Lineman Injured While Working In Trench

Court summary of a 6'6" trench cave-in.  This is just a detailed report that company owners and supervisors can read over to get a better understanding of the OSHA processes and the depth of their investigation. 






http://www.oshrc.gov/decisions/alj_pending/08-1389.htm
DECISION AND ORDER

Pike Electric, Inc., is an electrical contractor. On May 6, 2008, Pike was installing underground power lines for Alabama Power in Mobile, Alabama. The excavation dug by Pike caved in, seriously injuring Pike employee {Redacted}, who was working in the excavation.

Occupational Safety and Health Administration (OSHA) compliance officer Eliseo Hernandez inspected the site on May 6 and 7, 2008. As a result of Hernandez’s inspection, the Secretary issued two citations to Pike on August 20, 2008.

Citation No. 1, Item 1, alleges a serious violation of 29 C. F. R. § 1926.651(j)(2), for failing to protect employees from excavated materials and equipment that could fall into the excavation. The Secretary proposed a penalty of $ 7,000.00 for this item.

Citation No. 2, Item 1, alleges a willful violation of 29 C. F. R. § 1926.652(a)(1) for failing to provide adequate protective systems to protect employees in excavations from cave-ins. The Secretary proposed a penalty of $ 56,000.00 for this item. On July 12, 2009, the court granted the Secretary’s motion to allege this item, in the alternative, as a serious violation of 29 C. F. R. § 1926.652(a)(1).

Pike timely contested the citations. In its answer, Pike admitted jurisdiction and coverage, denied it violated the cited standards, and asserted the affirmative defense of employee misconduct. The court held a three-day hearing in this matter on July 15 and 16, 2009, in Mobile, Alabama, and on September 1, 2009, in Bay Minette, Alabama. The parties have filed post-hearing briefs.

For the reasons discussed in this decision, the court rejects Pike’s affirmative defense of employee misconduct, and affirms Item 1 of Citation No.1, for which it assesses a penalty of $7,000.00. The court affirms Item 1 of Citation No. 2 as a serious violation, and assesses a penalty of $7,000.00.

Background

Pike is an electrical contractor who provides engineering, construction, and maintenance for power lines and substations. In May 2008, Pike was working for Alabama Power, on the second phase of a two-phase project, installing underground power lines for dormitories at the University of South Alabama in Mobile, Alabama.

John Adams was Pike’s assistant general foreman for the project. At that time, Adams was in charge of 15 or 16 crews (an approximate total of 50 workers) working on various projects. Sammy Wynn was Pike’s foreman for the Alabama Power project.

On May 5, 2008, Adams, Wynn, and Pike employee Matt Hagler met with representatives from Alabama Power at 6420 Old Shell Road in Mobile, Alabama, to discuss the work to be done on the site. Pike’s assignment was to connect a meter box on a building to a new transformer that would be located north of the building. To do this, Pike would dig two trenches and lay conduit underground inside a PVC pipe in the trenches. Alabama Power required the conduit to be buried at least 42 inches deep. The south trench was located between the building and a concrete retaining wall. The second, longer trench was north of the retaining wall and extended to the future location of the transformer. A storm drain was located approximately 10 feet north of the retaining wall. Adams instructed Wynn to lay the conduit over the top of the storm drain. Adams and an Alabama Power employee used an auger to loosen the soil where the trench was to be dug. Adams left the site after two and one half to three hours. Wynn finished digging the south trench using a Kubota KX121-3 excavator.

Pike’s plan was to excavate the trench to a depth of 42 to 48 inches. This was the standard depth to which Pike routinely excavated its trenches. During the first phase of the project, at another location, it had become necessary to excavate deeper due to a 36-inch storm drain the crew encountered. Pike excavated below the storm drain, creating a trench deeper than 5 feet. No one entered that trench. Before he left on May 5, Adams instructed Wynn to call him if he found he needed to excavate deeper than 48 inches.

After Adams left, a man identified as a landscaper informed Wynn that he was going to remove some of the soil that covered the storm drain in the area being excavated. Wynn decided to excavate under the storm drain and place the conduit there because the conduit would not have enough cover if it were located over the drain pipe once the landscaper removed the soil. Wynn excavated the south trench to a depth of 6 feet. After Wynn excavated the south trench, he and Hagler pushed some conduit up underneath the retaining wall and installed the elbows. Wynn dug out enough of the north trench to get to the pipe that he and Hagler had pushed through from the south side of the retaining wall.

The next day, May 6, Wynn and Hagler were joined by {Redacted}, a Pike cable splicer. The three men arrived at the site at approximately 8:30 a. m. and held a tailgate meeting to discuss the day’s tasks. Adams was not present.

Wynn excavated the north trench with the Kubota excavator. Hagler and {Redacted} then stood at the south end of the north trench and pushed the conduit underneath the storm drain. They worked there for 20 to 30 minutes. Hagler and {Redacted} were able to install one piece of conduit, but could not push the second piece beyond a clod of dirt. {Redacted} entered the excavation and attempted to dig under the storm drain from the south side. There was water present in the trench and the ground around the storm drain was muddy. Wynn entered the excavation and attempted to knock out the dirt from the north side. When this did not work, Wynn got back on the Kubota excavator and drove it to the northernmost area of the north trench, so that the tracks of the Kubota straddled the trench. As he attempted to dig out the dirt under the storm drain, the west wall of the north trench collapsed, burying {Redacted}.

