Citadel Corporation

Plain-English summary

Citadel Corporation was the general contractor for construction of two apartment buildings on the Georgia Tech campus. OSHA alleged that Citadel failed to train employees about excavation hazards, lacked a competent person to inspect excavations, and willfully failed to protect employees from cave-ins. The Secretary withdrew a separate excavation-access item before the hearing. The judge found that Citadel presented evidence of employee safety training, qualified supervisors, and daily inspections that outweighed the compliance officer's interview-based testimony. On the cave-in item, the Secretary did not take measurements or perform soil tests, while Citadel supplied measurements and testimony that disputed the alleged unsafe slopes. Both citations were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.21(b)(2), 1926.651(a), 1926.651(k)(1), and 1926.652(a)(1)
• Outcome: Citation 1 and the alleged willful Citation 2 were vacated; the Secretary had withdrawn Citation 1, Item 2.
• Key point: Observations and interviews did not establish excavation violations when the employer produced contrary training, inspection, measurement, and soil-condition evidence.

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. 950221
CITADEL CORPOIUTION
Respondent.

                 NOTICE OF DOCKETING
           OF ADMINISTIWITVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Re art in the above referenced case was

docketed with the Commission on May 5 1996. The decision of the Judge
will become a final order of the Comm&ion on June 3, 1996 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
May 22,l ii96 in order to ermit sufficient time for its review. See
w
Commission 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
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 bv the Commission. then the Counsel for
Regional Trial Litigation will represbt the Departmeht of Labor. Any party
havrng questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date: May 2, 1996
DOCKET NO. 950221
NOTICE IS GIVEN TO THE FOLLOWING:

Jaylynn Fortney
Re ‘onal Solicitor
O&e of the Solicitor, U.S. DOL
Suite 339
1371 Peachtree Street, N.E.
Atlanta, GA 30309

William K Principe, Esquire
Constan ) Brooks & Smith
Suite 24B0
230 Peachtree Street, N. W.
Atlanta, GA 30303 1557

Paul L. Brady
Administrative Law Jud e
Occupational Safety an tf Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

00108964024:04
 United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 Peachtree Street, N.E., Suite 240
Atlanta, Georgia 30309-3 119

Phone: (404) 347-4 197 Fax: (404) 347-O I I3

                                                            .

SECRETARY OF LABOR,
Complainant, -

                     v.                                     ..                  OSHRC Docket No. 95-221

CITADEL CORPORATION,
Respondent.

APPEARANCES

        John A. Black, Esq.                                          William    E. Princiie, Esq.
                Office of the Solicitor                                         Constangy, Brooks & Smith
                U. S. Department of Labor                                       Atlanta, Georgia
                Atlanta, Georgia                                                          For Respondent
                         For Complainant

Before: Administrative Law Judge Paul L. Brady

                                       DECISION AND ORDER

        This proceeding is brought pursuant to Section 10 of the Occupational Safety and Health Act

of 1970 (Act). Citadel Corporation (Citadel) contests two citations issued by the Occupational
Safety and Health Administration (OSHA) alleging three serious violations and one willful violation
of the Act.
Citadel was the general contractor on a project to construct two five-story apartment

buildings known as the Sixth Street Apartments on the Georgia Tech campus in Atlanta, Georgia.
Compliance Officer Tom Harvey conducted an inspection of the worksite on August 3 1, 1994,

resulting in issuance of the citations.
 Before commencement of the hearing in this matter, the Secretary withdrew Item 2 of
Citation No. 1, which alleged a serious violation of 29 C.F.R. 6 1926.65 l(a). At the close of the
Secretary’s case, Citadel moved to dismiss the citations asserting a failure to prove a prima facie
case. A ruling on the motion was held in abeyance to be made part of the decision pending review
of the record. Citadel then proceeded to present evidence.
Citation No. 1. Item 1
Alleged Violation of 29 C.F.R. 5 1926.2 1[b)(2)
The standard states as follows:

   The employer shall instruct each employee in the recognition and avoidance of
   un&e conditions and the regulations applicable to his work environment to control
   or eliminate any hazards or other exposure to illness or injury.

