James Womack, Steven Womack and Kenny Womack, Individually and d/b/a Womack Brothers (ALJ decision, July 18, 1997)

Plain-English summary

The Secretary asked the judge to reconsider a finding that employee exposure to a cited trench condition had not been proved. The Secretary argued that two witness statements showed the witness had entered the trench while its sides extended above the trench box. Based on observing the witness and considering the testimony in context, the judge found that the witness was not in the trench during the described events. The request for further amendment of the prior decision was denied.

Decision snapshot

• Cited standard(s): None identified in this reconsideration order.
• Outcome: The motion for reconsideration was denied, leaving the prior no-exposure finding unchanged.
• Key point: Isolated transcript statements did not establish trench exposure when the witness's testimony as a whole showed he remained outside the trench.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,

v. OSHRC DOCKET NO. 96-0640
JAMES WOMACK, STEVEN WOMACK AND
KENNY WOMACK, INDIVIDUALLY AND
d/b/a WOMACK BROTHERS,
Respondent.

ORDER

This matter comes up on Complainant’s motion for reconsideration. Complainant objects to this judge’s finding that Complainant failed to prove employee exposure. Complainant never elicited testimony from its witness, Renspurger clearly stating that he entered the cited trench during the period during March 27, 1996 when the sides of the trench extended approximately 5 feet above the top of an eight-foot trench box. Complainant maintains, however, that two statements made by its witness Renspurger, establish that Renspurger, in fact, entered the trench.
In the statements relied upon by Complainant, Renspurger stated that:
We came back from lunch. . . we started to dig, to lay pipe again; and I noticed that the trench was instead of V’d back at the top, it was straight up and down; nothing at all down there above the box.
And I hollered up to Tom Calderella why it wasn’t V’d back.. . .” (Tr. 103).

I told him that there was no way I could work in the box or in the trench or none of my people under those conditions; that it was straight up and down. And I hollered up to Dennis Strake to have Robert Mueller come to the top of the trench.” (Tr. 105).

By way of clarification, I find that observing Renspurger and hearing his testimony in context during the hearing, it was clear that Renspurger was not in the trench as Calderella was starting to dig, preparing to lay more pipe. It was clear that Renspurger was calling up to Calderella because Calderella was on the back hoe digging the trench. Moreover, it was clear that Renspurger was not standing in the trench telling Calderella that neither he nor his people would go into the trench. Having reconsidered my decision in this matter, I find that further amendment of my decision in this matter is unwarranted.

Benjamin R. Loye
Judge, OSHRC

Dated: June 2, 1997

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