Bruschi Brothers, Inc.

Plain-English summary

Bruschi Brothers, Inc., a general contractor, was installing a sewer line in a roughly 13-to-15-foot-deep trench in Chicopee, Massachusetts, when OSHA inspected and found four employees working in it. OSHA issued several serious citations for failing to train workers on trenching and confined-space hazards, failing to have a competent person conduct daily inspections, and failing to protect a vertical-walled secondary trench from cave-ins, plus two other-than-serious citations for untagged and uninspected chain slings. Judge Robert A. Yetman affirmed the training, inspection, cave-in, and sling items, noting the company president believed a trench could be tested for hazardous atmosphere by smell. He vacated one item, finding the gap between steel plates posed no real hazard because the trench wall was sloped back behind it. He also rejected the engineer-approval theory for the protective-system item, crediting the company's registered engineer, but amended and affirmed that item because the steel plates outside the trench box were not braced or driven deep enough. Serious penalties of $225 per item were assessed and no penalty for the other-than-serious items.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.21(b)(2), 1926.21(b)(6)(i), 1926.651(k)(1), 1926.651(j)(1), 1926.652(a)(1), 1926.652(c)(4); and 29 C.F.R. §§ 1926.251(b)(1), 1926.251(b)(6)
• Outcome: Training, daily-inspection, cave-in, and sling items affirmed ($225 each on the serious items; no penalty on the two other-than-serious sling items); the loose-rock/soil item vacated; the engineer-approval item amended to the general cave-in standard and affirmed
• Key point: A trench more than five feet deep with a vertical wall needs a protective system unless a competent person confirms no cave-in risk, and unbraced steel plates set outside a trench box do not qualify as an adequate protective system even where the written design was engineer-approved.

Full text (OSHRC public release)

SECRETARY OF LABOR,                       :
          Complainant,                    :
                                          :
               v.                         :       OSHRC
                                          :       Docket No. 96-0681
BRUSCHI BROTHERS, INC.,                   :
          Respondent.                     :
                                              :

Appearances:
       James H. Angevine, Esq.                          David W. Sanborn, Esq.
               Office of the Solicitor                         Brooks, Sanborn, Smith & Brodeur-McGan
               U.S. Department of Labor                        Springfield, MA
                        For Complainant                                 For Respondent
Before Administrative Law Judge Robert A. Yetman
                                     DECISION AND ORDER
       This proceeding arises under § 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651, et seq (“the Act”) to review citations issued by the Secretary of Labor pursuant to §
9(a) of the Act and a proposed assessment of penalty thereon issued pursuant to § 10(a) of the Act.
       On April 15, 1996, the Secretary issued citations to Respondent Bruschi Brothers, Inc.
alleging that serious and other than serious violations occurred at Respondent’s worksite located at
Chicopee, Massachusetts, during the period of April 2, 1996 to April 4, 1996 and proposed a penalty
in the amount of $1,125 for the serious violations. A timely notice of contest was filed by
Respondent and, on May 29, 1996, the Secretary filed a complaint with this Commission
incorporating the alleged violations set forth in the citations. Respondent answered the complaint by,
inter alia, denying that the review Commission has jurisdiction over this matter. Specifically,
Respondent, in its answer “[d]enies that it is engaged in receiving, handling, and otherwise working
in and with goods and materials that are moving or have moved across state lines in interstate
commerce, and denies that it is engaged in a business affecting commerce within the meaning of the
Act” (Respondent’s answer Paragraph III). The record in this matter is silent regarding the
jurisdictional issue raised by Respondent in its answer including Respondent’s post hearing
memorandum of law filed with this Administrative Law Judge. Complainant declined to file a post
hearing memorandum. Jurisdiction is a fundamental issue and, once raised, should have been
addressed by the parties.
       The determination of jurisdiction lies with the Review Commission Marshall v. Able
Contractors, Inc., 573 F.2d 1055, 1057 (9th Cir. 1978) cert. Denied 439 U.S. 826, 99 S.Ct. 98
(1978). The burden to establish jurisdiction by a preponderance of the evidence lies with the
Secretary. Armor Elevator Co., 1 OSHC 1409, 1973-74 OSHD ¶16,958 (1973). The Commission
has defined this burden as “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.” Ultimate Distrib. Systems,
Inc., 10 OSHD 1569, 1570 (1982). Although the burden to establish interstate involvement may be
easily met with evidence that Respondent used the telephone and mails, purchased supplies from out
of state or used goods manufactured out of state Marshall v. Anchorage Plastering, Co., 570 F.2d
351 (9th Cir. 1978); Avalotus Painting Company, 9 OSHC 1226, 1981 OSHD 25,157(1981); where
the Secretary has failed to present any facts in support of a finding of interstate involvement by
Respondent the Courts have vacated citations. Burk Well Service, Co., 12 OSHC 1598, 1985 OSHD
¶27,453(1985); Val-Pak, Inc., 11 OSHC 2094 (1984). Specifically, the Fifth Circuit Court of
Appeals, in reversing the Review Commission, held that the finding of jurisdiction by the Commission
was “speculative and conclusionary” and “not based upon adequate factual findings.” Austin Road
Company v. OSHRC, 683 F.2d 905, 908 (5th Cir. 1982).
       On the other hand, courts have held that it is not an abuse of discretion for a Commission
Administrative Law Judge to reopen a hearing sua sponte to take further evidence relating to
Respondent’s involvement, if any, in interstate commerce Brennan v. John J. Gordon Co., (OSHRC)
492 F.2d 1027 (2nd Cir. 1974). It is concluded, however, that the record in this case contains
sufficient facts from which inferences can be made in support of a finding that Respondent is engaged
in a business affecting interstate commerce and falls within the jurisdiction of the Act and the Review
Commission.
       Respondent admits that it is engaged in the general contracting business (Respondent’s
Answer Paragraph II). The record reveals that it was engaged in laying a sewer line in the city of

