Southwestern Bell Telephone Company

Plain-English summary

Southwestern Bell Telephone had two technicians repairing telephone lines in an unshored trench about six feet deep with nearly vertical sides in Alton, Texas, in 1998. An OSHA compliance officer driving by stopped and inspected. The soil was Type B, which requires sloping or another protective system, and none was used. OSHA issued a two-item serious citation: failing to have a competent person inspect the excavation (29 C.F.R. 1926.651(k)(1)) and failing to provide adequate cave-in protection (29 C.F.R. 1926.652(a)(1)). The company argued its two technicians were themselves competent persons who inspected the trench, and that it could not have known its on-site supervisor, Joyce Beck, failed to inspect. The Commission rejected those arguments, holding that the technicians lacked the authority to order corrective measures that defines a competent person, and that the supervisor's knowledge and inspection failure were imputable to the company. It affirmed both violations and the judge's penalties of $1,350 for Item 1 and $2,250 for Item 2. Commissioner Weisberg concurred; Commissioner Visscher dissented on how much evidence an employer must produce to rebut the Secretary's showing of supervisor knowledge. The appended decision of Administrative Law Judge Benjamin R. Loye is included in full.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.651(k)(1); 29 C.F.R. § 1926.652(a)(1)
• Outcome: Both serious violations affirmed; penalties of $1,350 (Item 1) and $2,250 (Item 2) upheld. Majority (Rogers, Weisberg); Visscher dissenting.
• Key point: An employee is a "competent person" for excavation inspections only if authorized to take prompt corrective measures; a supervisor's failure to inspect and her knowledge of the trench conditions are imputable to the employer.

Full text (OSHRC public release)

```text
SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 98-1748
SOUTHWESTERN BELL TELEPHONE
COMPANY,
Respondent.

                                   DECISION

Before: ROGERS, Chairman; VISSCHER and WEISBERG, Commissioners.
BY THE COMMISSION:
The issues before us are whether Southwestern Bell Telephone Co. (“SWBT”)
violated excavation safety standards that require employers to: (1) have a competent person
inspect excavations as needed throughout the employees’ work shift; and (2) provide
adequate cave-in protection in excavations. For the following reasons, we affirm the decision
of Administrative Law Judge Benjamin R. Loye finding serious violations of both
provisions.1
BACKGROUND
On August 7, 1998, two employees of SWBT were repairing telephone lines in an
unshored trench that was roughly six feet deep, with nearly vertical sides, adjacent to 5 Mile
Road in Alton, Texas. Compliance Officer (“CO”) Antonio Fuentes, Jr., of the Secretary of

   1
    SWBT has requested oral argument concerning the issues on review. Upon review

of the record, judge’s decision and briefs, however, we conclude that oral argument is
unnecessary.

                                                                   2000 OSHRC NO. 27

2

Labor’s Occupational Safety and Health Administration (“OSHA”), drove by on his way to
another worksite, and he stopped to inspect the trench.
After an opening conference, he measured and found that the depth of the trench
varied between 5.7 and 6.4 feet. Its width was generally six feet. No protective system was
being used. The parties stipulate that the soil was classified as Type B. OSHA requires that
such soil be sloped back to not more than 45 degrees, measured from the horizontal plane,
or protected by some other means, none of which SWBT used. 29 C.F.R. § 1926.652(b).
The employees in the trench (“technicians”) were Arturo Santana and Juan Garza.
Santana testified that Manuel Serrano, a SWBT contractor, had excavated the pit deeper than
planned, and that Serrano’s son Hector told Santana it needed shoring. Santana further
testified that he passed that information on to his supervisor, Joyce Beck, who told him she
didn’t feel the excavation was dangerous, and to go ahead with his work. Santana testified
that he had received training regarding excavations and trenching, but that he believed Beck
had the authority to override his concerns about the excavation. CO Fuentes testified that
both Santana and Garza stated that Beck had not seen the finished trench. Fuentes further
testified that when Beck arrived at the work site, she admitted knowing the depth of the
trench.
Ronnie Jimenez, SWBT’s area manager for installation and repair and Beck’s direct
supervisor, testified that the employees in the excavation had a shared responsibility with
Beck, under company policy, to make sure the work was done safely. Under SWBT policy,
any employee may refuse to work where there would be exposure to serious dangers. SWBT
had comprehensive written safety rules, and CO Fuentes testified that the company’s
employee training program was adequate. After SWBT received the citation, it suspended
Beck without pay for a week. It did not discipline Santana or Garza.