Wynn jumped off the Kubota and ran over to where {Redacted} was buried. Matt Hagler and two unidentified men had uncovered his head by the time Wynn got there, and were attempting to dig him out. Wynn ran to his truck and called 911, and then called Adams. The Mobile Fire Department arrived and took control of the rescue operation. They carefully removed the dirt from around {Redacted}, lifted him out of the excavation, and flew him to a hospital by helicopter. The cave-in caused {Redacted} to sustain ten broken ribs and a collapsed lung. At the time of the hearing, over a year after the accident, {Redacted} was still experiencing physical and emotional problems caused by the cave-in.

Later that day, compliance officer Eliseo Hernandez arrived at the site. No one was present when he arrived. He took photographs of the area and then located a representative from the general contractor, with whom he held an opening conference. He was later joined by compliance officer Robert Bennett and OSHA assistant area director Jeff Funke. Wynn and Adams returned to the site around 4:00. Pike area supervisor Cretice Whatley and then-general foreman Jimmy Tanner also arrived at the site.

At approximately 5:00, Hernandez held an opening conference with Wynn, Adams, Whatley, and Tanner. The opening conference lasted from one to two hours. The OSHA representatives questioned Wynn. Hernandez wrote down his answers on a witness statement form. Pike’s other representatives observed this questioning but were not allowed to talk. Footnote Wynn signed the statement Hernandez took down. With the Pike supervisors present, Wynn stated he had stood on top of the storm drain to try and remove the dirt, but he did not mention entering the north trench because he did not want to lose his job.

After the opening conference, the OSHA officials and the Pike employees went outside and Hernandez and Bennett took measurements of the excavation. The next day, Hernandez went to the hospital and questioned {Redacted}. {Redacted} signed his witness statement.

Ten months after the accident (on March 3, 2009), Pike issued a written warning to Sammy Wynn for violating its trenching rules on May 6, 2008. Pike did not suspend Wynn or dock his pay. On March 19, 2009, the Secretary deposed Wynn. During the deposition, Wynn denied entering the north trench on its northernmost end. Wynn later found he “couldn’t live with” lying during the deposition, and he voluntarily confessed the truth to a Pike safety official (Tr. 139). Pike promptly fired him. Discussion

The Secretary has the burden of proving the violation by a preponderance of the evidence.

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., 19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).



Alleged Serious Violation of 29 C. F. R. § 1926.651(j)(2)



In Citation No.1, Item 1, the Secretary alleges:



Employees were not protected from excavated or other materials or equipment that could pose a hazard by falling or rolling into excavations:



(a) In the northern trench: On or about May 6, 2008, Footnote and at times prior thereto, employees were exposed to struck-by and cave-in hazards while installing a 3 inch diameter PVC pipe, in an unprotected trench that was approximately 6 feet in depth with the spoils pile located on the edge of the trench.



(b) In the northern trench: On or about May 6, 2008, and at times prior thereto, employees were exposed to struck-by or cave-in hazards while installing a 3 inch diameter PVC pipe, in an unprotected trench that was approximately 6 feet, 4 inches, in depth with the Kubota excavator straddling and operating over the trench.



(c) In the southern trench: On or about May 6, 2008, and at times prior thereto, employees were exposed to struck-by or cave-in hazards while connecting meter boxes to a conduit that ran beneath the retaining wall, in an unprotected trench that was approximately 6 feet [in] depth with spoils pile located on the edge of the trench.

The standard at 29 C. F. R. § 1926.651(j)(2) provides:

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 use of retaining devices that are sufficient to prevent materials or equipment from falling or rolling into excavations, or by a combination of both if necessary.



(1) Applicability of Cited Standard

The standard at 29 C. F. R. § 1926.651(j)(2) is found in “Safety and Health Regulations for Construction.” Pike was engaged in digging trenches, laying conduit, and hooking the conduit to transformers, which is construction work. Pike admitted in its response to the Secretary’s request for admissions that it was engaged in construction work at the worksite (Exh. C-1). The Secretary has established the cited standard applies to the conditions at Pike’s worksite.

(2) Noncompliance with the Terms of the Standard

Instance (a): Instance (a) alleges Pike’s “employees were exposed to struck-by and cave-in hazards while installing a 3 inch diameter PVC pipe, in an unprotected trench that was approximately 6 feet in depth with the spoils pile located on the edge of the trench.” Pike argues the Secretary failed to prove this violation because she adduced no reliable testimony, no photographs, and no measurements showing the spoil piles were located on the edge of the trench. Pike claims the actions of the men involved in the rescue operation significantly altered the configuration of the trench and spoil piles, and no conclusion can be drawn from the post-rescue photos.

Pike focuses on Hernandez’s testimony, calling it conclusory and speculative, but the Secretary relies primarily on the Chief of the Mobile Fire Department to establish her case. Fire Chief Robert Thornton arrived at the site approximately six and a half minutes after receiving notice of the collapse. As Thornton proceeded to direct the rescue operation, Fire Department public information officer Steve Huffman took photographs. Exhibit C-24 is a copy of one of the photographs. It shows the spoil pile at the edge of the excavation. Thornton described the spoil piles he observed when he arrived:

They were on top of the–right directly– in other words, where the vertical walls came up, they were down the length of the trench right on either side at the–there was no space between the pile and the edge whatsoever.