Chicopee when the inspection was conducted by OSHA. During the course of its work activity,
Respondent used a back hoe, a trench box, sheets of steel, trucks, sewer pipes and other tools and
equipment necessary to perform the work activity. The Ninth Circuit Court of Appeals has held that
employers engaged in construction work, such as the Respondent in this case, fall within the class of
work activities Congress intended to regulate. Usery v. Lacy, 628 F.2d 1226 (9th Cir. 1980). The
Court stated that “statutory jurisdiction [exists] so long as the business affects commerce” ibid at
1228. The Court found that a construction firm was engaged in a business that affects commerce “as
a matter of law” and “within the class of activities that it was Congress’ intent to regulate....” id at
1229. The review Commission has adopted this rule for construction firms even if the firm’s
contribution to the stream of commerce is small and the work activity is purely local Clarence M.
Jones 11 OSHC (BNA) 1529 (1983). Thus, it is concluded that Respondent, as an entity engaged
in the construction business, is engaged in an industry affecting interstate commerce and falls within
the jurisdiction of the Act and the review Commission.
                                          BACKGROUND
        The following facts have been gleaned from the record. Respondent is a corporation engaged
in the general contracting business. On April 2, 1996, compliance officer Walter Cienaski of the
Occupational safety and Health Administration conducted a safety inspection of Respondent’s
worksite located at Chicopee, Massachusetts. Respondent was engaged in installing a sewer line at
the time of the inspection. According to testimony as well as photographs taken at the worksite,
Respondent had dug a trench approximately 13 to 15 feet deep, 29 feet long and 6½ feet wide (Tr.
32, 70) and had placed a trench box within the trench. The box was twelve feet long, six feet high
and six and one-half feet wide (Tr. 47). In addition, sheet steel approximately 17 feet long, 4 feet
wide and ¾” inches thick had been placed on either side of the trench box to provide protection
against collapse of the trench walls above the six foot high trench box (Tr. 47). Four steel sheets had
been placed on each side of the trench box (Tr. 109). There was also a secondary trench on one side
behind the sheet steel. The compliance officer measured the depth of the secondary trench as 60",
63" and 66" due to the uneven bottom of the trench (Tr. 55). Respondent’s foreman stated, however,
that the depth of the secondary trench was 59" (Tr. 55). The side wall of that trench was vertical (Tr.
66) without any support to prevent the wall from collapsing.

        Upon arriving at the site, the compliance officer observed four employees in the trench (Exh.
C-1). They were in the process of installing a three foot diameter sewer pipe to a manhole of an
existing sewer line. As a result of the inspection, the following citation items were issued to
Respondent:
                Citation 1 Item 1a
                29 CFR 1926.21(b)(2): The employer did not instruct each employee
                in the recognition and avoidance of unsafe conditions and the
                regulations applicable to his work environment to control or eliminate
                any hazards or other exposure to illness or injury:
                LOCATION: JOBSITE
                HAZARD: WORKERS DID NOT KNOW ABOUT CONFINED
                SPACES, WHERE AND WHEN TO SHORE OR SLOPE
                EXCAVATIONS, WHAT CONSTITUTES A PROPER JOBSITE
                INSPECTION TO INCLUDE SOIL ANALYSIS AND LATERAL
                BRACING, AND WHEN AND HOW TO PROTECT AGAINST
                UNDERMINED SIDE WALK SECTIONS.
Initially, it is noted that this violation alleges, inter alia, that employees were not instructed in the
recognition of hazards associated with confined space entry. This item is identical to the violation
alleged at item 1(b) of the citation. Since confined space entry instruction under item 1(a) is
duplicative and subsumed within item 1(b), and discussed infra, the alleged failure to provide
instructions relating to the hazards associated with confined space entry is vacated under this item
see Miniature Nut and Screw Co., 17 BNA OSHC 1557, 1560 (1996).
        The standard cited in this instance does not outline any particular requirements for a safety
program and requires only that an employer inform employees of “safety hazards which would be
known to a reasonably prudent employer or which are addressed by specific OSHA regulations” A.P.
O’Horo Co., 14 BNA OSHC 2004, 2009 (1991). The review Commission has concluded,
notwithstanding its general language, that
                “....the standard is not unenforceably vague if it is applied with
                reference to either a reasonable person test or OSHA standards”
R&R Builders, 15 BNA OSHC 1383, 1390 (1991). Moreover “....[e]vidence that the employees
were unaware of particular safety requirements, because of a lack of specific instruction, establishes
a violation” ibid citing John R. Jurgensen Co., 872 F.2d 1026 (6th Cir. 1989).