   The citation alleges that employees were “working in and around excavation without

employee training to recognize and avoid unsafe conditions.”
Compliance Officer Harvey testified that the alleged violation was based on interviews with
employees Bennie Stewart and David McGaughey. He was informed that “they had not received
*
any instructional training relative to safety and health issues in trenching and excavations.” This
included training in the recognition of hazards (Tr. 166, 168). On cross-examination, Harvey
admitted that he did not ask Citadel’s superintendent or assistant superintendent on the worksite
about the Company’s safety training or its documentation (Tr. 179. 184).
Citadel argues that if the compliance officer had inquired, he would have learned its safety
training complied with the standard. In support of its argument,, Citadel points out that
Superintendent Greg Thomas testified on cross-examination as follows (Tr. 35):

   Q      Now, Citadel didn’t train its employees on this job site to recognize and
          avoid unsafe excavations, did it?

   A      That’s not true. Yes. We did.

   Q      And who provided the training?

   A      I did. We have a safety package that each employee signs when they’re
          hired. We also have a Citadel Safety Manual that each employee has and is
          given when he is employed, that he has to read and sign, and I witness it.

                                               2

Then we have toolbox safety meetings, which we have every Monday
morning, usually Monday. It depends on the schedule, once a week. And we
discuss the different items for the job. And we had one that Monday, I
believe, before that, before the inspection.
***
Q You didn’t train employees to recognize and to avoid unsafe excavations that
were not trenches, did you?

    A       Oh, yes, we did. We have a safety manual that has all sorts of topics in it.
            We talked about all of it and whatever pertains to the situation that’s going
            on at that time in the construction phase.


    Thomas also testified that employees were given orientation safety training which included

a copy of the Citadel Job Site Safety Manual (Tr. 271-272; Exh. R-12). After completion of the
orientation training, each employee signed a Safety Agreement indicating that he had received
training, would attend weekly safety meetings, and would comply with all OSHA regulations (Tr.
197-198; Exh. R-2). Evidence showed that both Bennie Stewart and David McGaughey had signed
the Safety Agreement (Tr. 198,200,271; Exh. R-2).
To establish a violation of a standard, the Secretary must show by a-preponderance of the
evidence that: (1) the cited standard applies, (2) its terms were not met, (3) empl oyees had access
to the violative condition, and (4) the employer knew or could have known of it with the exercise
of reasonable diligence. Seibel Modern Mfg. & Welding Corp., 15 BNA OSHC 1218,199l CCH
OSHD 7 29,442, P. 39,678 (No. 88-82 1,199l). To establish the violation, the Secretary relied solely
on the compliance officer’s testimony that two employees told him they had received no training.
Citadel’s project superintendent at the jobsite, however, stated that he provided the necessary
training. Although it is not clear when the training was given , his testimony sufficiently refutes the
compliance officer’s testimony.
Clearly, the record shows the Secretary failed to establ ish by a preponderance of the evidence
that the standard was violated.
Citation No. 1. Item 3
Alleged Violation of 29 C.F.R. 6 1926.65 1(k)( 1)
The standard provides in pertinent part that:
 Daily inspection of excavations, the adjacent areas, and protective systems shall be
made by a competent person for evidence of a situation that could result in possible
cave-ins, indications of failure of protective systems, hazardous atmospheres, or
other hazardous conditions. . . .

    The alleged violation is described in the citation as follows:

    0a       875 Northside Drive, Atlanta, GA - 6th Street Apartments - East side
             elevator pit and west side earth wall - Employees, working in and
             around excavation without a trained competent person on site to
             preform [sic] daily inspection prior to employees entering
             excavations. On or about August 23-3 1, 1994.

    The record discloses that some of the initial work on the project involved excavations in two

different areas. At the time of the inspection, neither location was shored or sloped.
In answer to the question as to why he believed the standard was violated, Mr. Harvey stated:

    A        Because of the conversation I had with Mr. Thomas, as well as with Mr.
             Cadle, that Mr. Thomas stated that he did not have a trench, he had an
             excavation and he saw no problem with it. With Mr. Cadle, he stated to me
             that he made no inspections of that location on a daily basis and so, therefore
             Ia and also, if there was a competent person on site, and he stated to me,
             ‘So,” there was not (Tr. 170-l 71).