(Tr. 527):



In order to perform the rescue, the Fire Department had to remove the top of the spoil pile and flatten it for a length of 12 feet. The Fire Department then placed a piece of ground padding (a wood panel) on the flattened spoil pile to provide a stable working platform. The spoil pile is also visible in Exhibit C-27. No retaining device was used to prevent dirt from the spoil pile from falling into the excavation.

Pike argues that the dirt visible in the photographs at the edge of the excavation was not part of the original spoil piles, but resulted from the rescue efforts. This argument is rejected. Thornton testified he directed his unit to remove the dirt carefully around {Redacted} and place it in a 5-gallon bucket. When the bucket was filled, Fire Chief Thornton sent it at least 100 feet from away from the excavation for disposal, and another bucket was brought in. Thornton described the technique used for removing the dirt from around {Redacted}:

We were using entrenching tools. The military screw-type shovels and garden trowels. We do the bucket removal with the small entrenching tools and then when we get close to the victim, especially the extremities, we go down to the garden trowels. And the last thing we actually use are our hands and fingers. That’s the safest way for the victim.

(Tr. 541).



Nor was the dirt at the immediate edge of the excavation placed there by the men who attempted to dig out {Redacted} before the Fire Department arrived. Thornton testified he and his crew had to flatten the dirt at the immediate edge of the excavation for a distance of 12 feet. The dirt was at a uniform height the entire distance. Had the dirt come from the earliest rescue attempts, it would have been piled higher at the area of the cave-in where {Redacted} was located.

The Secretary has established Pike failed to comply with the terms of the cited standard for instance (a) of Item 1.

Instance (b): Instance (b) alleges Pike’s “employees were exposed to struck-by or cave-in hazards while installing a 3 inch diameter PVC pipe, in an unprotected trench that was approximately 6 feet, 4 inches, in depth with the Kubota excavator straddling and operating over the trench.”

Wynn testified he moved the Kubota so that it was straddling the trench when he was attempting to dig out under the drain pipe. Exhibit C-21 is a copy of a photograph showing the Kubota with its tracks on either side of the trench. A portion of the track closest to the viewer (on the west wall) actually extends over the trench, with no dirt underneath it. The trench collapse occurred only a few feet away from the Kubota. The Kubota itself was at risk for falling into the trench.

The Secretary has established Pike failed to comply with the terms of the cited standard for instance (b) of Item 1.

Instance (c): Instance (c) alleges Pike’s “employees were exposed to struck-by or cave-in hazards while connecting meter boxes to a conduit that ran beneath the retaining wall, in an unprotected trench that was approximately 6 feet [in] depth with spoils pile located on the edge of the trench.”

Exhibits C-10 and C-12 show spoil piles at the edge of both walls of the south trench. The larger pile is on the east wall of the trench, spreading out to the top of the retaining wall. There appears to be no separation between the walls of the trench and the spoil piles on top. Pike did not use a retaining device to prevent dirt from the spoil piles from falling into the trench.

The Secretary has established Pike failed to comply with the requirements of 29 C. F. R. § 1926.651(j)(2) for instance (c).

(3) Employee Exposure

Instance (a): Wynn entered the north trench, exposing himself to the spoil piles in front of the Kubota tracks. {Redacted} was exposed to the same spoil piles when he came up to the storm drain from the south side to dig under the drain. The spoil piles extended the length of the trench, exposing {Redacted} and Hagler to them when they worked in the southern end of the north trench.

Instance (b): Wynn’s placement of the Kubota so that it straddled the trench exposed himself to the hazard of falling into the trench and being injured or killed by the cave-in. {Redacted} and Hagler, who were working 8 to 10 feet from the Kubota, were exposed to a cave-in hazard caused by the vibrations created by the Kubota.

Instance (c): Hagler and {Redacted} were exposed to the spoil piles at the edges of the south trench walls. Wynn ordered them to enter the south trench while he was digging the north trench. Footnote {Redacted} testified that Wynn directed the employees to enter the south trench to “hook an elbow to the pipe to go up into the meter base” (Tr. 19). Hagler stood in the south trench while {Redacted} handed him equipment from a ladder located in the trench.

The Secretary has established the exposure of Wynn, {Redacted}, and Hagler to struck-by and cave-in hazards resulting from the location of the spoil piles and the Kubota.

(4) Employer Knowledge

Wynn excavated the north and south trench, and he moved the Kubota so that it straddled the trench. He had actual knowledge the excavation was not in compliance with 29 C. F. R. § 1926.651(j)(2). He was Pike’s foreman, a supervisory employee.

Pike contends it was not foreseeable that Wynn would excavate an unsafe trench. Pike argues Wynn’s knowledge cannot be imputed to it, and cites W.G. Yates & Sons v. OSHRC, 459 F.3d 604, 609, footnote 8 (5th Cir. 2006), which states, “[A] supervisor’s knowledge of his own rogue conduct cannot be imputed to the employer,” but must be established by the Secretary by proving either actual knowledge by the employer or constructive knowledge “based on the fact that the employer could, under the circumstances of the case, foresee the unsafe conduct of the supervisor.”