DISCUSSION
To prove a violation of an OSHA standard, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies, (2) there was
 3

noncompliance with its terms, (3) employees had access to the violative conditions, and (4)
the cited employer had actual or constructive knowledge of those conditions. E.g., George
Campbell Painting Corp., 18 BNA OSHC 1929, 1932, 1999 CCH OSHD ¶ 31,935, p. 47,388
(No. 94-3121, 1999). See, e.g., Trinity Indus., Inc. v. OSHRC, 206 F.3d 539, 542 (5th Cir.
2000) (“[t]o prove the knowledge element of its burden, the Secretary must show that the
employer knew, or with exercise of reasonable diligence could have known of the non-
complying condition”). There is no dispute here that the cited standards apply, that the trench
did not have the required protective system, and that two employees had access to the
noncomplying conditions. SWBT argues, however, that Santana and Garza were “competent
persons,” that they did a proper inspection, and that the evidence is insufficient to show that
it knew or reasonably could have known of its supervisor’s failure to properly inspect the
trench herself and provide the required protective system.
Item 1: Alleged failure to inspect excavation properly
The cited provision, section 1926.651(k)(i), requires that a “competent person”
conduct inspections “as needed throughout the shift” for evidence of potential cave-ins and
other excavation hazards.2 The judge found:
Southwestern admits that Joyce Beck was the competent person on site.
Although Southwestern argues that the employees working under Beck’s
supervision were also competent persons, and had a shared responsibility for
safety and under company policy were authorized to refuse to work in the
unshored excavation, it is clear that Beck had de facto authority over the work
site, which neither Santana nor Garza thought to challenge. Only Beck,

   2
    That provision states in full:
   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.

4

   therefore, had actual authority to take the corrective measures necessary to
   eliminate the hazard.
          The uncontroverted evidence establishes that Beck did not see and,
   therefore, could not have inspected the finished trench prior to the start of
   work. The violation is established.

On review, SWBT renews its argument that its “technicians” in the trench, Santana and
Garza, were “competent persons” under the standard, and that they did the requisite
inspection. We disagree. The definition of “competent person” in the excavation standards
is:
[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.
29 C.F.R. § 1926.650 (emphasis added). SWBT argues that Santana and Garza were
competent persons because Johnnie Escobedo, its regional safety manager, testified that its
employees could decline to work where they would be exposed to serious dangers. That fact
does not make them “competent persons,” however. To be considered a competent person,
an employee must have the authority to “take prompt corrective measures” regarding the
physical hazards in the working conditions. Here, that meant the authority to order the steps
required to bring the physical conditions into compliance -- installing shoring or one of the
protective systems described in section 1926.652(b) or (c). Thus, although Santana and
Garza may have had a form of “shared responsibility” for safety at the worksite, they lacked
the requisite authority to abate hazards. We, therefore, conclude that they were not
“competent persons” for purposes of the excavation standards.
Judge Loye found that Beck was the only “competent person” at the site, and that she
failed to conduct the inspections required under the standard. We agree with the judge that
the evidence establishes that Beck failed to inspect the trench after it was completed and
before the technicians began their work in it, and thus she failed to carry out the standard’s
requirements. She was aware that the trench had been dug more than five feet deep, and the
 5

need for such an inspection is underscored by the excavator’s warning, passed on to Beck
by Santana, that the trench needed shoring. In these circumstances, we need not reach the
question whether Beck actually qualified as a competent person.
We also find that, as the supervisor on this jobsite, Beck’s actual knowledge of her
failure to carry out the standard’s requirements is clearly imputable to SWBT. In order to
avoid responsibility for her failure, SWBT would have to establish that it could not have
prevented it. To do so, SWBT would have to at least offer evidence that it had established
work rules designed to prevent the violation, had adequately communicated those work rules
to its employees (including supervisors), had taken reasonable steps to discover violations
of those rules, and had effectively enforced the rules in the event of infractions. E.g., Dover
Elevator Co., 15 BNA OSHC 1378, 1382, 1991-93 CCH OSHD ¶ 29,524, p. 39,849 (No.
88-2642, 1991).
SWBT argues that it had a comprehensive safety program designed to prevent
excavation hazards. CO Fuentes testified that he believed SWBT’s employee training
program was adequate. Santana testified that he was given annual training in safety measures
regarding excavation and trenching. Floyd Dietzmann, SWBT’s director of installation and
repair for South Texas, testified that the site supervisors are required to conduct monthly
safety meetings for the non-supervisory employees and to observe each one’s work practices
twice a month.3 In addition, Escobedo testified that he visited site supervisors (“outside
managers”) to “review the managers’ safety binders, make sure that they’re complying with
the plan, conducting their safety meetings, conducting their observations. And I also conduct

   3
    Dietzmann stated:
   [W]e require the supervisors to make two observations per person per month.
   They’re supposed to observe the people out there on the job to ensure they’re
   doing a good job. And that all evolves as part of the training of that
   individual. We keep extensive safety records on each individual that are
   reviewed by the safety personnel, both on a local basis and a state basis.

