Aviation Constructors, Inc.

Plain-English summary

Aviation Constructors hired a subcontractor to install a shotcrete shoring system for a baggage-tunnel excavation at Atlanta's airport. The company knew a registered professional engineer had not approved the design, yet it allowed subcontractor employees to work for ten days in the excavation while repeatedly asking for the missing drawings. The excavation collapsed and seriously injured a worker. The Commission affirmed willfulness because requests for drawings were not objectively reasonable compliance efforts when Aviation could have kept employees out until approval arrived. It reduced the penalty from $55,000 to $20,000 because the installed system was later considered adequate and the collapse resulted from developments an engineer could not have anticipated. Two settled serious items added $4,000, bringing the ordered penalties to $24,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1); 29 C.F.R. § 1926.651(c)(2); 29 C.F.R. § 1926.652(e)(1)(ii).
• Outcome: Willful cave-in-protection violation affirmed with penalty reduced to $20,000; two settled serious items remained at $2,000 each.
• Key point: Knowing that an engineer-approved shoring plan is required, repeatedly requesting it while allowing excavation work to continue does not establish objective good faith.

Full text (OSHRC public release)

                                             :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : Docket No. 96-0593
:
AVIATION CONSTRUCTORS, INC., :
:
Respondent. :
:

                                   DECISION

Before: ROGERS, Chairman; VISSCHER, Commissioner.
BY THE COMMISSION:
Respondent, Aviation Constructors, Inc. (“ACI”), specializes in the construction of
facilities at airports. ACI contracted with Delta Airlines to construct a baggage conveyor
tunnel at Hartsfield International Airport in Atlanta, a project which required that an
excavation be opened in the concrete surface. ACI in turn subcontracted with Pressure
Concrete, Inc. (“PCI”) to install a shoring system in the excavation. While PCI was engaged
in this work, the excavation collapsed, seriously injuring one of PCI’s employees. The
Secretary issued a citation alleging that ACI committed a willful violation of the Occupa-
tional Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (the “Act”), by failing to
comply with 29 C.F.R. § 1926.652(a)(1), which requires that excavations be adequately
protected against cave-ins. Specifically, the Secretary charged that the shoring system PCI
installed in

                                                                1999 OSHRC No. 27

2

the excavation was not approved by a registered engineer.1 The only issue before us is
whether Administrative Law Judge Ken S. Welsch erred in finding the violation willful in

   1
       The cited standard provides, in relevant part, as follows:

   § 1926.652 Requirements for protective systems.

   (a) Protection of employees in excavations. (1) 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 . . . .
   ....
   (c) Design of support systems, shield systems, and other protective systems.
   Designs of support systems, shield systems, and other protective systems shall
   be . . . in accordance with the requirements of paragraph (c)(1); or, in the
   alternative, paragraph (c)(2); or, in the alternative, paragraph (c)(3); or, in the
   alternative, paragraph (c)(4) as follows:
   (1) Option (1)—Designs using appendices A, C, and D. . . .
   (2) Option (2)—Designs Using Manufacturer’s Tabulated Data. . . .
   ....
   (3) Option (3)—Designs using other tabulated data. . . .
   (4) Option (4)—Design by a registered professional engineer. (i) Support
   systems, shield systems, and other protective systems not utilizing Option 1,
   Option 2 or Option 3, above, shall be approved by a registered professional
   engineer.
   (ii) Designs shall be in written form and shall include the following:
   (A) A plan indicating the sizes, types, and configurations of the materials to
   be used in the protective system; and
   (B) The identity of the registered professional engineer approving the design.
   (iii) At least one copy of the design shall be maintained at the job site during
   the construction of the protective system. After that time, the design may be
   stored off the job site, but a copy of the design shall be made available to the
   Secretary upon request.

It is undisputed that the shoring system was not derived from established data or other fixed
criteria and that therefore Option 4, which requires the approval of a registered engineer, is
the provision of the standard applicable here.
 3

nature as alleged.2 For the reasons that follow, we conclude that the violation was willful,
and we assess a penalty of $20,000.
FACTS
At the time ACI contracted for the work, it intended to use plywood sheeting or
timber cross-bracing but during the process of designing such a system ACI discovered that
those materials would be infeasible due to the restricted space available and hazards created
by exposing footings which carried the load of a canopy directly above the work site. For
approximately a month afterward, ACI had communications with an engineering company,
Starzer & Ritchie, regarding other possible soil retention systems but none of the proposed
systems would work within the physical constraints of the job. ACI ultimately decided to use
a shotcrete bracing system,3 similar to the one installed by a subcontractor at an ACI job for
Delta Airlines at the Cincinnati, Ohio airport. Since the contractor who had installed that
system at Cincinnati was not available, ACI solicited PCI to install the shoring system.4
On October 18th, 1995, ACI began demolition work on the sidewalk under the
canopy with the opening of the excavation scheduled for 6 days later, October 24th. On
either the 18th or 19th, Scott Tate, ACI’s project manager, called Gary Humble, PCI’s vice-