    Section 1926.650(b) provides that “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.”
Mr. Thomas, the project superintendent, testified that he has over 25 years’ experience in
the construction industry with about 80% of his experience involving projects with excavation and
grading work. Employed in various capacities over that period of time, he had never been on a job
site that received a citation Corn OSHA for excavation or trenching violations (Tr. 13, 17-l 8, 195.
196).
Citadel also shows that Assistant Superintendent Danny Cadle had been in the construction
industry for over 24 years, with experience in a variety of construction projects, all of which
involved grading and excavation (Tr. 3 12). In addition, Cadle testified he received formal

                                               4

Competent Person training sponsored by the Associated General Contractors of Georgia in June,
1993. He received a certificate which he carries with him at all times (Tr. 3 13; Exh. R-l 3). Cadle
testified that he conducted daily inspections of the entire job site noting anything that appeared
unsafe. He stated that the compliance officer never asked him if there was a competent person on
the worksite (Tr. 3 13-3 14,333).
Compliance Officer Harvey concluded the standard was violated based on discussions with
Citadel’s superintendent and assistant superintendent at the site. His testimony, which was
contradicted by Cadle, must be resolved in favor of Citadel. If Cadle had reasonably understood that
his status as a Competent Person was in question, he more than likely would have produced his
certificate. Also, the fact that Superintendent Thomas did not see a problem with the existing
excavation is not crucial in determining whether the standard was violated. Certainly, competent
persons may disagree, or even commit errors in judgment, yet Mly meet the requirements of the
standard.
Citadel’s evidence convincingly shows that inspections were conducted in a manner
consistent with the standard and that Mr. Thomas and Mr. Cadle as competent persons had the
authority to take “prompt corrective measures” whenever hazardous condiiions were discovered
(Tr. 24,39,206,208). The standard was not violated as alleged.
Citation No. 2
Alleged WillfLl Violation of 29 C.F.R. 6 1926.652[a)<l)
The standard, which pertains to protection of employees in excavations, provides in pertinent
.
Part.
Each employee in an excavation shall be protected from cave-ins by an adequate
protective system designed in accordance with paragraph (b) or (c) of this section . . . l

    Paragraph (b) requires that excavations be sloped at an angle not steeper than one and one-

half horizontal to one vertical, or in accordance with Appendices A and B to the standard. Appendix
B specifies the method for classifjring types of soil and provides that Type A soil shall not be sloped
at an angle steeper than three-fourths horizontal to one vertical; Type B soil shall not be sloped
steeper than one horizontal to one vertical; and Type C soil shall not be sloped steeper than one-half
horizontal to one vertical. As an alternative to sloping in accordance with Paragraph (b), an
employer may use another protective system designed in accordance with Paragraph (c). The

citation alleges as follows:
Each employee in an excavation was not protected from cave-ins by an adequate
protective system designed in accordance with 29 CFR 1926.652(c). The employer
has not complied with the provisions of 29 CFR 1926.652(b)(l)(i) in that the
excavation was sloped at an angle steeper than one and one half horizontal to one
vertical (34 degrees measured from the horizontal):

     0a       875 Northside Drive, Atlanta, GA - 6th Street Apartments - East side elevator
              pit and west side earth wall - Employees, exposed to cave-in hazards on or
              about August 23-3 1, 1994.

In this case, there is no dispute the areas in question were excavations (Tr. 286). Compliance Officer
Lawrence Harvey testified why he believed the standard was violated. He stated:
A I noted an excavation on the west side of the job site that was approximately
100 feet in length, that was approximately four and a half to 18 feet in
height and that was a near vertical plane and that there was employees at the
time working adjacent to this excavation. There was no protective systems
that were used. There was no sloping that met the standard.

              I then also noted an elevator pit that had similar conditions with vertical walls
              and no shoring or sloping that was provided. At the time, I did not note any
              employees who was working in that area of the elevator pit, but there was
              indications that there had been employees working adjacent to those walls
              (Tr. 121).

     Harvey was told by Cadle that the pit measured 30 by 40 and 12 to 14 feet in depth (Tr. 155).

He also observed surface cracks in the west wall and “some sloughing off of material that had failed
within the wall” (Tr. 12l-122). The cracks and failures were pointed out to Cadle (Tr. 157).
Testimony revealed that a retaining wall was to be built at the west earth wall. Concrete for
the footings was poured into trenches approximately one to two feet deep and three and one-half feet
wide (Tr. 122, Exhs. C-l, C- 10). Citadel employees had placed engineering stakes next to the earth
wall as part of the construction work (Tr. 130-l 3 1; Exhs. C-2, C-l 5). In the East Building elevator
pit, the edge of the footing was constructed a few feet from the earth wall. It is asserted Citadel
employees worked in the area placing engineering stakes against the wall (Tr. 293-193; Exhs.C-6,

C-7) .