6

safety observations in the field with the technicians” (non-supervisory crew members such
as Santana and Garza).
SWBT did not produce, and we have not found, evidence that it monitored its site
supervisors’ actual worksite compliance with the specific safety requirements at issue here.
Reasonable steps to monitor compliance with safety requirements are part of an effective
safety program, just as are work rules designed to prevent each regulated hazard. See L. E.
Myers Co., 16 BNA OSHC 1037, 1041, 1993-95 CCH OSHD ¶ 30,016, p. 41,127 (No. 90-
945, 1993). Although SWBT had a safety program and conducted site visits, there is no
evidence that either the program or the visits pertained to enforcing the competent persons’
obligation to perform trench inspections. Unlike our dissenting colleague, we find that
SWBT’s evidence is, therefore, insufficient to rebut the Secretary’s prima facie showing of
actual knowledge.4 Accordingly, we find that SWBT failed to take reasonable steps to

   4
     Commissioner Weisberg recognizes that under Commission precedent an employer

can avoid the imputation of knowledge based on supervisory misconduct by establishing that
it “took reasonable measures to prevent the occurrence of the violation.” Dover Elevator
Co., 16 BNA OSHC 1281, 1286, 1993-95 CCH OSHD ¶ 30,148, p. 41,480 (No. 91-862,
1993). In rebutting the Secretary’s prima facie showing of supervisory knowledge, an
employer may avoid imputation of that knowledge by coming forward to show that it had
work rules addressing the cited hazard that were adequately communicated to supervisors
and effectively enforced. Pride Oil Well Service, 15 BNA OSHC 1809, 1815, 1991-93 CCH
OSHD ¶ 29,807, p. 40,585 (No. 87-692, 1992).
Commissioner Weisberg notes that his dissenting colleague appears to suggest that general
evidence of safety rule enforcement presented by an employer is sufficient to rebut the
Secretary’s prima facie proof of knowledge. However, the Commission has held that it is not
enough for an employer to establish that its safety rules in general have been communicated
and enforced. The employer must show that it has effectively communicated and enforced
the specific rule or rules that are at issue. Hamilton Fixture, 16 BNA OSHC 1073, 1090,
1993-95 CCH OSHD ¶ 30,034, p. 41,185 (No. 88-1720, 1993), aff’d without published
opinion, 28 F.3d 1213 (6th Cir. 1994).
In the instant case, the employer has presented no evidence of reasonable efforts to monitor
and discover whether supervisors were complying with the cited standard requiring daily
and frequent inspection of excavations by a competent person. SWBT’s regional safety
manager Escobedo testified that he “conduct[s] ongoing training reviews, where [he] will
(continued...)
 7

monitor its site supervisors’ compliance, and we impute its supervisor’s knowledge of the
violative condition to it. Cf. Texas A.C.A., Inc., 17 BNA OSHC 1048, 1050-51, 1993-95
CCH OSHD ¶ 30,652, pp. 42,525-27 (No. 91-3467, 1995) (only reasonable monitoring
efforts are required).5

   4
     (...continued)

go to the work centers and ask to review the manager’s safety binders, make sure that they’re
complying with the plan, conducting their safety meetings, conducting their observations.”
However, SWBT was not cited for an employee training violation but rather for failure by
a competent person to inspect an excavation and failure to provide adequate protective
system in the excavation. Neither the above statement by Escobedo nor his general
testimony that “[he] also conduct[s] safety observations in the field with the technicians” is
evidence that SWBT monitored compliance by its supervisors with the excavation safety
standards at issue.
Accordingly, where SWBT has failed to come forward with any relevant rebuttal evidence,
i.e., evidence that its supervisors were adequately trained concerning the excavation safety
standards at issue or that reasonable steps were taken to discover violations by its supervisors
of those specific excavation safety standards or to enforce those standards, Commissioner
Weisberg believes that it is unnecessary in this case to address which party bears the burden
of persuasion or to determine the quantum of evidence needed for an employer to rebut
prima facie proof of knowledge.
5
In Chairman Rogers’ view, regardless of which party bears the burden of persuasion
of employer knowledge in the circumstances, the Secretary’s evidence clearly preponderates
that the knowledge of supervisor Beck should be imputed to SWBT. Its rebuttal evidence was
not even relevant to the specific safety requirements at issue. Further, she respectfully
disagrees with Commissioner Visscher’s suggestion in his dissent that it would be
appropriate to follow the same burden-shifting approach here that the Supreme Court applies
in employment discrimination cases under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., where the plaintiff’s prima facie case of discrimination rests on a
legal presumption. E.g., St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993);
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981). In those cases, the Court
addressed the allocation of burdens in the context of “the elusive factual question of
intentional discrimination.” Burdine, 450 U.S. at 254, 255 & nn.8, 10. The Court gave the
plaintiff the benefit of a “legally mandatory” presumption to establish the prima facie case.
