Blankenship & Lee Pipeline Co., Inc. (ALJ decision, April 11, 1994)

Plain-English summary

Blankenship & Lee Pipeline was reconstructing sewer lines for a pumping station in Pelham, Georgia. An employee worked in a vertical trench that measured between 5 feet 4 inches and 6 feet deep without a ladder, adequate cave-in protection, or a hard hat; loose spoil was stored only inches from the edge. The judge also found that the trained onsite personnel did not perform the required manual soil test and therefore did not provide the competent-person inspection the excavation rules require. Blankenship & Lee kept its written hazard-communication program at headquarters instead of the worksite. Its employee-misconduct defense failed because supervisors knew of or participated in the conditions and the company did not effectively enforce its rules. All five serious trenching items and the other-than-serious hazard-communication item were affirmed, with total penalties of $3,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.651(c)(2), 1926.651(j)(2), 1926.100(a), 1926.651(k)(1), 1926.652(a)(1), and 1926.59(e)(1).
• Outcome: Affirmed. Five serious trenching items and one other-than-serious hazard-communication item were affirmed with total penalties of $3,500.
• Key point: Safety training alone does not establish a competent-person inspection or employee-misconduct defense when supervisors overlook required soil testing and multiple visible trench hazards.

Full text (OSHRC public release)

UNKED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION On8 Lafay8tt8 C8ntm
1120 20th Street, N.Wm- 9th Floor
Washington, DC 20036-3419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-0377
BUNKENSHIP & LEE PIPELINE CO., INC Respondent.

NOTICE OF DOCKETING
OF ADMINIS~~ LA\N JUDGE’S DECISION The Administrative Law Judge’s Re rt in the above referenced case was docketed with the Commission on Marcr 10, 1994. The decision of the-Judge will become a final order of the Commission on April 11, 1994 unless a Commission member directs review of the decision on or before that W, ANY 1 PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THB COMMISSION MUST FILE A PETITION FOR DISCRETIONARY F&VIEK Any such petition should be received the Executive Secretary on or b&m March 30 1994 in order to ermit sua cient time for its review. See ’4) Commissibn Rule 91,29 C.gR. 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, DC. 200363419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the Soei:l citor, U.S. Dck
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 Re@onal Trial Litigation will represent the Department of Labor. Any party havmg questions about review nghts may contact the Commission’s Executive I Secretary or call (202) 606-5400.
FOR THE CO-ION
.
1

Date: March 10, 1994
DOCKET NO. 93-0377
NOTICE IS GIVEN TO THE FOLLx)\KING:

Daniel J. Mi4 m.
Counsel for RC ‘onai TrialLiti ation
Office of the So$ ‘citor, U.S. Dck
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

William H. Ber er
De uty Regio niti Solicitor
Of&e of the Solicitor, U.S. DOL
Suite 339
1371 Peachtree Street, N.E.
Atlanta, GA 30309

Carl R. Pennin on, Jr, Esquire
Pennington, Ha$e II, W&bon,
Culpep er Dunlapm Richmond &
Frenc& k A.
Post Office Box 10095
Tallahassee, FL 32302 2095

Nancy J. Spies
Admmistrative Law Jud e
Occupational Safety an cf Health
Review Commission
1365 Peachtree St., N. E.
Suite 240
Atlanta, GA 30309 3119

00106214018:oQ
 UNITEOSTATES
OF AnmIcA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1365 PEACHTREE STREET, NE.. SUITE 240
ATLANTA, GEORGIA 30309-3119

FAX
PHONE
COM (404) W-0? ‘2
COM (404) 347497 m (JOJ) 3474713 ns (Jar) 3474197

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 93-377

BLANKENSHIP & LEE, INC.,
Respondent.