       In this item the Secretary alleges that Respondent failed to instruct its employees regarding
the hazards associated with trenching operations. Specific standards address the activities and
hazards associated there with and for which the Respondent allegedly failed to provide appropriate
instructions to its employees. The shoring and sloping requirements are set forth at 29 CFR
1926.652; worksite inspection requirements at 29 CFR 1926.651(k) and stability of adjacent
structures (the side walk) at 29 CFR 1926.651(i). In support of the allegation, Complainant relies
upon the testimony of the compliance officer that, when asked, the union stewart, Augusto Crespo,
who was also employed by Respondent, replied that he had not received any safety training relating
to trenches (Tr. 22, 23). Respondent’s foreman, Tony Pereira, however, told the compliance officer
that employees had received safety training relating to trenching operations (Tr. 22). Pereira testified
that he and other foreman attended a 2 to 3 hour seminar conducted by OSHA during either 1989 or
1991 at which time safe trenching operations were discussed (Tr. 187, 188). When asked whether
he had received any other safety training, Mr. Pereira stated that he had received safety instruction
29 years previously when first employed by the firm (Tr. 189). He stated however, that he and the
other foreman periodically received “safety stuff” from the company (Tr. 189). Nonmanagement
employees also received safety training from the foremen on the job, according to Pereira, as an “on
going thing,” however, the firm’s written safety program does not require periodic safety instruction
(Tr. 190).
       According to Louis Bruschi, the firm’s chief estimator, Respondent employed a safety officer;
however, that person had left the firm the year previous to the inspection and had not been replaced
as of the date of the inspection (Tr. 233, 234). The safety officer was responsible for conducting
safety meetings; however, the last safety meeting that Mr. Bruschi recalls being held for the members
of foreman Pereira’s crew was during 1991 (Tr. 235). Mr. Bruschi was appointed as safety officer
after the inspection which resulted in this action (Tr. 230) . Bruschi testified that “everyone” was
responsible for safety during the period when the safety officer position was vacant (Tr. 231).
       Based upon the foregoing it is concluded that Respondent’s employees did not receive the
safety instructions contemplated by the standard cited. Although Respondent has a written safety
program, it is clear that the employees who worked in the trench did not receive adequate safety
instructions regarding the hazards associated with trenching operations. Faced with evidence that

the union stewart stated that employees received no safety training as well as the fact that the safety
officer position had not been filled, Respondent presented no evidence that members of foreman
Pereira’s crew received the specific instructions which Complainant alleges were not received Astra
Pharmaceutical Products, 681 F.2d 69, 74 (1st Cir. 1982). As previously stated, Complainant must
establish the alleged violation by a preponderance of the evidence Armour Elevator Co., supra.
Based upon this record, as a whole, it is concluded that “it is more probably true than false” Ultimate
Distrib. Systems, Inc., supra that Respondent’s employees did not receive the instruction
contemplated by the standard. Therefor, the violation is affirmed.
               Citation 1 Item 1B
               29 CFR 1926.21(b)(6)(i): Employees required to enter into confined
               or enclosed spaces were not instructed as to the nature of the hazards
               involved, the necessary precautions to be taken, and in the use of
               protective and emergency equipment required:
               LOCATION: JOBSITE - TRENCH
               HAZARD: WORKERS REQUIRED TO ENTER THE TRENCH
               FOR PLACEMENT OF SEWER LINE IN AND AROUND
               EXISTING SEWER LINES 14-15 FT. DEEP WERE NOT
               TRAINED IN HAZARDOUS ATMOSPHERES AND THE
               PRECAUTIONS TO BE TAKEN PRIOR TO ENTRY.
       The compliance officer asked the union stewart whether he had received any instructions from
Respondent regarding the hazards associated with confined space1 entry. The union stewart answered
in the negative (Tr. 14, 17). Moreover, Respondent did not have a written confined space safety
program (Tr. 17) and the foreman, Tony Pereira, acknowledged that he did not receive any confined
space entry training nor had any of the other employees received such training (Tr. 23, 30, 31, 192).
Pereira knows that trenches may be confined spaces (Tr. 190); however, no atmospheric testing had
been conducted at the trench in which employees were observed working (Tr. 17, 45).