Id.
As the Court clarified in those cases, however, it was resolving the burden of production and
proof in the context of Title VII -- there is no indication that it was changing the
(continued...)
 8

   Thus, we find that the Secretary has established the requisite employer knowledge of

the violative conditions, and we affirm the violation.
Item 2: Alleged lack of adequate protective system in excavation
The cited provision, section 1926.652(a)(1), requires an adequate protective system
designed in accordance with the standard, for excavations five feet or deeper that are not
made entirely in stable rock.6 SWBT does not dispute that the excavation here required such
a protective system, that none was installed, and that its employees were exposed to the
resulting conditions. Its sole defense is, once again, that the evidence is insufficient to prove
that it reasonably could have known that Beck would fail to provide an adequate protective
system. As discussed above, we reject that contention, because SWBT did not present

   5
     (...continued)

“preponderance of the evidence” test generally, or as that test applies to knowledge
questions. St. Mary’s, 509 U.S. at 504 (“[w]e granted certiorari to determine whether, in a
suit against an employer alleging intentional racial discrimination in violation of § 703(a)(1)
of Title VII . . . , the trier of fact’s rejection of the employer’s asserted reasons for its actions
mandates a finding for the plaintiff.”); Burdine, 450 U.S. at 250 (“[t]he narrow question
presented is whether, after the plaintiff has proved a prima facie case of discriminatory
treatment [under Title VII], the burden shifts to the defendant to persuade the court by a
preponderance of the evidence that legitimate, non-discriminatory reasons for the challenged
employment action existed.”) (emphasis added). While the court in New York State Elec. &
Gas Corp. v. Sec’y of Labor, 88 F.3d 98, 108 (2d Cir. 1996) (“NYSEG”) cited Burdine as
an example of a burden-allocation rule which could be used in the context of proving
knowledge, the court made it clear that “the Commission might select some other rule. . . .
[I]ts experience and expertise in the occupational safety field place it in the best position to
formulate a workable rule . . . .”
6
That section states in full:
(a) Protection of employees in excavations. (1) Each employee in an
excavation shall be protected from cave-ins by an adequate protective system
designed in accordance with paragraph (b) or (c) of this section except when:
(i) Excavations are made entirely in stable rock; or
(ii) Excavations are less than 5 feet (1.52m) in depth and examination
of the ground by a competent person provides no indication of a potential
cave-in.
 9

evidence that it took feasible measures to prevent the violation, including reasonable
monitoring steps regarding its site supervisors’ compliance with protective system
requirements.
Penalties
SWBT objects to Judge Loye’s penalty assessments. The judge assessed the
Secretary’s proposed penalties of $1350 for Item 1 and $2250 for Item 2. SWBT represents
that the excavation in question existed for only one work day. Santana gave the opinion that
it was not actually dangerous, because the ground was like “solid cement” due to lack of
recent rain. SWBT had a comprehensive written safety program and cooperated fully with
OSHA’s inspection. There was no evidence of prior violations, and CO Fuentes testified that
SWBT had had no serious, willful, or repeat violations in the previous three years. The
record also shows that SWBT’s management was committed to safety.
On the other hand, although a cave-in was unlikely, the probable result if one
occurred would be serious injury or death. SWBT is a large employer, and the violations here
were aggravated by the fact that the excavator had warned SWBT’s supervisor of the need
for trench protection. On balance, we think the judge’s penalty assessments were appropriate.
See 29 U.S.C. § 666(j) (Commission shall give due consideration to appropriateness of
penalty with respect to size of employer’s business, gravity of violation, and employer’s
good faith and history of previous violations).
---------
Thus, we affirm the judge’s findings of violations as to both items on review and his
penalty assessments of $1350 and $2250, respectively.

                                                     /s/
                                                     Thomasina V. Rogers
                                                     Chairman

10

                             /s/
                             Stuart E. Weisberg
                             Commissioner

Dated: September 27, 2000
VISSCHER, Commissioner, dissenting:
This case turns on the quantum of evidence an employer must produce in order to
rebut a prima facie showing of employer knowledge based upon the direct knowledge or
misconduct of a supervisor. For the reasons that follow, I disagree with the majority’s
conclusion that SWBT failed to rebut the Secretary’s prima facie showing and must therefore
dissent from their decision to affirm the two violations here.
It is well established that the Secretary bears the burden of proving the employer’s
knowledge of the violative condition or practice in the workplace. Kerns Brothers Tree
Service, 18 BNA OSHC 2064, 2067, 2000 CCH OSHD ¶ 32,053, p. 48,003 (No. 96-1719,
2000). Though the knowledge of a supervisor may be imputed to the employer, the courts
and the Commission have held that an employer must have an opportunity to rebut the
conclusion that it should be charged with a supervisor’s knowledge. See Pennsylvania Pwr.
