended the competent
person training
program2 and had the competent
person manual,3 which sets out in detail the OSHA
Subpart P Regulations for excavations. SK points out that an objective of that program is to equip participants with an “extensive knowledge of 29 C.F.R. 1926 -- Subpart B -- Excavations.‘4 The various types of protective systems are discussed in detail’ and students are taught how to test soil.
SK maintains that Mr. Boylan recognized all of this. It relies on a worksheet
which Mr. Boylan prepared for his personal use? That worksheet identifies &x broad categories, each with a number of specific items, which Mr. Boylan checks in the course

• of an inspection. The six broad categories are:
  A Management Commitment and Leadership;
  B l Assignment of Responsibility;
  C 0 Identification and Control of Hazards;
  D l Training and Education;
  E l Recordkeeping and Hazard Analysis;. and
  F0 First Aid and Medical Assistance.
  Each specific item listed under the above categories on Mr. Boylan’s form is to be
  checked off as either “yes” or “no.”

  ‘Respondent cites its Ex 10, which documents some five instances of employee discipline.

  2R. Ex. 5

  3R. Ex 13

  41d., p.2.

  5zd, pp.17 - 23.

  6R. Ex.1.

  In the course of his evaluation, Mr. Boylan marked each specific item favorably to
  

  SK except for those that directly pertained to King’s excursion into the excavation.’
  In view of the foregoing, SK professes to fail to understand why the Secretary
  pursued this particular Citation. SK notes that Secretary is left with such things as attacking SK’s safety program, questioning the severity of the discipline administered to King, and alleging that insufficient numbers of other employee have been disciplined. SK asserts that the record demonstrates that, when discipline is necessary, it is meted out.
  SK believes that, in this case, the Secretary has neither proven foreseeability nor
  rebutted the defense of employee misconduct. It relies on Austin Building Co. v. OSHRC, 647 F. 2d 1063 (10th Cir. 1991) where the court held:
  The secretary has the burden of showing that the employer knew, or with
  the exercise of reasonable diligence, could have known of the likelihood of
  the non-complying condition or practice. The employer may defend by
  showing that the violation was an unforeseeable occurrence. Evidence that
  the employer effectively communicated and enforced safety policies to
  protect against the hazard permits an inference that the employer
  justifiably relied on its employees to comply with the applicable safety rules
  and that violations of these safety policies were not foreseeable or
  preventable.

647 F. 2d at 1067-68 (emphasis added). As the Commission noted in Sussex Elect& and

Manufacturing Co., 11 BNA OSHC 2133, 2135 (1984), “an employer is not liable for

failure to foresee every incident before it occurs and can take extraordinary
cautions to

prevent.”

The Secretary maintains that Respondent has failed to prove facts sufficient to

support the affirmative defense of “unpreventable employee misconduct.” First, the

Secretary maintains that Respondent failed to take all reasonable steps to prevent a

‘See TrSl-53. The following specific items on R. Ex. 1 were checked “no:” Management observes safety rules;
Safety designee on site knowledgeable and accountable;
Supervisors (including foremen) safety and health responsibilities understood; and Employees adhere to safety rules.

7

violation of the applicable standard, including providing adequate instruction to its

employees. The Secretary points out that in Daniel Construction Co., IO OSHC 1549,

1552 (Rev. Corn. 1982), the Commission noted that “... where a supervisory employee is

involved in the violation, the proof of unpreventable employee misconduct is more

rigorous and the defense is more difficult to establish...,” and constitutes strong evidence

that the employer’s safety program is not effectively enforced. He also points out that

“... the employer must establish that it took all feasible steps to prevent the [violation],

including adequate instruction and supervision of its supervisory employee.” LE. Myers

Company, 16 BNA OSHC 1037, 1041 (Rev. Corn. 1993), citing Daniel Constn~tiorz Co.,

supra.

The Secretary points out that SK places great weight on its President’s speech to

King in which he told him to follow three rules: “safety, safety, safetyT8 However, he

notes that this admonition gives no instruction relative to reasonably foreseeable safety

problems on the project, i.e., an employee working in an unprotected trench, and that

King was not instructed to follow specific OSHA standards or those procedures he had

learned some months earlier at the competent person class. He believes that the mere

recitation of “safety, safety, safety” was clearly too vague to rise to the level of an

adequate instruction, and argues that King’s act of entering the unprotected trench was

not in violation of these instructions because King believed that the trench was safe.

Second, the Secretary argues that SK’s safety program did not serve to clarify the

situation, pointing out that, although the great part of SK’s work deals with trenching, no

%ee Findings 13 and 16; Tr. 79, 123,208 and 212.