       1
        Confined space is defined at 29 CFR 1926.21(6)(ii) as follows:
               For purposes of paragraph (b)(6)(i) of this section, confined or enclosed
               space means any space having a limited means of egress, which is subject to
               the accumulation of toxic or flammable contaminants or has an oxygen
               deficient atmosphere. Confined or enclosed spaces include, but are not limited
               to storage tanks, process vessels, bins, boilers, ventilation or exhaust ducts,
               sewers, underground utility vaults, tunnels, pipelines, and open top spaces
               more than 4 feet in depth such as pits, tubs, vaults, and vessels.

       The most startling testimony regarding this alleged violation was elicited from Respondent’s
President Joseph Gallo:
               JUDGE YETMAN: Now, can a trench be a confined space?
               THE WITNESS: Not unless there is any - not unless there is a
               significant presence of odor.
               JUDGE YETMAN: All right. And how do you determine that?
               THE WITNESS: Basically !
               JUDGE YETMAN: The old smell test?
               THE WITNESS: So they say, that’s the best in the world.
               JUDGE YETMAN: Okay.
               THE WITNESS: The senses of our nose are much better than the
               monitors.
               JUDGE YETMAN: Is that how you instruct your employees to test?
               THE WITNESS: It always has been, but we’ve got a monitor.
               JUDGE YETMAN: Well !
               THE WITNESS: We were advised !
               JUDGE YETMAN: My question is whether the company instructed
               its employees !
               THE WITNESS: Yes.
               JUDGE YETMAN: To test the work !
               THE WITNESS: Yes,
               JUDGE YETMAN: Environment inside a trench by smelling?
               THE WITNESS: Yes. Correct.
               JUDGE YETMAN: And that’s how you instructed your employees?
               THE WITNESS: That’s what they’ve done for many years.
               (Tr. 248, 249).
Based upon the foregoing, this item is affirmed.
               Citation 1 Item 2a
               29 CFR 1926.651(k)(1): Daily inspections of excavations, the
               adjacent areas, and protective systems were not made by a competent
               person for evidence of a situation that could have resulted in possible
               cave-ins, indications of failure of protective systems, hazardous
               atmospheres, or other hazardous conditions:
               LOCATION: JOBSITE - TRENCH AREA
               HAZARD: DAILY TRENCH INSPECTIONS OF THE QUALITY
               REQUIRED TO DETECT AND ELIMINATE HAZARDS SUCH
               AS IMPROPERLY SHORED TRENCHES, UNTESTED
               ATMOSPHERES, INADEQUATE SOIL ANALYSIS, UNTAGGED
               LOADS BEING RAISED AND LOWERED AND UNDERMINED
               SIDEWALK SECTIONS WERE NOT BEING DONE.

       With respect to this item, the Secretary asserts that a competent person2 was not at the
worksite (Tr. 36, 37); therefor, it was impossible for Respondent to comply with this standard. This
conclusion is based upon the conditions observed by the compliance officer at the worksite such as
“[t]he cracking or spoiling of soils, the improperly placed ladder or ladders at the discharge points,
the undermined sidewalk area, the untagged load being raised and lowered in the trench and the fact
that it was a sewer line and people had not ! employees had not been trained in confined space entry
procedures” (Tr. 44, 45). In addition, the compliance officer observed a Komatsu backhoe working
at the end of the trench as well as vehicular traffic traveling parallel and in close proximity to the
trench (Tr. 37, Exh. C-6). The presence of these vehicles placed a “great burden” upon the unshored
portions of the trench and was inconsistent with a competent person’s oversight of the work area
(Tr. 39). Moreover, the trench had not been tested for hazardous atmospheres (Tr. 45). This is
particularly significant since the new line was being connected to an existing sewer line.
       Mr. Pereira testified that, as foreman at the site, he was the designated competent person (Tr.
186). He inspected the worksite on a daily basis (Tr. 195) and determined that the undermined
sidewalk section did not pose a hazard (Tr. 193; Exh. C-3). He tested the soil on the morning of the
OSHA inspection and determined that the soil was type B (Tr. 196). He also inspected the trench
box and the sheets of steel lining each side of the trench. However, he did not check the bottom of
the trench for hazardous atmospheres even though the trench was dug in close proximity to an open
existing sewer line (Tr. 197). Although there is testimony that Mr. Pereira has been employed by
Respondent for 29 years (Tr. 189) there is no evidence in the record indicating that by training or
experience Mr. Pereira is qualified to be a competent person within the meaning of the definition set
forth at 1926.650(b). This is particularly evident from the cavalier attitude that this Respondent and
Mr. Pereira exhibited regarding the requirement to test a fifteen foot deep trench adjoining an open
existing sewer line for hazardous atmospheres. For these reasons, this item is affirmed.
               Citation 1 Item 2(b)

