P. A. Landers, Incorporated
Four excavation violations affirmed for $10,300, willful charge reduced to serious
Apply this to your situation
This order from 1995 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
P. A. Landers, Incorporated was constructing a manhole in an excavation about 8.5 feet deep beside a roadway carrying substantial traffic. Three employees worked without hard hats, bricks and concrete blocks were stored within two feet of the edge, and the access ladder extended only one foot above the landing instead of three feet. The excavation also had two vertical sides and no adequate cave-in protective system. Administrative Law Judge Richard DeBenedetto rejected the company's Type A soil position because the soil had been disturbed and was exposed to heavy-traffic vibration, but he found that the project manager's testing and instructions kept the conduct at the level of carelessness rather than willfulness. He affirmed the protective-system item as serious rather than willful for $5,000. The other three serious items were affirmed for $2,000, $3,000, and $300, making the total penalty $10,300.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.100(a), 1926.651(j)(2), 1926.1053(b)(1), and 1926.652(a)(1).
- Outcome: Modified. All four items were affirmed, but the protective-system violation was classified as serious rather than willful; total penalties were $10,300.
- Key point: Previously disturbed soil and heavy traffic can disqualify a Type A classification, even when a project manager performed tests and believed a steeper short-term slope was adequate.
Full text (OSHRC public release)
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19
Phone:(202)606-5400
Fax:(202)606-5050
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-2992
P. A. LANDERS
Respondent.
NOTICE OF DOCKETING
OF ADMl[NLsTRATLvE LAW JUDGE’S DECISION
The Administrative Law Judge’s Ke rt in the above referenced case was
docketed with the Commission on July r 1995. The decision of the Judge
will become a final order of the Commikion on August 7, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF TEXEJUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secret on or before
July 24 1B95 in order to ermit sufficient time for its review. T ee
Comrmssion Rule 91, 29 8 .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioningparties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO%
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
Secretaryor call (202) 6063400.
FOR THE COMMISSION
Date: July 6, 1995
DOCKET NO. 93-2992
NOTICE IS GIVEN TO TKE FOLLOWING:
Albert H. Rest, Esq.
Re ‘onal Soliator
O&e of the Solicitor U S DOL
One Congress Street, ilth ‘noor
P.O. Box 8396
Boston, MA 02114
Richard F. Schiffina~, Esq.
3180 Main Street
Barnstable, MA 02630
Richard DeBenedetto
Administrative Law Jud e
Occupational Safety an if He&h
Review Commisszon
McCormack Post Offic and
Courthouse, Room 420
Boston, MA 02109 4501
00109126458:Ol
.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSETTS 02109-4501
PHONE: FAX:
COM (617) 223-9746 COM (617) 223-4004
FIS (617) 223-9746 FTS (617) 223-4004
..
SECRETARY OF LABOR, ..
Complainant, ..
..
v. .. OSHRC
.. Docket No. 93-2992
P.A. LANDERS, INCORPORATED, ..
Respondent. ..
..
Appearances:
David L. Baskin, Esq. Richard F. Schiffmann, Esq.
Office of the Solicitor Barnstable, MA
U.S Department of Labor For Respondent
For Complainant
Before: Administrative Judge Richard DeBenedetto
DECISION AND ORDER
P.A. Landers, Inc. (Landers), was cited on October 8, 1993, for serious violations of:
the head protection standard at 29 C.F.R. 5 1926.100(a); the excavation standard at 5
1926.651(j)(2) which calls for protection against materials or equipment from falling into
excavations; the portable ladder standard at 5 1926.1053(b)(l) which requires ladder side
.
rails be extended at least 3 feet above the upper landing surface. A second citation alleges
willful violation of the excavation protective system standard at 5 1926.652(a)(l). The
Secretary proposes that penalties of $2,000, $4,000 and $2,000 be assessed, respectively, for
the three serious violations and $35,000 for the willful.
Landers is engaged in business as a general contractor for highway construction (Tr.
72). On September 15, 1993, it was in the process of constructing a manhole composed of
cement. blocks and bricks. The excavation, which was dug in one lane of an apparently two-
lane roadway, was 14 by 16 feet wide and 8% feet deep. The second lane of the roadway
was open to substantial volume of traffic, including heavy trucks (Tr. 15, 45).
When the two OSHA inspectors appeared on the site that day, September 15, there
were three persons working in the excavation, including the foreman. The north and east
sides of the excavation were “moderately” sloped, the south and west sides were vertical, no
side of the excavation was sloped in the horizontal to vertical ratio of 1% feet to one (or 34”)
which the Secretary claims was required for the type of soil at the excavation where no other
alternative method of protecting employees from a cave-in existed (Tr. 13, 44, 119-20, 138.
