Westar Mechanical, Inc.

Plain-English summary

Westar and a subcontractor installed a sewer line in unprotected excavations on two consecutive days. On the second day, a trench wall collapsed, a water main broke, and two trapped workers drowned as the trench filled with water. The Commission held that separate cave-in and competent-person inspection citations were proper because the work occurred in distinct excavations, locations, and conditions and required separate abatement. The Commissioners disagreed over willfulness and left the judge's serious classification in place. They also disagreed over whether the two inspection violations should share a penalty, so the judge's separate $6,300 penalties remained but received only the precedential value of an unreviewed judge's decision. The Commission affirmed all seven serious items on review and penalties totaling $31,950.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1); 29 C.F.R. § 1926.651(k)(1); 29 C.F.R. § 1926.651(j)(2); 29 C.F.R. § 1926.21(b)(2); 29 C.F.R. § 1926.201(a)(4)
• Outcome: Seven serious trenching and traffic-safety items affirmed; $31,950 total penalties assessed.
• Key point: Separate excavations on consecutive days supported separate citations even though they were part of one sewer project.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket Nos. 97-0226 &
97-0227 (consolidated)
WESTAR MECHANICAL, INC.,
Respondent.

                                     DECISION

Before: ROGERS, Chairman, and EISENBREY, Commissioner.
BY THE COMMISSION:
At issue before us are two sets of citations issued by the Occupational Safety and
Health Administration (“OSHA”) to Westar Mechanical, Inc. (“Westar”) following an OSHA
investigation of a fatal workplace accident. Two workers, one employed by Westar and the
other by its subcontractor, 5L Enterprises, Inc. (“5L”), were first trapped by a collapsing
trench wall and then drowned by water pouring out of a broken water pipe that fell into the
trench along with the collapsing trench wall. The citations contested in Docket No. 97-0226
allege violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-78
(“the Act”), that occurred on July 17, 1996, the day of the fatal accident. The citations
contested in Docket No. 97-0227 allege violations that had occurred on the previous day, July
16, when Westar and 5L employees had been working in and near an adjacent excavation as
part of the same construction project.
Both parties have taken exception to different aspects of the decision below of
Administrative Law Judge Covette Rooney. The Secretary challenges the judge’s conclusion
that Westar’s violations of 29 C.F.R. § 1926.652(a)(1), the cave-in protection standard, were
not willful, as alleged. Westar challenges the judge’s affirmance of two separate violations
 2

of section 1926.652(a)(1) and also two separate violations of 29 C.F.R. § 1926.651(k)(1), the
“competent person” inspection standard.1 Westar also challenges the “appropriateness” of
penalties totaling $31,950 that were assessed by the judge for the three serious violations of
the Act affirmed in Docket No. 97-0226 and the four serious violations affirmed in Docket
No. 97-0227. For the reasons that follow, we affirm the judge’s resolution of each of these
disputed issues.
I. Background
Westar is a small plumbing contractor with an office in Middletown, New York,
apparently not far from the construction site at 307 North Street where the fatal accident
occurred. Sometime in 1996, Westar contracted with Rowley Building Products, Inc.
(“Rowley”), to construct a sewer line from the City of Middletown’s existing sewer line
beneath the surface of North Street to a building owned by Rowley at the rear of 307 North
Street. Westar in turn subcontracted with 5L to perform the necessary excavation work. The
entire project was expected to take only two to three days, and the total length of the new
sewer line was to be approximately 400 feet.
Work on the project began on July 16, when the 5L backhoe operators, principally
Chad Loiodice and, in relief, James Loiodice, dug an excavation in North Street for the
purpose of installing a manhole and tying the new sewer line into the existing sewer main.
The excavation was dug to a depth of approximately eight feet. Estimates of its surface
dimensions varied, from 8 feet wide by 14.4 feet long to 10 feet by 10 feet. The walls of the
excavation were vertical, and, as found by the judge, “no protection such as shoring was
installed along the sides.” Because the excavation had been dug directly above an existing
sewer line in previously disturbed soil, the walls of the excavation could not have been
classified as any more stable than “Type B soil,” which under the terms of OSHA’s cave-in

   1
   Both sets of citations that are at issue before us (in Docket Nos. 97-0226 and 97-

0227, respectively) include an item alleging a willful serious violation of section
1926.652(a)(1) and an item alleging a serious violation of section 1926.651(k)(1).
 3

protection standard, must be sloped to an angle no greater than 45 degrees or protected by
other means such as shoring.2
After digging the excavation, Chad Loiodice used the backhoe to lower a manhole
into it. Also on July 16, the backhoe operators began excavating the trench3 where the cave-
in occurred the next day. They dug from the excavation in the North Street right-of-way
through the adjacent sidewalk and into the Rowley parking lot, and the work crew laid either
one or two sections of pipe in the trench, connecting the piping to the sewer main.4 The
excavation was then backfilled, and steel plates were laid over the excavation and the
sidewalk area before the crew left for the night. In conjunction with this work, at least two

   2
    29 C.F.R. § 1926.652(a)(1) provides that “[e]ach 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 (1.52 m) in depth and examination of the ground
by a competent person provides no indication of a potential cave-in.” Paragraph (b) of section
1926.652 is captioned “Design of sloping and benching systems.” Paragraph (c) is captioned
“Design of support systems, shield systems and other [installed or constructed] protective
systems.” For ease of reference, we use the phrase “sloping or shoring” to refer generically
to the various alternative methods of cave-in protection allowed under the standard.
3
For purposes of the standards cited in the items on review, OSHA defines the term
“excavation” as meaning “any man-made cut, cavity, trench, or depression in an earth
surface, formed by earth removal.” 29 C.F.R. § 1926.650(b). A “trench” is “a narrow
excavation (in relation to its length) made below the surface of the ground. In general, the
depth is greater than the width, but the width of a trench (measured at the bottom) is not
greater than 15 feet (4.6 m). . . .” Id.
4
As part of the street closing on July 16, Westar stationed an employee, Frank Malloy,
at a nearby intersection (North Street and Low Avenue) to act as a traffic flagman. Malloy
spent the entire day at this location, diverting oncoming traffic off of North Street, where the
excavation work was taking place, and onto Low Avenue, turning in either direction. Two
of the citation items at issue in Docket No. 97-0227 are based on Westar’s undisputed
failures to provide Malloy (a) with an orange warning garment and (b) with instructions and
training in the recognition and avoidance of hazards associated with flagging vehicular
traffic. On review, only the appropriateness of the assessed penalties ($2250 for each of these
two items) remains at issue.
 4

laborers, Westar employee Ed Reilly and 5L employee Martin Grenzhauser, entered the
excavation and trench to perform such tasks as leveling the ground prior to installing the
manhole, tamping the earth that was used to backfill the excavation, and making the
connections of the newly-installed piping to the previously-installed sewer main. Westar
president Roger W. (“Bill”) Reagan, Jr., also entered the excavation on July 16, although the
record does not disclose either the reason for his entry or the length of time he remained in
the excavation.
According to James Loiodice, the 5L backhoe operators, upon returning to the
worksite on July 17, “continue[d] digging . . . the ditch where we were going to put the sewer
line,” starting “[a] few feet into the parking lot where we had left off the night before.” As
the backhoe proceeded, lengthening the trench, Westar’s Reilly and 5L’s Grenzhauser
followed along behind it, working in the trench to lay and connect sewer pipes. As found by
the judge, the trench in which the employees worked, like the excavation they had worked
in the previous day, was “approximately 8 feet deep” with “vertical” sides, and “no other
protective means was in use.” The width of the trench varied from three feet to three feet six
inches, i.e., roughly the width of the backhoe bucket. The soil samples taken following the
fatal accident showed that the trench had been dug primarily in “Type C soil,” which under
the cave-in protection standard must “be protected by sloping at an angle of 34 degrees or
by other means such as shoring.” The soil excavated from the trench was placed along the
edge of the south wall of the trench, creating a soil bank that, according to OSHA compliance
officer (“CO”) Kay Coffey, “contained soil and rocks of considerable size.”5

   5
     One of the citation items at issue in Docket No. 97-0226 is based on Westar’s

undisputed failure to ensure that this soil bank was prevented from falling or rolling into the
trench by keeping the excavated materials at least two feet away from the edge or by using
a retaining device, as required by 29 C.F.R. § 1926.651(j)(2). Only the appropriateness of the
assessed penalty for this item ($2250) remains at issue on review.
 5

   During the morning of July 17, the excavating and pipe-laying work apparently

continued without incident, moving along the line previously marked by Westar on the
parking lot asphalt, until the backhoe came upon an unmarked water pipe that crossed over
the trench’s planned route.6 The pipe connected the sprinkler system in the main building of
the Rowley complex to an unmarked water main. That larger (4-inch) cast iron pipe ran 2-1/2
to 3 feet below the surface of the parking lot, parallel to the main building and thus parallel
also to the trench that was being excavated.
Sometime later, the backhoe uncovered a section of that water main in the trench’s
north wall. At that point, work was stopped, and both company president Reagan and City
of Middletown plumbing inspector Richard Brannan were called to the site to examine the
situation.7 After conferring, Brannan approved Westar’s proposed alteration in the course of
its trench, and Reagan issued instructions to the backhoe operator to continue digging but to
move the trench further away from the water main. Plumbing inspector Brannan gave no
indication whether there might be a need to shut off the water in the pipe or to take any other
precautionary measures.
At approximately 2:00 p.m., a 15-foot-long segment of the north bank of the trench
caved in, apparently without warning. Part of the cast iron water main also separated from
the remainder of the line and fell into the trench along with the collapsing trench wall. The
two events occurred so closely together that witnesses and investigators could not determine

   6
    Prior to beginning work on the project, Westar had called the Underground Facilities

Protective Organization (“U.F.P.O.”) and requested the marking of previously-installed
underground utility lines. Both the gas company and water company had responded by
marking the location of certain utility lines. The water lines discovered on July 17, however,
had either been mismarked or not marked at all.
7
The plumbing inspector had also been to the site the previous day, although the
record does not reveal the reason for his visit or how far the work had progressed before his
arrival. The record does establish that, prior to beginning work on the Rowley project, Westar
had submitted its excavation plans to the plumbing inspector and received his approval.
 6

which occurred first. For example, James Loiodice, who observed the collapse, told police
that he didn’t know “if the water main broke causing the ditch to fill in or if the ditch
collapsing caused the water main to break.” In either event, it is clear that the trench
immediately began filling with water. Between 150,000 and 155,000 gallons of water
eventually spilled out of the broken pipe before the water was finally shut off approximately
an hour after the break occurred.
At the time of the cave-in, the two workers laying pipe in the trench (Reilly and
Grenzhauser) were almost eleven feet apart. The cave-in covered both workers with
collapsed soil to about waist level. One or both of the workers were further immobilized by
being caught under the collapsed water pipe. Even though immediate rescue efforts were
begun by Westar and 5L employees, the water level rose so rapidly that, by the time city
police lieutenant Joseph Valentia arrived at the site about 2:15 p.m., both workers were
already under water.
OSHA’s investigation of the accident and inspection of the work site began the next
day, July 18, and led to the simultaneous issuance of the two separate sets of citations in the
cases before us. The merits of each of the items are not on review. Rather, the issues before
us are the appropriateness of separate citations for violations of the same standard, the willful
classifications, and penalties.