APPEARANCES:

Idie J. Rodriguez, Esquire
Carl R Pennington, Jr., Esquire
u. s. Department of Labor
Penningto& H&be%WiBinsus Culpepper,
Oflce of the Solicitor
Dunlap, Richmond bt French, PA
Atlanta, Georgia
TaUahasec, FIorida
For Complainant
For Respondent

Before: Administrative Law Judge Nancy J. Spies

DECB’IONAVD ORDeR

Blankensbip & Lee, Inc. (B Br L), is an underground utility contractor. During the November 4,1992, inspection by Occupational Sdety and Health Administration (OSHA) Compliance Of&xx David Hubert, B & L was reconstructing the sanitary sewer lines for a new pumping station for the City of PeIham, Georgia ur. 13). On January 13, 1993, the Secretary issued two citations to B & L: alleged serious violations of trenching-related standards and a nonserious violation of the hazard communications requirements. Specifically, the serious citation alleged violations of 8 1926.651(c)(2),for failure to provide a safe means of egress from a trench; 8 1926.651(j)(2), for failure to keep excavated material further than 2 feet from the trench; 8 1926.100(a), for failure to enforce wearing of hard hats while in the trench; # 1926.6Sl(k)(l), for failure to have the trench inspected by a competent person; and Q 1926.652(a)(l), for failure to have an adequate protective system as required by the standard B 8t L primarily asserts that any violation was the result of unanticipated circumstances and employee misconduct.

B & L is incorporated in the State of Florida and does business in that state and in Alabama and Georgia (Tr. 12). The contract for the work in Pelham was bid from the company’s Alabama office. B & L’s employees, some of whom lived in Fkxida, regularly traveled across state lines while performing the work in Pelham, Georgia. B & L used equipment which was manufactured in Illinois and other states in the Midwest ur. 13-14, 29-30). An employer is covered by the Occupational S&ety and Health Act a# 1970 (Act) if it is engaged in a business affecting commerce. VW?O~ Inc., 11 BNA OSHC #)9q 1984 CCH OSHD 126,974 (No. 79-1569,1984). B & L’s business activities a&cted commerce, and it is covered by the Act.

The trench was cut with a 2& to 320inch bucket. The employees and Hubert agreed that the bottom width of the trench was 28 to 32 inches (Tr. 65,127). Hubert measured the top width as 36 inches. The trench walls were vertical without sloping or shoring (Tr. 104). The part& dispute the height of the trench, which is critical to the case. Since actual measurements were taken, it is unnecessary to rely on hearsay testimony comparing the height of an w employee to the height of the trench. While superintendent James Lines watched, Hubert used a steel tape to measure the depth of the trench at the point where he observed the employee had been working. That measurement was 6 feet. Approximately 40 feet north from the first measurement, where the trench appeared shallowest to Hubert, he measured 5 feet 4 inches (Tr. 95, 104, 126). The spoil pile was placed on the west side of the trench. Hubert measured the east side from the bottom of

2 the trench to the point where “the soil started bending back* (Tr. 114-115). Hubert noted that on the east side there was “a little bit of [soil] spillage” (Tr. 126). After the compliance officer left, Lines also measured the trench. To do this, he “cleaned the dirt off the top of the ditch” to get the “true measurement” at the place along the trench wall where the grass line shuwed. Lines measured this portionof the trench as 4 feet 11 inches. (Exh. C-3; Tr. 139). Lines’ approach was not an acceptable method for measuring a trench wall. The employee was cl;pasad to a pos&le cave-in of a 6-foot trench wall. Hubert had not measured the side of the trench where the spoil pile was placed. He correctly included in the trench wall measurement incidental soil deposited as the excavation was dug. The depth of the trench at the two locations was shown to be 6 fett and 5 feet 4 inches, respectively.