   2
   At the hearing, ACI’s counsel expressly stated that ACI was not raising any issue

regarding its responsibility for the exposure of PCI’s employees.
3
“Shotcrete” is a mixture of cement, concrete, and steel fibers. A shotcrete bracing
system is a soil retention system made out of shotcrete and rebar, or lagging. The lagging is
approximately ten feet long and is wedged into the earth by an air hammer. Next, wire mesh
is put over the rebar and secured in place. The shotcrete materials are then blown onto the
trench walls by an air compressor. A “soil nailing” system and shotcrete bracing system are
the same, and the parties use the terms interchangeably.
4
PCI has extensive experience using shotcrete to stabilize and rehabilitate existing
structures such as sewers and piers, lining manholes and wet wells, and constructing walls
at treatment plants. Although PCI primarily renovates sewers it has also constructed
protective systems utilizing shotcrete for its own employees on numerous jobs in excavation
work.
 4

president and general manager, to discuss the project, including job conditions and
requirements for design drawings. Humble informed Tate that PCI had previously worked
with an engineer who could supply the required drawings but that would take “a few days.”
Pending the results of a soil test, Humble was told to assume a “worst case scenario
condition for your calculations for your stamped engineered shop drawings,” specifically
Type C soil, which, under the definitions set forth in the Secretary’s excavation standards,
is the least cohesive type of soil. Humble did not raise any question regarding what Type C
meant or what the conditions were that he should assume for his design.
On October 20, PCI faxed its proposal to ACI, which was the first document received
from PCI relating to the possibility of PCI doing the work. PCI’s proposal was accompanied
by a sketch drawn by Humble showing the placement of rebar and shotcrete. ACI’s General
Manager of Field Services, Steve Schlundt, testified that he understood this was not an
engineer stamped plan and that ACI would have to have an engineer approved plan on site
before starting the excavation work. PCI’s proposal did not otherwise contain or mention
any drawings.
On receipt of PCI’s proposal ACI faxed its acceptance to PCI authorizing PCI to
“begin work on shop drawings and other required submittal data.” According to Tate, this
phrase referred to shop drawings stamped by a registered professional engineer and could
not be interpreted to mean anything else. After the exchange of correspondence that day Tate
and Humble spoke on the phone, and Tate specifically reminded Humble that stamped
engineered drawings were required.
Between October 20 and November 4, when the accident occurred, ACI telephoned
PCI from three to six times regarding the absence of the engineer drawings but sent no
further written requests. According to Schlundt, ACI was “relying on . . . our good faith with
them that they would provide . . . what they told us they would provide” and “[w]e were led
to believe that the plans would be in our hands prior to starting.” On October 24, the day the
excavation began, Schlundt met with PCI, at which time the two companies discussed the
 5

absence of an engineer-approved drawing. Schlundt told Humble that getting the drawings
done “was of the utmost essence and importance.” Humble in turn said he knew of the
requirement and that the drawings were being worked on and would be “forthcoming in the
near future.” At this time, Schlundt knew that PCI’s employees would have to enter the
excavation within the next day or two. Schlundt said that it would not be unreasonable from
a design standpoint to expect PCI to develop the necessary engineering plan in a short period
of time.5
PCI started work in the excavation on October 26. At that time, ACI had not received
a engineer’s drawing, and PCI continued to inform ACI that the plan was being “worked
on.” On October 31, Tate sent the results of a soil test to PCI with a letter stating “this will
allow [PCI] to complete the stamped set of shop drawings for the soil retention system.”
Tate testified that he used the word “allow” as a “gentle prod” to PCI to complete its
drawings. “I had repeatedly asked him [Humble] over the phone for this information. He
knew it was required of him and he just hadn’t received it. So, I wanted to put it in writing.”
Tate and Schlundt were also of the view that although PCI’s initial work description and
accompanying sketch did not constitute an engineer’s drawing, any design approved by an
engineer would be likely to incorporate PCI’s original proposal. As Tate put it, since PCI
had demonstrated what it proposed to do and PCI was “comfortable” with that proposal, he
felt that ACI could allow the work to continue even though PCI had not yet furnished an
engineer’s stamped drawing.
A post-accident report prepared by an engineer came to essentially the same
conclusion as Tate and Schlundt regarding the adequacy of PCI’s original proposal.

   5
     ACI’s expert Carroll Crowther similarly testified that once PCI had the plans for the

project and made a site visit, it would take a competent engineer no more than a day to
design a shotcrete system, and it would not take more than one day just to review the plans
and walk the site. Crowther also testified that it is not unusual to hire the subcontractor
installing a bracing system until just days before the excavation is opened.
 6