39) .1 These facts are not seriously disputed. Nor is there any dispute regarding the
violative conditions which compose the three-item serious citation: the three employees
‘Table B-l of appendix B of the excavation standards specifies the maximum allowable slopes for each of the
four soil classifications:
SOIL OR ROCK TYPE MAXIMUM ALLOWABLE SLOPES (H:V)
FOR EXCAVATIONS LESS THAN 20
FEET DEEP [3]
STABLE ROCK VERTICAL WI
TYPE A [2] 314:1 (53 0 )
TYPE B 1:1 (45 0 )
0
TYPE C M:l (34 >
1 .
NOTES:
- Numbers shown in parentheses next to maximum allowable slopes are angles expressed in degrees
from the horizontal. Angles have been rounded off.
2 A short-term maximum allowable slop of 1/2H:lV (63”) is allowed in excavations in Type A soil that
are 12 feet (3.67 m) or less in depth. Short-term maximum allowable slopes for excavations greater than 12
feet (3.67 m) in depth shall be 3/4H:lV (53”).
3 Sloping or benching for excavations greater than 20 feet deep shall be designed by a registered
p;ofessional engineer.
working in the excavation, where there was a possible danger of head injury, were not
wearing head protection; materials including bricks and cement blocks were kept less than
2 feet from the edge of the excavation thereby exposing the employees to the danger posed
by those materials falling into the excavation; the portable ladder used by the employees to
gain access to the upper surface of the excavation extended only one foot instead of three
feet above that surface (Tr. 18-22); Exhs. C-1 through C-7).
The only real controversy in this case focused on the classification of citation number
2 as willful (Tr. 147-49). Landers’ post hearing brief. The gist of the Secretary’s argument
is that the foreman on the job, Eric Palmstrom, who knowingly identified himself as the
L(Competent person,“2 was well aware of the OSHA safety standards for excavations, and
the obligation to protec employees from cave-ins when working in Type C soil that are 5
feet or more in depth.3 The Secretary maintains that the foreman’s actual knowledge of
the soil type. and the consequent requirement for some form of protective system
demonstrates intentiona disregard of or clear indifference to the excavation safety standard.
In General Motors Cop., Electra-Motive Division, 14 BNA OSHC 2064, 2068, 1991
CCH OSHD lI29,240 (No. 82-630 et al., 1991), the Commission summarized essential
elements of a willful violation:
A willful violation is one committed with intentional, knowing or
voluntary disregard for the requirements of the Act, or with
plain indifference to employee safety. It is differentiated from
other types of violations by a heightened awareness -- of the
illegality of the conduct or conditions -- and by a state of mind -
- conscious disregard or plain indifference. However, a violation
is not willful if the employer had a good faith belief that it was
not in violation. The test of good faith for these purposes is an
2Competent person is defined by 29 C.F.R. 5 1926.650(b):
Competent person means one who is capable of identifying existing and
predictable hazards in the surroundings, or working conditions which are
unsanitary, hazardous, or dangerous to employees, and who has
authorization to take prompt corrective measures to eliminate them.
3L,anders’ foreman testified that during his discussions with the OSHA investigators on September 15, he
admitted telling one of the OSHA officers that the excavation involved Type C soil because it had previously
been excavated or disturbed (Tr. 17, 115).
3
objective one -- whether the employer’s belief concerning a
factual matter, or concerning the interpretation of a rule, was
reasonable under the circumstances.
It is not enough to show that an employer was aware of conduct or conditions constituting
a violation; such evidence is necessary to establish any violation. Nor is it enough for the
Secretary simply to show carelessness or lack of diligence in discovery or eliminating a
violation. Williams Enterprises, Inc., 13 BNA OSHC 1249, 1256-57, 1986-87 CCH OSHD
1127,893 (No. 85-355, 1987).
No mechanical test of the soil was performed by either party to determine the
stability of the soil. The Secretary apparently relies on the foreman’s statement to the
OSHA compliance officer during the inspection that he considered the soil to be Type C
because the soil had been dug some time in the past in order to install underground utility
lines (Tr. 17, 115). On the basis of this statement, the Secretary charges that Landers should
be held accountable for failing to slope at an angle not steeper than 1% horizontal to 1
vertical - the allowable slope for Type C soil.