CITATION NO. 1

Item 1: Alleged Violation of 8 1926.651(c)(2)

The Secretary charges a violation of 0 1926.651(c)(2),for fkilure to have a s8ft means
of egress. The standard requires:
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(2) Means of egresrfim trench tzavatibns A stainway,ladder, ramp or other safe means of egress shall be located in trench excavations that are 4 feet or more in depth so as to require no more than 25 feet of lateral travel for - employees.
The terms of the standard apply since at the time of the inspection the trench was a minimum of 5 feet 4 inches deep and had been opened up for the length of 100 feet (Tr. 95,99). There was no stairway or ladder in the trench. When Hubert requested the exposed employee, Jackie Rutherford, to exit the trench, Rutherford climbed onto the sewer pipe and walked 70 feet down to the north end of the open trench where it was being backfilled (Exh. C-2; Tr. 3493). B & L argues that rather than walking 70 feet to the rear of the trench, the employee could have exited on the “ramp” which was created at the south end as the John Deere backhoe dug the trench. The distance to the backhoe was less than 25 feet (Tr. 68). B & L misses the point. The standard requires that there be a quick and safe means of egress from a trench. B & L did not show that the excavator,created anything like an exit ramp on November 4,1992. Even if a slope was coincidentally constructed while the trench

3 ramp on November 4,1992. Even if a slope was coincidentally cmstrwted while the trench was being excavated, this was not a “ramp” or a “safe means of egress” for purposes of the standard (See 8 1926.651(~)(1)). Practically speaking, Rutherford had the alternative of walking, as he did, 70 feet and exiting at the rear of the trench or walking into the operating backhoe and risk being crushed by it. Alternately, B & L suggests that Rutherford could exit the trench by stepping onto the pipe and hoisting himself out of the trench vrm 79). Using rounded sewer pipe as a boost out of a trench which is higher than 4 feet is unacceptable.
B & L did nothing to provide safe egress for its employee. Its argument that no means of egress was rquired is contrary to the standarxl B & L had constructive knowledge of the violation “which [was] readily apparent to anyone who looked.” Sbnplkz Tote Recorder Co., 766 F.2d 575, 589 (D.C Cir. 1985).
Further, his superintendent knew the violation existed, and his knowledge is imputed to B & L Dover Ekvator Co., 15 BNA OSHC 1378,199l CCH OSHD 129,524, p. 39,849 (No.
. 88-2642,199l). Failure to have a quick and safe means of egress fkom a trench compounds the dangers of a cave-in and could result in serious bodily harm or death The violation is affirmed as serious.

PENALTY

B & L employed between forty to fifty employees in November 1992 vr. 28). One employee was exposed to the hazard “all day” (Tr. 38). There was no showing of previous serious violations (Tr. 143). Respondent had a formal safety program, and its employees attended weekly safety meetings. It is recognized that B & L made some sign&ant efforts toward educating its employees on the trenching standards. It sent 14 employees for training to become competent persons. Its co-owner, William Lee, is a certified OSHA instructor

(Tr. 140, 141, 172). The Act requires “due consideration” be given 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 appropriate penalty. The gravity of the of&me is the principal factor to be considered. Nackema Operating Co., 1 BNA OSHC 1001, 1971-73CCH OSHD 1 15,032 (No. 4,1972). Considering these factors, a penalty of $1,000

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 Item 2a: All@ Violation of 8 1926.651(j)(2)

The Secretary alleges that B & L violated 0 1926&l(j)(2) by storing the spoil pile at the edge of the trench. B Br L argues that since there was no other place to store the excavated material, it was impossible to comply with the standard The standard requires:
(i)~~ofanployecs~mloarcrrock~soiL(2)Employeershallbe protected fkom excavated or other materials or quipment that could pose a md by. . . placing and keeping such materials or quipment at kast 2 feet from the edge of excavations. . q or by the use of retaining devices that are sufficient to prevent materials . . born falling or rolling into the excavations l