According to this report, the cave-in was due to the development of fissures and filling with
water and could not have been anticipated. The report further stated, “With the information
available prior to the failure it appeared that even without a bracing system the slope should
have remained stable.” ACI’s expert witness, Carroll Crowther, agreed with the conclusion
that the cave-in was caused by unforeseeable developments, not defective shoring. During
the hearing, the Secretary’s counsel stated that he did not dispute that the shotcrete system
devised by PCI was a satisfactory method of supporting the excavation. In other words, the
gravamen of the Secretary’s case is not that a registered engineer would have found PCI’s
proposal to be deficient in any material respect but rather simply that the system was not
approved in advance as required by the standard.6
DISCUSSION AND ANALYSIS
On these facts Judge Welsch concluded that the violation was shown to be willful in
nature. He found that ACI’s two supervisors, Schlundt and Tate, allowed the work to
continue even though they were aware that ACI had not received the engineer’s drawing and
certification. He therefore held that during the approximately 10-day period from October
26, when PCI’s employees first entered the excavation, until November 4, the date of the
accident, ACI had acted with an “intentional, knowing, and voluntary disregard for the
requirements of the Act.” The judge also rejected ACI’s argument that it had made a good
faith attempt at compliance by contracting for a protective system and reasonably relying on
PCI’s promises that the plan would be forthcoming. The judge noted that ACI remained in
control of the site but did not exercise its authority to instruct PCI to keep employees out of
the excavation until PCI furnished the engineer’s plan and certification. Instead, the judge
found the repeated requests for the required drawings by ACI’s supervisors to be evidence

   6
    The specific description of the alleged violation in the citation is that “[t]here was

no data available to show that the concrete (shotcrete) had the capacity to resist without
failure all loads that were imposed upon the walls of the trench” (emphasis added).
 7

of a “heightened awareness” that it was in violation of the Act for not having the drawing.
Relying on Mobile Premix Concrete, Inc., 18 BNA OSHC 1010, 1995-97 CCH OSHD ¶
31,416 (No. 95-1192, 1997), the judge concluded that “ACI did not have a good faith belief
that its failure to have an engineer-approved plan somehow conformed to the requirements
of the Act.”
In its petition for review before us, ACI acknowledged that a willful violation may
be found where the employer acted with intentional, knowing, or voluntary disregard for the
requirements of the Act or with plain indifference to employee safety. While agreeing that
the judge applied the appropriate legal test for determining willfulness, ACI contended that
the judge erred because he failed to give proper weight to the efforts ACI made to comply
with the cited standard. We granted review and directed the parties to file briefs on this
question.
As Judge Welsch correctly observed in his decision, whether a willful violation exists
depends upon the employer’s state of mind with respect to the requirements imposed by a
standard. Brock v. Morello Bros. Constr., 809 F.2d 161, 164 (1st Cir. 1987). The facts here
demonstrate that ACI was aware of the requirement that the shoring design be approved and
certified as approved by a qualified engineer. Nevertheless it knowingly allowed the work
to commence and to continue over some period of time without the required approval. On
these facts, the Secretary has made a prima facie showing that the violation was willful in
nature. As the Commission held in Sal Masonry Contrac., Inc., 15 BNA OSHC 1609, 1613,
1991-93 CCH OSHD ¶ 29,673, p. 40,210 (No. 87-2007, 1992), an employer who has notice
of the requirements of a standard and is aware of a condition which violates that standard
but fails to correct or eliminate employee exposure to the violation demonstrates knowing
disregard for purposes of establishing willfulness. Accord A. Schonbek & Co. v. Donovan,
9 BNA OSHC 1189, 1981 CCH OSHD ¶ 25,081, p. 30,984 (No. 76-3980, 1980), aff’d, 646
F.2d 799, 800 (2d Cir. 1981); Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1541, 1991-93
CCH OSHD ¶ 29,617, pp. 40,103-04 (No. 86-360, 1992) (consolidated) (failure to institute
 8

procedures known to be required constitutes willful violation). ACI does not assert to the
contrary but contends that its efforts to comply with the standard by repeatedly reminding
PCI of the need for an engineer’s drawing and requesting on numerous occasions that PCI
provide the required drawing demonstrate that its state of mind was not one of disregard of
or indifference to the requirements of the standard. We agree that ACI’s efforts are relevant
for the purpose ACI argues. However, we find on the facts here that those efforts are not
sufficient to negate a showing of willfulness.
Under well-established Commission precedent, an employer may defend against an
initial showing that its state of mind was one of willfulness by adducing evidence tending
to show that in fact it acted in good faith with respect to the requirements of the standard in
issue.7 Such evidence may take one of two forms: the employer may seek to establish that

   7
   The Secretary contends that the Commission should not recognize any good-faith

defense to willfulness, citing Reich v. Trinity Industries, Inc., 16 F.3d 1149 (11th Cir. 1994),
which arises in the same circuit as this case, and United States v. Ladish Malting Co., 135
F.3d 484 (7th Cir. 1998). In view of our disposition finding a lack of good faith, Chairman
Rogers sees no need to address the Secretary’s argument. Commissioner Visscher, on the
other hand, would observe that neither of the cases the Secretary cites supports the
proposition that good faith cannot rebut willfulness.