8

trench safety issues are listed in its nine point safety ru1es.g He notes that, while the

company rules make passing reference to a generic safety booklet printed by the Ohio

Construction Contractor’s Association, lo that pamphlet contains over three hundred

safety tips covering all phases of construction work only one of which relates unprotected

trenches. By virtue of its breadth of scope, the pamphlet can not be said to be directed

to any hazards reasonably to be anticipated by employees such as King who have a

limited scope of work.”

The Secretary relies on Dance Construction Co. v. Secretary, 6 BNA OSHC 2039

(8th Cir. 1978) and on a recent decision in Secretary v. Abbott Contractors, Inc., OSHRC

Docket No. 91-177 (January 8, 1993). In Dance, the court faced the question of whether

the instructions given to the employees were specific enough to protect employees against

reasonably foreseeable dangers. There, oral safety instructions were given to employees

concerning the avoidance of overhead power lines while using a crane.
They were

warned, in general, to stay away from those lines, but were not instructed to maintain the

OSHA-required ten foot clearance between the crane and the lines. The Court found

this to be insufficient.

In Abbott, Judge Barkley held that the affirmative defense of unpreventable

employee misconduct must fail when, among other things, an employer’s work rules are

‘See R. Ex 2 and Tr. 114,184-185.

‘OR. Ex.8

“The Secretary asserts that record reveals that these employees spend ninety percent of their time working in trenches, citing Tr. 143.

9
too vague to provide guidance to supervisory personnel. Judge Barkley found the

Respondent guilty of a willful violation in spite of the fact that supervisor in question had
received ten hours of competent person training.

The Secretary is correct that SK’s safety rules and its communication
of specific
safety requirements to King were both very general and not directly related to the
hazards which King faced in performing the work assigned to him. However, the

Secretary overlooks the fact that King had detailed instructions concerning trenching
safety in the form of the competent person manual which he received as a part of his
training. Because SK is a small company,12 it is not surprising to find that it placed

. reliance on outside sources for both training and safety rules rather than conducting in-
house training and generating its own safety rules.

More importantly, in this case there is no indication that SK had a history of
failing to observe proper practices.13 In contrast to the situation in Abbott where there
was evidence that the company had not followed proper practices for some three years
because a particular employee refused to use a trench bo%14 the project in question
appears to have been conducted in accord with all applicable safety rules except for

King’s entry of the excavation. Indeed, as SK points out, the fact that King was awaiting

12At a time of peak activity, SK might have about 100 employees. See Tr. 44.

%e Secretaryseeks to bolster his argument in this regard by pointing to the fact that SK’s president could not deny that SK reported twelve “lost work days” resulting from injuries for the most recent year for which figures were available, 1991. In point of fact, SK’s president specifically indicated that he could neither confirm or deny that fact without checking his records, and pointed out that the Company had experienced only one serious accident. See Tr. 222-25.

“?he decision revea ls that the employee not only refused to use the box, but was not disciplined for this refusal.

10

the return of a laborer dispatched to retrieve the equipment necessary to use the trench

box at the time he entered the excavation indicates his awareness of and intent to k-1110~

proper procedures.

Rather than Abbott, this case more closely parallels Secretary v. Dover Elevator CO.,

16 BNA OSHC 1281 (Rev. Corn. 1993), in which a foreman left an extension cord

plugged into an unprotected circuit and available for use while going to some lengths to

obtain a working electrical receptacle which was protected by a GFCI device so as to

permit the use of a power drill. There, the Commission stated:

The Act does not mandate that an employer necessarily eliminate all instances of employee noncompliance with its work rules. Where the evidence fails to show that the employer should have perceived a need for additional monitoring or that such an effort would have led to the discovery of instances of employee misconduct, increased supervisory efforts to monitor employee compliance are not required?

This case also presents a sharp contrast with the situation in &IWO. In the latter

case, a relatively inexperienced crew was given the job of unloading steel pipe by using a

crane in the vicinity of overhead power lines. Although the company often was engaged

in this activity, it did not train its crews in safe practices. The crew involved in the

accident which gave rise to the Dance decision had not been given specific instructions

regarding the required clearance to be maintained. Moreover, it was sent out to work

without supervision. The cab of the crane which it was using contained an outdated

warning placard which mandated a clearance of six rather than ten feet from power lines.

In contrast, SK trained King through the competent person course and provided

specific safety instructions through the manual provided with that course. SK also closely

“16 BNA OSHC at 1287.

11

supervised King’s progress on this job. SK has been inspected by OSHA in past years

but had not been previously cited. And the compliance Officer found that, with the

exception of King’s lapse, SK’s safety program was satisfactory.

However, the Secretary also argues that, even given the existence of adequate

safety rules, SK failed to demonstrate that they were uniformly and effectively enforced.

Although SK has been in business for more than twenty-five years, SK produced evidence

of only five disciplinary actions taken against employees which related to safety violations.

Of these five, only one occurred prior to King’s infraction?