                                                 6

Morteza Astanehasl, an engineer technician for a consulting firm at the worksite, testified
that on three occasions he spoke with Thomas about the need for sloping the west wall. He stated
Thomas told him “some people” were “going to give him a price about the shoring” (Tr. 110).
Ashton Conover, inspector for the project owner, Georgia State Finance and Investment
Commission, testified that he advised Thomas the earth wall needed shoring. He stated Thomas
responded that it would cost a fortune to shore the area (Tr. 61-62). Conover also told Richard
Rogers, Citadel’s project manager, that the wall needed shoring (Tr. 66). Another witness, Bela1
Jarun, project manager for another subcontractor, told Rogers the wall appeared unsafe. Rogers
indicated something would be done about the wall (Tr. 87-88).
Jarun testified that his company’s safety director investigated the matter and advised that the
two excavation sites needed sloping and were in violation of OSHA standards (Tr. 90, Exh. C-8).
Compliance Officer Harvey classified the citation as willful because Citadel disregarded repeated
warnings about the dangers of the West Building earth wall and permitted employees to continue
working next to it (Tr. 150). He also believed that if the wall collapsed, it could cause death or
ierious injury-(Tr. 148-149).
Citadel argues that the Secretary relies on a series of photographs to establish the underlying
violation. In questioning the foundation testimony, Citadel revealed that the west wall was 240 or
280 feet in length and not 100 feet, as indicated by the compliance officer. In addition, the height
of the wall did not range from 4 % to 18 feet in height, but did not exceed 12 feet (Tr. 211,2 13). The
inspecting officer admittedly made no measurements of the excavated areas. He further admitted
that the only soil test he performed was when he picked up some soil “adjacent” to the wall that had
no “cohesiveness” and fell apart in his hand. He contended it could not have been Type A soil
because it had been disturbed--showing “cracks and failures.” He admitted he did not know where
it came from and he did not see any soil in the west wall fall and crumble (Tr. 14 1, 182- 183).
Superintendent Thomas stated that the soil of the west wall was “hard clay, packed cohesive
soil that had never been disturbed” and that he considered it to be Type A or Type B+ based on his
observation and discussions with others about soil on the Georgia Tech property (Tr. 47,48). In
addition, Thomas explained that a 32 - 38 inch diameter oak tree was cut down and fell across the
edge of the west wall three days after the inspection with no affect on the stability of the wall
(Tr. 214, Exh. R-9).
Neither Thomas or Cadle had seen any surface cracks in the excavation walls during their
daily inspections (Tr. 268-327). They stated that at no time during the inspection did the compliance
officer indicate he saw surface cracks (Tr. 268.269,328). In addition Citadel argues that “cracks”
in the surfaces of the excavation were not mentioned in the compliance officer’s 1-B report of the
OSHA investigative file. Similarly, surface cracks are not apparent in photographs of the west wall
(Exhs. C-l, 2, 10-15).
Greg Thomas took measurements at the east elevator pit. He testified that the south wall was
eight feet high from the top of the column footing to the base of the wall and 15 feet from the edge
of the concrete platform in the bottom of the excavation to the top of the south wall (Tr. 262,328).
Thomas further testified that the west wall of the east elevator pit shown in Exhibit C-5 is six feet
from the top the column footing to the base of the wall and 15 feet from the edge of the concrete
platform to the edge of the top of the wall (Tr. 263, 264, 330-331). Thus, it is argued these
dimensions constitute a slope of approximately 1%:1 as required for the least
* stable soil identified
in 29 C.F.R. 8 1926.652(b)( 1). These dimensions are not refuted.
. The Secretary satisfies his burden of proof if the record, when considered as a whole,
contains preponderating evidence in support of his allegations. See Universal Camera Corp. v.
NLRB, 340 U. S. 474 (1951), Ultimate Distribution Systems, Inc., 10 BNA OSHC 1570:

   [A] “preponderance of the evidence” is “that quantum of evidence which is sufficient
   to convince the trier of fact that the facts asserted by a proponent are more probably
   true than false.”

   In this case, the Secretary’s evidence of the violation is based on the observ&ions and

subjective views of the compliance officer and employees of subcontractors at the site. It was not
shown that measurements were taken or soil tests performed at the excavation. On the other hand,
Citadel took some measurements and presented testimony that refuted the Secretary’s case. In light
of all the evidence, the Secretary is less than convincing that the violation occurred as alleged.
 FNXNGS OF FACT AND 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).

                                          ORDER
   Based on the foregoing decision, it is hereby ORDERED:

   (1)    Citation No. 1 is hereby VACATED.

   (2)    Citation No. 2 is hereby VACATED.




                                                  IS/ PAUL 1. BRADY
                                 PAUL L. BRADY
                                 Judge

Date: April 29, 1996