The employer in Trinity failed to institute an audiometric testing program as required by the
Secretary’s hearing conservation standard. Instead the employer supplied its employees with
hearing protection devices on the belief that such devices would protect against hearing loss
as effectively as a testing program under the standard. The court concluded that regardless
of whether this belief was held in good faith, the employer willfully violated the standard
by substituting its own judgment for what the law required. Unlike the employer in Trinity,
ACI’s actions, while inadequate, were intended to implement the means of protection
required by the cited standard. ACI has not contended that in good faith it could choose
some safety precaution other than a shoring system approved by a registered engineer.

The employer in Ladish was charged with a criminal willful violation for knowingly failing
to replace an unsafe fire escape, which resulted in the death of an employee. The issue
before the court was whether the trial judge erred in not granting an acquittal based on good
(continued...)
 9

it had a good-faith belief that as a factual matter the conditions in its workplace conformed
to OSHA requirements, Morrison-Knudsen Co./Yonkers Contracting Co., A Joint Venture,
16 BNA OSHC 1105, 1124, 1993-95 CCH OSHD ¶ 30,048, p. 41,281 (No. 88-572, 1993),
or the employer may introduce evidence to show that it took steps or made efforts to comply
with those requirements, Caterpillar, Inc., 17 BNA OSHC 1731, 1733, 1995-97 CCH OSHD
¶ 31,134, p. 43,483 (No. 93-373, 1996), aff’d, 122 F.3d 437 (7th Cir. 1997).8 In either case,
the test of whether the employer demonstrated good faith is an objective one, Morrison-
Knudsen, Caterpillar. Where the employer, as here, argues that it demonstrated good faith
by attempting to comply with the standard, the question is whether the employer’s efforts
were objectively reasonable even though they were not totally effective in protecting

   7
     (...continued)

faith. The court stated as a general proposition that “there is no generic ‘good faith’ defense
in the federal criminal law in general . . . or for violations of the Occupational Safety and
Health Act in particular.” The court, however, conceded that an employer’s “efforts to make
its workplace safe may show that an offense was not willful.”135 F.3d at 491. Moreover,
Commissioner Visscher notes that there is other appellate authority recognizing that good
faith efforts to protect employees are relevant on the issue of willfulness. Brock v. Morello
Bros. Constr., 809 F.2d 161, 165 (1st Cir. 1987); St. Joe Minerals Corp. v. OSHRC, 647
F.2d 840, 848-49 (8th Cir. 1981).
8
ACI’s position is that the judge erred by analyzing the case from the perspective of
whether ACI had a reasonable belief that it had complied with the standard rather than
addressing whether ACI had made reasonable but unsuccessful efforts to comply. We
construe the judge’s decision as discussing both elements of rebuttal to a showing of
willfulness, although ACI had not argued to the judge that it had a good faith belief that its
conduct was in compliance with the standard.

In rejecting ACI’s contention that its efforts to compel PCI to provide the necessary
engineer’s drawing were reasonable, the judge concluded that, on the contrary, those efforts
were evidence of an increased awareness of ACI’s violative conduct. In the circumstances
here, it is not necessary to decide whether ACI’s requests to PCI constitute additional
evidence to support a finding of willfulness. We therefore do not adopt this finding of the
judge.
 10

employees from the hazard. Caterpillar, Inc. v. OSHRC, 122 F.3d 437, 441-42 (7th Cir.
1997); Tampa Shipyards, 15 BNA OSHC at 1541, 1991-93 CCH OSHD at p. 40,104.9
There is no dispute that ACI failed to obtain a design approved by a registered
professional engineer prior to commencement of the excavation. ACI’s efforts consisted of
nothing more than repeated requests, predominately oral, that PCI provide the required
engineer-approved drawing. When PCI disregarded those requests, ACI took no action to
provide for the safety of the excavation as required by the provision of the standard at issue.
The purpose of that provision is to ensure that during the course of the work the employer
is proceeding with knowledge and assurance that it has a shoring design adequate for the
conditions in question. As the Secretary stated when she promulgated section 1926.652, the
requirement for a written design approved by an engineer is “intended to increase the

   9
     In Caterpillar the court affirmed the Commission’s holding that warning tape and

signs were not objectively reasonable measures to reduce the likelihood of injury from
broken fragments of metal being expelled from a press at a high rate of speed because they
would offer no protection to employees working within the danger zone. See Woolston
Constr. Co., 15 BNA OSHC 1114, 1119, 1991-93 CCH OSHD ¶ 29,394, p. 39,570 (No. 88-
1877, 1991), aff’d without published opinion, No. 91-1413 (D.C. Cir. May 22, 1992) (1992
WL 117669) (violation found willful where employer failed to make good faith attempts
either to comply with the standard or otherwise eliminate the hazard to employees).
Compare Mobil Oil Corp., 11 BNA OSHC 1700, 1701, 1983-84 CCH OSHD ¶ 26,699 (No.
79-4802, 1983) (while guarding a six-foot area around a wax pit with a rope was not as
effective or complete as completing the wall which surrounded most of the pit, it was
sufficient to counter a willful charge); Wright & Lopez, Inc., 8 BNA OSHC 1261, 1262,
1266, 1980 CCH OSHD ¶ 24,419, pp. 29,774, 29,777 (No. 76-3743, 1980) (where employer
had installed partial shoring which did not extend to the bottom of the trench and was in the
process of installing additional shoring when the trench collapsed, a violation for
inadequately shored trench found not willful although the employer had actual knowledge
of the requirements of the standard and was aware that the trench was not properly shored);
Williams Enterp., Inc., 4 BNA OSHC 1663, 1668, 1976-77 CCH OSHD ¶ 21,071, 25,362
(No. 4533, 1976) (violation of the Act for failure to secure a crane counterweight against
toppling or falling on an unstable street surface not willful where employer placed the
counterweight on a wooden base which partially but not entirely compensated for the grade
of the street).
 11