           II. Separate Citations for Violation of the Same Standard
                       A. The Cave-In Protection Standard
   Item 1 of citation no. 2 that was contested in Docket No. 97-0227 alleges that Westar

committed a willful serious violation of 29 C.F.R. § 1926.652(a)(1) in that “[o]n or about
07/16/96, no cave-in protection system was being used in the right-of-way of North Street,
near 307 North Street, Middletown, N.Y., thus exposing employees to a possible cave-in
 7

while tamping backfill and inspecting work in an excavation 8 feet deep with vertical walls.”
Item 1 of citation no. 2 that was contested in Docket No. 97-0226 alleges that Westar
committed a willful serious violation of 29 C.F.R. § 1926.652(a)(1) in that “[o]n or about
07/17/96, an employee was working laying sewer pipe in a trench that was 3.5 feet wide x
116 feet long x 7.5 feet deep which had vertical walls and no cave-in protective system had
been provided.” The Secretary proposed penalties of $63,000 for each violation.
In affirming both of the contested citation items as serious and assessing separate
penalties for each violation, as proposed, the judge expressly rejected Westar’s contention
that, “because both docket numbers involve the same work site and the same trench,” the
Secretary “exceeded her authority in issuing two citations alleging a violation of the same
standard.” Based on evidence “that the excavated area cited in No. 97-227 was backfilled at
the end of the day on July 16 and that the excavated area cited in No. 97-226 was newly dug
on July 17,” the judge found that “the two dockets in this case involve two different
excavation sites, each requiring a distinct abatement.” She accordingly concluded that “the
Secretary’s issuance of two separate citations in this matter was not inappropriate” under
Andrew Catapano Enterps., Inc., 17 BNA OSHC 1776, 1995-97 CCH OSHD ¶ 31,180 (No.
90-0050, 1996)(“Catapano”).
On review, Westar challenges the judge’s reliance on Catapano, arguing that “[t]he
Commission rejected Catapano’s due process claim because of the facts of that case . . . [but]
the facts herein are dramatically different.” In particular, Westar disputes the judge’s finding
that the two contested citations at issue here relate to “two different excavation sites,”
pointing out that “[t]he trench, at the same location [as] the excavation, was a continuation
of the excavation. They were not two separate and distinct worksites.” In response, the
Secretary supports the judge’s resolution of this issue, contending that “[t]he facts here are
strongly analogous to Catapano.”
On the record before us, we agree with Westar that the circumstances here are
factually different from the circumstances that existed at the worksites in Catapano. The
 8

multiple citations under review in Catapano arose from multiple inspections of multiple
worksites. Here, in contrast, the two citations in question arose from what Westar contends
was a single inspection of a single construction worksite. Despite these factual differences,
however, we conclude that, consistent with Catapano, abatement of one of the violative
conditions here would not have abated the other violative condition. We therefore conclude
that the Secretary acted within the scope of her authority in issuing two citations of the cave-
in protection standard. As the Commission found in Hoffman Constr. Co., 6 BNA OSHC
1274, 1275, 1977-78 CCH OSHD ¶ 22,489, p. 27,120 (No. 4182, 1978) (“Hoffman”),8 “the
Secretary was justified in issuing separate citations” because “the charges” were “not
duplicative.”
Although, unlike the separate scaffolds in Hoffman, the excavations here were not
“entirely different and separate,” we conclude that there were sufficient distinctions between
the two alleged violations of section 1926.652(a)(1) to warrant the conclusion that the
Secretary acted within the scope of her discretion in treating them as separate violations of
the standard and of the Act. See id. (“[t]he Secretary chose to cite Hoffman for separate
violations of the same standard, and under these circumstances, it is within his discretion as
the prosecutor under the Act to do so”). Essentially, the distinctions we rely on are the ones
identified by CO Coffey as the basis of OSHA’s decision to issue the two separate citations:
the excavation at issue in Docket No. 97-0227 and the trench at issue in Docket No. 97-0226
had been dug on two separate days in two different locations; with some relatively minor
exceptions, the excavation had been backfilled and that operation had been completed before
digging of the trench began; and, again with relatively minor exceptions, the work and the

   8
    Like the instant cases, Hoffman involved the issuance of two citations for violation

of the same standard resulting from a single OSHA inspection of a single construction
worksite. The Commission noted, however, that “[t]he citations were directed towards
separate locations at the worksite and involved two different scaffolds.” 6 BNA OSHC at
1275 n.2, 1977-78 CCH OSHD at p. 27,120 n.2.
 9

work environment differed significantly on July 16 and July 17 (digging a rectangular
excavation and installing a manhole in it, as compared to digging a long, narrow trench and
laying and connecting piping in it). In addition, as emphasized by the Secretary in her
arguments on review, abatement of the cave-in hazard that existed in the excavation on July
16 would not have abated the cave-in hazard that existed in the trench on July 17. Under
these circumstances, we conclude that the two contested citations clearly “do not involve ‘the
same offense,’ ” as in Catapano, 17 BNA OSHC at 1779, 1995-97 CCH OSHD at p. 43,605,
and that the Secretary accordingly acted within the scope of her authority in issuing them.
B. The “Competent Person” Inspection Standard
Also at issue in these cases are two citation items alleging serious violations of 29
C.F.R. § 1926.651(k)(1),9 each carrying a proposed penalty of $6300. Item 3 of citation no.
1 that is at issue in Docket No. 97-0227 alleges that Westar violated the “competent person”
inspection standard in that, “[a]t the jobsite on or about 07/16/96, an employee was allowed
to work in an 8 feet x 13 feet x 8 feet deep excavation which had not been inspected by a
competent person.” Item 3 of citation no. 1 that is at issue in Docket No. 97-0226 alleges that
Westar violated this same standard in that, “[a]t the jobsite on or about 07/17/96, an

   9
       The cited standard provides that:

   Daily inspections of excavations, the adjacent areas, and protective systems shall be
   made by a competent person for evidence of a situation that could result in possible
   cave-ins, indications of failure of protective systems, hazardous atmospheres, or other
   hazardous conditions. An inspection shall be conducted by the competent person prior
   to the start of work and as needed throughout the shift. Inspections shall also be made
   after every rainstorm or other hazard increasing occurrence. These inspections are
   only required when employee exposure can be reasonably anticipated.

The term “competent person” as used in the cited standard is defined as meaning “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 C.F.R. §
1926.650(b).
 10

employee was allowed to work in a trench 3.5 feet wide x 116 feet long x 7.5 feet deep which
had not been inspected by a competent person.” In her decision, the judge affirmed both
citation items, assessing separate penalties for each violation, as proposed. However, even
though Westar had challenged the Secretary’s issuance of two citations for violation of this
standard as well as for violation of section 1926.652(a)(1), the judge did not address Westar’s
arguments with respect to these two citation items. Westar again raises the issue before us.
Westar’s challenge to the issuance of separate citations for violation of the competent
person inspection standard cites that part of the Commission’s decision in Catapano where
the Commission vacated all but one of the seven citations alleging training violations of 29
C.F.R. § 1926.21(b)(2),10 based on the Commission’s conclusion that this was “[t]he one area
where the Secretary exceeded his discretion.” 17 BNA OSHC at 1780, 1995-97 CCH OSHD
at p. 43,606. In essence, the Commission found, based on its review of the record evidence,
that the Secretary had cited Catapano seven times for the same violation. In particular, the
Commission could not perceive any difference among the seven citation items in terms of
the identity of the untrained employees or the content of the training that Catapano had failed
to provide. The only apparent distinction was in the respective dates of the alleged violations.
In light of the record, the Commission concluded, “only a single citation and penalty
assessment” was permissible “under the language of section 1926.21(b)(2).” 17 BNA OSHC
at 1780, 1995-97 CCH OSHD at p. 43,607.
Based on the facts of the cases before us, we conclude that the Secretary acted within
her authority when she issued two citations for Westar’s failure to have a competent person
inspect its worksite on July 16 and July 17. We find that the basis of the violations at issue
here is not just Westar’s failure to have an adequately-trained competent person present at
the Rowley construction site but also its failure to have its excavation inspected by a

   10
    That standard provides that “[t]he employer shall 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.”
 11

competent person on July 16 and its trench inspected by a competent person on July 17 prior
to allowing employees to enter into them. While Westar’s failure to provide competent
person training to its own employees, or alternatively to obtain the services of a competent
person from outside of the company, was clearly an element of these alleged violations, it
was not the only element. An equally important element was Westar’s failure to comply with
the inspection requirements of the cited standard, see supra note 9, including in particular the
requirement that “[d]aily inspections of excavations . . . be made . . . prior to the start of work
. . . when[ever] employee exposure can be reasonably anticipated.”11
Our conclusion regarding the bases of the instant violations turns on the language of
the contested citations, which described the alleged violations as Westar’s “allow[ing]” its
employee “to work in” an excavation (on July 16) and a trench (on July 17) “which had not
been inspected by a competent person.” Consistent with this description, CO Coffey testified
that the basis of the alleged violation at issue in Docket No. 97-0226 was Westar president
Reagan’s statements to him “that neither he [n]or anyone in his employ could make the
qualifications of a competent person for excavation and [that] Westar Mechanical and Mr.
Reagan did not employ any other outside competent person to inspect that trench before
employees entered it” (emphasis added). Similarly, CO Coffey testified that the alleged
violation at issue in Docket No. 97-0227 had been classified as a serious violation:

   11
     Because the cited standard at issue here contains both of these requirements, we

conclude that, contrary to Westar’s argument, it is easily distinguishable from the training
standard that was at issue in Catapano. Thus, if Catapano had provided its employees the
training that is specified in 29 C.F.R. § 1926.21(b)(2), it would have fully complied with its
obligation under that standard. In contrast, if Westar had provided one or more of its
employees with the training necessary to make them “competent person[s]” within the
meaning of section 1926.651(k)(1), it would not have fully complied with its obligations
under the cited standard because it still would have been required to ensure that a competent
person was present at the Rowley worksite to inspect the excavation prior to allowing
employee entry on July 16 and again present to inspect the trench prior to allowing employee
entry on July 17.
 12

   [b]ecause the excavation . . . was eight feet [deep], there was no competent person in
   the employ of Westar Mechanical . . . [and] no outside person that they employed to
   be a competent person at the excavation site and employees were exposed to a
   possible cave-in while working in the excavation. They were allowed to enter the
   excavation prior to any inspection being made by a competent person.

(Emphasis added).
In sum, we conclude that the two citation items that are before us in Docket Nos. 97-
0226 and 97-0227 do not allege “the same offense” and that they are not “duplicative.”
Accordingly, the Secretary did not exceed her authority in separately citing Westar’s two
separate violations of the competent person inspection standard.12
III. The Allegation of Willfulness
A violation is willful if committed with intentional, knowing, or voluntary disregard
for the requirements of the Act, or with plain indifference to employee safety. E.g., A.
Schonbek & Co. v. Donovan, 646 F.2d 799, 800 (2d Cir. 1981); Tampa Shipyards, Inc., 15
BNA OSHC 1533, 1539, 1991-93 CCH OSHD ¶ 29,617, p. 40,101 (No. 86-0360, 1992)
(consolidated). “A willful violation is differentiated by a heightened awareness -- of the
illegality of the conduct or conditions -- and by a state of mind -- conscious disregard or plain
indifference.” E.g., Williams Enterps., Inc., 13 BNA OSHC 1249, 1256-57, 1986-87 CCH
OSHD ¶ 27,893, p. 36,589 (No. 85-0355, 1987). Item 1 of Citation 2 in each docket number
alleged that the violations of section 1926.652(a)(1) were willful. At issue on review is the
judge’s reclassification of these two cave-in protection items as serious.

   12
     Chairman Rogers notes that, while the Commission upheld the Secretary’s issuance

of two separate citations for violation of the same standard in Hoffman, it also upheld in that
same case the judge’s assessment of a single, combined penalty for the two separately-cited
violations. Similarly, in the instant cases, to the extent Westar raises legitimate concerns
about the overlapping of the Secretary’s citations, Chairman Rogers would address them by
assessing combined penalties, where appropriate. Accordingly, Chairman Rogers would
uphold the judge’s assessment of two separate penalties for Westar’s two violations of
section 1926.652(a)(1), but assess only a single, combined penalty for Westar’s two
violations of section 1926.651(k)(1).
 13

   In her decision, the judge expressly noted the Secretary’s contention that the section

1926.652(a)(1) violations were willful “because Respondent demonstrated a careless
disregard of and plain indifference to employee safety.” She concluded that the Secretary’s
argument was based on the following evidence: (a) testimony and exhibits that assertedly
established Westar president Reagan’s presence at an all-day “excavation safety seminar”
that had included a brief presentation (20 minutes or less) on federal and state cave-in
protection requirements; (b) the testimony of a former Westar employee, Christopher
Michaels, that Reagan had subsequently described the seminar to him as “just a bunch of
bullshit”; and (c) statements made by Reagan to CO Coffey during a recorded opening
conference interview.
The judge concluded that neither the specific evidence relied upon by the Secretary,
nor the record as a whole, “demonstrated that the violations at issue were willful.” In
particular, she found that the Secretary had failed to establish by a preponderance of the
evidence that Reagan had “actually attended the excavation seminar” where the presentation
on cave-in protection requirements had been made. Alternatively, she found that, even if
Reagan had attended, the presentation would not have given him “knowledge of OSHA’s
excavation standards.” As for Reagan’s “alleged statement” to the former employee
following the seminar, the judge concluded that the Secretary’s reliance on that statement as
“support[ing] a finding of an attitude toward employee safety that would rise to willful under
the Act” was “[e]qually unpersuasive.” The judge also disagreed with the Secretary’s reliance
on Reagan’s recorded interview by the CO. Based on her own review of the recording and
transcript of the interview, she concluded that the interview “indicates [Reagan’s] ignorance
of the [OSH] Act and the excavations standard.” She further found that the interview
“indicates . . . that [Reagan] did not fail to act in the face of a known duty and that he did not
have a heightened awareness the cited conduct was illegal.”
A. Scope of Review
 14