The Commission has held, “Where it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has generally applied the precedent of that circuit in deciding the case–even though it may differ from the Commission’s precedent.” Kerns Brothers Tree Service, 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). The worksite at issue in this case is located in Alabama, which is in the Eleventh Circuit. W.G. Yates & Sons was issued by the Fifth Circuit. It has no precedential value with regard to the instant case. The Eleventh Circuit does not follow the Yates holding. It follows Commission precedent.

Under Commission precedent, Wynn’s knowledge is imputed to Pike. Dover Elevator Co., Inc., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993) ("[W]here a supervisory employee has actual or constructive knowledge of the violative conditions, that knowledge is imputed to the employer, and the Secretary satisfies [her] burden of proof without having to demonstrate any inadequacy or defect in the employer's safety program"). Furthermore, even if the Eleventh Circuit did follow Yates, the instant case does not present a Yates situation. Yates applies when a supervisor has knowledge of his own misconduct, and he is the only violating employee (“[A] supervisor’s knowledge of his own rogue conduct cannot be imputed to the employer,” Id., footnote 8). Here, Wynn ordered {Redacted} and Hagler to enter the unsafe trenches. His knowledge if their violative conduct is imputed to Pike.

The Secretary has established Pike’s violation of 29 C. F. R. § 1926.651(j)(2).



Item 1: Alleged Willful Violation of 29 C. F. R. § 1926.652(a)(1)



In Citation No. 2, Item 1, the Secretary alleges:



Each employee in an excavation was not protected from cave-ins by an adequate protective system designed in accordance with 29 C. F. R. 1926.652(c):



(a) In the northern trench: On or about May 6, 2008, and at times prior thereto, employees were exposed to struck-by and engulfment hazards while engaged in the installation of 3 inch PVC pipe, in a trench that was approximately 6 feet, 4 inches, in depth with near vertical walls. An employee was partially buried and sustained injuries requiring hospitalization due to the collapse of the West Footnote wall of the trench.



(b) In the southern trench: On or about May 6, 2008, and at times prior thereto, employees were exposed to struck-by and engulfment hazards while connecting electrical conduit to electrical meter boxes in a trench that was 6 feet in depth.



The standard at 29 C. F. R. § 1926.652(a)(1) provides:



Each employee in an excavation shall be protected from cave-ins by an adequate protective system designed in accordance with paragraphs (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.



(1) Applicability of Cited Standard

As with the previous cited standard, the standard at 29 C. F. R. § 1926.651(j)(2) is found in “Safety and Health Regulations for Construction.” Pike was engaged in digging trenches, laying conduit, and hooking the conduit up to transformers, which is construction work. Pike admitted in its response to the Secretary’s request for admissions that it was engaged in construction work at the worksite (Exh. C-1). The Secretary has established the cited standard applies to the conditions at Pike’s worksite.

(2) Noncompliance with the Terms of the Standard

It is undisputed the excavations were not made in stable rock. The Secretary contends the excavations were dug in previously disturbed soil (and thus was in Type C soil), citing the presence of the storm drain as evidence. Pike argues the soil was not previously disturbed. As a matter of company policy, however, Pike treats all soil as Type C for sloping purposes. Hernandez sent a soil sample to OSHA’s laboratory in Salt Lake City, which analyzed the sample as Type B. Due to the presence of the storm drain, the court determines the soil was previously disturbed, and is properly classified as Type C. Regardless of the soil type, it is undisputed the trenches’ near vertical walls were inadequately sloped. No trench box or other protective system was used in either trench. The only dispute is whether the Secretary established the trenches were greater than 5 feet in depth.

Instance (a): Instance (a) alleges the north trench “was approximately 6 feet, 4 inches, in depth with near vertical walls.” After the opening conference, the OSHA representatives and the Pike officials went to the excavation. Hernandez and Bennett made several measurements. At the hearing and in their briefs, the parties argued at length whether or not the measurements were accurate (None of Pike’s employees measured the depth of the trenches at any point before the collapse).

The Secretary summarizes her position as follows (Secretary’s brief, p. 14-15, citations to transcript and exhibits omitted):

First, OSHA measured the depth in that area [where {Redacted} was buried] at 6 feet to 6 feet, 3 inches deep. In making this measurement, OSHA’s representatives took extra care to be sure the measurement was both conservative and reliable. They measured from the location where {Redacted} was buried, recognizable by the large hole in the trench floor and the blood stain on the uncollapsed wall. From Sammy Wynn’s witness statement, they knew that they could determine the location of the trench floor underneath the collapsed wall by measuring from the PVC conduit {Redacted} and Hagler were working with. {Redacted} corroborates that the conduit was located on the trench floor at the time of the collapse. CSHO Robert Bennett found the PVC conduit in the area near {Redacted} partial burial by digging with a piece of rebar until he found the conduit and then moving aside dirt until he could see the conduit. He then placed the trench rod on top of the conduit and measured from there. To make sure that he was not including any spoil piles in the trench wall depth, CSHO Bennett cleared away any loose dirt until he could see there wasn’t any packed down dirt, only solid ground. Making sure his hand was touching the dirt so that there wouldn’t be any extra height, CSHO Bennett held a stick across from the trench wall to the measuring rod, finding a height of 6 feet. Finally, the OSHA representatives obtained Pike’s concession about the measurement. The same Pike officials who were proclaiming before the measurement that the trench was less than 5 feet now refused to confirm anything, saying it was OSHA’s job to determine the depth, not theirs.