likelihood that the protective systems designed under this option will be adequate to protect
employees.” 54 Fed. Reg. 45,959 (1989). There is no indication, and ACI does not contend,
that it had taken any of the steps necessary to effectuate this purpose. For instance, ACI did
not even attempt to arrange for a registered engineer to observe the worksite prior to the
collapse.
Indeed, ACI’s attempts to achieve compliance with the standard are even less
substantial than those in other cases holding that employers had not made sufficient efforts
to negate willfulness. In V.I.P. Structures Inc., 16 BNA OSHC 1873, 1875-76, 1993-95
CCH OSHD ¶ 30,485, p. 42,110 (No. 91-1167, 1994), the employer was found in willful
violation of a standard requiring safety nets for fall protection even though the employer had
nets available at the site but was unable to set them in place because deep mud at the
worksite prevented the employer from moving its lift equipment. Although the employer
tried unsuccessfully each day to position the nets, the Commission held that “these efforts
to advance the nets do not rise to the level of good faith sufficient to negate willfulness.” In
Calang Corp., 14 BNA OSHC 1789, 1792-93, 1987-90 CCH OSHD ¶ 29,080, p. 38,872
(No. 85-0319, 1990), the employer’s attempt to reduce the possibility of a cave-in by
lowering the water table was held insufficient to preclude finding of willfulness where it
failed to slope the trench in accordance with the applicable standard. In these cases, the
employers actually implemented, at least to some minimal degree, some measure directed
at reducing the hazard to employees. In the circumstances here, however, where the standard
is concerned with the information available to the employer during the course of the work,
ACI allowed work to be performed without assurance from a registered professional
engineer that the protective system was adequate and without even initiating the mechanism
by which it would obtain that assurance. As the Commission stated in Kehm Constr. Co., 7
BNA OSHC 1976, 1979, 1979 CCH OSHD ¶ 24,098, p. 29,279 (No. 76-2154, 1979), where
an employer has actual knowledge of the requirements of a standard and is aware that the
conditions at the site do not meet those requirements, “failure to take positive steps to
 12

comply . . . constitutes a least a careless disregard of the mandate of the Act” (emphasis
added). We therefore agree with the judge that ACI’s efforts were inadequate.
Having concluded that the violation was willful in nature, we turn now to the
assessment of an appropriate penalty. The Commission has discretion to assess an
appropriate penalty based on the facts, and in so doing the Commission may conduct a de
novo review of the judge’s assessment. Quality Stamping Prods. Co., 16 BNA OSHC 1927,
1993-95 CCH OSHD ¶ 30,516 (No. 91-414, 1994). Although ACI does not address the
propriety of the judge’s assessment of $55,000 for a willful violation, we find that
assessment to be excessive in the circumstances here.
Under section 17(j) of the Act, 29 U.S.C. § 666(j), the Commission considers four
factors when determining an appropriate penalty: the employer’s size, good faith, and prior
history of compliance with the Act as well as the gravity of the violation. These factors are
not accorded equal weight, and gravity normally is the most significant consideration.
Merchant’s Masonry, Inc., 17 BNA OSHC 1005, 1006, 1993-95 CCH OSHD ¶ 30,635, p.
42,444 (No. 92-424, 1994). In assessing the penalty of $55,000 proposed by the Secretary,
the judge determined that the violation was of high gravity because designs approved by an
engineer under Option 4 of section 1926.652(c) are necessary to ensure that the shoring
system is safe.
For the reasons we have stated, we agree with the judge with regard to the purpose
of the provision of the standard at issue here, and we are not unmindful that an employee
was seriously injured at ACI’s worksite. However, the record does not support the judge’s
finding that the violation in this case is of high gravity. While we do not dispute that analysis
and approval of a shoring design by a registered engineer serves an important safety function
because it provides assurance that the design of the shoring will be adequate to protect
employees, we cannot find a violation of this requirement to be of high gravity since the
record establishes, and the Secretary concedes, that the hazard of inadequate shoring was
due to factors which an engineer could not have anticipated and taken into consideration.
 13