   In challenging the judge’s conclusion that Westar’s violations of the cave-in

protection standard were not willful, the Secretary argues before us that she met her burden
of proving willfulness under either or both prongs of the Commission’s test, as set forth
above, by establishing both Westar’s conscious disregard of a known safety requirement and
its plain indifference to employee safety. In response, Westar correctly points out that, in the
post-hearing brief she filed with the judge, the Secretary argued only that she had established
willfulness under the plain indifference prong of the Commission’s test. Citing Commission
Rule 92(c), 29 C.F.R. § 2200.92(c), Westar contends that the Secretary is therefore precluded
from arguing willfulness on review under the intentional disregard prong because she failed
to first present that argument before the judge.
We disagree. Commission Rule 92(c), which is captioned “Issues not raised before
Judge,” provides, in pertinent part, that “[t]he Commission will ordinarily not review issues
that the Judge did not have the opportunity to pass upon.” Here, there can be no doubt that
the judge had “the opportunity to pass upon” the issue of whether Westar intentionally,
knowingly, or voluntarily disregarded the requirements of the cave-in protection standard
since that issue was repeatedly raised before her (both directly and indirectly, i.e., through
the testimony and exhibits). For example, in their Joint Prehearing Statement, the parties
described the willfulness issue that was to be tried in Docket No. 97-0227 as follows:
“Whether the Respondent demonstrated intentional, knowing or voluntary disregard for the
requirements of the Act or plain indifference to employee safety on July 16, 1996, in failing
to protect its employees working in the excavation in the right of way of North Street from
cave-ins by the use of any protective system. . . .” The parties used this same alternative test
language in describing the willfulness issue that was to be tried in Docket No. 97-0226.
Not only did the judge have the opportunity to pass on the intentional disregard issue;
she, in fact, did pass on it, implicitly holding (in her findings concerning Reagan’s
knowledge and state of mind) that the Secretary had failed to prove willfulness under the
intentional disregard prong of the Commission’s test. As the Secretary correctly points out,
 15

Rule 92(c) cannot be invoked to prevent her from challenging the judge’s findings and
conclusions on the willfulness issue. See Peavey Grain Co., 15 BNA OSHC 1354, 1358 n.8,
1991-93 CCH OSHD ¶ 29,533, p. 39,872 n.8 (No. 89-3046, 1991) (“[r]eview necessarily
includes any matter essential to accepting or rejecting a judge’s resolution of a citation
item”), and cases there cited. We accordingly conclude that both of the Secretary’s alternative
theories of willfulness are properly before us on review.
While we agree with the Secretary that the scope of our review encompasses both of
her alternative arguments on the willfulness issue, the Commission is unable to reach
agreement on the merits of those arguments.13 For the reasons stated in Part III.B, infra,
Chairman Rogers agrees with the judge that the Secretary failed to prove willfulness under
either the “intentional disregard for the requirements of the Act” or the “plain indifference
to employee safety” prong of the Commission’s willfulness test. For the reasons stated in Part
III.C, infra, Commissioner Eisenbrey agrees with the Secretary that she met her burden of
proving willfulness under either or both prongs of the Commission’s test. Under section 12(f)
of the Act, 29 U.S.C. § 661(f), official action can be taken by the Commission with the
affirmative vote of at least two members. To resolve their impasse over this classification
issue, and permit a more speedy resolution of these cases, Chairman Rogers and
Commissioner Eisenbrey have agreed to affirm the judge’s decision to classify Westar’s
serious violations of 29 C.F.R. § 1926.652(a)(1) as nonwillful, but to accord the nonwillful
classification of the judge’s decision the precedential value of an unreviewed judge’s
decision. See Life Science Products Co., 6 BNA OSHC 1053, 1977-78 CCH OSHD ¶ 22,313
(No. 14910, 1977), aff’d sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979). See also
St. Regis Paper Co., 11 BNA OSHC 2208, 2210, 1984-85 CCH OSHD ¶ 27,032, p. 34,805
(No. 77-1385, 1984).

   13
     We agree that the violations were “serious” within the meaning of section 17(k) of

the Act, 29 U.S.C. § 666(k), as found by the judge. See infra note 24.
 16

                           B. Chairman Rogers’ Views
   Under Commission precedent and applicable appellate court case law, a violation is

willful within the meaning of section 17(a) of the Act, 29 U.S.C. § 666(a), if committed with
intentional, knowing or voluntary disregard for the requirements of the Act, or with plain
indifference to employee safety. E.g., A. Schonbek & Co., 646 F.2d at 800. Chairman Rogers
agrees with the judge that, based on the record, the Secretary failed to meet her burden of
proving that Westar’s violations of section 1926.652(a)(1) were willful under either prong.14
1. Intentional Disregard for the Requirements of the Act Not Proven
To prove that a violation was willful under the intentional disregard prong, the
Secretary must establish that the employer knew of the applicable standard prohibiting the
condition and that it consciously disregarded it. E.g., Williams Enterps., 13 BNA OSHC at
1257, 1986-87 CCH OSHD at p. 36,589; see Branham Sign Co., 18 BNA OSHC 2132, 2134,
2000 CCH OSHD ¶ 32,106, p. 48,263 (No. 98-0752, 2000). At the hearing, the Secretary
sought to establish Westar president Reagan’s (and thus Westar’s) actual knowledge of the
OSHA cave-in protection standard by introducing evidence of an “excavation safety
seminar” that Reagan had assertedly attended almost two and one-half years before the cited
violations. During this all-day seminar, which was co-sponsored by the Underground
Facilities Protective Organization and devoted primarily to presentations on the importance
of having underground utility lines identified and marked prior to beginning excavation
projects, see supra note 6, New York State safety and health inspector Thomas Shiel gave
a 16- or 20-minute presentation on federal and state cave-in protection requirements. In her
decision, the judge concluded that the Secretary had failed to establish by a preponderance

   14
     Insofar as courts have recognized that the requisite knowledge for purposes of

willfulness can be established by showing the deliberate avoidance of such knowledge, the
Chairman would find that the Secretary likewise fails to meet her burden on the record here.
See U.S. v. Ladish Malting Co., 135 F.3d 484 (7th Cir. 1998) (construing “willful” under
section 17(e) of the Act, 29 U.S.C. § 666(e)).
 17

of the evidence that Reagan had actually attended the U.F.P.O. seminar. Alternatively, she
concluded, even if she could find that Reagan had attended the seminar, she was not
“persuade[d]” by her review of Shiel’s videotaped presentation that that presentation would
have given Reagan “knowledge of OSHA’s excavations standard.”
On review, the Secretary vigorously challenges both of these findings. However,
having examined the record, Chairman Rogers concludes that, at best, the Secretary
established Reagan’s presence at the U.F.P.O. program during the presentations by the utility
companies on underground markings.15 The record is devoid of any evidence linking Reagan
to attendance at Shiel’s presentation on protection against cave-ins.16

   15
     Reagan’s statements to former employee Christopher Michaels and to CO Coffey

about the “excavation safety seminar” focused on the utility company presentations
concerning the marking of underground facilities. Thus, for example, Michaels testified that,
after Reagan described the seminar to him as “just a bunch of bullshit,” he (Michaels) asked
Reagan to explain his comment. Reagan responded that the seminar “was just Orange and
Rockland, which, again, is our utility company, their regulations about how they wanted the
contractor to work around their gas lines, electric lines buried in the ground; those types of
regulations. How far you’re supposed to be with a backhoe from these electric lines and gas;
things of that nature.” Reagan’s focus on that part of the program is hardly surprising since
the U.F.P.O. representative (Robert Foster) called by the Secretary to testify about the
seminar described U.F.P.O.’s entire “education component,” including its co-sponsorship of
this particular event, as an effort to “get[] people to use the service and call before they
excavate” so that damage to underground facilities could be minimized. Although the
program was titled “excavation safety seminar,” it seems clear from the evidence presented
that any discussion of either employee safety or cave-in hazards during the course of the
presentations was merely peripheral to the program’s primary agenda.
16
The Chairman notes that CO Coffey expressly acknowledged on cross-examination
that he had not based his claim of Westar’s “knowledge” of the OSHA standard on the
U.F.P.O. safety seminar because he had had no proof that Reagan had actually seen Shiel’s
presentation.
 18

   Alternatively, the Secretary argues, she established Reagan’s (and thus Westar’s)

actual knowledge of the cited standard by introducing into evidence (in both recorded and
transcripted forms) the opening conference interview between Reagan and CO Coffey. In
particular, the Secretary emphasizes Reagan’s response to two questions, as follows:
Q. . . . At about what depth did you think that you should have some sort of
shoring or sloping or some sort of protective system?

   A.    [W]e always considered 5 to 6 feet * * * And then . . . we try to keep it
         wider at the top.
                 *                          *                            *
   Q.     [Y]ou stated earlier that you needed . . . something at 5 or 6 feet . . . [so]
          at 7 and 8 feet why weren’t you providing some sort of protection? For your
          employees?

   A.     . . . I don’t have a reason for that.

According to the Secretary, “[e]ven if no reference is made to the information communicated
during the disputed safety seminar attendance,” Reagan’s knowledge of the conditions at the
time of the alleged violations (based on his presence at the worksite on both July 16 and 17),
combined with his above-quoted responses to CO Coffey’s questions, are “enough” to
establish Westar’s conscious disregard of a known safety requirement.
Considering this same argument in her decision, the judge disagreed. Based on her
review of company president Reagan’s interview in its entirety, she concluded that the
interview “indicates [that] he was not knowledgeable in the OSHA excavations standard, that
he did not fail to act in the face of a known duty, and that he did not have a heightened
awareness the cited conduct was illegal”; that it “reveals no evidence that Mr. Reagan or
anyone who worked for him was aware of what the excavations standard required”; that it
“also reveals he had never had an OSHA inspection before”; and ultimately that it “indicates
his ignorance of the Act and the excavations standard.”
 19

   Having reviewed the evidence in question, Chairman Rogers again is unable to find

any error in the judge’s evaluation of it. In particular, given the ambiguity of both the
question and the answer quoted above, she cannot agree with the Secretary that Reagan’s
statement that “we always considered 5 to 6 feet * * * And then . . . we try to keep it wider
at the top” constitutes an admission that he (Reagan) knew that cave-in protection was
required at those depths under the cited OSHA standard.17 Instead, she views that exchange
in the context of Reagan’s prior statements to CO Coffey (during the same interview) that
he had “[n]ot really” heard anything about the “new” OSHA excavation standard (that went
into effect in 1990) and that he didn’t know any OSHA excavation requirement well enough
“to quote you a rule or a chapter or verse.” Cf. C.E.M. Plumbing, Inc., 17 BNA OSHC 2080,
2081, 1995-97 CCH OSHD ¶ 31,242, p. 43,820 (No. 95-0676, 1997) (Commission concluded
it had “no basis for reversing” a judge who “relied primarily” on the company president’s
“lack of specific familiarity with OSHA regulations”18 and on his statement “that he would

   17
     Reagan seems to have construed the question as a request for information about

Westar’s general practice or policy with regard to shoring or sloping. The phrasing of the
question is such that he could reasonably have interpreted it in that manner, and his answer
to the question certainly appears to be an assertion that Westar generally considered whether
sloping was needed once an excavation reached a depth of five to six feet. The Chairman
further notes that, while the Secretary emphasizes Reagan’s statement that he didn’t “have
a reason” for not “providing some sort of protection” to the employees in the excavation and
trench at issue, Reagan did indicate at another point in the interview that the trench had not
been sloped because of the space constraints created, for example, by a guard house and a
pre-existing gas line in the center of the Rowley parking lot, as well as the water main once
it was discovered (“everything was tight and . . . we were working around a lot of utilities”).
The interview gives no indication that Reagan was familiar with any form of cave-in
protection other than sloping.
18
The judge in that case found, for example, that the company president, “although
(continued...)
 20

have complied with the regulation had he been aware of it” in finding that a plumbing
contractor’s violation of the cave-in protection standard was not willful).
Under the Commission’s precedent, “[a] willful violation is differentiated by a
heightened awareness -- of the illegality of the conduct or conditions -- and by a state of mind
-- conscious disregard or plain indifference.” E.g., Williams Enterps., Inc., 13 BNA OSHC
at 1256-57, 1986-87 CCH OSHD at p. 36,589. On the record now before the Commission,
the Chairman concludes that the evidence relied on by the Secretary to show willfulness was
simply insufficient to establish company president Reagan’s actual knowledge of the cited

   18
     (...continued)

generally familiar with soil types and available safety measures, was not familiar with
specific OSHA regulations, was unaware of OSHA soil classifications and completely
misunderstood OSHA sloping and trenching requirements.” Id. The judge also found that
C.E.M Plumbing “had no history of prior OSHA citations” and that C.E.M.’s president
erroneously “believed that the trench cited in [that] matter did not require shoring” and that
“there was no danger of cave-in.” Id. Having reviewed the record in the instant cases, the
Chairman concludes that there are strong parallels between C.E.M. Plumbing and these cases,
both in terms of their respective evidentiary records and the common rationale of the judges’
decisions at issue before the Commission.
 21

OSHA standard. A fortiori, she would be unable to find that Reagan (and thus Westar) had
a heightened awareness of the illegality of the cited conditions and the requisite intentional
disregard.
2. Plain Indifference to Employee Safety Not Proven
The Secretary argues that Westar’s violations of the cave-in protection standard
demonstrated its plain indifference to employee safety. On the record before the Commission,
however, Chairman Rogers is unable to conclude that the Secretary has met her burden to
show plain indifference.
At the outset, the Chairman notes the following exchange between Westar president
Reagan and CO Coffey during the opening conference interview:
Q. [Y]ou are the . . . president of a company and you are looking at a trench
that has your people working in it that has vertical sides -- 8 to 7 to 6 feet deep
and you didn’t do anything at all, nothing registered as to, that we need
protection, that this is a life threatening situation [?]