& Light Co. v. OSHRC, 737 F.2d 350, 358 (3d Cir. 1984)(“[t]he participation of the
company’s own supervisory personnel may be evidence that an employer could have
foreseen and prevented a violation through the exercise of reasonable diligence, but it will
not, standing alone, end the inquiry into foreseeability”); Pride Oil Well Service, 15 BNA
OSHC 1809, 1815 1991-93 CCH OSHD ¶ 29,807, pp. 40,585 (No. 87-692, 1992) (as
rebuttal of Secretary’s prima facie showing of supervisor knowledge, employer may avoid
imputation of that knowledge by coming forward to show that it had work rules addressing
the cited hazard that were adequately communicated to supervisors and effectively
enforced).1

   1
     See also L.R. Willson and Sons v. Secretary of Labor, 134 F. 3d 1235, 1240 (4th

Cir.), cert. denied, 525 U.S. 962 (1998)(“despite a finding of knowledge of the violation on
the part of a supervisory employee, the [Secretary bears] the burden of proving that the
supervisory employee’s acts were not unforeseeable or unpreventable”) (citing Ocean
Electric Corp. v. Secretary of Labor, 594 F.2d 396, 401(4th Cir. 1979); Western
Waterproofing Co. v. Marshall, 576 F.2d 139, 144 (8th Cir.), cert. denied, 439 U.S. 965
(1978)(employer is “excused from responsibility for acts of its supervisory employees” upon
a showing “that the acts were contrary to a consistently enforced company policy, that
supervisors were adequately trained in safety matters, and that reasonable steps were taken
(continued...)
 2

   Thus is it clear that in a case where the Secretary shows that a supervisor knew of the

violative condition, the employer’s knowledge is established if the employer fails to submit
any rebuttal evidence showing that it had work rules to prevent the violative condition or
practice and that it communicated, monitored and enforced those rules. In Tampa Shipyards,
Inc., 15 BNA OSHC 1533, 1538, 1991-93 CCH OSHD ¶ 29,617, p. 40,101-02 (No. 86-360,
1992)(consolidated), for example, the Commission found that knowledge was established
where the employer failed to show that it had work rules dealing with the root causes of the
cited crane overlifts.
On the other hand, some Commission decisions have suggested that an employer bears
no less of an evidentiary burden on rebuttal than when attempting to prove the affirmative
defense of unpreventable employee misconduct. See, e.g., A.P. O'Horo Co., 14 BNA OSHC
2004, 2007-8, 1991-93 CCH OSHD ¶ 29,223, p. 39,129 (No. 85-369, 1991)(rebuttal of
prima facie showing of supervisor knowledge treated as synonymous with the affirmative
defense of unpreventable employee misconduct). But to require an employer to meet the
same evidentiary burden on rebuttal as that required to prove the affirmative defense is to
effectively nullify the right of rebuttal and shift the burden of proof to the employer. See New
York State Electric & Gas Corporation v. Secretary of Labor, 88 F.3d 98, 108 (2nd Cir.
1996) (“NYSEG”) (where Secretary seeks to establish knowledge based on the inadequacy
of an employer’s safety program, burden of proof as to the safety program remains on
Secretary and may not be shifted to employer).
While it is clear that an employer must provide some evidence in order to rebut the
conclusion that it should be charged with a supervisor’s knowledge, it is only logical that the
burden for rebuttal must be less than the burden of persuasion an employer must meet in
order to establish an affirmative defense. While the majority acknowledges the employer’s

   1
    (...continued)

to discover safety violations committed by its supervisors”); and Capital Electric Line
Builders of Kansas v. Marshall, 678 F.2d 128, 129-30 (10th Cir. 1982) (comparable rule for
non-supervisory employees).
 3

opportunity for rebuttal, they make no effort to quantify the employer’s burden. In NYSEG,
88 F.3d at 108, the Second Circuit Court of Appeals suggested that the Commission consider
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), a discrimination
case in which the Supreme Court described the defendant’s burden on rebuttal as the “burden
of production.” Id. at 254. The Court explained the “[e]stablishment of the prima facie case
in effect creates a presumption that the employer unlawfully discriminated against the
employee.” Id. The Court further explained in St. Mary's Honor Center v. Hicks, 509 U.S.