The Secretary relies on the testimony of Mr. McQueen, an equipment operator

with SK for some 25 years, for the proposition that employees did not consider

disciplinary action could result from violating an OSHA regulation.
He cites Mr.

McQueen’s apparent lack of concern over the violation of OSHA rules and apparent

absence of fear of punishment as illustrative of the fact that actions such as King’s were

not uniformly or effectively punished. However, the Secretary reads too much into Mr.

McQueen’s testimony.

First of all, given the fact that SK is a small company which does a substantial

amount of trenching and that Mr. McQueen operates equipment used to open trenches,

it is likely that Mr. McQueen would be aware of violations of the applicable OSHA

standards had they occurred. He testified that, although he had heard of others entering

unprotected excavations, he was not aware of that happening at SIC”
In the absence

l?he Secretary points out that it is well settled that proof of post violation enforcement is insuffkient to sustain a defense of unpreventable employee misconduct.

“See Tr. pp.131-32.

12

of such violations, it is not surprising that the question of discipline did not come to his

mind. Moreover, Mr. McQueen clearly felt that his personal responsibility
related to safe

practices, rather than administrative requirements and discipline. He testified that, when

King entered the excavation, his sole concern was King’s safety, not the possibility of

discipline. As he put it, “... that’s not my job, to tell him he might be fired.“18

Finally, the Secretary cites SK’s response to King’s action in the case at bar. He

argues that despite King’s voluntary, knowing, and, willful violation, an act which might

have cost him his life, SK meted out the lightest possible sanction: a simple reprimand.

He believes that the credible evidence fails to support SK’s position that it enforces

OSHA safety standards.

On its face, the treatment of King’s lapse does not illustrate a tough attitude

toward enforcement. While the punishment given King may not have been the minimum

available as the Secretary suggests, it was not as severe as the offense might have

warranted. An immediate demotion and suspension without pay for a period of time

would not be inappropriate if, as SK’s management believed, termination was too severe

a punishment.19 However, while the punishment may have been light given the offense,

it is clear that SK did not treat the offense in a casual or matter-of-fact manner.

%ee Tr. pp.132-35.

‘awhile the record indicates that King was demoted, it is unclear when this took place. The testimony of President Dick Smith and of Vice-Presidents James and Scott Smith may differ on this point. King himself did not say precisely when he was demoted. All witnesses agree that the Bank One project was the last one in which he had a supervisory role.
Counsel for the Secretary has moved to reopen the record to admit SK’s answers to two interrogatories which did not indicate any punishment other than a written reprimand in order to impeach the testimony that King was demoted. Counsel for SK opposes on the ground that admission of these answers, which were available to the Secretary to use at trial, would be unfair in that SK would not have an opportunity to respond. The motion is denied.

13

President Dick Smith explained SK’s reaction to the incident as follows.

Q [By Mr. Sabo] Did you have any further discussions with him on this?

---

A I brought [King] into the office that night and I was going to let him go because it was, in my opinion, inexcusable. But Dan and Jim and Scott and I talked about it, probably for about two hours that evening, and we determined that had he sent another man in there, we would have dismissed him. But since it was himself, we declared it an error in judgement and we didn’t think we should condemn him for that.

Q Did you have any discussions with Mi. King yourself about it or did you let the others do it?

A Yes, I did. I had a long discussion with Terry and the next morning I brought him in the office and I preached to him for an hour. And he cried and he said he would pay the fine himself and all that sort of thing. He’s truly repentant and so based on all that evidence we decided we’d at least keep him in a job?

It is clear from the above that SK did not take King’s lapse lightly.
It is also clear

that SK decided to temper its punishment in light of the peculiar facts surrounding this

violation. In view of the obvious seriousness of the incident in the eyes of SK’s President,

the decision to temper the punishment in this instance should not be taken as indicative

of an overall unwillingness to enforce safety rules. The lack of evidence of a tough

enforcement policy must be considered together with the lack of evidence of a systemic

aoSeeT r. pp.213.14. Scott Smith explained his rationale for not dismissing King as follows.
His infixtions, I do not think, was serious [enough] for dismissal. Terry’s been with us for, I think, five years. This is the first problem we had with him. It was not the normal minor violation. But looking at his work record or past performance, talking to him about the incident, how, you know, he did it on the spur of the moment, not really thinking about it, I did not warrant that he should be let go. He was a very good production worker. We have removed him from being a foreman or crew leader, whatever you want to call it. But he’s still a good worker and I think he still has potential. But I could not see firing him for this.
Tr. p.191.

14

safety problem inherent in SK’s operations and Mr. Boylan’s failure to find a problem

with SK’s administrative controls. See Secretary v. Dover Elevator Cu., sup.