   Commission precedent also holds that good faith can be considered in assessing a

penalty for a willful violation. S. Zara & Sons Contr. Co., 10 BNA OSHC 1334, 1340,
1982 CCH OSHD ¶ 25,892, p. 32,400 (No. 78-2125, 1982), aff’d without published opinion,
697 F.2d 297 (2d Cir. 1982); Kent Nowlin Constr., Inc., 5 BNA OSHC 1051, 1055, 1977-78
CCH OSHD ¶ 21,550, p. 25,863 (No. 9483, 1977) (consolidated), aff’d, 593 F.2d 368 (10th
Cir. 1979). ACI clearly intended that employees be protected by shoring, just as ACI had
provided such protection on its previous jobs. It investigated various shoring alternatives
before commencing work and eventually selected a system configured for the particular
worksite in accordance with one of the options permitted under the standard. While we find
that ACI did not make good faith efforts to comply with respect to the particular provision
of the standard at issue here, we nevertheless conclude that these overall circumstances
should be taken into consideration in assessment of an appropriate penalty. For instance, in
V.I.P. Structures, 16 BNA OSHC at 1876, 1993-95 CCH OSHD at p. 42,110, the
Commission regarded the employer’s attempts to move safety nets into position as an
indicator of good faith for penalty purposes. See Kent Nowlin Constr. Co., 648 F.2d 1248,
1281 (10th Cir. 1981) (“relative degrees of dereliction within the willful violation
category”); Anderson Excavating & Wrecking Co., 17 BNA OSHC 1890, 1894, 1995-97
CCH OSHD ¶ 31,228, p. 43,791 (No. 92-3684, 1997), aff’d per curiam, 131 F.3d 1254 (8th
Cir. 1997) (fact that employer demonstrated good faith during the inspection taken into
account in assessing penalty for a willful violation); S. G. Loewendick & Sons Inc., 16 BNA
OSHC 1954, 1959, 1991-93 CCH OSHD ¶ 30,558 (No. 91-2487, 1994) (not inconsistent
to find a violation willful and also find that the employer exhibited some good faith), rev’d
on other grounds, 70 F.3d 1291 (D.C. Cir. 1995); C.N. Flagg & Co., 2 BNA OSHC 1195,
1974-75 CCH OSHD ¶ 18,686 (No. 1734, 1974), aff’d without published opinion, 538 F.2d
308 (2d Cir. 1976) (distinguishing the general good faith of an employer from the willful
actions of particular supervisors at the work site in question).
 14

   For these reasons, we conclude that a penalty of $20,000 is appropriate. Accordingly,

the judge’s decision finding a willful violation of section 1926.652(a)(1) is affirmed and a
penalty of $20,000 is assessed therefor.

                                             /s/
                                             Thomasina V. Rogers
                                             Chairman


                                             /s/
                                             Gary L. Visscher
                                             Commissioner

Dated: September 28, 1999
SECRETARY OF LABOR, :
Complainant,
:
v.
: OSHRC Docket No. 96-593
:
AVIATION CONSTRUCTORS, INC., :
Respondent. :
:

APPEARANCES:

Robert L. Walter, Esquire Ira J. Smotherman, Esquire
Office of the Solicitor Shapiro, Fussell, Wedge, Smotherman & Martin
U. S. Department of Labor Atlanta, Georgia
Atlanta, Georgia For Respondent
For Complainant

Before: Administrative Law Judge Ken S. Welsch

                                DECISION AND ORDER

      On April 16, 1996, the Secretary issued two citations to Aviation Constructors, Inc. (ACI),

for alleged trenching violations. The Secretary withdrew item 3 of Citation No. 1, which alleged a
serious violation of § 1926.651(g)(1)(i). Prior to the hearing, the parties reached a settlement
agreement regarding items 1 and 2 of Citation No. 1, alleging serious violations of §§ 1926.651(c)(2)
and 1926.652(e)(1)(ii), respectively. A partial settlement agreement was filed with the court and is
approved by this Decision and Order. The only item remaining at issue is item 1 of Citation No. 2,
which alleges a willful violation of § 1926.652(a)(1), for failure to use an adequate protective system
to protect employees in an excavation from cave-ins. At the hearing, ACI admitted that it violated
§ 1926.652(a)(1) (Tr. 11-13, 36). ACI disputes only the classification of the violation as willful and
the Secretary’s proposed penalty of $55,000.
 Background

   In August 1995, ACI entered into a contract with Delta Airlines to build a baggage conveyor