       2
        Competent person is defined at 29 CFR 1926.650(6) as follows:
             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.

               29 CFR 1916.651(j)(1): Adequate protection was not provided to
               protect employees from loose rock or soil that could pose a hazard by
               falling or rolling from an excavation face:
               LOCATION: JOBSITE - TRENCH ROADSIDE
               HAZARD: AN OPENING BETWEEN THE STEEL PLATES
               USED TO HOLD BACK THE LATERAL PRESSURES
               DEVELOPED IN THE SIDE WALLS OF THE TRENCH EXISTED
               WHERE A GAS PIPE PROTRUDED ALLOWING DIRT AND
               OTHER MATERIAL TO TUMBLE INTO THE TRENCH WHERE
               WORKERS WERE PRESENT.
       This item relates to a space approximately two feet wide between two sheets of steel which
had been placed on the side of the trench box to protect the trench walls above the trench box from
collapsing into the trench (Tr. 47-52). Because a gas line extended beyond the trench wall into the
work area, it was necessary to leave a gap between the sheets of steel (Exh. C-10, C-11).
Complainant asserts that the space between the steel plate created a potential hazardous condition
in the event that the trench wall collapsed (Tr. 136). It is clear from the photographs, however, that
the trench wall was sloped back from the steel plates (Exh. R-5) and any materials falling from the
trench wall would fall below the gap in the steel plates and fill the void between the trench box and
the trench wall. For these reasons, this item is vacated.
               Citation 1 Item 3
               29 CFR 1916.652(a)(1): 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 had not
               complied with the provisions of 29 CFR 1926.652(b)(1)(i) in that the
               excavation was sloped at an angle steeper that one and one-half
               horizontal to one vertical (34 degrees measured from the horizontal):

               LOCATION: JOBSITE - SECONDARY TRENCH ALONG SIDE
               THE PRIMARY
               HAZARD: A TRENCH WAS CUT ALONG THE SIDE OF THE
               PRIMARY SEWER LINE TRENCH 5 FT. - 3 IN. DEEP WITH
               VERTICAL WALLS AND NO SHORING WITH EMPLOYEES
               ALLOWED TO ENTER AND EXIT.
       The photographic evidence offered by Complainant clearly depicts a trench on the outside of
the steel plates placed along the trench box (Exh. C-1, C-4, C-5). An employee is shown in the
trench and the wall of the trench opposite the steel plates is vertical. The only dispute with respect

to this item is whether the trench depth exceeds five feet3. Respondent’s foreman, Mr. Pereira
disputes the compliance officer’s conclusion that the trench depth exceeded five feet and maintains
that the trench was only 59" deep. That dispute cannot be resolved on this record. However, in
order to be exempt from the protective system requirement, the trench must be less than five feet in
depth “and the examination of the ground by a competent person provides no indications of a
potential cave in” (see foot note 3). There is no evidence in this record that the secondary trench had
been inspected by a competent person. Indeed, it has been found that there is insufficient evidence
to support a conclusion that a competent person within the meaning of the standard was at the
worksite supra pg 8. On this basis, this item is affirmed.
               Citation 1 Item 4
               29 CFR 1926.652(c)(4)(i&ii): Support systems, shield systems, and
               other protective systems not utilizing Options 1, 2, or 3 above were
               not approved by a registered professional engineer such that a plan
               indicating the size, types, and configuration of the materials to be used
               in the protective system was not available with the identity of the
               registered professional engineer.