   A.      I didn’t see it as a life threatening situation at the time.

   Q.     You didn’t see it as a hazardous situation?

   A.     No, if I did I would have done something. I was there [in the excavation]
          working myself, the day before [the cave-in].

The Secretary asserts that these above-quoted statements are a clear indication of Reagan’s
“cavalier attitude to employee safety.” Chairman Rogers concludes, however, that another
inference is equally plausible, if not more so, on the record in this case, i.e., that Reagan’s
statements are evidence that he failed to appreciate the hazard presented to him and his
employee (Reilly) by the violative conditions.
Thus, the Chairman construes Reagan’s statements in the context of the evidence
introduced by the Secretary in support of the two alleged violations of 29 C.F.R. §
1926.651(k)(1). See supra Part II.B. In affirming those citation items, the judge relied
primarily on Reagan’s admission to CO Coffey that “neither he nor his foreman, Mr.
 22

Countryman, had the training or knowledge necessary to be a competent person.”19 When the
CO asked Reagan why his foreman wasn’t qualified as a “competent person,” Westar’s
president answered that “[w]e’re basically not in the excavating business. . . . [W]e use
subcontractors to excavate.” He further claimed that only a small part of Westar’s business
(“10% maybe”) involved working in excavations.
Chairman Rogers also views Reagan’s statement that he “didn’t see [the cited
conditions] as a life threatening situation at the time” in the context of a record that contains
no evidence that anyone who observed the unshored and unsloped excavation and trench at
issue in these cases recognized the hazard they presented to the employees working within
them. In particular, she notes that neither the testimony nor the written statements (given to
the police) of the two backhoe operators, Chad and James Loiodice, provide any indication
that either backhoe operator foresaw the possibility of a cave-in prior to its occurrence. On
the contrary, both witnesses indicated that the collapse of the trench wall had occurred
without any prior warning and had taken them entirely by surprise.20 Nor is there any
indication in the record that the city plumbing inspector, who observed the violative

   19
     The judge correctly pointed out that, in order to be a “competent person” within the

meaning of the OSHA excavation standard, “one must . . . be knowledgeable about[] soils
analysis, the use of protective systems, and the requirements of this standard.” Yet, during
his interview, Reagan stated that he had no idea what type of soil was in the excavation and
trench at issue, suggested that the only form of cave-in protection he had had any experience
with was sloping, and further indicated that he did not know any of the specific requirements
of the OSHA excavation standard.
20
Westar president Reagan suggested during his interview that, because Westar itself
did not dig excavations or trenches, he relied heavily on Westar’s subcontractors to dig
excavations and trenches that were safe. In this instance, however, it appears that reliance
was misplaced. Thus, CO Coffey testified that OSHA had not only cited Westar but also 5L
“for their failure to have a competent person” at the worksite. See supra note 9. Coffey
further testified that he had “no knowledge of any competent person looking at the
excavation or inspecting the excavation at all.”
 23

conditions on July 17 and possibly on July 16 as well, gave any warning to Westar (or indeed
recognized himself) that the unshored and unsloped trench might collapse.21
In Propellex Corp., 18 BNA OSHC 1677, 1684, 1999 CCH OSHD ¶ 31,792, p.
46,592 (No. 96-0265, 1999) (“Propellex”), the Commission held “that the Secretary [had]
failed to establish that the violations [at issue on review] were willful [because the] evidence
[did] not show that Propellex had a heightened awareness of the violations.” With respect to
one of the two supervisory employees whose knowledge and state of mind were at issue, the
Commission concluded that the record did not establish that he “had the requisite heightened
awareness for a willful violation” because the evidence was “insufficient to show that . . . he
[had] appreciated the hazards those conditions presented.” Id. With respect to the other
supervisor, who had believed the violative conditions to be “safe” and either authorized or
permitted by higher-level management, the Commission held that, even though she had
“exercised poor judgment in permitting the hazardous conditions to exist,” it could not
“conclude that she [had] acted willfully.” Id. For essentially these same reasons, Chairman
Rogers concludes that Westar president Reagan lacked the “heightened awareness of the
violations” that would have supported a finding of “plain indifference to employee safety.”

   21
      In the parallel state court criminal proceedings that arose out of the same incident

that led to the instant OSH Act proceedings, a New York State appellate court emphasized
the role of the city plumbing inspector with respect to the incident in affirming a lower
court’s decision to dismiss several of the charges brought against Westar’s president Reagan,
Westar, and 5L. People v. Reagan et al., 1998 WL 885020 (N.Y.A.D. 2 Dept. Dec. 17,
1998). That decision is part of the record in these cases. More generally, the court noted that:
[t]here was no evidence presented that anyone at the scene, including the participants,
contractors, plumbers, laborers, excavators, or the City, objected to the procedure
[agreed upon during the conference between Reagan and Brannan], or went ahead
recklessly (i.e., with heightened awareness of a substantial and unjustifiable risk of
collapse, let alone a risk of drowning). They all continued, believing the prescribed
approach to be both appropriate and officially approved. All of this not only fails to
support, but negates the element of recklessness that the defendants were aware of and
“consciously disregard[ed]” a “substantial and unjustified risk.”
 24

Chairman Rogers would therefore affirm the judge’s conclusion that Westar’s violations of
the cave-in protection standard were not willful.
C. Commissioner Eisenbrey’s Views
In order to avoid an impasse and resolve these cases, Commissioner Eisenbrey joins
in the decision to affirm the judge, though he believes Westar’s violations of section
1926.652(a)(1) were willful. In Commissioner Eisenbrey’s view, the record displays an
attitude of obstinate, studied indifference to employee safety on the part of Westar and its
president, Roger Reagan. Although in the business of laying pipe and underground lines for
many years, Westar provided no training in excavation safety to its employees, had no safety
program, and rarely, if ever, used any protective measures in deep trenches. A former
supervisor testified that all of the excavations deeper than five feet in which he worked
during the two and a half years immediately prior to the accident, including one that was
fourteen feet deep, had vertical walls and were unshored. Westar routinely sent its employees
into excavations that had not been inspected by a competent person for soil composition,
hazards, or the need for protective measures.
There should be no dispute that Westar’s violations in the instant cases were knowing
and intentional: both Westar’s foreman, Ray Countryman, and Reagan were at the site and
observed the employees in the unshored excavations. They had the opportunity to remove the
employees and provide protections but chose not to. When asked why, Reagan did not claim
that he did not know that the narrow, 8-foot deep trench needed shoring or a protective
system. Rather, while admitting that he knew protective measures were required at five to
six feet in depth, he stated that he didn’t use any such measures here because he “just didn’t
feel the safety, uh, we had a wide ditch and, we were, you know, everything was tight and
it went in and out quick, we were working around a lot of utilities and we just didn’t.” When
asked specifically what was “going through [his] mind” when he chose not to provide
protection in the cited trench despite knowing that protection was needed at five to six feet,
all Reagan could say was “I don’t have a, I mean, I don’t have a reason for that.” On this
 25

record, Commissioner Eisenbrey would find that the Secretary has proved by a
preponderance of the evidence that Reagan was aware of his obligation to protect his
employees and knowingly chose not to do so.22
Despite Reagan’s admissions in his tape-recorded interview with the compliance
officers, Westar now argues that its managers and supervisors were so ignorant of OSHA and
its requirements that they did not know that the unshored excavation and trench were unsafe.
Commissioner Eisenbrey disagrees and would find that the COs’ interview shows that
Reagan did know there were hazards in trenches like the one that collapsed and killed Martin
Grenzhauser and Edward Reilly. Reagan admitted that he knew from newspaper reports that
unsafe trenches can cause serious injuries. Without knowing “chapter or verse,” he
nevertheless knew that OSHA has excavation safety requirements and believed there was a
set of OSHA’s regulations on site -- he just never cared enough about his employees’ safety
to learn the standards in detail or call OSHA. The Secretary has proved that Reagan knew
enough to know he should have protected his employees once the trench was dug deeper than
six feet. “In evaluating willfulness, a primary consideration is the employer’s attitude toward
the Act and the standards adopted under it.” Williams Enterps., Inc., 13 BNA OSHC at 1257,

   22
     Commissioner Eisenbrey finds these cases distinguishable from C.E.M. Plumbing,

Inc., 17 BNA OSHC at 2081, 1995-97 CCH OSHD at p. 43,820, where the Commission
found that the employer’s violation for failure to shore a six-foot deep trench was not willful.
In C.E.M., the employer had previously used shoring for “deeper jobs” than the cited trench
-- those “over six or seven feet.” Id. (emphasis added). Moreover, the judge found, and the
Commission apparently agreed, that the company president “believed that the trench . . . did
not require shoring, that there was no danger of cave-in because of the cohesive clay soil, and
an extensive root system supporting the soil.” Id. Here, in contrast, Reagan admitted knowing
that shoring was required in shallower excavations than those for which Westar was cited.
Reagan never claimed that he believed that shoring was unnecessary. Although Reagan
denied that he thought the trench was life-threatening or hazardous, unlike the company
president in C.E.M. he provided no objective basis for his erroneous belief. Accordingly, in
Commissioner Eisenbrey’s view, C.E.M. provides no support for finding that Westar’s
violations were not willful.
 26

1986-87 CCH OSHD at p. 36,589. Reagan’s attitude has been to pretend the law does not
apply to him, and is exemplified by his comment to Michaels that the excavation safety
seminar was “a bunch of bullshit.”23
The Commission has always distinguished between the kind of merely careless,
accidental, or negligent conduct that characterizes serious violations, and willful conduct that
should be more harshly punished. Commissioner Eisenbrey finds that Reagan’s utter and
deliberate indifference to employee safety is more than merely negligent. It constitutes the
kind of reckless disregard for the law and his employees’ safety that makes the violations in
these cases willful. In U.S. v. Ladish Malting Co., 135 F.3d 484 (7th Cir. 1998), in discussing
criminal willfulness under section 17(e) of the Act, the court explained that employers may
not shield themselves from liability by hiding their heads in the sand. “Knowledge may be
proved by showing deliberate indifference to the facts or the law . . . , or by showing
awareness of a significant risk coupled with steps to avoid additional information . . . , but
in either event what must be proved beyond a reasonable doubt is actual rather than
constructive knowledge.” Ladish Malting, 135 F.3d at 490. It makes no sense here to search
for Westar’s “heightened awareness” of the hazardousness of the situation since Westar has
made a deliberate effort to know and be aware of as little as possible. Reagan is not less
culpable for having cared so little that he did nothing to learn more about excavation safety
or his legal duty than he would have been if he had cared enough to learn precisely what the
standards require.
In accord with Ladish Malting, the Supreme Court has construed the word “willful”
for purposes of the Age Discrimination in Employment Act and the Fair Labor Standards Act
to encompass not just knowledge of a legal duty, but an attitude of indifference to the duty --