502 (1993) that the defendant has the “burden of producing an explanation to rebut the prima
facie case - i.e., the burden of ‘producing evidence’ that the adverse employment actions
were taken ‘for a legitimate nondiscriminatory reason.’” Id. at 506-07, quoting Burdine, 450
U.S. at 254. In order to rebut the prima facie case, the defendant “need not persuade the court
that it was actually motivated by the proffered reasons.” Burdine, 450 U.S. at 254. Since the
defendant’s burden is one of production, not persuasion, it “can involve no credibility
assessment.” St. Mary's, 509 U.S. at 509. Once the prima facie proof has been rebutted, the
plaintiff “must have the opportunity to demonstrate that the proffered reason was not the true
reason for the employment decision. This burden now merges with the [plaintiff’s] ultimate
burden of persuading the court that [the plaintiff] has been the victim of intentional
discrimination.” Burdine, 450 U.S. at 256. The burden of persuasion “remains at all times
with the plaintiff.” Id. at 253.
Turning to the facts in this case, SWBT will be charged with its supervisor Beck’s
knowledge of the violative conditions and actions that were alleged here unless it provided
safety program evidence sufficient to rebut knowledge based on imputation. Reviewing the
record, I think it is clear that SWBT did provide such evidence. Not only did it establish that
it had work rules to prevent these violations, but that it communicated those rules, monitored
for compliance and enforced violations with its employees.
The majority believes that the safety program evidence SWBT produced was not
sufficient to rebut the imputation of Beck’s knowledge. According to their decision, this is
 4

so even though Escobedo, SWBT’s regional safety manager, testified that he regularly
checked the records of managers, including Beck’s, to insure that they were complying with
the company’s safety program by conducting safety meetings and inspections. Escobedo also
testified that he personally visited field operations in order to monitor employee compliance
with company rules. Nonetheless, the majority has decided that SWBT’s evidence was
insufficient to rebut knowledge based imputation because “we have not found evidence . .
. that [SWBT] monitored its site supervisors’ actual worksite compliance with the specific
safety requirements at issue here.” (slip op. at 6) (emphasis in original) Their conclusion that
Escobedo’s monitoring of employees on work sites is not evidence that SWBT was
monitoring all employees, including supervisors, only makes sense if one can assume that
SWBT’s supervisors somehow had no interaction with their crew members at these work
sites. Furthermore, in finding that SWBT’s rebuttal failed because its witnesses did not
specifically mention monitoring of supervisors on these specific excavations, the majority
is placing the full burden of persuasion regarding the adequacy of its safety program on
SWBT. As the above cited cases make clear, this is wrong as a matter of law.
Once SWBT introduced evidence sufficient to rebut proof of knowledge based on the
imputation of Beck’s knowledge, it was for the Secretary to raise questions about the
credibility of the evidence, or to introduce additional evidence to disprove one or more of
the safety program elements. For example, the Secretary might have attempted to show that,
as the majority has conveniently concluded, SWBT only monitored the field work of its non-
 5

supervisory employees and not supervisors such as Beck. As it is, the Secretary offered no
evidence in response to SWBT’s rebuttal. As the ultimate burden of persuasion remains on
the Secretary, I would find that she failed to carry her burden to prove SWBT’s knowledge
of the violative condition.

                                            /s/
                                            Gary L. Visscher
                                            Commissioner

Date: September 27, 2000
 United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 North Speer Boulevard, Room 250
Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Complainant,

                           v.                               OSHRC DOCKET NO. 98-1748

SOUTHWESTERN BELL TELEPHONE
COMPANY, and its successors,
Respondent.

APPEARANCES:

      For the Complainant:
               Stephen E. Irving, Esq., U.S. Department of Labor, Office of the Solicitor, Dallas, Texas

      For the Respondent:
               James S. Golden, Esq., Southwestern Bell Telephone, San Antonio, Texas

Before: Administrative Law Judge: Benjamin R. Loye

                                         DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section

651 et seq.; hereafter called the “Act”).
Respondent, Southwestern Bell Telephone Company, and its successors (Southwestern) [see
amendment of caption at Tr. 4-5], at all times relevant to this action maintained a place of business at 5 Mile
Road, west of Mayberry Street, Alton, Texas where it was engaged in repairing telephone lines in an
excavation. Respondent admits it is an employer engaged in a business affecting commerce and is subject
to the requirements of the Act.
On August 7, 1998 the Occupational Safety and Health Administration (OSHA) conducted an
inspection of Southwestern’s Alton, Texas work site. As a result of that inspection, Southwestern was
issued citations alleging violations of the Act together with proposed penalties. By filing a timely notice
of contest Southwestern brought this proceeding before the Occupational Safety and Health Review
Commission (Commission).
 On May 4, 1999, a hearing was held in San Antonio, Texas. The parties have submitted briefs on
the issues and this matter is ready for disposition.

                                          Alleged Violations
    Serious citation 1, item 1 alleges:

29 CFR 1926.651(k)(1): An inspection of the excavations, the adjacent areas, and protective systems was
not conducted by the competent person prior to the start of work and as needed throughout the shift.
