Gustafson Construction Corporation

Plain-English summary

Gustafson Construction Corporation was installing water main and sewer lines in a subdivision in Oak Creek, Wisconsin. OSHA inspected in May 1993 and cited the company for several items. Gustafson withdrew its challenge to all but one: a serious trench cave-in item requiring an adequate protective system under 29 C.F.R. § 1926.652(a)(1). That standard applies once a trench is 5 feet deep or more, so the only real question was the trench's depth. The compliance officer estimated it was more than 5 feet deep based on the exposed valve stem and watching an employee walk out of a trench deeper than his head; the company's foreman argued from cut sheets and a vague memory that it was under 5 feet. Administrative Law Judge Benjamin R. Loye credited the officer's estimate, found the trench exceeded 5 feet with no shoring in place, and affirmed the serious violation. The company had stipulated to the penalty if the item was affirmed as serious, so the judge assessed the agreed $1,200.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1)
• Outcome: The one contested item, an unprotected trench, was affirmed as serious with the stipulated $1,200 penalty; the remaining items stood after the company withdrew its contest.
• Key point: Trench cave-in protection is required at 5 feet of depth; a compliance officer's credible depth estimate can carry the case when the employer offers no measurement to rebut it.

Full text (OSHRC public release)

                                        UNITED STATES OF AMERICA
               OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                          One Cafayette Cents
                                    1120 20th Street, N.Wm- 9th floor
                                       Washington, DC 200363419

                                                              .

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             SECRETARY OF LABOR
                         Complainanh
                   v.                                                   OSHRC DOCKET
                                                                        NO. 93-1824
             GUSTAFSON CONSTRUCI-ION CO.
                         Respondent.


                                   NOTICE OF DOCKETNG
                             OF ADMINIsTRATlvE IAW JUDGE’S DECISION
                  The Administrative Law Judge’s Report in the above referenced case was
             docketed with the Commission on August 2,1994. The decision of the Judge
             will become a final order of the Commission on September 1,1994 unless &
             Commission member directs review of the decision on or before that date. ANY-
             PARTY DESIFLINGREVIEW OF THE JUDGE’S DECISION BY THEl
             COMMISSION MUST FILE A PETlTION FOR DISCRETIONARYREVIEW.
             Any such petition should be received the Executive Secretary on or before
             August 22, 1994 in order to ermit s7lizcient time for its review. See
             Commission Rule 91,29 d .R 2200.91.
                All further pleadings or communications regarding this case shall be
             addressed to:
                                    ExecutiveSecretary
                                    Occupational Safety and Health
                                    Review Commission
                                    1120 20th St. N.W., Suite 980
                                    Washington, DC. 20036-3419
             Petitioning parties shall also mail a copy to:                                *

                                    Daniel J. Mick, Esq.
                                    Counsel for Re l onal Trial IAi ation
                                    Of&e of the So%‘&or, U.S. DOe
                                    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) 606-5400.
                                                    FOR THE COMMISSION


             Date: August 2, 1994

DOCKET NO. 93-1824
NOTICE IS GIVEN TO THE FOLLOWNG:

    Daniel J. Mick, Esq.
    Counsel for Re ‘onal Trial Liti ation
    Office of the So%‘citor, U.S. DOgL
    Room S4004
    200 Constitution Ave., N.W.
    Washington, D.C. 20210



    John H. Secaras, Esq.
    Re ‘OMISolicitor
    O&e of the Solicitor U.S. DOL

. 230 South Dearborn &.
Chicago, IL 60604

    Steven J. Sla-     Esq.
    O’Neil, Cannon & Hollman, S.C.
.   Suite 1400, Bank One Plaza
    111 East Wisconsin Avenue
    Milwaukee, WI 53202



    Benjamin R. Lo e
    Administrative G w Jud e
    Occupational Safety and Health
     Review Commission ’
    Room 250
    1244 North S eer Boulevard
    Denver, CO If0204 3582




    00122032212:OS

UNtTED STATES Of AMERm
OCCUPATIONAL SAFETY AND HEALTH REVIEW COhhhiISSlON
1244 N. Speer Boulevard
Room 250
Denveq,cobado 802w4w2

SECRETARY OF LABOR,
Complainant

  V.                                               OSHRC Docket Na 934824

GUSIAFSON CONSTRUCTION
CORP,
Respondent,

APPEAMNCES:

         StcvlleaJ. Sawinski,Bq., O’NdI,Cbmonand HUnan, SC, lidihmm Wisumia

Before: AdministrativeLaw Judge Benjamin R bye

                          DECISION AND ORDER


  This proceeding arises under the Occupational Safety and Health Act of 1970 (29


  Respondent, Gust&on Construction Cqoration           (Gust&m), at all times

relevant to this action maintained a w&site at Forest Hill Heights SubdivWn, Oak
creek; Wisconsin, where it was engaged in water main and swe~ ~nstru&n.
.
Gustafh admits it is an emplayer engaged in a business affecting commerce and is
subject to the requirements of the Act.
On May 26, 1993 the Occupational safety and Health Administration (OMA)
conducted an inspection of Gusta&on’s Oak Creek worksite vr. 27-28). As a result of
 the inspection, Gustafson was issued citations, together with proposed penalties, aeag
violations of the Act. By filing a timely notice of contest Respndent brought this pf~l
ceding before the Occupational Safety and Health Review Commksion (ammission).
Prior to hearing, Gust&on withdrew its notk of cootest to the cited items, as
mended, with the exception of Serious citation 1, item 2, alleging violation of 29 CFR
~192&652(a)(l) (T’r. 6, 11). On November 17, 1993 and April 5,1994 a hearing was heki
b Mswaukee, Wisconsin,on the matter remaining at issue Tht parties have waived or
submitted brie& and this mattc~ is ready for dispo&ion.
AlIened Violatioq
Serious citation 1, item 2 states:
29 CFR 1926652(a)(l): Each employee in an excavation wm not protected from a~-
ins by an adequate protective system designed in acc&ancc with 29 CFR lB6&52(c).
The employer had not complied with the provisions of 29 CF’R 1926.6S2(b)(l)(i) in that
’ the excavation was sloped at an angle steeper that (sic) one and oneMf hmimntal to
one vertical (34 degrees measured from the horizontril):

     (a) A trench, located in the Forest Hill Heights Subdivision, was (6) feet deep
     and16feetloaganddidnothantheNorthandSouth~rlopednotwaran
     alternative support system provided.

     The cited standard statesz

     Each employee in an excavation shall be protected loom cave-ins by an adequate
     protective system designed in acuxdancc with paragraph(b) or (c) of this section
     except when: (i) kavations are made entirely in stabk rock or (ii) Excavations
     are less than 5 feet (ljzm) in depth and examinationof the groundby a compc-
     tent person provides no indication of a potential cavc4n.


     At appruximately 1230 p.m. on May 2& 1993, compliance OfEas (Co) Donaki

Zehm arrived at the Oak Creek worksite (Tr. 28). Z&m obmwd an excavator in the
process of openinga trench (‘I’r.30). The excavationwas 16 to 20 feet bng (the kngth c

of a single pipe section), approximately 36” wide, and bad vertical wab (Tr. 33-34,55).
Station points were marked by stakes on which the station po&s were written vr. 44).
Zehm stated that the. trench was cut to a position between station points 38 and .SOvr.

                                             2

39, 4645)‘. Z&III estimated the depth of the trench based upon his observation of the
SO stake and the v&e stem, and upon the cut sheet provided by the city inspect,
which places the Watrous v&e at station .38 at a depth of 6.25, and the trench depth at
the 250stake at 6.33 feet (Tr. 35, 39, 45; Exh. Cd). Z&m did not measue the trench’s
depth (Tr. 44&
Dennis Sauer, the land surveyor who prepared the Oak Creek cut sheets rr.
148), testSed that the depths on the cut sheet are the speci&atio~~depths from the topr
of the station markers, or stake to the imrzrt, or the inside of the pipe at its bwmt
point (Tr. 151). The stakes themselves extended nine inches atwe the ground surf&c
ur. 146). The specification depth at station 38 was, there&c, 6.25 ftet, or 6 feet 3
inches less 9 inches, or 5 feet 6 inches rr. 151-52). At station 30 the treneb depth was
specified at 5 feet 7 inches (T’r. l55,207-08~*
Sauer testified that the cut sheets were not a measurement of the ati depth af
the trench ur. 184). However, Frederick Fairba&, Jr., the city water inspector who
was on site the day of the inswon vr. 80), testi&cl that Gust&on met the depth
specificationson that date, plus or minus an inch PL 234,236).
In addition, Z&m testified that he observed a Gust&o~ etipbyee, Jim Knapp,
exiting the trench after making axwctions at the valve (Tr. 34,319). Zebm stated that
the trench was deep enough that he did not see Knapp who is appr&nately 5’13”pr.
47), until he walked up the ramp at the west end of the trench pr. 3149,321).
Rich Underman, the excavator operator, was also the ucompetent person” on
site vr. 31). Dundennan told Zebu that, based on visual and manual tests, he had
classifiedthe soil in the trench as type B (Tr. 32-33). No shoring system was in place