   23
     In Commissioner Eisenbrey’s view, the judge was plainly wrong in finding that the

Secretary failed to prove that Reagan attended the seminar. Reagan, himself, admitted to the
compliance officers that he did attend the seminar, and foreman Michaels testified without
rebuttal that Reagan told him that he attended the seminar.
 27

an avoidance of knowledge. The Court has held that an employer acts willfully if “the
employer either knew or showed reckless disregard for the matter of whether its conduct was
prohibited by the statute . . . .” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988),
citing TWA, Inc. v. Thurston, 469 U.S. 111 (1985). In Thurston, the Court said its definition
of “willful” is consistent with its prior cases, such as U.S. v. Murdock, 290 U.S. 384 (1933),
where the Court held that willful conduct is “marked by careless disregard [for] whether or
not one has the right so to act.” Thurston, 469 U.S. at 127. In Commissioner Eisenbrey’s
view, Westar’s and Reagan’s conduct shows precisely this reckless disregard for whether it
was meeting its legal duty to protect its employees.
Finally, there is no evidence that the City plumbing inspector’s approval of the change
in course of the trench had anything to do with Reagan’s decision to send employees into the
unsafe trench on July 17. The trench walls were not vertical and unshored because the City
inspector somehow lulled Reagan into thinking they were safe. The walls were vertical and
unshored because that was how Westar always worked, even when a trench was 14 feet deep.
Even Westar does not suggest that Reagan or his foreman intended to shore this trench, slope
its walls, or install a trench box, but for the actions of the City plumbing inspector.
Commissioner Eisenbrey concludes that Westar had already willfully violated the Act by
intentionally exposing its employees to the hazards of the unprotected trench before the
inspector was even called to the site to examine the water line. Accordingly, he would find
that Westar’s violations of section 1926.652(a)(1) were willful, as alleged.
IV. Penalties
Under section 17(j) of the Act, 29 U.S.C. § 666(j), the Commission has the authority
to assess penalties based on due consideration of the employer’s size, the gravity of the
violation, the employer’s good faith, and the employer’s history of previous violations. In her
decision, the judge assessed penalties of $6300 per citation item for Westar’s two serious
violations of the cave-in protection standard and its two serious violations of the competent
person inspection standard. She assessed penalties of $2250 per citation item for Westar’s
 28

two serious violations of two different vehicular traffic flagging standards and its serious
violation of the spoil piles placement standard.24 See supra notes 4 & 5 and accompanying
text. The penalties assessed by the judge for the two cave-in protection standard violations
were reduced to reflect the judge’s rejection of the Secretary’s allegation that the violations
were willful. Otherwise, the judge’s penalty assessments were identical to the Secretary’s
penalty proposals.
On review, Westar generally challenges all of the assessed penalties as being punitive
rather than remedial. In addition, it raises two specific challenges to the judge’s decision to
assess the proposed penalties, arguing that “[t]he compliance officer and his area director
abused their discretion [1] by applying the maximum GBP25 and [(2) by] refusing to give the
respondent an adjustment for size of his business.” In response, the Secretary argues that any
errors OSHA may have made in calculating its proposed penalties are irrelevant “at this stage
of the proceeding” since it is the judge’s penalty assessments and not the Secretary’s penalty
proposals that are before us on review. We agree. OSHA’s procedures for determining a

   24
     There is no dispute over the judge’s classification of any of the seven violations at

issue on review as serious. Under section 17(k) of the Act, 29 U.S.C. § 666(k):
a serious violation shall be deemed to exist in a place of employment if there is a
substantial probability that death or 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.
25
The “GBP” or “Gravity-Based Penalty” is the starting point in OSHA’s penalty
computations, a figure (based on the gravity of the alleged violation) that is then adjusted
downward (where appropriate) to reflect credits for the other three statutory penalty criteria.
CO Coffey testified that OSHA used the statutory maximum of $7000 (for a serious
violation) as its GBP in computing the proposed penalties for four of the alleged violations
at issue on review (the two cave-in protection violations and the two competent person
inspection violations). Westar argues that OSHA thereby violated a provision of its Field
Inspection Reference Manual (“FIRM”) requiring that such decisions be made by the Area
Director, with the reasons for the decision “documented in the case file.”
 29

Gravity-Based Penalty and the amounts it selects have no bearing on the Commission’s
penalty assessments.
However, we agree with Westar that the judge erred in failing to give due
consideration to the size of Westar’s business in determining appropriate penalties for the
seven violations at issue on review. Section 17(j) provides that:
The Commission shall have authority to assess all civil penalties provided in this
section, giving due consideration to the appropriateness of the penalty with respect
to the size of the business of the employer being charged, the gravity of the violation,
the good faith of the employer, and the history of previous violations.
Citing that provision, the Commission concluded in J.A. Jones Constr. Co., 15 BNA OSHC
2201, 2212-14, 1991-93 CCH OSHD ¶ 29,964, pp. 41,031-33 (No. 87-2059, 1993), that the
judge in that case had erred in not calculating penalty amounts based on the four statutory
factors. The Commission accordingly remanded the case with instructions to the judge to
reconsider the penalty amounts “based on specific factual findings relating to the penalty
assessment criteria for each individual instance . . . .” 15 BNA OSHC at 2214, 1991-93 CCH
OSHD at p. 41,033.
Here, as in J.A. Jones, we conclude that “the judge has failed to state an adequate
factual basis” for her decision not to consider two of the four statutory penalty assessment
criteria. 15 BNA OSHC at 2213-14, 1991-93 CCH OSHD at p. 41,033. Thus, in reference
to Westar’s two violations of the cave-in protection standard, the judge concluded that “no
credit for size or good faith is due in light of the high gravity of the violations and in order
to achieve a deterrent effect.” With respect to each of the other five violations at issue on
review, she concluded that “no credit for size or good faith is due because of the high gravity
of the violation.” However, based on our review of the record, we are not persuaded that
either rationale stated by the judge justifies her failure to give “due consideration” to two of
the four statutory penalty criteria. Here, as in J.A. Jones, the judge’s own findings, which
“indicate[d] that there [was] a wide variation in the magnitude of the gravity factor among
the various . . . citation items,” contradict her conclusion that an across-the-board refusal to
 30

consider Westar’s size and good faith is warranted due to the “high gravity of the violations.”
15 BNA OSHC at 2214, 1991-93 CCH OSHD at p. 41,033.
We have accordingly reconsidered each of the seven assessed penalties at issue in
light of the record evidence relating to all four of the statutory penalty assessment criteria.
Insofar as the gravity of the violations is concerned, we conclude that the judge’s findings
are fully supported by the record. With respect to all seven of the citation items at issue, the
judge found that, in the event the violation led to an accident, the severity of the resulting
injuries would be high (death or serious physical harm). However, she distinguished among
the seven items in terms of the probability of an accident occurring as a result of the
violation. Thus, she found that there was a high probability of a cave-in as a result of
Westar’s two violations of the cave-in protection standard and/or its two violations of the
competent person inspection standard. There was a much lesser probability that Westar
employee Malloy would be struck by a motor vehicle as a result of either or both of Westar’s
violations of the two vehicular traffic standards. Similarly, there was only a lesser probability
that Westar’s violation of the spoil piles placement standard would lead to employee injury
from rocks or soil falling or rolling from the spoil pile into the trench. Accordingly, we agree
with the judge that the high gravity of Westar’s violations of the cave-in protection standard
and the competent person inspection standard calls for penalties at or near the statutory
maximum for those violations, while the lower gravity of the other three violations calls for
the assessment of substantially lower penalties for those violations. See J.A. Jones Constr.
Co., id. (“generally speaking, the gravity of a violation is the primary element in the penalty
assessment”).
We agree with the judge’s decision to give Westar no credit for good faith. Indeed,
we conclude that the record is devoid of any evidence of good faith efforts by Westar to
comply with the requirements of the Act and/or to protect the safety and health of its
employees. Concerning history of previous violations, Westar had never previously been
inspected by OSHA. With respect to size, the judge found that “Westar is a small company,
 31

with eight to ten employees.” We conclude that Westar’s very small size is a factor that
warrants consideration of a reduction in the amounts of the assessed penalties.
Even considering these other factors, however, we view gravity as far outweighing
the other factors under the circumstances here. Accordingly, considering all of these factors,
we assess, as the judge did, the following penalties: $6300 for each of Westar’s two cave-in
protection standard violations, $2250 for each of its violations of the two vehicular traffic
flagging standards, and $2250 for its violation of the spoil piles placement standard.
With respect to Westar’s violations of the competent person inspection standard, we
agree with the judge that $6300 is an appropriate amount within the meaning of section 17(j).
The Commission, however, is unable to reach agreement on whether that amount should be
assessed as the penalty for both violations combined or as the penalty for each violation.
Commissioner Eisenbrey concludes that the record in these cases provides no
justification for the Commission to exercise its discretionary authority to assess a single,
combined penalty for violations involving similar conduct. Westar failed to make any
appreciable effort to comply with its obligations under the cited standards and the Act
generally. It has a history of exposing its employees to life-threatening hazards on what
appears to have been a regular and recurring basis. And the consequences of its failures to
take even rudimentary precautions to protect the workers at the Rowley construction project
were the death of two employees. In view of the pivotal role of the competent person
inspection requirement in relation to OSHA’s overall program for protecting employees from
trenching and excavation hazards, Commissioner Eisenbrey would affirm the judge’s
assessment of separate penalties of $6300 each for Westar’s two distinct violations of section
1926.651(k)(1), on July 16 and again on July 17, 1996.
Chairman Rogers agrees that the Secretary acted within the scope of her prosecutorial
discretion in issuing two separate citations alleging violations of the competent person
inspection standard. But, nevertheless, she believes that a combined penalty of $6300 should
be assessed for the two competent person items in light of the Commission’s wide discretion
 32

to assess a single, combined penalty for interrelated or overlapping violations involving
similar conduct. See, e.g., A.P. O’Horo Co., 14 BNA OSHC 2004, 2013, 1991-93 CCH
OSHD ¶ 29,223, pp. 39,134-35 (No. 85-0369, 1991); H.H. Hall Constr. Co., 10 BNA OSHC
1042, 1046, 1049, 1981 CCH OSHD ¶ 25,712, pp. 32,056, 32,059 (No. 76-4765, 1981).
Under section 12(f) of the Act, 29 U.S.C. § 661(f), official action can be taken by the
Commission with the affirmative vote of at least two members. To resolve their impasse over
this penalty assessment issue, and permit a more speedy resolution of these cases, Chairman
Rogers and Commissioner Eisenbrey agree to affirm the judge’s decision to assess penalties
of $6300 each for Westar’s two cited violations of 29 C.F.R. § 1926.651(k)(1) but to accord
that portion of the judge’s decision the precedential value of an unreviewed judge’s decision.
See Life Science Products Co., 6 BNA OSHC at 1053, 1977-78 CCH OSHD at pp. 26,870-

71. See also St. Regis Paper Co., 11 BNA OSHC at 2210, 1984-85 CCH OSHD at p. 34,805.
    Order
    We affirm as serious the violations of section 1926.652(a)(1) alleged in item 1 of
    citation no. 2, in both Docket No. 97-0226 and Docket No. 97-0227, and we assess penalties
    of $6300 for each violation. We affirm item 3 of citation no. 1 in both Docket No. 97-0226
    and Docket No. 97-0227, each alleging a serious violation of section 1926.651(k)(1), and we
    assess penalties of $6300 for each violation. In Docket No. 97-0226, we assess a penalty of
    $2250 for the serious violation of section 1926.651(j)(2) alleged in item 2 of citation no. 1.
    In Docket No. 97-0227, we assess penalties of $2250 each for the serious violation of section
     33

1926.21(b)(2) alleged in item 1 of citation no. 1 and the serious violation of section
1926.201(a)(4) alleged in item 2 of citation no. 1.
SO ORDERED.

                                                  /s/
                                                  Thomasina V. Rogers
                                                  Chairman



                                                  /s/

Dated: November 8, 2001 Ross Eisenbrey
Commissioner
 United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, D.C. 20036-3419

SECRETARY OF LABOR,
Complainant,
v. DOCKET NOS. 97-0226 and 97-0227
WESTAR MECHANICAL, INC.,
Respondent.