At the excavation site at 5 Mile Line Road, Alton, TX, a competent person did not inspect an
excavation prior to entry by employees. The excavation ranged from 6.4 feet to 5.7 feet and
employees were exposed to hazards associated with cave-ins.

Facts
Antonio Fuentes, Jr., the OSHA Compliance Officer (CO) testified that on August 7, 1998, he
observed and photographed two employees of Southwestern, Arturo Santana and Juan Garza, working in
an unshored excavation (Tr. 16-17, 22, 26, 74; Exh. C-10). Fuentes measured the excavation in three
different places; the depth of the trench varied between 5.7 and 6.4 feet (Tr. 28). The width of the trench
was generally 6 feet (Tr. 29). The banks were nearly vertical (Tr. 24, 28). The parties stipulate that the
soil was classified as Type B (Tr. 27).
Arturo Santana, an employee of Southwestern, testified that the pit in which they were working had
been excavated by a contractor, Manuel Serrano (Tr. 69). Santana testified that Serrano dug the excavation
deeper than planned, and that Serrano’s son, Hector, told him that the excavation needed shoring; Santana
testified that he passed that information on to his supervisor, Joyce Beck (Tr. 70). Santana testified that
Ms. Beck told him she didn’t feel the excavation was dangerous, and to go ahead with his work (Tr. 22,
70). Santana admitted that he had received training regarding excavations and trenching (Tr. 71, 98), but
testified that he believed that Beck, as his supervisor, had the authority to override his concerns about the
excavation (Tr. 70).
Fuentes testified that both Santana and Garza stated that Ms. Beck had not seen the finished
excavation (Tr. 21, 75). On Fuentes’ request, Joyce Beck, who was not on site upon his arrival, was called
to the work site (Tr. 18). Fuentes testified that Beck admitted knowing about the depth of the trench (Tr.
29).
Ronnie Jimenez, Ms. Beck’s direct supervisor (Tr. 103), testified that the employees in the
excavation had a shared responsibility under company policy to refuse to work in an unsafe excavation (Tr.
111; See also, testimony of Floyd Dietzman, Tr. 126). Nonetheless following Southwestern’s receipt of

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the citation in the above captioned matter, Ms. Beck was suspended without pay for a week (Tr. 105-06).
Neither Santana nor Garza were disciplined (Tr. 110).

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Discussion
The cited standard provides:
An inspection shall be conducted by the competent person prior to the start of work and as needed
throughout the shift. . ..

    A “competent person” is defined at §1926.650 as:
    ...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.

    Southwestern admits that Joyce Beck was the competent person on site. Although Southwestern

argues that the employees working under Beck’s supervision were also competent persons, and had a
shared responsibility for safety and under company policy were authorized to refuse to work in the unshored
excavation, it is clear that Beck had de facto authority over the work site, which neither Santana nor Garza
thought to challenge. Only Beck, therefore, had actual authority to take the corrective measures necessary
to eliminate the hazard.
The uncontroverted evidence establishes that Beck did not see and, therefore, could not have
inspected the finished trench prior to the start of work. The violation is established.
Penalty
A penalty of $1,350.00 was proposed.
CO Fuentes believed that the competent person’s failure to inspect and take corrective measures
could result in the collapse of the trench. Fuentes testified that a trench collapse could result in
asphyxiation, suffocation or the crushing of internal organs, any of which could lead to death (Tr. 35).
Fuentes found that the severity of any possible injury was, therefore, high, but that the possibility of a trench
collapse in this case was low (Tr. 39). Because Southwestern is a large company, no adjustment for size
was made in the proposed penalty (Tr. 39). A 10% adjustment for history was made, because Southwestern
had no serious violations within the past three years (Tr. 40). No credit was given for good faith (Tr. 39).
I find that the Secretary’s proposed penalty is appropriate and will be assessed.
Serious citation 1, item 2 alleges:

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

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At the excavation site at 5 Mile Line Road, Alton, TX, employees entered and worked in an
excavation ranging from 6.4 feet to 5.7 feet deep without an adequate protective system.
Employees were exposed to hazards associated with cave-ins.

The Violation
Southwestern does not dispute the existence of the violation, but argues that said violation was the
result of the unpreventable employee misconduct of Joyce Beck.
Facts
Johnnie Escobedo, Southwestern’s manager of safety, testified that he maintains the training records
for the company’s work crews in south Texas (Tr. 83). Escobedo testified that in June 1998 he conducted
training with Joyce Beck’s manager, and all of the managers that are in her group (Tr. 83). Escobedo
testified that he reiterated the importance of excavation trenching safety and training with that group (Tr.