               LOCATION: JOBSITE - TRENCH
               HAZARD: THE SYSTEM DESIGN USED BY THE FOREMAN
               ON THE SITE WAS DEVELOPED BY A REGISTER
               PROFESSIONAL ENGINEER FOR ANOTHER SITE, IN
               ANOTHER YEAR, IN ANOTHER STATE WITH DIFFERENT
               TRENCH BOX SIZE AND DEPTH OF CUT AND ALTHOUGH A
               GENERIC PLAN WAS AVAILABLE IT DID NOT HAVE A
               REGISTERED PROFESSIONAL ENGINEER’S NAME AFFIXED
               TO IT.
       In order to establish this violation, the Secretary must provide some evidence in support of

       3
        The standard set forth at 29 CFR 1926.652(a) states in pertinent part:
               (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 except when:
                       (i) Excavations are made entirely in stable rock ; or
                       (ii) Excavations are less than 5 feet (1.52m) in depth and
                       examination of the ground by a competent person provides
                       no indication of a potential cave-in.

each of the elements of the alleged offense. First, the Secretary must provide evidence that
Respondent utilized a trench support system which did not fall within the requirements of options 1,
2, and 3 of the standard,4 (2) the system in use was not approved by a registered professional
engineer, (3) the design for the protective system in use must be in writing, and include (4) the size,
types and configurations of the materials to be used in the protective systems and finally (5) the name
of the professional registered engineer approving the design.
           With respect to the first element, the compliance officer testified that Respondent had
designed a support system for trenching operations which fell within option (4) of the standard.5 The
compliance officer stated, without any evidence to the contrary being offered by Respondent, that
options (1), (2) and (3) of the standard are not applicable to the design created by Respondent (Tr.
68) therefor, Complainant had met its burden with respect to the first element. The compliance officer
testified that the complete design, however, was not signed by a registered professional engineer (Tr.
75). He testified that the design was originally developed by Respondent for a jobsite in Connecticut
and revised as a generic plan for all worksites. According to the compliance officer, the design
changes creating a generic design plan were not signed by a registered professional engineer (Tr. 73).
In its case in chief Respondent called Dr. Walter Jaworski as a witness. Dr. Jaworski is a

           4
            The options for protective systems are set forth, in pertinent part at § 1926.652(c)(1)(2) and (3) as
follows:
                    (1) Option (1)!Designs using appendices A, C, and D. Designs for timber
                   shoring in trenches shall be determined in accordance with the conditions and
                   requirements set forth in appendices A and C to this subpart. Designs for
                   aluminum hydraulic shoring shall be in accordance with paragraph (c)(2) of
                   this section, but if manufacturer’s tabulated data cannot be utilized, designs
                   shall be in accordance with appendix D.
                    (2) Option (2)!Designs Using Manufacturer’s Tabulated Data. (i) Design
                   of support systems, shield systems, or other protective systems that are drawn
                   from manufacturer’s tabulated data shall be in accordance with all
                   specifications, recommendations, and limitations issued or made by the
                   manufacturer....
                    (3) Option (3)!Designs using other tabulated data. (i) Designs of support
                   systems, shield systems, or other protective systems shall be selected from and
                   be in accordance with tabulated data, such as tables and charts....

           5
         The complete design created by Respondent consists of 13 pages and was entered into evidence as
Exhibit R-6.

geotechnical engineer who, as part of his professional qualifications, co-authored a three volume
design manual for the Federal Highway Administration relating to trenching operations throughout
the United States (Tr. 150). He is also a registered professional engineer in the Commonwealth of
Massachusetts (Tr. 150). Based upon his educational and work experience as well as his demeanor
as a witness, I conclude that Dr. Jaworski is eminently qualified as an expert in the design of soil
protective systems and his testimony is highly reliable.
         Dr. Jaworski testified that he co-authored Exhibit R-6 with his daughter, who is also a
geotechnical engineer, and his seal at page 5 of that document represents his approval of all of the
design specifications contained in the document (Tr. 156). Dr. Jaworski also testified that Exhibit
R-6 was developed as a generic plan to eliminate the need to create a new plan for each jobsite having
similar conditions (Tr. 154). The design is intended to eliminate the need to “reinvent the wheel” for
each jobsite (Tr. 154). It appears that Complainant takes the position that since the plan was based
upon a jobsite in Connecticut and Dr. Jaworski is a registered professional engineer in Massachusetts
his review of the plan and seal is invalid (Tr. 167, 168). However, there is no requirement on the face
of the standard that the engineer be registered in a particular state nor is there any prohibition in the
standard against a generic plan of the type devised by Dr. Jaworski. Accordingly, I find that
Complainant had failed to produce convincing evidence that the design plan used by Respondent was
not approved by a registered professional engineer.
         Furthermore, Exhibit R-6 fully complies with the third requirement that the plan must be in
writing, as well as the 4th and 5th requirements that the size, type and configuration of materials
being used in the protective system must be contained in the written design and that the name of the
registered professional engineer be on the document (Exhibit R-6). Thus, Complainant has failed to
provide that quantum of evidence necessary to sustain the violation alleged Ultimate Distrib Systems,
Inc.,.
         This is not to say, however, that the protective system in use on the day of the inspection
complied with Respondent’s design system or the standard. To the contrary, the evidence clearly
establishes that steel plates had been placed in the trench beyond each end of the trench box. These
plates had been driven approximately 2 feet into the soil at the bottom of the trench and back fill
placed in the trench supported the steel plates from the inside. No other support for the plates was