Pike argues that it is impossible to accurately determine the depth of the excavation prior to the collapse when the measurements are taken more than 6 hours after the collapse. Pike contends the conditions post-collapse were drastically different from the conditions pre-collapse. Numerous people had been in and around the area where {Redacted} had been buried, and rescue personnel had altered the configuration of the trench while digging out {Redacted}. Pike also attacks Hernandez and Bennett’s measurements as inexact and flawed.

The court accepts the Secretary’s measurement of 6 feet to 6 feet, 3 inches, as accurate. Hernandez and Bennett gave detailed descriptions explaining how they chose the location to measure, and how they obtained the measurements. They documented their findings in photographs. Pike officials were present when Hernandez and Bennett made the measurements. Pike quibbles with some of OSHA’s methods (for example, claiming that in Exhibit C-3 there appears to be some space between Bennett’s hand and the top of the trench as he holds a stick that lines up with the 6-foot mark on the measuring rod), which may account for an inch or two by which OSHA’s measurement is inaccurate. The company cannot, however, argue away the entire 12 inches by which the excavation exceeded the allowable maximum depth without a protective system.

The court also finds this evidence is unnecessary to establish the north trench was deeper than 5 feet. The depth of the trench was attested to by both Wynn and {Redacted}, the only witnesses who were present at the time of the collapse, and was admitted by Pike in its response to the Secretary’s requests for admissions.

Wynn’s Testimony

When Wynn was asked how deep the north trench was in the area of the storm drain, Wynn responded, “Between 6 and 7 feet” (Tr. 143).

{Redacted} Testimony

In his witness statement taken while he was in the hospital immediately following the collapse, {Redacted} stated, “I estimate that the trench was 3½ feet wide and about 5 feet deep when I was working in it” (Exh. R-1). At the hearing, when {Redacted} was asked about his witness statement, he said, “The 5 feet deep part was incorrect” (Tr. 34). {Redacted} did not waver under cross-examination by Pike’s counsel, even when tacitly threatened with criminal prosecution (Tr. 34-35):

Q. And when you signed this witness statement, it says you were–you had the opportunity to correct this statement, these facts are true and correct to the best of my knowledge and belief. Paragraph 17 (g) makes it a criminal offense to knowingly make a false statement or misrepresentation in this statement. You read that, didn’t you, before you signed the statement?



{Redacted}: Yes, sir.



Q. Now, you could have told Mr. Hernandez, well, I just don’t feel well enough to give a statement, couldn’t you?



{Redacted}: I guess I could have.



Q. But you didn’t, did you?



{Redacted}: No, I didn’t.



Q. And you gave a statement, isn’t that right?



{Redacted}: That’s correct.



Q. And you signed the statement saying it was true and understanding that if you made a misrepresentation in the statement, it was a potential criminal offense?



{Redacted}: I said about 5 feet deep.



Q. That’s what you said because that’s what the trench was, isn’t that right?



{Redacted}: No, sir. It was over 5 feet.



{Redacted} stated he could tell when a trench was over 5 feet deep because, at 5 feet, 7 inches, tall, he could not see over the wall of the trench.

Pike’s Admission

In the Secretary’s requests for admissions, she refers to the north trench as “Trench # 1.” Request No. 15 states: “Trench # 1 was approximately 7 feet in depth at the location of the Kubota excavator.” To this request, Pike responded, “Admitted” (Exh. C-1).

The North Trench Exceeded 5 Feet in Depth

The north trench was approximately 27 feet long. The Kubota was located at the northernmost part of the north trench. {Redacted} was engulfed 8 to 10 feet from the Kubota . Even if the immediate area in which {Redacted} was located was less than 5 feet in depth, the trench was still in noncompliance with 29 C. F. R. § 1926.652(a)(1) because a portion of the same excavation exceeded 5 feet in depth. “The safety standard is implicated by the depth of a particular trench, without regard to an individual worker’s precise location in it.” P. Gioioso & Sons, Inc. v. OSHRC, 115 F. 3d 100, 109 (1st Cir. 1997).

Instance (b): Instance (b) alleges that in the south trench“employees were exposed to struck-by and engulfment hazards while connecting electrical conduit to electrical meter boxes in a trench that was 6 feet in depth.”

The Secretary refers to the south trench as “Trench # 2" in her requests for admissions. Request No. 16 states: “Trench # 2 was approximately 6 feet in depth,” to which Pike responded, “Admitted” (Exh. C-1).

The Secretary has established the north trench cited in Instance (a) and the south trench in Instance (b) both exceeded 5 feet in depth, and Pike did not use an adequate protective system against cave-ins in either trench. Pike did not comply with the terms of 29 C. F. § 1926.652(a)(1).

(3) Employee Exposure

Instance (a): Pike admits Wynn entered the north trench in two different areas: at the area where {Redacted} was buried, and near the storm drain (Exh. C-2, Answer No. 4). Wynn stated he entered the north trench at a third location, using a ladder at the northern portion to access the storm drain. In Exhibit C-21, the ladder is visible directly below the Kubota, where Pike admits the trench is 7 feet deep.