The record indicates that the only soil analysis was done by Landers’ project manager,
Joseph Kerrissey, a civil engineer, who testified that he performed visual and manual tests
which led him to conclude that the soil was composed of strong, cohesive material
classifiable as Type A (Tr. 78-79). When questioned on direct examination concerning the
apparent inconsistency in the. fact that the regulations specifically preclude previously
disturbed soil from qualifying as Type A, he explained that the previously disturbed soil
existed only 3 feet below the surface where the utility lines were located, the remainder of
the soil was Type A (Tr. 80.81)”
“Appendix A(b) of the excavation standards provides that no soil is Type A if:
0i The soil is fissured; or
(ii) The soil is subjected to vibration from heavy traffic, pile driving, or similar
effects; or
(iii) The soil has been previously disturbed; or
w The soil is part of a sloped, layered system where the layers dip into the
excavation on a slope of four horizontal to one vertical (4H:lV) or greater;
or
0V The material is subject to other factors that would require it to be classified
as a less stable material.
4
On cross-examination, Secretary’s counsel called the witness’s attention to two other
discrepant provisions in the regulations: that Appendix A(b)(ii) disqualifies the soil from
being classed as Type A because of the undisputed presence of heavy traffic (Tr. 93); that
Appendix A(c)(4) re q uires a layered system “be classified in accordance with its weakest
layer.” Although there was no attempt by Landers to clarify these inconsistencies, the latter
provision contains the following language that may be placed on the credit side of Landers’
account: “each layer may be classified individually where a more stable layer lies under a less
stable layer.”
In determining the slope of the excavation, the project manager testified that he was
also motivated by the provisions in the regulations which permit a short-term slope of %
horizontal to 1 vertical in Type A soil 12 feet or less in depth. Table B-l, supra, n.1. Both
the project manager and the foreman presented uncontradicted testimony that the
excavation was open less than one day? It is of compelling significance that the foreman
relied on the project manager’s professional engineering expertise for devising the method
of protecting the employees from cave-in (Tr. 128). The project manager testified that his
instructions were to open the excavation wide enough to avoid any danger from possible
cave-in of the sides of the excavation (Tr. 79). The Secretary’s photographic evidence shows
that two sides were in fact inclined away from the excavation to a substantial degree (Exhs.
C-l thru C-5).
It merits observation that although it is clear that the conditions at the site precluded
a TvDe A soil classification, there is nothing in the record which explains why both parties
JI
failed to address or refer to Type B soil, which expressly includes previously disturbed soils,
Appendix A(b)(iii), and, by implication, soils subject to vibrations. While the B classification
would not improve Landers’ position in light of the excavation’s two vertical sides, it would
tend to lessen the overall gravity of the violation.
Viewing the evidence in light of the judge’s observations of the witnesses, it is
concluded that while it is clear that Landers violated the excavation protective system
‘Appendix B(b) defines short-term exposure as a period of time less than ‘or equal to 24 hours that an
excavation is open.
5
standard at 5 1926.652(a)(l), and that the violation was serious within the meaning of 29
U.S. C. 5 666(k),6 it did not go beyond the bounds of carelessness and rise to the level of
a willful violation.
As previously noted, Landers did not mount any significant challenge to the three-
item serious citation. The photographic evidence provides clearly perceptible images of the
substandard conditions which support the Secretary’s claim that serious violations occurred
when: (a) the three employees were working in the excavation without head protection, (b)
materials were kept close to the edge of the excavation, and where (c) the portable ladder
extended only one foot instead of three feet above the excavation surface.
Applying the penalty criteria of 29 U.S.C. 5 666(j), a penalty of $2,000 is assessed for
the head protection violation, $3,000 for the failure to keep materials away from the edge
of the excavation, $300 for the ladder violation, and $5,000 for the failure to provide an
adequate excavation protective system.
Based upon the foregoing findings and conclusions, it is
ORDERED that serious citation number 1 is affirmed and a total penalty of $5,300 is
assessed. It is further
ORDERED that citation number 2 is affirmed as a serious violation and a penalty of $5,000
is assessed. -
RICHARD DeBEFEDETTO
Judge, OSHRC
Dated: June 27, 1995
Boston, Massachusetts
6A serious violation exists in a place of employment if there is a substantial probability that death or serious
physical harm could result from a condition which exists should an accident occur. 29 C.F.R. $ 666(k).
