Bovis Construction Corporation

Plain-English summary

A Bovis Construction subcontractor allowed employees into a deep excavation without a nearby safe exit, adequate water precautions, or cave-in protection. As general contractor, Bovis had enough supervisory authority to require subcontractor compliance, but its liability still depended on actual or constructive knowledge. Assistant superintendent Michael Queen inspected the excavation before work began, directed the subcontractor to prepare it for a trench box, and expected no one to enter until the box arrived. Judge Stephen J. Simko, Jr. found that Bovis inspected the large site several times daily and could not observe the excavation from its remote trailer. Because Bovis could not have discovered the brief conditions through reasonable diligence, three serious items were vacated and a fourth was withdrawn.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.651(c)(2), 1926.651(h)(1), 1926.651(k)(1), and 1926.652(a)(1)
• Outcome: Three serious excavation items vacated; one item withdrawn; no penalties assessed.
• Key point: A controlling general contractor is responsible only for subcontractor violations it knew of or could reasonably have prevented or discovered through its supervisory role.

Full text (OSHRC public release)

Secretary of Labor, :
Complainant, :
:
v. : OSHRC Docket No. 98-0275
:
Bovis Construction Corporation, :
Respondent. :

Appearances:

      Leslie John Rodriguez, Esquire                          Richard D. Wayne, Esquire
           Office of the Solicitor                                Hinckley, Allen & Snyder
           U. S. Department of Labor                               Boston, Massachusetts
           Atlanta, Georgia                                            For Respondent
                For Complainant

Before: Administrative Law Judge Stephen J. Simko, Jr.

                                       DECISION AND ORDER

      Bovis Construction Corporation (Bovis) is a general contractor with a construction jobsite

in Atlanta, Georgia, where it is building air cargo facilities at the Atlanta Airport. The Occupational
Safety and Health Administration (OSHA) conducted an inspection of this jobsite on January 29,
1998. As a result of this inspection, a citation was issued to the respondent on February 10, 1998.
A hearing was held in this matter in Atlanta, Georgia, on May 18, 1998. At the hearing, the
Secretary withdrew item 3 of the citation. The parties stipulated at the hearing that no Bovis
employees were exposed to any of the alleged violative conditions.

                                                Background

      Bovis, as general contractor, has overall responsibility for excavation and concrete work

on this jobsite. This project involves the construction of three air cargo facilities covering 140
acres. On the day of the inspection, two subcontractors were performing excavation work. One
subcontractor, Plateau Excavation, Inc. (Plateau), was excavating and preparing to install utility
lines in a 45- by 50-foot excavation with a depth of up to 15 feet.
At approximately 7:15 a.m. on January 29, 1998, Michael Queen, respondent’s assistant

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superintendent, inspected this excavation prior to the start of the workday. The area was still dark,
and employees were arriving onsite. Mr. Queen did not see Plateau’s foreman, Rick Hall, at that
time but spoke to Mr. Hall about two hours later by telephone. During that telephone conversation,
Mr. Queen told Mr. Hall to secure a trench box for that excavation and to bench back the sides until
the trench box arrived. Mr. Queen testified at the hearing that the soil in the bottom of the
excavation was Type “C” and Type “B” above it. Mr. Hall considered this soil to be Type “C” and
had attempted to bench the sides of the excavation. The sides could not be sufficiently sloped due
to the proximity of a fire station.
Between 9:30 a.m. and 10:00 a.m., Robert Ardizzoni, a compliance officer for OSHA,
arrived at the excavation and conducted an inspection. He observed Plateau employees in the
excavation with no trench box and with unsloped soil. Some portions of the excavation sides were
benched. He estimated the depths of the vertical sides to be 6 to 15 feet. He performed a hand
compression test and determined the soil to be Type “C”. Employees jumped into the excavation
and worked in the 45- by 50-foot excavation with no ladder or other means of safe egress. Mr.
Ardizzoni found a 2- by 5-foot pool of water or liquid, several inches deep, in the middle section
of the excavation. He testified that this liquid could undermine the face of the excavation causing
a collapse. Although the excavation had been open for three days prior to January 29, 1998, no
evidence was presented at the hearing that any employees had worked in this excavation prior to
that date. After observing these conditions, the compliance officer met with Mr. Queen at the
general contractor’s trailer, which was 800 to 1,000 feet from the excavation.

                                    Alleged Violations

    The Secretary alleges that Bovis committed serious violations of the standards set forth in

29 C.F.R. Part 1926 as follows:

Citation 1 Item 1

    29 CFR 1926.651(c)(2): A stairway, ladder, ramp or other safe means of egress
    was not located in trench excavations that were 4 feet (1.22m) or more than 25 feet
    (7.62m) of lateral travel for employees:


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(a) Excavation at 4550 Airport Services Road:
Employees were working in an excavation which
was 50’long without a ladder.

Citation 1 Item 2

   29 CFR 1926.651(h)(1): Employees were working in excavations in which there
   was accumulated water, or excavations in which water was accumulating, and
   adequate precautions had not been taken to protect employees against the hazards
   posed by water accumulation :

           (a)     Excavation at 4550 Airport Services Road: Water
                   accumulation was not dealt with.

Citation 1 Item 4

   29 CFR 1926.652(a)(1): Each employee in an excavation was not protected from
   caveins [sic] by an adequate protective system designed in accordance with 29 CFR
   1926.652(c). The employer had not complied with the provisions of 29 CFR
   1926.652(b)(1)(i) in that the excavation was sloped at an angle steeper than one and
   one half horizontal to one vertical (34 degrees measured from the horizontal):

           (a)     Excavation at 4550 Airport Services Road:
                   Employees were observed working in an excavation
                   15’deep which was not properly sloped or shored.