Wynn instructed {Redacted} and Hagler to enter the southern portion of the north trench to push the conduit underneath the storm drain. {Redacted} was buried in the collapse, while Hagler, who was standing next to him, managed to escape. All three employees were exposed to cave-in hazards in the north trench.

Instance (b): Pike argues the Secretary failed to establish than any employees entered the south trench on May 6. As noted in Instance (c) of Citation No. 1, Item 1, {Redacted} testified Wynn ordered {Redacted} and Hagler to enter the south trench to hook an elbow to the pipe. Pike repeatedly states in its brief that Wynn testified no employees were in the south trench, always citing pages 187-188 of the transcript. Wynn’s actual testimony, in part, is as follows (Tr. 187-188):

Q. Were [Hagler and {Redacted}] in the south trench that day?



Wynn: I don’t know, sir.



Q. Were they in the south trench–was Mr. Hagler in the south trench the day before?



Wynn: We weren’t–I got in there. I stood on the–



Q. Did Mr. Hagler get in the south trench?



Wynn: Not that I know of. He may have but I don’t recall him getting in there.



Rather than asserting affirmatively that no employees were in the south trench (as Pike implies), Wynn equivocates and says he does not remember. Wynn also has trouble recalling where {Redacted} and Hagler were located in the north trench. When asked if the employees were near the storm drain, Wynn replied, “Not to my knowledge. I can’t remember that, sir. It’s like a black spot there” (Tr. 187).

{Redacted}’s testimony is credited over that of Wynn’s. Wynn conceded he could not remember and did not know if {Redacted} and Hagler were in the south trench, and he admitted portions of his memory that day were blocked (“a black spot”). In contrast, {Redacted}’s testimony is clear and specific regarding all of the events of May 6, (including both the north trench and the south trench) except for the moment he was engulfed by the dirt of the collapsed trench wall, in the north trench “I was bent over gluing, and that’s pretty much the last I remember until the dirt caved in and sent me to the bank on the other side of the trench” (Tr. 24)).

The Secretary has established {Redacted} and Hagler were exposed to cave-in hazards in the south trench.

(4) Employer Knowledge

Wynn instructed {Redacted} and Hagler to enter the south trench and the north trench, and he entered the north trench himself at the deepest part, where it was 7 feet deep and over his head. As a supervisory employee, his actual knowledge of the violative conduct established in Instance (a) and Instance (b) of this item is imputed to Pike.

The Secretary has established Pike violated 29 C. F. R. § 1926.652(a)(1).

Supervisory Misconduct Defense

Pike argues any violation of the cited standards was the result of unpreventable employee misconduct on the part of Wynn. In order to establish the affirmative defense of unpreventable employee misconduct, an employer is required to prove (1) that it has established work rules designed to prevent the violation, (2) that it has adequately communicated these rules to its employees, (3) that it has taken steps to discover violations, and (4) that it has effectively enforced the rules when violations are discovered. Precast Services, Inc., 17 BNA OSHC 1454, 1455 (No. 93-2971, 1995), aff’d without published opinion, 106 F. 3d 401 (6th Cir. 1997). Where, as here, the purported employee misconduct was done by a supervisory employee, the employer faces a higher standard of proof. “[W]here a supervisory employee is involved, the proof of unpreventable employee misconduct is more rigorous and the defense is more difficult to establish since it is the supervisor’s duty to protect the safety of employees under his supervision . . . . A supervisor’s involvement in the misconduct is strong evidence that the employer’s safety program was lax.” Archer-Western Contractors Ltd., 15 BNA OSHC 1013, 1016-1017 (No. 87-1067, 1991).

(1) Established Work Rules

Pike established it has a good written safety program with work rules specifically addressing excavation safety. Pike’s Safety & Training Manual instructs employees to keep spoil piles away from the edge of excavations and provides information on the use of protective systems in excavations. It also informs employees of the details of Pike’s disciplinary program (Exh. R-15). Hernandez agreed Pike “had established written work rules that had been designed to address the question of trenching hazards and cave-ins” (Tr. 323).

(2) Communication to Employees

Pike contends it effectively communicated its work rules to its employees. The Secretary disputes this contention. A review of the record shows that, while Pike’s work rules are communicated to its employees, the communication is ineffective.

Each newly-hired employee for Pike receives a copy of its Safety & Training Manual. Each Pike employee receives competent person training. All four of the Pike employees in this case–Adams, Wynn, {Redacted}, and Hagler–had undergone Pike’s 10-hour OSHA course. The testimony of Adams, Wynn and {Redacted} demonstrated they were knowledgeable about excavation safety.

Three competent persons, one a supervisor, worked in two unsafe trenches without raising any safety concerns. “A supervisor’s participation in the violation does not by itself establish that a safety program is inadequate. Yet, safety infractions by supervisors are evidence of poor communication and implementation of a safety program.” Butch Thompson Enterprises, Inc., (No. 08-1273, 2009). The spoil piles, in plain view, were at the immediate edge of both trenches. Hagler and {Redacted} were in the 6-foot deep south trench, which {Redacted} stated he knew was over 5 feet because he could not see over the trench walls. All three employees were in the north trench. To access the trench, Wynn climbed down a ladder at the area where the trench was 7 feet deep, 2 feet over the maximum allowable depth without a protective system. Not one of these competent persons objected to entering the trenches or suggested moving the spoil piles back from the edges. It was the foreman who moved the Kubota so that it straddled the north trench at its deepest point. With his two crew members in the trench, 8 to 10 feet away, Wynn operated the Kubota, generating significant vibrations.