tunnel at the south terminal of Hartsfield International Airport in Atlanta, Georgia. The contract
required ACI to perform demolition work on the existing roadway and sidewalk, remove the debris
from the demolition, and excavate an opening for the tunnel that led to the lower level of the terminal
(Tr. 17-18, 95). After construction of the tunnel, ACI would backfill earth over the top of the tunnel
and pour a new concrete roadway where the excavation had been dug (Tr. 99).
Under the contract, ACI was responsible for providing vertical shoring for the excavations
on the project (Tr. 118). At the time of its bid, ACI planned on using plywood sheeting or timber
cross-bracing. ACI learned after beginning the design of this protective system, however, that it was
infeasible due to the restricted space available and hazards created by exposing footings which
carried the load of a canopy directly above the worksite (Tr. 19-20, 30, 95-96).
ACI contacted Pressure Concrete, Inc. (PCI), a construction company based in Florence,
Alabama, that primarily performs sewer renovation work (Exh. C-17, pp. 13-14; Tr. 9-10). ACI
wanted PCI to install a protection system using shotcrete and rebar (Exh. C-1). PCI had worked on
one job previously for ACI. That job did not involve the creation of a protective system
(Tr. 99-100).
ACI began demolition work on the sidewalk under the canopy on October 18, 1995. The
excavation was scheduled to begin on October 24 (Tr. 21). On October 20, Gary Humble, the
vice-president and general manager of PCI, faxed a proposal to ACI’s project manager, Scott Tate,
regarding the installation of a protective system (Exh. C-1; Tr. 22). Transmitted with the proposal
was a sketch of the proposed system drawn by Humble (Exh. C-2; Tr. 24-25). On October 20, Tate
faxed a letter of intent to enter into an agreement with PCI to perform shotcrete shoring on the
project (Exh. C-3). Humble faxed an executed copy of the letter of intent to Tate. He wrote in the
margin of the letter “not familiar with this add,” referring to a document referenced in the letter of
intent (Exh. C-4). Tate faxed a copy of the referenced document, addendum no. 1, to Humble on
October 24, 1995 (Exh. C-14; Tr. 104).

                                              2

ACI opened the excavation on October 24. On October 26, after the excavation had been
opened to a depth of 5 feet, ACI instructed PCI to begin installing the protective system in the
excavation. Seven Schlundt, ACI’s general manager of field services, knew at the time that PCI had
not provided ACI with an engineer-approved written plan of the proposed protective system, as
required by § 1926.652. PCI employees worked in the excavation on October 26 (Tr. 35-37).
PCI employees continued to work in the excavation as ACI dug deeper and deeper. On
October 30, the excavation was 10 feet deep with vertical walls (Tr. 148-149). Schlundt was aware
that PCI’s employees were continuing to work in the excavation and that ACI still did not have the
engineer-approved plan that PCI had said it would provide. Schlundt did not instruct anyone that
the employees should not work in the excavation until the plan was on-site (Tr. 39).
On October 30, ACI received soil test results for the soil in the excavation. Tate sent a copy
of the soil test results and a letter to Humble by regular mail on October 31 (Exh. C-5, p. 115). In
the letter Tate states, “This will allow you to complete the stamped set of shop drawings for the soil
retention system your firm is installing” (Exh. C-5). PCI’s employees continued to work in the
excavation on November 2, 3 and 4, 1995 (Exh. C-11). Schlundt and Tate knew that PCI had not
provided ACI with an engineer-approved plan (Tr. 40-41).
On November 4, the north wall of the excavation collapsed, severely injuring the PCI
employee who was working in the excavation (Tr. 46). The excavation was 10 feet deep at one end
and 13 feet deep at the other end at the time of the collapse (Tr. 154-155). At the time of the cave-in,
ACI did not have an engineer-approved plan on the site. PCI’s employees had been working in the
excavation for ten days (Tr. 117).

                                   The Violated Standard

    ACI stipulated that it violated § 1926.652(a)(1), which provides:
    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
    except when:

            (i) Excavations are made entirely in stable rock; or




                                               3

(ii) Excavations are less than 5 feet (1.52m) in depth and examina-
tion of the ground by a competent person provides no indication of a
potential cave-in.

   ACI concedes that its excavation, which was in Type C soil and was deeper than 5 feet, is

governed by paragraph (c), option 4, of § 1926.652, which provides:
Designs of support systems, shield systems, and other protective systems shall be
selected and constructed by the employer or his designee and shall be in accordance
with the requirements of paragraphs (c)(1); or, in the alternative, paragraph (c)(2); or
in the alternative, paragraph (c)(3); or, in the alternative, paragraph (c)(4) as follows:
....
(4) Option (4) - Design by a registered professional engineer.
(i) Support systems, shield systems, and other protective systems not
utilizing Option 1, Option 2, or Option 3, above shall be approved by
a registered professional engineer.
(ii) Designs shall be in written form and shall include the following:
(A) A plan indicating the sizes, types, and configura-
tions of the materials to be used in the protective
system; and
(B) The identity of the registered professional
engineer approving the design.
(iii) At least one copy of the design
shall be maintained at the jobsite dur-
ing construction of the protective sys-
tem. After that time, the design may
be stored off the jobsite, but a copy of
the design shall be made available to
the Secretary upon request.

                                         Willfulness

   The Secretary contends that ACI’s violation of § 1926.652(a)(1) was willful.
   A willful violation of the Occupational Safety and Health Act of 1970, 29 U.S.C.
   §§651-678 (“the Act”), is one committed with an “intentional, knowing or voluntary
   disregard for the requirements of the Act or with plain indifference to employee
   safety.” L. E. Myers, 16 BNA OSHC 1037, 1046, 1993-95 CCH OSHD ¶ 30,016,
   pp. 41,123, 41,132 (quoting Williams Enterp., 13 BNA OSHC 1249, 1256, 1986-87
   CCH OSHD ¶ 27,893, p. 36,589 (No. 85-355, 1987)). “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.”