83). Escobedo testified that Southwestern provides a “Safety Training Guide for Employees,” which
contains an examination the applicant must pass before being certified as a competent person in trenching
and excavation (Tr. 87; Exh. R-3). Southwestern also uses a training video called “When You Go In” for
training its people regarding excavation (Tr. 88; Exh. R-4). Escobedo testified that these documents, as
well as Southwestern’s more general safety programs (Exh. R-1 through R-6) were available to
Southwestern’s managers (Tr. 91), and that Joyce Beck had copies of Exh. R-3 and R-4 in a binder in her
office (Tr. 95).
Escobedo testified that employees who fail to follow Southwestern’s safety policies and regulations
may be disciplined, up to and including dismissal (Tr. 94). Joyce Beck was disciplined for her violation of
Southwestern’s policies (Tr. 105-06, 123)
Discussion
In order to establish an unpreventable employee misconduct defense, the employer must show that
it had: established work rules designed to prevent the violation; adequately communicated those work rules
to its employees (including supervisors); taken reasonable steps to discover violations of those work rules;
and effectively enforced those work rules when they were violated. New York State Electric & Gas
Corporation, 17 BNA OSHC 1129, 1995 CCH OSHD ¶30,745 (No. 91-2897, 1995). The Fifth Circuit
holds that the burden of proving affirmative defense is with the employer. See, L.R. Willson and Sons Inc.
v. Occupational Safety and Health Review Commission, 134 F.3d 1235 (4th Cir. 1998).
Here Southwestern introduced ample evidence of a comprehensive written safety program, including
training materials addressing the cited hazard, which, if heeded, would have prevented the violation.
Southwestern completely failed to show how the training materials were communicated to supervisory

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personnel in general, or to Joyce Beck in particular. Southwestern’s manager of safety, Escobedo, indicated
that Beck’s group of managers was cautioned about the importance of trenching and excavation training,
but did not indicate that he himself provided that training. Beck had copies of the training materials, but
Southwestern provided no evidence that Beck had been made familiar with those materials. There was no
evidence indicating what, if any, efforts Southwestern made to discover violations of its work rules. There
was no evidence that any employee, other than Joyce Beck, had ever been disciplined for safety violations.
Southwestern failed to carry its burden of proof, and its affirmative defense must be rejected.
Penalty
A penalty of $2,250.00 was proposed for this violation. The criteria taken into account by the
Secretary are identical to those in the discussion of item 1 above. Because of the direct nexus between the
failure to shore and the probability of a trench collapse, I find that the higher penalty for this item is
appropriate, and will be assessed.
Serious citation 1, item 3 alleges:

29 CFR 1926.1053(b)(1): Portable ladders were used for access to an upper landing surface and the ladder
side rails did not extend at least 3 feet (.9 m) above the upper landing surface to which the ladder was used
to gain access:

    At the excavation site at 5 Mile Line Road, Alton, TX, employees used a portable extension ladder
    that did not extend 3 feet above the upper landing surface. Employees were exposed to slips and
    falls into an excavation 6.0 feet deep.

Facts
Fuentes testified that the employees in the trench exited by climbing out on a ladder (Tr. 46). He
stated that the side rails of the ladder in the trench extended 1.3 to 1.4 feet, rather than the required 36
inches above ground level (Tr. 31). Fuentes further testified that an employee who tripped dismounting the
ladder could sprain an ankle, damage a knee, or even break a leg (Tr. 33). Fuentes admitted that the two
employees had no difficulty exiting the trench on this occasion (Tr. 46).
Discussion
Southwestern does not contest the facts presented by the CO, but argues that the failure to extend
the ladder further was not “serious,” in that the potentially hazardous condition did not give rise to a sub-
stantial probability of death or serious physical harm as required under §17k of the Act.
This judge does not agree that a broken bone is not “serious physical harm” as contemplated by the
Act. The gravity of this violation is, however, overstated, in that the severity of any possible injury, and

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the low probability of injury were weighted the same as in item 1, a violation which the CO testified could
lead to death.
Taking into account the low gravity of this violation, as well as the statutory factors discussed in
item 1, I find that the proposed penalty is excessive. A penalty of $600.00 will be assessed.
ORDER

1. Citation 1, item 1, alleging violation of §1926.651(k)(1) is AFFIRMED and a penalty of $1,350.00
   is ASSESSED.

2. Citation 1, item 2, alleging violation of §1926.652(a)(1) is AFFIRMED and a penalty of $2,250.00
   is ASSESSED.

3. Citation 1, item 3, alleging violation of §1926.1053(b)(1) is AFFIRMED and a penalty of $600.00
   is ASSESSED.

                                                         /s/
   
                                                 Benjamin R. Loye
                                                 Judge, OSHRC
   

Dated: August 30, 1999

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