2 ‘lb trench is origin&y dug approximatelybur inches deeper than the immt spaziibdon In ordcTtb
~~~~~alayerofbcddiagsand~.210~ Theevidenaindhterthattbtsamdbai,rr~mthe
pipe bad ban kid at the time of the inspection(Tr,215,272)

             .                             3

(Tr. 35). Trench shields arrived on the site duringthe OSHA inspection and
. were plad

   Respondent’s foreman, Robert Francis kszqnski,          Jr. vr- 251), test&d that his

crew excavated only the cross at station AlObefore lunch on the day of the inspection (‘Tr.
258-59). The crew returned from lunch at approximately 12:30, shortly after which
Lesxqnski left to get the trench shields pr. 26041). bsxcqnski test&d that when he
returned, he found CO Z&n on the site. He stated that the crew had excavated for
only one length of pipe, approximately l%l/Z feet, plus the kngth of the graded ramp on
the west side vr. 262,265). Leszqnski stated that the trench coufd not have exten&d
past station 38, which is 38 feet outside the crm fir. 263).
Leszczynski maintained that the tremh was kss than 5 feet deep at the time of
the inspection, based on the cut sheets and his observation of his pipe layer, KnappFL
274). The cut spccilbtion at station .OOwas 523, indicating a trench depth of 4 fctt 6
inches fir. 270-71;Exb. R-3). Lesmynski believed that the trench ended about 20 fctt
ftom the truss, and that the deptb at that point must be between 4 feet 6 inches and the
5 foot 6 inch depth spcci%d at station 38. Lemqnsti stated that be obsezved his pipe-
layer standing in the trench tu chest kvel pr. 275).
Ltxmczpki admitted that his recoIkction of this partkuk trench was vague (Tr.
274), and that the only time Lcszqnski obmwd Mr. Knappin th+ trench WBW
priorto
the crew% lunch ho&, when the crew put a pump in the trench at the cmss (Tr. 29748).
Lesqmski did nut imua&ymeasure the trench QY. 27& 315).
Discrrrsion
In order to prove a violation of section S(a)(2) of the Aa, the Secretary must
show by a preponderance of the evidence that (1) tbe cited standard applies, (2) there
was a fGlure to complywitivthe cited standard,(3) empbyees had access to the violative
condition and (4) the cited employer either knew qc could have known of the con&ion
with the exercise of reascmbk diligems
S& egq Wukr Towing Corp., 14 BNA OSHC 2072, 2074, 1991 CCH OSHD
129239, p. 39,157(No. 87-1359,1991)

                 .

me uncontroverted &&xc establishes that the cited trench did not con& a
protective system of any kind, that a Gus&on empluyee was working in the trench, and
aat &staf$on sqxxviso~ personnel were aware of the conditions. The sole issue to be
decided is whether 91926.652(a)(l) is applicable; specifically, whether the cited trench
exeeded 5 feet in depth.

    Lacqnski    did not measure the depth of the trench following the OSHA inspec-

tion, though he had ample opportunity to do so, nor did he dispute Co Zebds ~SM+
ment of the depth of the trench or the need for a trench box. bzczynski admitted that
his reuWction of the day of the inspection was vap, his estimate of the trench%depth
was based on the amount of time excavationhad been proceeding,the cut sheets, and his
obsewations of Mr. Knapp, which were made before the cited trench was even
excavated

 -. On the other-hand, Zehm clearly testified to seeing the vahre stem, which was to

be located at station .38 at a depth of 6.25 feet, and to watching Mr. Knapp walk out of
a trench deeper than the top of his head
The undersigned finds CO Z&m’s estimate of the trench’s depth crcdiiik, and
that the trench was more than five feet deep. ‘Estimations of distance based cm obser-
vations are admis&le and may be dispositive in the absence of proof to the contrary.~
S&eFed.REvid. 701; Wd w Inc., 15 BNA OSHC 1718, 1721, 1992 CCH 06HD
29,743(No. 8%1559,1!W2)8
The Secretary has shown the cited violations
pm& t
CO Zehm testified, without contradiction that an employee caught in a collapsing
trench would probably stier serious bodily harm in the form of kturu FL 67-68).
The violation was, therefort, serious.
 At the hearing, Gust&on stipulated that the proposed penalty of $l,~.~ m
appropriate in the event that the violation was afbmcd as serious pr. 8). Mitigat@
factors (prior history with OSHA, good faith, employee exposure and likelihod of an
accident actually occming) cannot, therefore, be considered. The proposed penalty will
beassesdm
of Fact and Conclusions of Law
JTiiiiidinns
All findings of fact and conclusions of law rekvant and neces8q to a determina-
tion of the contested issues have been found specially and appear ih the decision ah.
See Rule 52(a) of the Federal Rules of Civil Procedure.

10 Serious citation 1, item 5 allegiqg violation of ~1926652(a)(l) is AFFIRMED, and
a penalty of $1,2OO.Ulis ASSESSED.
.

Dated: July 22, 1994