provided (Tr. 71, 72). When asked about the steel plates in the trench outside the trench box, Dr.
Jaworski stated that they were not braced and if they were to be supported solely by the soil, each
plate should be buried eight feet into the soil to keep them from falling over (Tr. 158, 164). The steel
plates clearly were not driven eight feet into the ground. At most, the plates were driven four feet
into the soil (Tr. 72). Dr. Jaworski testified that the placement of the steel plates outside the trench
box did not comply with OSHA standards (Tr. 158, 159).
        Based upon the foregoing it is concluded that Respondent complied with the design
requirement for protective support systems pursuant to the standard cited by the Secretary; however,
Respondent’s employees at the site failed to comply with the design requirements and, therefor, failed
to provide an “adequate protective system” as required by 29 CFR 1926.652(a).6 There is ample
evidence on the record to support the conclusion that Respondent litigated the issue of hazards
presented by the steel plates located outside the trench box. Accordingly, it is concluded that the
parties tried the issue of whether Respondent violated the provisions of 29 CFR 1926.652(a) by
consent. Thus, pursuant to Rule 15(b) of the Federal Rules of Civil Procedure, citation item 4 is
amended to alleged a violation of section 1926.652(a). National Realty and Construction Co., v.
OSHRC 489 F.2d 1257 (D.C. Cir. 1973); John and Ray Carlstrom, 6 BNA OSHC 2101 (1978);
Rodney E. Fossett, 7 BNA OSHC 1915 (1979). The violation, as amended, is affirmed.
                Citation 2 Item 1
                29 CFR 1926.251(b)(1): Welded alloy steel chain slings did not have
                permanently affixed durable identification stating size, grade, rated
                capacity and sling manufacturer’s name.
                LOCATION: JOBSITE
                HAZARD: THREE STEEL CHAIN SLINGS OF VARYING

        6
           (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 except when:
                 (i) Excavations are made entirely in stable rock; or
                 (ii) Excavations are less than 5 feet (1.52m) in depth and examination of
                 the ground by a competent person provides no indication of a potential
                 cave-in.
                 (2) Protective systems shall have the capacity to resist without failure all
                 loads that are intended or could reasonably be expected to be applied or
                 transmitted to the system.

               DIMENSIONS DID NOT HAVE PERMANENTLY AFFIXED
               IDENTIFICATION TAGS.
               Citation 2 Item 2
               29 CFR 1926.251(b)(6)(i&ii): A through periodic inspection of alloy
               steel chain slings in use were not made on a regular basis with the
               most recent months record in which the chain sling was inspected
               made available for examination.
               LOCATION: JOBSITE
               HAZARD: CHAIN SLINGS USED ON THE JOBSITE WERE
               NOT BEING PERIODICALLY INSPECTED NOR WERE
               RECORDS OF THE FINDINGS RECORDED.
       The compliance officer observed three chain slings which did not have identification tags
listing the information required by the above standard. Moreover, Mr. Pereira was unable to produce
inspection records for the chains (Item 2 above) (Tr. 80, 83, 86). Mr. Pereira testified that the firm
purchased only one grade of chain and he visually inspected the chain. Pereira stated that the tags
were frequently knocked off the chain during normal use and, in the past, he returned the chains to
their supplier to have tags replaced (Tr. 204). There was no explanation as to why the chains
observed by the compliance officer had not been returned to the supplier to be retagged nor was there
any explanation for failing to record the visual inspections of the chains. For the foregoing reasons,
these items are affirmed.
       The Secretary has alleged that the violations set forth at items 1(a), 1(b), 2(a), 3, and 4 are
serious violations within the meaning of section (k) of the Act. Section 17(k) of the Act defines a
serious violation as follows:
               For purposes of this section, a serious violation shall be deemed to
               exist in a place of employment if there is a substantial probability that
               death if serious physical harm could result from a condition which
               exists, or from one or more practices, means, methods, operations, or
               processes which have been adopted or are in use, in such place of
               employment unless the employer did not, and could not with the
               exercise of reasonable diligence, know of the presence of the
               violation.
29 CFR § 666(k).
       The Secretary does not have to prove that there is a substantial probability that an accident
will occur, but rather that death or serious physical harm could occur. See East Texas Motor Freight,