Appearances: Steven Riskin, Esquire Risa Sugarman, Esquire
Office of the Solicitor 446 North Street
U.S. Department of Labor Middletown, New York
New York, New York For Respondent
For Complainant

Before: Administrative Law Judge Covette Rooney

                             DECISION AND ORDER

   This proceeding is before the Occupational Safety and Health Review Commission

(“the Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of
1970, 29 U.S.C. § 651 et seq. (“the Act”). Respondent, Westar Mechanical, Inc. (“Westar”),
at all times relevant to this action maintained a job site at 307 North Street, Middletown, New
York, where it was engaged in performing plumbing work, construction and maintenance
activities. Respondent admits that it is an employer engaged in a business affecting
commerce within the meaning of section 3(5) of the Act and that it is subject to the
requirements of the Act. Roger W. Reagan, Jr., is the president and sole owner of the
Respondent corporation.
Procedural History
 On July 18, 1997, the Occupational Safety and Health Administration (“OSHA”)
conducted two separate inspections of a construction site at 307 North Street in Middletown,
New York, pursuant to a report of two employee fatalities in an excavation at the site. As a
result of the inspections, on January 6, 1997, OSHA issued Respondent two sets of citations
alleging willful, serious and “other” violations and proposing penalties totaling $148,500.00.
Respondent timely contested both sets of citations, bringing these matters before the
Commission. The Secretary filed her Complaints on April 17, 1997, Respondent filed its
Answers on November 17, 1998, and the cases were subsequently consolidated. Upon motion
of Respondent, a stay of the proceedings was entered on January 7, 1998; the stay was in
effect until May 12, 1999, when it was lifted. The hearing in this matter was held in New
York City on January 4-6 and February 17-18, 2000. At the beginning of the hearing, the
Secretary’s motion to withdraw Citation 3, Items 1 and 2, in No. 97-227, and Citation 1, Item
1, and Citation 3, Items 1 and 2, in No. 97-226, was granted. (Tr. 7-8). Remaining in issue
are Citation 1, Items 1 through 3, and Citation 2, Item 1, in No. 97-227, and Citation 1, Items
2 and 3, and Citation 2, Item 1, in No. 97-226, with proposed penalties totaling $145,350.00.
Counsel for the parties have submitted post-hearing briefs, and this matter is ready for
disposition.26

   26
   The parties stipulated to the following in Section IV of their Joint Prehearing

Statement:
1. Respondent, Westar Mechanical, Inc., is a New York corporation. At the time of the
subject inspections, the Respondent maintained an office at 446 North Street, Middletown, New
York.
2. During the one-year period preceding July 17, 1996, the Respondent employed a maximum
number of 14 employees, including Respondent's president, Roger W. Reagan, Jr.
3. On July 16, 1996, and all times hereinafter mentioned, the Respondent was engaged in
performing plumbing work and related activities.
4. On July 16, 1996, and all times hereinafter mentioned, the Respondent was engaged in
construction and maintenance work.
5. During 1996, the Respondent contracted with Rowley Building Products, Inc., to construct
a sewer line from the City of Middletown’s existing sewer line beneath the right-of-way of North
Street to a building owned by Rowley at the rear of 307 North Street, Middletown, New York.
6. Respondent subcontracted with 5L Enterprises, Inc., to perform the excavation work in
(continued...)
 Facts
Rowley Building Products (“Rowley”) contracted with Westar to install a sewer line
on the Rowley property located at 307 North Street, Middletown, New York. Westar
subcontracted 5L Enterprises, Inc. (“5L”), to perform the excavation necessary for the sewer
line installation. Rowley retained Clark Patterson Associates (“CPA”), a professional
architectural, engineering and surveyance design firm, to prepare a plan for the proposed
sewer line and manhole installation. The plan for the project was provided to Mr. Reagan,
Westar’s president, and the plan included a plan sheet indicating the part of the property on
which the proposed sewer line was to be located. (Tr. 104; Ex. C-5).
According to the plan, the proposed sewer line was to begin at the North Street right
of way at a point northeast of the northeast corner of the main Rowley building, where the
first proposed manhole was to be installed and the new line connected to an existing sewer
line. The proposed line would then extend southeast through the Rowley property for about
170 feet, parallel with the side of the main building, to the second proposed manhole at the
back of the property, at which point the line would branch off in two directions. The existing
sewer line at the North Street right of way was at a depth of 8 feet, which was determined by
the depth of the invert immediately north and south of the first proposed manhole site.27 The
second proposed manhole was to be at a depth of about 5.2 feet, based on a projected 1.25-
foot rise every 100 feet because of the slope of the ground; in addition, a minimum slope was
required to facilitate liquid flow and a minimum depth of 4 to 5 feet was necessary to prevent
frost penetration and damage by heavy traffic. (Tr. 106, 116-21, 124, 132).
Work on the project, which was to take two to three days, began on July 16, 1996,
with the excavation of the North Street right of way and the insertion of a manhole. Chad

    26
         (...continued)

connection with the construction of the sewer line.
7. The sewer line was to be constructed in accordance with a plan prepared by Clark
Patterson Associates dated July 9, 1996.
27
“Invert” refers to the elevation of the bottom of the inside of the sewer pipe. (Tr.
112).
Loiodice, an employee of 5L, dug the excavation with a backhoe. James Loiodice, another
5L employee, operated the backhoe for short periods on July 16, 1996, when it was necessary
to relieve Chad Loiodice, his brother. Edward Reilly, a Westar employee, leveled the surface
for the installation of the manhole, after which the backhoe was used to place the manhole
into the trench. The backhoe was then used to dig from the right of way onto the sidewalk
adjacent to the parking lot of the Rowley property so that the road did not have to be closed
down the next day. The right of way of was then backfilled and metal plates were placed over
the trench covering the sidewalk adjacent to the Rowley parking lot. (Tr. 138-41, 150, 161,
178-79, 182-86, 287; Ex. C-1, R-F1, R-F3).
On July 17, the excavation resumed where it had left off the day before, which was
a few feet into the parking lot, with Chad Loiodice digging with the backhoe. That morning
a pipe was discovered running perpendicular to the trench, and sometime later a pipe was
discovered in the north wall of the trench. Mr. Reagan was called to the site, as was the
Middletown plumbing inspector. The pipe was 3.5 to 4 feet below grade, and, after the
inspector assessed the situation, Chad Loiodice was told to alter the line of the excavation
to move it away from the pipe in the wall. Edward Reilly and Martin Grenzhauser, a 5L
employee, were installing pipe in the excavated area when, at about 2:05 p.m., part of the
north wall of the trench collapsed, burying Mr. Grenzhauser up to his waist and one of Mr.
Reilly’s legs. The Loiodice brothers tried to get them out, but water began to fill the trench,
covering Mr. Grenzhauser and Mr. Reilly and then overflowing onto the parking lot.28 Police
and fire personnel carried out an extensive rescue and recovery operation, and shoring
material was put in the excavation to facilitate the emergency personnel’s recovery of the
bodies.29 Mr. Reilly’s body was recovered at about 5:40 p.m., and Mr. Grenzhauser’s body
was recovered at about 6:20 p.m. (Tr. 41-47, 52, 154-60, 165, 185-94, Ex. C-10, R-A-D).

   28
     Water flowed into the trench for over an hour, totaling 150,000 to 155,000 gallons

before it was shut off. (Tr. 41-42, 46, 488).
29
The emergency personnel worked in teams, with as many as eight persons in the
trench at one time. (Tr. 46-47).
 Detective Warren Wagner, a member of the forensic unit of the Middletown Police
Department (“MPD”) arrived at the scene at about 3:05 p.m. He took various photos of the
site, and, after the bodies had been recovered, took measurements of the trench and prepared
a diagram. Detective Wagner measured the total length of the trench to be 135.5 feet. He also
measured the width of the trench in the areas where Mr. Reilly and Mr. Grenzhauser had
been at the time of the accident; those widths were 4 feet and 6 feet, 7 inches, respectively.
Detective Wagner additionally measured the depth of the trench on the north side where Mr.
Reilly’s body had been recovered. That measurement, which he made to the top of the boots
Mr. Reilly had worn, was 69 inches. Sergeant Nicholas DeRosa of the MPD interviewed
Chad and James Loiodice and wrote out their statements at the police station on the afternoon
of July 17, 1996. Chad and James Loiodice signed their respective statements, which
described the work that was done on the excavation that day. (Tr. 27-30, 34, 58, 63; Ex. C-1).
The Albany OSHA Area Office learned of the accident the afternoon of July 17, 1996.
Compliance Officer (“CO”) Kay Coffey went to Middletown the next day. He first obtained
the information the MPD had gathered the day before and then went to the site, arriving at
about 10:30 a.m. and accompanied by CO Teri Wigger. During the inspection, CO Coffey
videoed the accident site, and he measured the trench at the same locations Detective Wagner
had taken his measurements. CO Coffey’s depth measurement at the location of Mr. Reilly’s
boots was 70 inches, while his width measurements of the locations of Mr. Reilly and Mr.
Grenzhauser were 4 feet, 6 inches and 6 feet, 7 inches, respectively. CO Coffey asked the
MPD to take soil samples from the trench’s north and south sides, near the top and bottom,
where Mr. Reilly and Mr. Grenzhauser had been at the time of the accident. The samples
were collected under the supervision of MPD’s Lieutenant Joseph Valencia, who marked the
samples, indicating that they were taken from the following locations of the excavation: top
north, top south, south side and north side. (Tr. 301-13, 336-44, 405-07, 411, 418, 422).
That same day, and after their inspection, CO’s Coffey and Wigger went to Westar’s
office to hold an opening conference. CO Coffey interviewed Mr. Reagan, who gave him
permission to record the interview; Debra Reagan, Mr. Reagan’s wife, was also present at
the interview.30 During a break in the interview, Mrs. Reagan told CO Coffey they had tried
to contact their attorney but he was out of town. CO Coffey said it was his opinion they did
not needed an attorney but that if they wanted one he would stop the interview. The interview
then proceeded without objection.31 (Tr. 322-24, 435-39, 447-48, Ex. C-10).
The Secretary’s Burden of Proof
In order to establish a violation of an OSHA standard, the Secretary must show (a) the
applicability of the cited standard, (b) the employer’s noncompliance with the standard’s
terms, (c) employee access to the violative conditions, and (d) the employer’s actual or
constructive knowledge of the violation (i.e., the employer either knew, or with the exercise
of reasonable diligence could have known, of the violative condition). Atlantic Battery Co.,
16 BNA OSHA 2131, 2138 (No. 90-1747, 1994). The Secretary bears the burden of proof
on each of these elements by a preponderance of the evidence. See Olin Constr. Co. v.
OSHRC, 525 F.2d 464 (2d Cir. 1975); Astra Pharmaceutical Prod., 9 BNA OSHC 2126,
2131 (No. 78-6247, 1981).32
The Willful Citations
Willful Citation 2 in No. 97-227 alleges a violation of 29 C.F.R. 1926.652(a)(1) for
the condition of the area excavated on July 16, 1996, while Willful Citation 2 in Docket No.

   30
    CO Coffey used the audio function of his video camera to record the interview, and

he pointed the video camera at a window during the interview. (Tr. 323, 438-40).
31
Respondent’s counsel raised Fifth and Sixth Amendment objections as to this
interview taking place without the presence of counsel. (Tr. 332-33). Although Respondent
did not address this issue in its post-hearing briefs, I note the Commission lacks authority to
rule on questions of the constitutionality of provisions of the Act on which no court has yet
ruled; the Commission can do no more than apply judicial precedent regarding the Act’s
constitutionality. See McGowen v. Marshall, 604 F.2d 885, 892 (6th Cir. 1979); Daniel Int’l
Corp., 9 BNA OSHC 1980, 1985 (No. 15690, 1981), order set aside on other grounds, 683
F.2d 361 (11th Cir. 1982); Bomac Drilling, 9 BNA OSHC 1681, 1699 (No. 76-2131, 1981).
32
A preponderance of evidence is that quantum of evidence which is sufficient to
convince the trier of fact that the facts asserted by a proponent are more probably true than
false. Ultimate Distribution Sys., Inc.10 BNA OSHC 1568 (No. 79-1269, 1982).
97-226 alleges a violation of 29 C.F.R. 1926.652(a)(1) for the condition of the area
excavated on July 17, 1997. Westar contends that the Secretary exceeded her authority in
issuing two citations alleging a violation of the same standard because both docket numbers
involve the same work site and the same trench. (R.Brief, p. 13). However, Commission
precedent recognizes the Secretary’s authority under the Act to issue separate citations to an
employer for violations of the same standard in appropriate circumstances. Andrew Catapano
Enter., Inc., 17 BNA OSHC 1776 (No. 90-0050, 1996) (upholding the Secretary’s decision
to issue nine sets of citations to an employer replacing underground water mains based on
one set of citations for each of nine separate trenches at a single project). The record shows
that the excavated area cited in No. 97-227 was backfilled at the end of the day on July 16
and that the excavated area cited in No. 97-226 was newly dug on July 17. (Tr. 142-43, 150,
183-85, 272-78, 284-90). In view of the above decision, I conclude that the two dockets in
this case involve two different excavation sites, each requiring a distinct abatement. I further
conclude that the Secretary’s issuance of two separate citations in this matter was not
inappropriate. Westar’s contention is accordingly rejected.
Docket No. 97-227: Willful Citation 2, Item 1
29 C.F.R. 1926.652(a)(1), the cited standard, provides as follows:
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 (1.52 m) in depth and examination of
the ground by a competent person provides no indication of a potential cave-in.
The citation alleges as follows:
On or about 7/16/96, no cave-in protection system was being used in the right-
of-way of North Street, near 307 North Street, Middletown, N.Y., thus
exposing employees to a possible cave-in while tamping backfill and
inspecting work in an excavation 8 feet deep with vertical walls.
As noted supra, the excavation that is the subject of this citation item is the area that
was backfilled at the end of the day on July 16. Westar contends that this citation item must
be vacated because the record contains no evidence that an actual depth measurement was
made of the excavation that day. However, I find that the Secretary has proven by a
preponderance of the evidence that the trench in which the employees were working was
approximately 8 feet in depth. Specifically, I find that the testimony of Gary Chumard, the
CPA engineer who supervised the preparation of the plan for the project, provides an
accurate indication of the depths at which the sewer line and manholes were to be installed.
Under this plan, the invert in the location of the first proposed manhole was 8 feet deep,
which required an excavation in excess of that depth. (Tr. 103-23; Ex. C-5). During his
interview with CO Coffey on July 18, 1996, Mr. Reagan acknowledged that he was following
this plan and that the manhole depth on July 16 had an invert of 8 feet. (Ex. C-10).
The approximate depth of the excavation was corroborated by Brent DeWitt and
William Evans, two individuals who were employed by Westar at that time and who arrived
at the site around 4:00 p.m. on July 16. Mr. DeWitt testified that upon his arrival, he observed
Edward Reilly leveling the surface in the trench in preparation for setting the manhole. Mr.
DeWitt recalled that an 8-foot ladder was in the trench, that the ladder exceeded the top of
the surface by about a foot, and that the sides of the excavation were vertical. (Tr. 284-89).
Mr. Evans testified he observed Edward Reilly, Brent DeWitt and another employee in the
trench after the manhole had been lowered into it. He also testified that he saw an 8-foot
ladder in the trench, that the walls of the trench were vertical, and that he determined this by
the way the ladder was situated, that is, by the fact it was not sloped at all. (Tr. 272-83).
The evidence of record also establishes that the trench was not protected as required.
It is undisputed the soil in the trench was not stable rock, and Dr. Alan Peck, the Secretary's
soil expert, testified without rebuttal that an excavation directly above an existing sewer line
would be in previously disturbed soil, which could be no better than Type B soil.33 (Tr. 198,
202-03, 225). The standard requires that excavations in Type B soil be sloped at a maximum
angle of 45 degrees or protected by other means such as shoring. The record shows that the