                                        Discussion

   The Secretary has the burden of proving the violation.
   In order to establish a violation of an occupational safety or health standard, the
   Secretary has the burden of proving: (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 conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

   The Secretary’s uncontroverted evidence clearly established the excavation conditions,

which are the basis for the alleged violations. The following evidence is undisputed: At the time
of the inspection, employees were working in the 50-foot excavation without a ladder or other safe

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means of egress, requiring more than 25 feet of lateral travel. Employees exited by ramp at one
end of the excavation. Also, water had accumulated in this excavation, and no precautions were
taken to protect employees from the hazards posed by this accumulation. Employees worked in the
excavation at depths of 6 to 15 feet with vertical walls and no shoring or trench box in Type “C”
soil. Only employees of Plateau were exposed to these conditions. No employees of Bovis, the
general contractor, were exposed to these conditions.
The issues remaining involve Bovis’s responsibility as a general contractor and whether it
knew or could have known of the excavation conditions discussed above.
In addressing a general contractor’s responsibility, the Review Commission has long
recognized that:
The general contractor normally has responsibility to assure that the other
contractors fulfill their obligations with respect to employee safety which affect the
entire site. The general contractor is well situated to obtain abatement of hazards,
either through its own resources or through its supervisory role with respect to other
contractors. It is therefore reasonable to expect the general contractor to assure
compliance with the standards insofar as all employees on the site are affected. Thus
we will hold the general contractor responsible for violations it could reasonably
have been expected to prevent or abate by reason of its supervisory capacity.

Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1188, 1975-76 CCH OSHD ¶ 20,691,
p. 24,791 (No. 12775, 1976).
In this case, the record establishes that Bovis maintained sufficient supervisory capacity over
the jobsite to require compliance with the Act. It had overall responsibility for safety on the site,
maintained a safety staff, and inspected the site several times each day. In addition, by contract, it
required its subcontractors to comply with all safety laws and regulations and to establish their own
safety measures, policies, and standards in addition to any safety program established by Bovis.
As discussed more fully above, no evidence presented at the hearing indicated that any
employee of any contractor worked in the excavation prior to the date of the inspection. This
excavation was open for three days prior to the inspection, and Bovis’s assistant superintendent,
Michael Queen, inspected the site several times each day. When Mr. Queen inspected the
excavation on January 29, 1998, no work had begun and there was no indication that employees
would enter the excavation that day without a trench box. Mr. Queen testified that later that

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morning he told Plateau’s foreman by phone to bench back the excavation sides until the trench box
arrived. This box was scheduled to arrive onsite that day. Mr. Queen explained that no employees
were to work in the excavation during the benching process or until the trench box was installed.
Mr. Queen stated that he did not authorize employees to work in the excavation without a trench
box; that he saw no employees in the unprotected excavation; and that he did not know employees
were in the unprotected excavation until told by the compliance officer. He further testified that
benching gives greater soil compaction, but understands that benching provides no adequate
protection for employees working in excavations in Type “C” soil. This testimony was essentially
uncontroverted at the hearing and is found to be credible.
Respondent’s assistant superintendent inspected the excavation about two hours before the
OSHA inspection. At the time of the inspection, Mr. Queen was in his trailer which was about 800
to 1,000 feet away from the excavation. After completion of the walk-around portion of the
inspection, the compliance officer came to the trailer and told Mr. Queen of the alleged violative
conditions. Mr. Queen told the compliance officer he had instructed the subcontractor to bench
back until the trench box arrived. This statement alone does not require an inference that Mr.
Queen expected employees to be in the excavation while it was benched without the protection of
a trench box. Mr. Queen clarified this statement at the hearing. He testified that the benching was
done to allow more working room to set the trench box and to provide greater soil compaction in
the corners of the excavation. He anticipated employees to enter the excavation only after the
trench box was in place. The compliance officer testified that during the inspection Mr. Queen was
not present when employees were in the excavation, and he has no information that Mr. Queen or
any other manager of respondent saw any employees in the excavation.
This large jobsite covers about 140 acres. Mr. Queen inspected the job three times each day.
He inspected this excavation less than three hours before the OSHA inspection, finding no
employees in the excavation. The evidence of record establishes that employees were working in
this excavation after Bovis’s last inspection. Respondent’s trailer was remote to the excavation, and
work at that location was not observable from the trailer. The record reflects that Bovis took
reasonable measures to detect and prevent unsafe conditions at the excavation.
Based on the totality of the evidence presented in this case, I must conclude that Bovis did

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not, and could not, with the exercise of reasonable diligence, know of the presence of the violations
alleged by the Secretary. The alleged violations of 29 C.F.R. §§ 1926.651(c)(2), 1926.651(h)(1),
and 1926.652(a)(1) are vacated.

                               FINDINGS OF FACT AND
                               CONCLUSIONS OF LAW

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

with Federal Rules of Civil Procedure 52(a).

                                          ORDER

   Based upon the foregoing decision, it is hereby ORDERED:
   1.      Citation No. 1, item 1, alleging a serious violation of 29 C.F.R. § 1926.651(c)(2),

is vacated.
2. Citation No. 1, item 2, alleging a serious violation of 29 C.F.R. § 1926.651(h)(1),
is vacated.
3. Citation No. 1, item 3, alleging a serious violation of 29 C.F.R. § 1926.651(k)(1),
was withdrawn by the Secretary.
4. Citation No. 1, item 4, alleging a serious violation of 29 C.F.R. § 1926.652(a)(1),
is vacated.

                                           STEPHEN J. SIMKO, JR.
                                           Judge

Date: August 3, 1998

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