The collective acquiescence of Wynn, {Redacted}, and Hagler to violations of the most basic excavation safety standards is inconsistent with effective communication of its work rules. Pike has failed to establish it effectively communicated its safety program.

(3) Discovery of Violations

Pike contends it takes steps to discover safety violations. Adams testified he visits his crews’ worksites every two or three days. He checks to make sure a his crews have a competent person present, have discussed safety, and are in compliance with the relevant safety standards. These visits are unannounced.

The Secretary disputes Pike’s claim that it takes adequate steps to discover violations. {Redacted} testified that in the 10 years he has worked in trenches for Pike, at least 10 of them were deeper than 5 feet and had no protective system in them. The Secretary uses Pike’s documentation of safety violations it discovered in the 3 years prior to the instant inspection as an indictment of its discovery program. Exhibit C-30, Attachment C, lists 172 violations of excavation safety rules. Of these 172 violations, 22 involve the safety standards at issue in this case. The Secretary argues the sheer number of violations indicates Pike has an ongoing problem with its safety program.

The court is reluctant to use Pike’s monitoring record to establish Pike did not take adequate steps to discover violations, since it is a record of discovered violations. The monitoring record lends more weight to Pike’s argument, since the violations would not be documented in the first place if no one from Pike was monitoring safety. {Redacted}’s testimony that he worked in 10 trenches over a decade that were not adequately protected does not invalidate Pike’s discovery program. Constant surveillance of employees is not required. The fact that violations have occurred is not in itself proof that Pike’s monitoring was inadequate.

Pike has established it took steps to discover safety violations.

(4) Enforcement of Safety Rules

Pike argues it effectively enforces its safety policy and rules. Its safety manual sets forth a progressive disciplinary program for safety violations. The Secretary contends that Pike’s treatment of Wynn in this case demonstrates the company does not effectively enforce its safety rules. The court agrees with the Secretary.

Three Pike officials (Adams, Cretice Whatley, and Jimmy Tanner) attended OSHA’s interview with Wynn. Wynn did not state he entered the deepest part of the trench during that interview, but he did admit he stood on top of the storm drain to dig out under it. The storm drain was approximately 3 feet below the top of the trench walls, and the walls were 6 to 7 feet deep at that location. Thus, Pike’s officials heard Wynn say he was in an unprotected trench that was 6 to 7 feet deep. Wynn also stated this in his signed witness statement, of which Pike had a copy in its possession (Exh. R-7). Yet Pike waited until March 3, 2009, 10 months after the collapse, to issue a written warning to Wynn. Pike offered no explanation for the 10-month delay in issuing a warning.

Pike did not suspend Wynn or dock his pay (Exh. C-16). According to Pike’s disciplinary policy, a written warning is the appropriate discipline for “Light Infractions” that “are not likely to endanger life and/or limb ” (Exh. R-15). A “Severe Infraction” is one “likely to endanger life and /or limb” and merits at least a one-day suspension and a probationary period (Exh. R-15). The written warning Pike issued to Wynn states the safety rule he violated was “Any excavation over 5 feet deep requires sloping, shoring, or shielding” (Exh. C-16). {Redacted} broke 10 ribs and suffered a collapsed lung in the trench collapse, yet Wynn received the lightest possible penalty for his violation of Pike’s safety rule.

The timing of the written warning and the inappropriately light penalty creates the impression it was issued with an eye to the present proceeding, and not as effective enforcement of a rigorous disciplinary program. The delayed written warning does not manifest a serious mindset toward safety in the workplace. It is also noteworthy that when Pike terminated Wynn, it was not for violating a safety rule, but for lying in his deposition. Pike held Wynn’s lying to be a more serious offense than excavating an unsafe trench in which three of its employees worked.

Having failed to establish two of the four elements of supervisory misconduct, Pike has failed to prove its affirmative defense.

Willful Classification

The Secretary classifies this violation as willful.

A willful violation is one “committed with intentional, knowing or voluntary disregard for the requirements of the Act, or with plain indifference to employee safety.” Falcon Steel Co., 16 BNA OSHC 1179, 1181, 1993-95 CCH OSHA ¶30,059, p. 41, 330 (No. 89-2883, 1993)(consolidated); A.P. O’Horo Co., 14 BNA OSHC 2004, 2012, 1991-93 C.H. OSHA ¶ 29,223, p. 39,133 (No. 85-0369, 1991). A showing of evil or malicious intent is not necessary to establish willfulness. Anderson Excavating and Wrecking Co., 17 BNA OSHC 1890, 1891, n.3, 1995-97 C.H. OSHA ¶ 31,228, p. 43,788, n.3 (No. 92-3684, 1997), aff’d 131 F.3d 1254 (8th Cir. 1997). A willful violation is differentiated from a nonwillful violation by an employer’s heightened awareness of the illegality of the conduct or conditions and by a state of mind, i.e., conscious disregard or plain indifference for the safety and health of employees. General Motors Corp., Electro-Motive Div., 14 BNA OSHC 2064, 2068, 1991-93 C.H. OSHA ¶ 29,240, p. 39,168 (No. 82-630, 1991)(consolidated).