The facts establish the violation. Hubert observed the spoil pile stored at the edge of the west side of the excavation (Exh. C-5; Tr. 94, 102). The backhoe operator, cahrin Scott, admitted the spoil was no more than 6 to 8 inches from the edge (Tr. 66). T& spoil pile was loose and dry (T’r.49,95). The spoil was placed near the trench edge becam pipes had been stored perpendicular to the street, taking up more room than if they had been Iaid . parallel to the street (Tr. 75, 97).
B & L asserts that the Secretary has the burden of proving that the spoil pile posed a hazard of falling or rolling into the excavation (Respondent’s Brie&pg. 4). The standard presupposes the hazard, and it is sufficient for the Secretary to prove that the terms of the standard were not met. See Wtight& Lopez, 10 BNA OSHC 1108, 1981 CC’H OSHD 125,728 (No. 76-256,198l). Further, when a standard specifies a method of complying, an employer seeking to be excused from compliance has the burden of demonstrating that the standard is infeasIble under the circumstances. h-Par Engd Fom Co., 12 BNA OSHC 1949,19559,1986-87 CCH OSHD 127,650, pp. 36,024-27 (No. 79-2553,ME), r&d on other pun&, 843 F.2d II35 (8th Cir. 1988); State Sheet Metal Co., 16 BNA OSHC llSS,ll61,1993 CCH OSHD 130,042 (Nos. 904620 & 90-2894,1993). B & L’s infeasibility defense fails not only because abatement was physically possible if the pipes were repositioned, but B & L did not use alternative protective measures which were available. Set Sei6e.l Mbdetn Mfg. & Welding Co., 15 BNA OSHC 1218,1227,1991 CCH OSHD II 29,442, p. 39,683 (No.
88;821, 1991).
 Lines was aware of the location of the spoil pile, ati his knowledge is imputed to the company. The vioMion is serious because a falling spoil pile in the narrow trench could result in serious bodily harm.
A serious violation is affirmed.

Item 2b= Alleged Violation of Q 1926.100(a)

The Secretary asserts that B & L violated 0 1926.100(a) because Rutherford was not wearing a hard hat while he was in the trench. B & L admits that Rutherford did not wear protective head gear. The standard speciks that= Employees working in areas where there is a possible danger of head injury a shall be protected by protective helmets. l l

Rutherford was required to stoop over when he disconnected the pipe harness and when he cleaned the newly lowered pipe vr. 60). He was subject to the danger of head int while performing his work in the trench. Rutherford had been observed throughout the day by superintendent Lines, and his knowledge is imputed to B & L ur. 38). The violation is serious because Rutherford was in danger of being hit, by equipment or materials as pipe was lowered, or by falling soil fkom the spoil pile or a cave-in.
The serious violation is af!Eirmed.

PENALTY

Considering the statutory factors previously discussed and the moderate gravity of the grouped violations, a penalty of $1,000 is assessed for items 2a and 2b.

Item 3: Alleged Violation of 8 1926.651(k)(l)

The Secretary alleges that B & L violated 9 1926.651(k)(l) because the trench was not inspected by a competent person as required by the standard. The standard provides:
Daily inspections of excavations, the adjacent areas, and protective systems shall be made by a competent person.
 The excavation standards in 91926.650(b) define “competent person” as:

(O]ne who is capable of identifying existing and predictable hazards in the surroundings, or working conditions which are unsanjtary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.