6
UNITED STATESOF AMERICA
OCCUPATIONAL SAFElY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSETl’S 02109-4501
PHONE: FAX:
COM (617) 223-9746 COM (617) 223-4004
Fis 223-9746 FTS 223-4004
NOTICE OF DECISION
IN REFERENCE TO:
P.A. Landers, Incorporated
Secretary of Labor v. -
OSHRC DOCKET ‘NO .
1 Enclosed is a copy of my decision. It will be submitted to the Commission’s Executive
Secretary on June 27, 19%
The decision will become the final order df the Commission at the expiration of thirty (30)
days from the date of docketing by the Executive Secretary, unless within that time a
Member of the Commission directs that it be reviewed. All parties will be notified by the
Executive Secretary of the date of docketing.
2 Any party adversely affected or aggrieved by the decision may file a petition for
discretionary review by the Review Commission. A petition may be filed with this Judge
within twentv (20) davs from the date of this notice. Thereafter, anv petition must be filed
with the Review Commission’s Executive Secretarv within twentv (20) davs from the date of
the Executive Secretarv’s notice of docketing. See paragraph No. 1. The Executive
Secretary’s address is as follows:
Executive Secretary
Occupational Safety and Health Review Commission
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
.
Washington, D.C. 20036-3419
3 The full text of the rule governing the filing of a petition for discretionary review is
29 C.F.R. 0 2200.91. (Part of Rule 91 is attached hereto).
RiCHARD DeBENEDETTO
Judge, OSHRC
June 5, 1995
Dated:
Boston, Massachusetts
0
9 2200.91 Piscretionaw Review PetitionsfQr Dm tionary Review; Statement4
00
ition to oetl t ions,
0a Review Discretionary. Review by the Commission is not a right. A
Commissioner may, as a matter of discretion, direct review on his own motion or on the
petition of a party.
09 petitions for DiscretionaN Review. A party adversely affected or
aggrieved by the decision of the Judge may seek review by the Commission by filing a
petition for discretionary review. Discretionary review by the Commission may be sought
by filing with the Judge a petition for discretionary review within the twenty-day period
provided by 220090(b). Review by the Commission may also be sought by filing directly
with the Executive Secretary a petition for discretionary review. A petition filed directly with
the Executive Secretary shall be filed within 20 days after the date of docketing of the
Judge’s report. The earlier a petition is filed, the more consideration it can be given. A
petition for discretionary review may be conditional, and may state that review is sought only
if a Commissioner were to direct review on the petition of an opposing party.
l l 8 *
Contents of the Petition. No particular form is required for a petition
for discretionary review. A petition should state why review should be directed, including:
Whether the Judge’s decision raises an important question of law, policy or discretion;
whether review by the Commission will resolve a question about which the Commission’s
Judges have rendered differing opinions; whether the Judge’s decision is contrary to law or
Commission precedent; whether a finding of material fact is not supported by a
preponderance of the evidence; whether a prejudicial error of procedure or an abuse of
discretion was committed. A petition should concisely state the portions of the decision for
which review is sought and should refer to the citations and citation items (for example,
citation 3, item 4a) for which review is sought..A petition shall not incorporate by reference
a brief or legal memorandum. Brevity and the inclusion of precise references to the record
and legal authorities will facilitate prompt review of the petition.
0e When Filinn Effective. A petition for discretionary review is filed when
re&,ed. If a petition has been filedwith the Judge, another petition need not be filed with
.
the commission, -w
0 Failure to File. The failure of a party tidverselyaffected or aggrieved
by the Judge’s decision to file a petition for discretionaryreview may foreclose court review
of the objections to the Judge’s decision. See Kky~ne RoqfbgCo.Y,Dun&p,539F.2d960
(3d Ck 1976).
0 Statements in Opposition to Petition. Statements in Opposition to
petitions for discretionary reviewmay be fled in the manner specifiedin this section for the
filing of petitions for discretionary review. (See other side)
Employer
Richard F. Schiffmann, Esq.
3180 Main Street
Barnstable, MA 02630
FOR THE EMPLOYEES
I hereby certify that a copy of the decision in this
case has been served by First Class Priority Mail
upon the parties whose names and addresses
appear on this notice.
Boston, Linda M. Quinn
June 5, 1995 (date’)
Albert H. Ross, Esq.
Regional Solicitor
U.S. Department of Labor
One Congress Street, 11th Floor
Boston, MA 02114
Attn: David Baskin, Esq.
Daniel J. Mick, Esq.
Counsel for Regional Litigation
Office of the Solicitor - U.S. Dept. of Labor
200 Constitution Avenue, N.W., Room S. 4014
Washington, D.C. 20210
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