   33
    Soil Types A, B and C are defined in Appendix A of the standard, with Type A

being the most stable soil type.
walls of the excavation were vertical and that no protection such as shoring was installed
along the sides of the trench. (Tr. 92, 147, 182, 188, 277, 288).
In view of the foregoing, the Secretary has demonstrated the applicability of the cited
standard and noncompliance with its terms. She has also demonstrated employee exposure
to the violative condition, in that employees were working in the unprotected excavation and
it was reasonably predictable they would be in the zone of danger. (Tr. 280-83, 287-88).
Finally, the Secretary has demonstrated that Westar had actual knowledge of the violative
condition. Mr. Reagan, the company president, was at the excavation site on July 16. (Tr.
276, 285-86). Moreover, during his interview with CO Coffey, Mr. Reagan acknowledged
that he had been in the excavation; he also acknowledged that he had always considered an
excavation of 5 to 6 feet as one which required shoring or sloping. (Ex. C-10). Based on the
record, Westar was in violation of the cited standard on July 16, 1996.
Docket No. 97-226: Willful Citation 2, Item 1
This citation item also alleges a violation of 29 C.F.R. 1926.652(a)(1), as follows:
On or about 7/17/96, an employee was working laying sewer pipe in a trench
that was 3.5 feet wide X 116 feet long X 7.5 feet deep which had vertical walls
and no cave-in protective system had been provided.
This citation item relates to the area of the trench where the accident occurred on July

17. Although Westar contends otherwise, I find that the most reliable information in regard
    to the depth of this area of the trench is contained in Exhibits C-2 and C-3, the statements of
    Chad and James Loiodice; according to their statements, which they gave MPD within hours
    of the cave-in, the excavation was approximately 8 feet deep.34 In crediting these statements,
    I note that they were made independently, that they corroborate each another, and that they
    appear very forthright. I also note that the statements describe the events leading up to the
    accident in great detail and that the descriptions are unchallenged in the record. Finally, I find

    34
    I find that these statements are more persuasive and outweigh the evidence that
    Westar contends would lead to a different conclusion, i.e., that the plans called for the pipe
    to rise 1.55 feet in 70 feet and that the 10-foot-long trench box put into the trench after the
    accident was the same distance outside of the trench as it was inside. (R.Brief, pp. 29-30).
    the statements to be trustworthy because both employees were present at the site that day. In
    particular, Chad Loiodice was operating the backhoe, and James Loiodice was standing at
    the top of the trench and looking down at what Mr. Reilly and Mr. Grenzhauser were doing.
    (Tr.159-60, 193-94). I am aware that neither brother was able to testify about the depth of
    the trench at the time of the trial.35 However, this does not alter my opinion about the validity
    of their statements, especially since they are supported by circumstantial evidence such as
    the measurements made to the top of Mr. Reilly’s boots after the accident and Mr. Reagan’s
    concession that he was following CPA’s plan for the project. (Tr. 33, 383; Ex. C-10).
    As in the preceding item, the Secretary has met her burden of showing a violation of
    the standard. As noted supra, the soil in the trench was not stable rock, and the testimony of
    Dr. Alan Peck establishes that the previously-disturbed soil in that area could be no better
    than Type B. Dr. Peck also examined the soil samples taken from the trench walls after the
    accident. His analysis indicated that the soil was Type C, and he testified that the samples
    were representative, with a reasonable degree of scientific certainty, of the soil inside the
    excavation before it was flooded with water. (Tr. 202-03, 212-19, 227-29; Ex. C-6). The
    standard requires the walls of trenches with Type C soil to be protected by sloping at an angle
    of 34 degrees or by other means such as shoring. However, the record shows that the sides
    of the approximately 8-foot-deep trench were vertical and that no other protective means was
    in use. Moreover, at the time of the cave-in, Mr. Reilly and Mr. Grenzhauser were
    assembling pipe in the excavation. Finally, Westar had actual knowledge of the trench’s
    condition, in that Mr. Reagan and Ray Countryman, Westar’s foreman, had both been present
    at the site that day prior to the accident. (Tr. 39, 147-50, 158, 180, 188-89, 385; Ex. C-10).
    In view of the record, Westar was in violation of the standard on July 17, 1996.
    The Willful Classification

    35
    I observed the respective demeanors of these individuals on the witness stand, and
    I conclude that their lack of memory and candor as they testified was due to factors such as
    the passage of time and bias-related influences.
     A violation is willful if committed with intentional disregard for the requirements of
    the Act or with plain indifference to employee safety. Williams Enter., Inc., 13 BNA OSHC
    1249, 1256 (No. 85-355, 1987). Thus, the focus of a willful classification is the employer’s
    state of mind at the time of the violation. Brock v. Morello Bros. Constr., 809 F.2d 161, 164
    (1st Cir. 1987); Monfort of Colorado, Inc., 14 BNA OSHC 2055, 2062, (No. 87-1220, 1991).
    The Secretary must show the employer had a “heightened awareness” of the illegality of the
    conduct at issue. Pentecost Contracting Corp.,17 BNA OSHC 1953, 1955 (No. 92-3788,
    1997); Williams Enter., Inc., 13 BNA OSHC at 1256-57. An employer who knows an
    employee is exposed to a hazard and fails to correct or eliminate the hazard commits a willful
    violation if the employer knows of the legal duty to act, in that the failure to act in the face
    of a known duty demonstrates the knowing disregard that characterizes willfulness. See Sal
    Masonry Contractors, Inc., 15 BNA OSHC 1609, 1613 (No. 87-2007, 1992); A. Schonbek
    & Co., 9 BNA OSHC 1189, 1191 (No. 76-3980, 1980), aff’d, 646 F.2d 799, 800 (2d Cir.
    1981); Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1541 (No. 86-360, 1992). The Secretary
    can also establish willfulness by showing that the employer had a state of mind such that, if
    informed of the duty to act, it would not have cared. Morello, 809 F.2d at 164.
    The Secretary contends that the foregoing violations were willful because Respondent
    demonstrated a careless disregard of and plain indifference to employee safety. In this regard,
    she relies upon evidence indicating Mr. Reagan attended a seminar on excavation safety in
    February 1994 and his admission to CO Coffey that he knew cave-in protection was needed
    in trenches more than 5 feet deep. (Tr. 234-65; Ex. C-7, C-10). She also relies upon the
    responses of Mr. Reagan when CO Coffey asked why there was no protection in the trench;
    specifically, Mr. Reagan stated “I don’t have a reason for that” and “I didn’t see it as a life-
    threatening situation.” (Ex. C-10). Finally, the Secretary relies on an alleged statement of Mr.
    Reagan that the excavation safety seminar was “just a bunch of bullshit.” (Tr. 260).
    My review of C-10, Mr. Reagan’s statement, indicates he was not knowledgeable in
    the OSHA excavations standard, that he did not fail to act in the face of a known duty, and
    that he did not have a heightened awareness the cited conduct was illegal.36 His statement

    36
    Ex. C-10 provides in pertinent part as follows:
    Coffey: How long have you been familiar with OSHA?
    Reagan: Um, I’m not real familiar with it even now. It’s a big mystery I guess, or a big gray
    area exactly.
    Coffey: Have you read articles in the newspaper about OSHA?
    Reagan: You always see them whenever there’s something happens, you never really hear
    anything when everything is going smooth. I mean. ***
    Coffey: Have your ever read or are you knowledgeable of the excavation standard that went
    into effect in 1990. A new excavation standard, have your heard anything about that?
    Reagan: Not really.
    Coffey: Have you heard about any excavation rule or standard that OSHA has something to
    do with?
    Reagan: Reading about other accidents and whatnot ? I mean yeah. I don’t really know any
    of them to quote you a rule or a chapter or verse. Ok.
    Coffey: Sure at about what depth did you think that you should have sort of shoring or
    sloping or some sort of protective system.
    Reagan: Um, we always considered 5 to 6 feet. ***
    Coffey: So then we started ... Started at ... What I am getting at is you knew the excavation
    was 8 feet or 7 feet or 6 feet, why didn’t, why didn’t you have some sort of protective system
    in place?
    Reagan: I guess we just didn’t feel the safety, uh, we had a wide ditch and, we were, you
    know, everything was tight and it went in and out quick, we were working around a lot of
    utilities and we just didn’t. ***
    Coffey: I guess I’m a little bit curious is that we had an excavation there that is the same
    excavation that I looked at today and there is many feet of vertical walls that are maybe 3 feet
    wide, or maybe 2.5 to 3 feet and the sides are vertical for 6 to 7 feet, you know. I believe you
    stated earlier that you needed, you needed something at 5 or 6 feet and I guess what I was
    after is what was going through your mind is, you know, at 7 and 8 feet why weren’t you
    providing some sort of protection ? For your employees?
    Reagan: I don’t have a, I mean, I don’t have a reason for that. ***
    Coffey: Or seeing the OSHA manual or whatever? Have you ever attended any seminars
    or schools or anything that have to do with safety and health, have you seen any videos or
    anything like that?
    Reagan: I attended the utility company seminar for underground markings, and ***
    Coffey: UFPA people. ***
    Reagan: Yeah, they came down here.
    Coffey: But they talked about trenching and excavation?
    Reagan: They were more talking about markings.
    (continued...)
    reveals no evidence that Mr. Reagan or anyone who worked for him was aware of what the
    excavations standard required. It also reveals he had never had an OSHA inspection before,
    and although he stated he believed he had the OSHA standards on site he was never able to
    locate them. I conclude that Mr. Reagan’s interview with CO Coffey indicates his ignorance
    of the Act and the excavations standard. I also conclude that the Secretary, despite the above-
    noted testimony of several witnesses, has not shown by a preponderance of the evidence that
    Mr. Reagan actually attended the excavation safety seminar held in February 1994. Even if
    he did, the 20-minute presentation at the seminar, by Thomas Shield of the New York State
    Department of Labor, on which the Secretary especially relies, does not persuade me of Mr.
    Reagan’s knowledge of OSHA’s excavations standard. In fact, Exhibit C-8, a video of the
    presentation, does not discuss the 5-foot depth that triggers the standard’s requirements, and
    Mr. Shield’s own testimony indicates that his presentation made no reference to that depth.
    (Tr. 254-55). Equally unpersuasive is the Secretary’s argument that Mr. Reagan’s alleged
    statement about the seminar supports a finding of an attitude towards employee safety that

    36
    (...continued)
    Coffey: Markings. And making sure that the underground utilities were identified before you
    dig? ***
    Reagan: Right. That was. ***
    Coffey: So, I guess what I’m looking at, and if this is not a fair statement I want you to tell
    me, you are the owner of a company or president of a company and you are looking at a
    trench that has your people working in it that has vertical sides - 8 to 7 to 6 feet deep and you
    didn’t do anything at all, nothing registered as to, that we need protection, that this is a life-
    threatening situation.
    Reagan: I didn’t see it as a life-threatening situation at the time.
    Coffey: You didn’t even see it as a hazardous situation ?
    Reagan: No, if I did I would have done something. I was there working, myself, the day
    before.
    would rise to willful under the Act. Based on the record, the Secretary has not demonstrated
    that the violations at issue were willful.37 The violations are therefore affirmed as serious.38
    Penalty Assessment
    The Commission, as the final arbiter of penalties, must give due consideration to the
    gravity of the violation and the employer’s size, history and good faith. J. A. Jones Constr.
    Co., 15 BNA OSHC 2201, 2213-14 (No. 87-2059, 1993). These factors are not necessarily
    accorded equal weight, and gravity is generally the most important factor. Trinity Indus., Inc.,
    15 BNA OSHC 1481, 1483 (No. 88-2691, 1992). The gravity of a violation depends upon
    such matters as the number of employees exposed, duration of exposure, precautions taken
    against injury, and the likelihood that an injury would result. J. A. Jones, supra. I assess the
    severity of the violations in this case as high and the probability as greater, particularly in
    view of the fact that the unprotected trench at the site resulted in employee fatalities. I
    conclude that an adjustment for history is warranted; however, no credit for size or good faith
    is due in light of the high gravity of the violations and in order to achieve a deterrent effect.39
    A penalty of $6,300.00 each is assessed for these citation items.