In light of these circumstances, I find that SK has demonstrated that it adequately

established, communicated, and enforced safety rules. In reaching this conclusion, I am . avlly influenced by the facts that first, there is no evidence of either a general laxness

toward safety on SK’s part or the presence of systemic safety problems at SK; second,

that, in general, the compliance officer was satisfied with SK’s safety program; and third,

that there is no evidence that King’s lapse was part of a pattern of departures from

applicable safety rules at the job in question. Were any of the above three factors

absent, it would be difficult if not impossible to conclude that SK’s approach of relying

on general admonitions regarding safety from management, outside training, and outside

materials to establish and communicate its safety rules was adequate.

I conclude that SK has established that the violation in question was the result of

unpreventable employee misconduct. In light of this conclusion, it is unnecessary to

consider SK’s other defenses.

.

FINDINGS OF FACT

1. Howard Richard “Dick” Smith is a founder and President of Respondent

SK Construction Co. Vice President Scott Smith is the Safety Director, Vice President

James E. Smith is in charge of operations, and Vice President Dan Smith runs the office,

performs estimates, and is in charge of customer relations. (Tr. 137-39, 159, 193.)

15

2. SK has weekly safety meetings at its construction projects which are given

by the crew leader and last fifteen to thirty minutes. SK also has safety pamphlets at the

office and at the project sites where employees report to work. Company

Superintendents and lead people attend seminars. (Tr. 74, 161-62.)

3. SK’s safety program is certified by the Ohio Contractors Association (OCA)

on a yearly basis. In order to be certified, a twenty-point safety program must be met by

SK (Tr. 162-63.)

4. SK has a disciplinary program which includes administering discipline for

violations of safety regulations. (Tr. 167-68.)

    50       SK has sent all of its supervisors and crew leaders to participate      in

competent person training under the OSHA trenching regulations and participates
in

OCA seminars. (Tr. 149, 162.)

6s SK has been inspected by OSHA in the past, but has not been cited

previously. (Tr. 198.)

7. In 1992, SK received a time and materials contract to repair a sanitary

sewer at a branch office of Bank One in Middletown, Ohio. (Tr. 143, 203-04.)

8 l The 1992 repair was placed under the direction of Clifford “Terry” King.

(Tr. 27, 66-67, 72, 117-19.)

9. This was the first project for King as a crew foreman for SK Construction.

(Tr. 69-72.)

10. When King arrived at the Project on June 15, 1992 to commence

construction activities, he received safety and operational instructions from President

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Dick Smith and Vice President James Smith. President Smith told King that his first

three priorities were safety, his fourth priority was to avoid impeding traffic using the

drive-in window, and his fifth priority was quality. (Tr. 79, 205, 208-09.)

11. That day, sewer trench boxes and trench shoring equipment were

mobilized. Vice President James Smith returned to the Project some four or five times

that day to assist in start-up and to get the trench boxes on the site. (Tr. 78, 145-46.)

12l Excavation began the following morning, June 16. King conducted a soil

test and determined that the soil was type 8. The crew put hydraulic shoring, with

cylinders, into the trench following excavation. (Tr. 76-84.)

13. Company President Smith visited the site that morning and returned with

Vice President Dan Smith around 12:30 or 12:45 that afternoon. On both visits, he

observed the shoring and found that all systems were in place. On the second visit,

President Smith instructed King to install a new manhole, repeated his safety instructions,

and left the Project. (Tr. 208-12.)

140 In order to accommodate the manhole, the trench was widened. The

trench box at the location only had a four foot spreader, so a laborer was sent for the

additional spreaders required. (Tr. 82-83.)

15. After widening the trench, King took another soil test, and with two

individuals watching, placed a ladder into and entered the trench. The trench was 13

feet deep, roughly 13 feet from end to end, and 15 feet from comer to comer.
(Tr. 20,

25-26, 85-87, 125-26.) As King was preparing to come out of the trench, he was

addressed by CSHO John F. Boylan of OSHA.

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16. SK’s disciplinary program for safety violations consists of a verbal warning

for minor infractions, a written warning for more serious infractions, and termination for

repetitive or yet more serious infractions. The Smiths determined not to fire King. King

was given a written warning and subsequently, after completion of the sewer project,

demoted to laborer. (Tr. 90-91, 167-68, 151, 191, 214, 219.)

CONCLUSIONS OF LAW

1. Respondent SK Construction Company was at all times pertinent hereto an

employer within the meaning of Section 3(5) of the Occupational Safety & Health Act of

1970, 29 U.S.C. Section 651-678 (1970).

20 The Occupational Safety & Health Review Commission has jurisdiction of

the parties and the subject matter.

3. Respondent SK Construction Company was not in violation of the standard

set forth at 29 C.F.R. 1926.652(a)(l) as charged in Citation 1, Item 1.

ORDER

Citation 1, Item 1, is vacated.

. .* -
Dated: qm +!@ gashington, D.C.

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