A.E. Staley Manufacturing Co., 19 BNA OSHC 1199, 1202 (Nos. 91-0637 & 91-0638, 2000).

The Secretary argues Pike’s violation of 29 C. F. R. § 1926.652(a)(1) was willful because Wynn knew as he was digging the trenches that they exceeded 5 feet, yet he took no steps to provide a protective system. She contends Wynn’s willful attitude is most clearly demonstrated by his decision to enter the northernmost portion of the north trench, where it was 7 feet deep. Wynn’s excuse was that he thought he would be in the trench for “just a second” (Tr. 152). The Secretary also emphasizes Wynn’s decision to operate the Kubota (a 9,000 pound machine) within 10 feet of {Redacted} and Hagler as the worked in the unprotected trench.

“The hallmark of a willful violation is the employer’s state of mind at the time of the violation–an ‘intentional, knowing, or voluntary disregard for the requirements of the Act or . . . plain indifference to employee safety.” Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181 (No. 90-2775, 2000), aff’d 268 F.3d 1123 (D.C. Cir. 2001). Because Wynn was the only supervisory employee on site at the time of the violation, it is his state of mind that must be analyzed. The court finds, upon review of Wynn’s testimony and the evidence, that his state of mind at the time of the collapse was not one of an intentional disregard for the requirements of the cited standard, or of plain indifference to employee safety. Rather, Wynn was confronted with an unexpected circumstance that he handled poorly.

Adams had instructed Wynn on May 5 to excavate only to a depth of 48 inches, and to call him if he discovered he needed to dig deeper. After Adams left, a man Wynn assumed was a landscaper informed Wynn that he would be removing dirt from the area of the storm drain, leaving inadequate cover for the conduit once it was installed. Wynn unilaterally decided to locate the conduit below the storm drain, which required him to dig deeper than originally planned. Wynn did not explain why he did not call Adams as instructed.

On May 6, Wynn and his crew had difficulty installing the conduit under the storm drain. At this point, Wynn began making a series of bad decisions. He climbed into the deepest part of the trench to access the storm drain. He permitted {Redacted} and Hagler to dig under the storm drain. He decided to use the Kubota to dig out more. All of these decisions were wrong, but Wynn was reacting moment by moment to an unanticipated problem. He believed he could get the conduit installed underneath the storm drain quickly, and then continue with the scheduled work. Wynn stated, “I was just getting ahead of myself” (Exh. R-11).

Obviously Wynn made bad decisions that had disastrous and continuing consequences for {Redacted}. The record does not establish, however, that Wynn possessed a heightened awareness of the illegality of his conduct. The record demonstrates Wynn was becoming increasingly frustrated as he and his crew failed to remove the obstacle blocking the conduit from going under the storm drain. His actions resulted not from a cold calculation to sacrifice employee safety for expedience, but from a misplaced urgency to remove the clod of dirt blocking the conduit.

The court finds Pike’s violation of 29 C. F. R. § 1926.652(a)(1) was not willful. The instant item is affirmed as serious.

Penalty Determination

The Commission is the final arbiter of penalties in all contested cases. In determining an appropriate penalty, the Commission is required to consider the size of the employer’s business, history of previous violations, the employer’s good faith, and the gravity of the violation. Gravity is the principal factor to be considered.

Pike employs approximately 7,200 employees nationwide. Under its state plan, South Carolina had cited Pike for violations of the excavation standards. No evidence of bad faith was adduced. The remaining factor to be considered is the gravity of the violation.

Citation No. 1, Item 1: The gravity of this violation is high. Spoil piles at the immediate edge of an unprotected excavation increase the likelihood of a cave-in. Wynn’s placement of the Kubota excavator so that it straddled the excavation at its deepest point created a potential hazard that the Kubota would fall into the excavation, injuring Wynn, or creating a domino effect that would cause a cave-in where {Redacted} and Hagler were working. A penalty of $ 7,000.00 is assessed.

Citation No. 2, Item 1: The gravity of this violation is extremely high. Allowing employees to work in an unprotected excavation exposes them to death or devastating injuries. {Redacted} sustained ten broken ribs and a collapsed lung. At the time of the hearing, more than a year after the cave-in, {Redacted} stated, “I hurt all over. My legs hurt. I have blurred vision. I have a nervous condition. I relive this episode in my sleep all the time. I guess it’s called post traumatic syndrome or whatever you call it” (Tr. 28-29). A penalty of $ 7,000.00 is assessed.



FINDINGS OF FACT AND

CONCLUSIONS OF LAW



The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.



ORDER



Based upon the foregoing decision, it is ORDERED that:



1. Item 1 of Citation No. 1, alleging a serious violation of 29 C. F. R. § 1926.651(j)(2, is affirmed, and a penalty of $ 7,000.00 is assessed; and

2. Item 1 of Citation No. 2, alleging a willful violation of 29 C. F. R. § 1926.652(a)(1), is affirmed as serious, and a penalty of $ 7,000 .00 is assessed.





/S/

JUDGE STEPHEN J. SIMKO, JR.