                    Docket No. 97-226: Serious Citation 1, Item 2
    

    29 C.F.R. 1926.651(j)(2), the cited standard, provides as follows:
    Employees shall be protected from excavated or other materials or equipment
    that could pose a hazard by falling or rolling into excavations. Protection shall
    be provided by placing and keeping such materials or equipment at least 2 feet
    (.61 m) from the edge of excavations, or by the use of retaining devices that

    37
    See Branham Sign Co., 18 BNA OSHC 2132 (No. 98-752, 2000).
    38
    A violation is “serious” if there is “a substantial probability that death or serious
    physical harm could result.” It is clear that a cave-in in an 8-foot-deep trench could cause,
    and did cause in this case, death or serious physical harm. See DiGioia Bros. Excavating,
    Inc., 17 BNA OSHC 1181, 1183 (No. 92-3024, 1995). See also Calang Corp., 14 BNA
    OSHC 1789, 1794 (No. 85-319, 1990).
    39
    Westar is a small company, with eight to ten employees.
     are sufficient to prevent materials or equipment from falling or rolling into
    excavations, or by a combination of both if necessary.
    The citation alleges as follows:
    At the jobsite on or about 7/17/96, employees were working installing sewer
    piping in a trench which had near vertical sides, was approximately 116 feet
    long, 7.5 feet deep and 3.5 feet wide. The spoil from the excavation process
    was placed at the edge of the trench along the south wall.
    The preamble to the standard states that its intent is to protect employees from
    materials, equipment and spoil piles that might fall into excavations. The preamble notes that
    “[o]bviously, materials such as excavated soil ... can superimpose loads on the walls of an
    excavation ... [that] can be the cause of cave-ins.” The preamble further notes that
    “employers who encounter site conditions that do not permit a 2-foot set-back must use
    retaining devices to prevent materials or equipment from falling into the excavation.” 54 Fed
    Reg. 45894, 45925 (1989).
    The record establishes that the soil being removed from the trench was being placed
    along the length of the trench. (Tr. 187). Lieutenant Joseph Valentia testified that when he
    arrived at the site at 2:15 p.m., he could see only the northern edge of the trench; he said
    water was running out of that edge as the south side of the trench had soil piled on the edge.
    (Tr. 96). Detective Wagner testified that when he arrived at 3:05 p.m., rescue efforts were
    ongoing; he saw an area where it appeared that soil had fallen from the sides back into the
    trench, and he saw rocks and soil fall into the trench while he was there. Detective Wagner
    took photos of his observations. (Tr. 17-18, 25, 42-45, 50-53; Ex. R-A-D). CO Coffey also
    took photos of the spoil pile along the trench’s south side, and he testified that there was a
    “pretty large area” where the trench had caved in. (Tr. 315-16, 321, 388-89; Ex. C-9-A-B).
    The foregoing testimony and photographic evidence clearly establishes that the spoil
    pile on the south side of the excavation was not 2 feet from the edge as required, and it is
    undisputed that no retaining devices were in use. The foregoing also establishes that the
    employees who were working in the excavation that day were exposed to the hazard of being
    struck by rocks or soil falling or rolling from the spoil pile into the trench. Mr. Reagan and
    Mr. Countryman, Westar’s foreman, were at the site that day, and the condition was in plain
    view; thus the Secretary has met her burden of showing that Westar had either actual or
    constructive knowledge of the condition. Dover Elevator Co., 16 BNA OSHC 1281, 1286
    (No. 91-0862, 1993); Dun-Par Eng’d Form Co., 12 BNA OSHC 1962 (No. 82-928, 1986).
    Based on the record, this citation item is affirmed. I find that it is properly classified
    as a serious violation, since rocks and soil falling into an excavation could result in injuries
    ranging from multiple fractures to death. In regard to an appropriate penalty, I find the
    severity of the violation to be high because of the nature of the injuries that could occur but
    the probability to be lesser since it was not as likely that injuries would occur. An adjustment
    for history is warranted, but no credit for size or good faith is due because of the high gravity
    of the violation. I conclude that a penalty of $2,250.00 for this item is appropriate.
    Docket Nos. 97-226 and 97-227: Serious Citations 1, Items 3
    29 C.F.R. 1926.651(k)(1), the cited standard, provides as follows:
    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.
    The citations in Docket Nos. 97-226 and 97-227 allege, respectively, as follows:
    At the jobsite on 7/17/96 an employee was allowed to work in a trench 3.5 feet
    wide X 116 feet long X 7.5 feet deep which had not been inspected by a
    competent person.
    At the jobsite on or about 7/16/96, an employee was allowed to work in an 8
    feet X 13 feet X 8 feet deep excavation which had not been inspected by a
    competent person.

    29 C.F.R. 1926.650(b) defines a “competent person” as:
    [O]ne 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.
     The preamble to OSHA’s excavations standard sets out the qualifications of a
    “competent person” as follows:
    In order to be a “competent person” for the purposes of this standard one must
    have had specific training in, and be knowledgeable about, soils analysis, the
    use of protective systems, and the requirements of this standard.
    The record establishes that there was no competent person to perform inspections of
    the subject excavations on either July 16 or July 17, 1996. Mr. Reagan acknowledged that
    neither he nor his foreman, Mr. Countryman, had the training or knowledge necessary to be
    a competent person, and there is no evidence in the record that Westar hired anyone else to
    perform this function. (Tr. 392; Ex. C-10). The record also establishes that Westar’s
    employees were in the cited excavations, that the conditions were in plain view and that
    Westar, had it exercised reasonable diligence, could have known of these conditions.
    On the basis of the record, these citations items are affirmed, and they are properly
    classified as serious. The conditions presented cave-in hazards that could have caused serious
    injuries or fatalities. The severity of the conditions was high due to the nature of the possible
    injuries, and the probability was greater in view of the cave-in that did in fact occur on July
    17. As in the foregoing items, an adjustment for history is warranted, but no credit for size
    or good faith is appropriate. A penalty of $6,300.00 each is assessed for these two items.
    Docket No. 97- 227: Serious Citation 1, Items 1 and 2
    Item 1 alleges a violation of 29 C.F.R. 1926.21(b)(2), which provides that:
    The employer shall 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.

    Item 1 alleges a violation of 29 C.F.R. 1926.21(b)(2), as follows:
    At the jobsite on or about 7/16/96 employee(s) did not receive instruction in
    the recognition of hazards associated with flagging vehicular traffic.
    The Commission recently addressed this standard in O’Brien Concrete Pumping, Inc.,
    18 BNA OSHC 2059, 2061 (No. 98-0471, 2000), and stated the following:
     To prove a violation of § 1926.21(b)(2), the Secretary must show that the cited
    employer failed to instruct employees on “(1) how to recognize and avoid the
    unsafe conditions which they may encounter on the job and (2) the regulations
    applicable to those hazardous conditions.” Superior Custom Cabinet Co., 18
    BNA OSHC 1019, 1020 (No. 94-200, 1997); Concrete Constr. Co., 15 BNA
    OSHC 1614, 1619 (No. 89-2019, 1992).
    The record establishes that Frank Malloy, an employee of Westar at the time, flagged
    traffic on July 16 at the intersection of North Street and Low Avenue to divert vehicles from
    North Street due to the construction work taking place. The record also establishes that
    Westar did not instruct him in how to recognize and avoid unsafe conditions or about the
    regulations applicable to flagging vehicular traffic. (Tr. 286-87, 291-95, 372). Applicable
    OSHA standards require that signaling directions by flagmen conform to the Manual on
    Uniform Traffic Control Devices for Streets and Highways, ANSI Standard D6.1-1971, and
    that flagmen be provided with and wear warning vests while flagging. See 29 C.F.R.
    1926.201(a)(2)-(4). In doing this work, Mr. Malloy was exposed to the hazard of being struck
    by traffic. Westar had knowledge of the condition, as Mr. Reagan assigned Mr. Malloy the
    job and drove by him two to three times while he was flagging traffic. (Tr. 293-94).
    Item 2 alleges a violation of 29 C.F.R. 1926.201(a)(4), which provides that:
    Flagmen shall be provided with and shall wear a red or orange warning
    garment while flagging. Warning garments worn at night shall be of
    reflectorized material.
    Item 2 alleges a violation of 29 C.F.R. 1926.201(a)(4), as follows:
    At the jobsite on or about 7/16/96 at the intersection of North Street & Low
    Avenue, an employee who was flagging traffic was not provided with an
    orange warning garment.
    The record shows Frank Malloy was not provided a red or orange warning garment
    on July 16 and that he wore only a dark blue T-shirt and blue jeans. As noted above, Mr.
    Reagan assigned Mr. Malloy the job and drove by him two to three times that day. (Tr. 294).
    The record establishes the alleged violations, and the violations were appropriately
    classified as serious. The failure to instruct Mr. Malloy and the further failure to provide him
    with a warning garment exposed him to the hazard of being struck by vehicular traffic, which
    could have caused serious bodily injury or death. I assess the severity of these items as high,
    due to the nature of the possible injuries, and the probability as lesser as the traffic in the
    subject location was traveling relatively slowly and was not coming from behind him. An
    adjustment for history is warranted, but no credit for size or good faith is due because of the
    high gravity of the violations. A penalty of $2,250.00 each is assessed for these items.
    Findings of Fact and Conclusions of Law
    The foregoing decision constitutes my findings of fact and conclusions of law in
    accordance with Federal Rule of Civil Procedure 52(a).
    ORDER
    Based upon the foregoing, it is hereby ORDERED that:
    Docket No. 97- 226
    1. Item 1 of Citation 1, alleging a serious violation of 29 C.F.R. 1926.100(a), is
    VACATED.
    2. Item 2 of Citation 1, alleging a serious violation of 29 C.F.R. 1926.651(j)(2), is
    AFFIRMED, and a penalty of $2,250.00 is assessed.
    2. Item 3 of Citation 1, alleging a serious violation of 29 C.F.R. 1926.651(k)(1), is
    AFFIRMED, and a penalty of $6,300.00 is assessed.
    4. Item 1 of Citation 2, alleging a willful violation of 29 C.F.R. 1926.652(a)(1), is
    AFFIRMED as a serious violation, and a penalty of $6,300.00 is assessed.
    5. Items 1 and 2 of Citation 3, alleging “other” violations of 29 C.F.R.
    1910.1200(e)(1) and 29 C.F.R. 1910.1200(h), are VACATED.

                                 Docket No. 97-227
    

    1. Item 1 of Citation 1, alleging a serious violation of 29 C.F.R. 1926.21(b)(2), is
       AFFIRMED, and a penalty of $2,250.00 is assessed.
    2. Item 2 of Citation 1, alleging a serious violation of 29 C.F.R. 1926.201(a)(4), is
       AFFIRMED, and a penalty of $2,250.00 is assessed.
        3. Item 3 of Citation 1, alleging a serious violation of 29 C.F.R. 1926.651(k)(1), is
       AFFIRMED, and a penalty of $6,300.00 is assessed.
       4. Item 1 of Citation 2, alleging a willful violation of 29 C.F.R. 1926.652(a)(1), is
          AFFIRMED as a serious violation, and a penalty of $6,300.00 is assessed.
       5. Items 1 and 2 of Citation 3, alleging “other” violations of 29 C.F.R.
          1910.1200(e)(1) and 29 C.F.R. 1910.1200(h), are VACATED.

                                                    /s/
                                             Covette Rooney
                                             Judge, OSHRC
          

Dated: July 21, 2000
Washington, D.C.