Two of the three employees at this trench, foreman Iines and heavy equipment operator Scott, received competent person training from the National Utility Contractors Association (Tr. 102). These were two of the fourteen B 8t L employees who took the competent person training (Tr. 147). Although Lines and Scott may have re&ved “competent person” instruction, they did not perform the m
testsandmakethe decisions appropriate to those given the classEcation.
Subpart P, Appendix A(c)(2), requires the competent person to classi@soil as either stable rock Type 4 Type B, or Type C soil, This classification must be ‘@bed on at least one visual and at least one manual analysis.” At the time of the inspection, Lines told Hubert that he had not made a manual test of the soil (Tr. 103,128). Lines tcsti&d that he performed a “visual test” of the soil, noting:
Q. Did you pick up the soil and do anything with it before OSHA arrhd?
A No. I do every day, a visual check. (‘I?. 50).
Later in his testimony, Lines seemed to recall that he may have squeezed the soil to check for firmness and water. His recollection was based on the fact that this was something he usually did. Lines did not lcnow if he actually performed the test on the day of the inspection (Tr. 5940). Lines’ memory would have been freshest when he admitted to Hubert that he performed no manual tests. It is thus concluded that Lines failed to make the required manual soil test. Lines was also incorrect as to the proper method for measuring a trench. Since the standards specify different requirements predicated upon different trench depths, a competent person must be able to measure those dimensions accurately. Failure to have a competent person conduct the tests necessary to classi@ the soil may result in a cave-h from improperly protected trenches.
The violation is affirmed as serious.

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 PENALTY

Considering the factors previously discussed and the gravity of failing to conduct appropriate tests, which is moderate in the circumstances, a penalty of $500 is assesse&

Item 4: Alleged Violation of 0 lP26.652(a)(l)

A violation of 0 1926.652(a)(l) is asserted because B & L did not shore, slope or use alternate methods for protecting its employees in the excavation. The standard fequires:
Each employee in an excavation shall be protected fkom cave-ins by an adequate protective system designed in accofd8llot with paragraph (b) or (c) of this section except when: (i) Excx~tions are made entirely in stable rock or (ii) Excavations are less than 5 feet in depthl l l l

As stated, the trench ranged in depth from 5 foot 4 inches to 6 feet. The standard required that some Drotective system be used unless the trench was dug in solid rock. It was not. Hubert relited that he picked up chunks of soilandptierizedtheminhishandasLines watched. L&s told Hubert that the soil wan a sandy clay. Hubert ~las~ifi& the dl zu lope C based on the ease with which the soil crumbled in his hand (Tr. 95). Lines, on the other hand, recalled that he would have classified the soil as between A and B (Tr. 57). Regardless, B & L should have sloped the trench or employed some other protective method. B & L’s superintendent was on site, and his knowledge of the violation is imputed to the company. Failure to properly slope or shore a trench can result in cave-ins causing serious bodily injury or death. The violation is serious. In determining the appropriate + penalty, the factors previously discussed were considered together with the gravity of the violation, which was high. The penalty was mitigated by the efforts made by respondent since 1980 to create a safe workplace. A penalty of $1,000 is assessed.

B & L’S EMPLOYEE MISCONDUCI’DEFENSE

Before reaching the decision that B & L violated each of the alleged excavation standards, its employee misconduct defense was carefully considered. The Commission has long recognized that an employer is not required to take into account the idiosyncratic L