                                               4

General Motors Corp., Electro-Moti ve Div., 14 BNA OSHC 2064, 2068, 1991-93
CCH OSHD ¶ 29,240, p. 39,168 (No. 82-630, 1991) (consolidated). A violation is
not willful if an employer had a good faith belief that the violative condition
conformed to the requirements of the Act. The test of good faith is an objective one,
that is, “whether the employer’s belief concerning the factual matters in question was
reasonable under all of the circumstances.” Morrison-Knudsen Co.\Yonkers
Contracting Co., 16 BNA OSHC 1105, 1124, 1993-95 CCH OSHD ¶ 30,048, pp.
41,261, 41,281 (No. 88-572, 1993).

Mobil Premix Concrete, Inc., (No. 95-192, 1997) (slip opinion, pp. 6-7).

   Schlundt and Tate knew that under option 4 of § 1926.652, ACI was required to have an

engineer-approved plan on the site during work in the excavation. Beginning on October 26, 1995,
ACI instructed PCI to place its employees in an excavation that was at least 5 feet deep despite ACI’s
awareness PCI had not provided it with the required plan. On October 30, the excavation was 10
feet deep; ACI knew it did not have the plan; and it allowed PCI to continue to work in the
excavation. On November 4, the excavation ranged from 10 to 13 feet deep; ACI knew that it still
did not have the mandatory plan; and ACI knew that PCI’s employees were still working in the
excavation. ACI acted throughout this ten-day period with an intentional, knowing, and voluntary
disregard for the requirements of the Act.
ACI argues that it made a good faith attempt at compliance, which merely fell short of the
requirements of the standard. ACI contends that it spent $76,125 to hire PCI to install a protective
system (Exh. C-6). It points out that PCI had sufficient time to complete the required plan, and
questions the credibility of Humble’s testimony regarding PCI’s actions. ACI argues that when the
plan promised by PCI was not forthcoming, ACI began making daily requests for it.
While ACI attempts to shift the responsibility for the violation of § 1926.652(a) to PCI, it
misses the crucial point that ACI had the authority to prevent PCI’s employees from entering the
excavation until PCI provided the required plan. ACI claims in its brief that it “had little choice but
to allow PCI to commence work installing the shotcrete, because of the danger to the public if the
excavation caved in” (ACI’s Brief, p. 19). There is no support in the record for this statement, and
it does not explain why ACI continued excavating deeper as the days went on without receiving a
plan from PCI.

                                              5

It was within ACI’s power to stop PCI’s employees from entering the excavation until it had
the engineer-approved plan. ACI chose not to do so. Its awareness of its violative conduct was
heightened, as evidenced by Schlundt and Tate’s continuing requests to PCI for the plan. ACI did
not have a good faith belief that its failure to have an engineer-approved plan somehow conformed
to the requirements of the Act.
The Secretary has established that ACI committed a willful violation of § 1926.652(a)(1).
ACI demonstrated a knowing disregard for the requirements of the Act.

                                   Penalty Determination

   Under § 17(j) of the Act, in determining the appropriate penalty, the Commission is required

to find and give “due consideration” to (1) the size of the employer’s business, (2) the gravity of the
violation, (3) the good faith of the employer, and (4) the history of previous violations. The gravity
of the violation is the principal factor to be considered.
The record does not reflect how many employees ACI has. When asked if ACI was given
an adjustment in the proposed penalty for size, Compliance Officer Patricia Morris responded that
it had not “[b]ecause, Aviation is part of the Cleveland Group, and that puts them over the size
credit” (Tr. 77). The classification of the violation as willful mitigates against a finding of good
faith. ACI has a history of previous violations. ACI argues that it has no previous history because
a 1993 citation was settled (Exh. J-D). However, ACI agreed to abate the violation, withdraw its
notice of contest, and pay a penalty of $1,125 for item 1 of the 1993 citation. This constitutes a prior
history for purposes of the penalty determination.
The gravity of the violation is high. Engineer-approved plans are required under option 4 to
ensure that a safely designed support system will be utilized.
Upon due consideration of these factors, it is determined that a penalty of $55,000 is
appropriate.

                                               6

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in accordance

with Federal Rules of Civil Procedure 52(a).

                                           ORDER

   Based upon the foregoing decision, it is hereby ORDERED:

CITATION NO. 1
Item 1, in violation of § 1926.651(c)(2), is affirmed pursuant to settlement agreement as a
serious violation and a penalty of $2,000 is assessed.
Item 2, in violation of § 1926.652(e)(1)(ii), is affirmed pursuant to settlement agreement as
a serious violation and a penalty of $2,000 is assessed.
Item 3, in violation of § 1926.651(g)(1)(i), was withdrawn at hearing by the Secretary.
CITATION NO. 2
Item 1, in violation of § 1926.652(a)(1), is affirmed and a penalty of $55,000 is assessed.

                                           KEN S. WELSCH

Date: November 10, 1997 Judge

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