Inc. V. OSHRC, 671 F.2d 845 (5th Cir. 1982); Bethlehem Steel Corp. V. OSHRC, 607 F.2d 1069(3rd
Cir. 1979). Testimony by the compliance officer and photographs support the conclusion that failure
to comply with the standards cited exposed employees to serious physical harm or death due to
collapsing trench walls or exposure to hazardous fumes. The failure to instruct employees regarding
the hazards associated with trenching operations is particularly egregious in this case in view of the
lack of understanding of hazardous atmospheres displayed by the firm’s President. Accordingly, the
aforesaid items are affirmed as serious violations. Items 1 and 2 of citation 2 are affirmed as other
type violations.
       Section 17(j) of the Act requires that due consideration must be given to four criteria in
assessing penalties: the size of the employer’s business, gravity of the violation, good faith and prior
history of violations. In Secretary of Labor v. J.A. Jones Construction Company, 15 BNA OSHC
2201 (1993), the Commission stated:
               These factors are not necessarily accorded equal weight; generally
               speaking, the gravity of a violation is the primary element in the
               penalty assessment. Trinity Indus., Inc., 15 BNA OSHC 1481, 1483,
               1992 CCH OSHD ¶29,582, p. 40,033 (No. 88-2681, 1992); Astra
               Pharmaceutical Prods., Inc., 10 BNA OSHC 2070 (No. 78-6247,
               1982). The gravity of a particular violation, moreover, depends upon
               such matters as the number of employees exposed, the duration of the
               exposure, the precautions taken against injury, and the likelihood that
               any injury would result. Kus-Tum Builders, Inc., 10 BNA OSHC
               1128, 1132, 1981 CCH OSHD ¶25,738 p. 32, 107 (No. 76-2644,
               1981).
       With respect to serious item 1(a) and 1(b), the Secretary has proposed a penalty of $225.
Based upon the evidence it is concluded that the failure to instruct employees in this instance
constitutes a moderate gravity factor. Taking into consideration the size, good faith and lack of prior
violations, the proposed penalty of $225 is appropriate and is assessed for the violations. Item 2(a),
failure to conduct daily inspections of the excavations, also presented a moderate gravity factor.
Accordingly, the proposed penalty of $225 is assessed for this violation. Items 3 and 4 also present
the same gravity factor as items 1 and 2. Thus a penalty in the amount of $225 is assessed for each
of those violations. The Secretary proposed a zero penalty for the other than serious items. Based
upon the low gravity factor of the violations, the Secretary’s proposal is adopted and a zero penalty

is assessed for the other than serious violations.
                                       FINDINGS OF FACT
       All findings of fact relevant and necessary to a determination of the contested issues have been
found specially and appear herein. See Rule 52(a) of the Federal Rules of Civil Procedure. All
proposed findings if fact inconsistent with this decision are denied.
                                    CONCLUSIONS OF LAW
       1.      Bruschi Brothers, Inc., is engaged in a business affecting commerce and has employees
within the meaning of Section 3(5) of the Act.
       2.      Bruschi Brothers, Inc., at all times material to the proceeding, was subject to the
requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction
of the parties and the subject matter of this proceeding.
       3.      At the time and place alleged, Respondent was in violation of 29 CFR 1926.21(b)(2).
       4.      At the time and place alleged, Respondent was in violation of 29 CFR
1926.21(b)(6)(i).
       5.      At the time and place alleged, Respondent was in violation of 29 CFR 1926.651(k)(1).
       6.      At the time and place alleged, Respondent was not in violation of 29 CFR
1926.651(j)(1) and the violation is vacated.
       7.      At the time and place           alleged, Respondent was in violation of 29 CFR
1926.652(a)(1).
       8.      At the time and place alleged, Respondent was not in violation of 29 CFR
1926.652(c)(4)(i&ii) but was in violation of 29 CFR 1926.652(a).
       9.      At the time and place alleged, Respondent was in violation of 29 CFR 1926.251(b)(1).
       10.     At the time and place alleged, Respondent was in violation of 29 CFR
19126.251(b)(6)(i&ii).
                                               ORDER
       (a)     Serious Citation 1 Item 1(a) and 1(b) are affirmed as serious violations and a penalty
in the amount of $225 is assessed thereto.
       (b)     Serious Citation 1 Item 2(a) is affirmed as a serious citation and a penalty in the
amount of $225 is assessed thereto.

         (c)   Serious Citation 1 Item 2(b) is vacated.
         (d)   Serious Citation 1 Item 3 is affirmed as a serious violation and a penalty in the
amount of $225 is assessed thereto.
         (e)   Serious Citation 1 Item 4, as amended, is affirmed and a penalty in the amount of
$225 is assessed thereto.
         (f)   Citation 2 Item 1 is affirmed and no penalty is assessed thereto.
         (g)   Citation 2 Item 2 is affirmed and no penalty is assessed thereto.

                                             ROBERT A. YETMAN
                                             Judge, OSHRC

Dated:
         Boston, MA