Co. v. OSHRC, 489 F.2d 1257, 1266 (DC. Cir. 1973). It is not suf6cient to met the defense, however, that an employer “takes safety seriously.” In order to establish 811 affirmative defense on grounds of employee misconduct, the employer must show that: (I) it established work n&s designed to prevent the violative conditions from occur&g (2) the work rules were adequately communicated to its employees; and (3) it took steps to discover vio]&oas of those rules, and effectively enforced the rules when violations were discovered.
&, Gary concrete Ruduc& Inc., 15 BNA OSHC 1051,1056,1991 CXH OSHD 129,344, p. 39,452 (No. 861087, 1991); H. B. J!iwhry co., 7 BNA OSHC 220& 1981 CCH OSHD 125,223 (No. 80-1357,1981), affd, 638 F.2d 812 (5th Cir. 1981).The burden of proving the defense rests with the employer asserting it. S & H Riggers & Enx~ Inc., 7 BNA OSHC 126O,W9 CCH OSHD 123,480 (NO. 15855,1979), re~ti, 659 FM 12’73(5th Cir. lwl)e The company’s work rules must be specific as to the hazard in order that employees know exactly what conduct is prohibited. B & L required employees to wear hard hats in all “construction areas.” (Exh. R-2, pg. 28). Trenches “in unstable or sofi material, 5 feet or more in depth,” were to be sloped or otherwise protected (Exh. R-2, pg. 35). Iikewise, work rules existed regarding use of ladders in trenches and storing excavated materials 2 f&t from the trench edge. Of concern here is the fact that the work rule involving sloping of the trench wz~ based on the earlier standard and addressed only “unstable or soft mateM.” Generally speaking, the work rule must be precise enough to implement tbe rquirements of the standard or be functionally equivalent to it. MXW C’?WU&~ Co., 15 BNA OSHC 1408,1415 n. 4,1992 CCH OSHD 129,546, p. 39,906 n. 4 (No. 89-1027,199l). It is unclear how B & L used the competent person manual (Exh. R-l) which simply recited the new standard. Even if the work rules were arguably specific, however, they were not adequately communicated and enforced. B & L conducted weekly safety meetings, but it was not established that the particular rules were ever communicated to the employees. Each of the work rules at issue was ignored by Rutherford, by Scott and, must significantly, by superintendent Lines. For an employee misconduct defense “[proofj is more rigorous and the defense more difficult to establish . . . .” when the employee is a supervisor. Daniel Combuc~n Co., 10 BNA OSHC 1549,1552,1982 CCH OSHD 126,027 (No. 16265,1982).
As the Commission stated in Jensen ConstmctionCo., 7 BNA OSHC 1477,1478,1979 CCH

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0Sl-D 1 23,664 (No. 761538,1979), “[m]oreover, the fact that a supervisor would feel free to breach a company safety policy is strong evidence that the implementation of the @iv is lax.” Finally, B & L did not enforce the work n&s when violations were shown.
Rutherford was not disciplined for failing to wear his hard bat; Scott, for placing the spoil pile at the trench edge and for Ming to slope the trench; or Lines, for failing to take action to correct the violations ur. 20, 170). Lines and Scott, both of whom tessed
at the
hearing, may be as Blankenship characterized them, %s good as they come” vr. 171).
.
Discipline for safety rule i&actions by no means requires termination. However, B & L took no effective disciplinary measures after four of their wcxk rules were violated. B & L has not met its emplayee misconduct defense.

CITATION NO. 2

Item 1: Alleged Violation of 9 192659(e)(l)

The Secretaq alleges a nonserious violation of 5 1926.59(e)(l) becaust B Bt L did not keep a hazard communication program at the jobsite. Diesel fuel, hydraulic fluid and gasoline were used by employees in Pelham. B & L admits that its written program was kept at its headquarters and not at the jobsite. The standard provides:
Employers shall develop, implement, and maintain az the w&cc, a written hazard communication program . . . . (Emphasis added)

An employer is required to have its program at the actual worksite. sofewav store NO. 914, 16 BNA OSHC 1504, 1993 CCH OSHD 129,597 (No. 91-373, 1993). The violation is “other” than serious since employees were familiar with the hazard communication standard and with the specifics concerning the hazardous substances they worked with (Tr. 106). No penalty is assessed,

FINDINGS OF FACTAND
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).
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 Based on the foregoing decision, it is ORDERED:
(1) That the violation of Q 1926.651(c)(2)is afEirmed as serious and a penalty in the amount of $1,000 is assessed.
(2) That violations of 5 1926.651(j)(2) and 8 192&100(a) are affimwd as serious md a penalty in the amount of $1,000 is assessed (3) That the violation of 9 1926.651(k)(l) is affirmed as serious a.nd penalty of $500 is assessed
(4) That the violation of Q 1926.652(a)(l) is affirmed and a penalty of $1,000 is Maed.
(5) That the violation of si 1%6.59(e)(l) is affirmed as nonserious with no penalty assessed

/s/ Nancv Je SDies
NANCY Je SPm
Judge

Date: March 3, 1994

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