THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW
Secretary of Labor,
Yasmin K. Yanthis-Bailey, Esq., Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia
Kenneth A. Knox, Esq., Fisher & Phillips, LLP, Ft. Lauderdale, Florida
Before: Administrative Law Judge Sharon D. Calhoun
DECISION AND ORDER
American Engineering & Development Corporation (American Engineering), is a construction contractor specializing in infrastructure work, including water, sewer, paving and drainage work (Tr. 173). For more than a year, American Engineering was working on the FDOT Biscayne Boulevard project at the jobsite located at US1 and SW 30 Street in Miami, Florida, putting in new infrastructure, taking out existing utilities and replacing them with new utilities (Tr. 204). On November 18, 2009, Occupational Safety and Health Administration (OSHA) compliance officers Hernaldo Carpio and Angel Diaz conducted an inspection of the jobsite in response to a complaint from the City of Miami Fire Department. As a result of the inspection conducted by Carpio and Diaz, the Secretary of Labor on January 26, 2010, issued a citation to American Engineering alleging one repeat violation of the Occupational Safety and Health Act of 1970 (Act) asserting a violation of § 1926.652(a)(1) for failing to provide an adequate protective system to protect employees working in the excavation from cave-in.
The undersigned held a hearing in this matter on July30, 2010, in Miami, Florida. The parties have submitted post-hearing briefs. American Engineering contests the citation and proposed penalty asserting it had no knowledge of the violation and that the violation was as a result of an isolated incident of employee misconduct. For the reasons that follow, Citation 1, item 1 is affirmed.
At the hearing, the parties stipulated that jurisdiction of this action is conferred upon the Occupational Safety and Health Review Commission pursuant to § 10(c) of the Act. The parties also stipulated that at all times relevant to this action, Respondent was an employer engaged in a business affecting interstate commerce within the meaning of § 3(5) of the Act, 29 U.S.C. § 652(5) (Tr. 7).
On the morning of November 18, 2009, Frank Mainade, Lieutenant Paramedic, City of Miami Fire Department went to the jobsite located at US 1and SW 30 Street in Miami, Florida, in response to a phone call from the Fire Department’s hazardous materials team regarding concerns about a trench they had seen on the jobsite (Tr. 17-18). Once on the site, Mainade observed an employee in a trench. He was concerned about the depth of the trench, as there was no sheeting or protection for the worker (Tr. 18-19). Mainade estimated the depth of the trench to be approximately 8 feet, a little deeper where the back hoe was operating (Tr. 15, 18-19). Mainade told the men he felt that they were operating unsafely and he would have to forward this to OSHA. At that time, the men began closing down the trench by removing the employees and covering it with steel plates (Tr. 24). Mainade telephoned OSHA regarding the conditions he observed in the trench. Following Mainade’s telephone complaint to OSHA, Assistant Area Director Jaime Lopez assigned compliance officer Hernaldo Carpio to investigate the complaint (Tr. 53, 80, 112). Compliance Officer Angel Diaz assisted with the inspection (Tr. 112).
Both compliance officers arrived at the site on the morning of November 18, 2009, and observed two employees working in an excavation (Tr. 54, 113). The trench was not the same trench inspected by Mainade (Tr. 205, 292). There were three trenches open at the time of the inspection. The trench inspected by Mainade was identified by Eric Garcia, Assistant Superintendent of American Engineering, as a deep trench and had water accumulating in it (Tr. 293). On the day of the inspection American Engineering was performing backfilling and compaction work at the site. Its employees were laying a felt fabric in the trench which was inspected by OSHA (Tr. 57).
Once on the jobsite, Carpio approached Guspar Coll-[Gonzales] who was operating the excavator. Carpio asked him who was in charge and Coll-Gonzales said Eric Garcia, but he was not at the site, and if Garcia was not there, then he was in charge (Tr. 54). In response to inquiries from Carpio regarding cave-in protection, Coll-Gonzales said they did not have cave-in protection because his job was to backfill the trench and he did not need the trench box to backfill. Further, Coll-Gonzales said he did not measure the depth of the trench, did not take a soil sample, and did not slope because they were working on solid rock and since the employees were inside for only 20 to 30 minutes to lay the felt fabric, sloping the trench was not needed (Tr. 57).
While Carpio was conducting his inspection, Garcia arrived at the site. He told Carpio he was in charge of the employees but he had left Coll-Gonzales in charge while he was away from the jobsite (Tr. 67-68). Further, Garcia told Carpio that Coll-Gonzales had authority to direct the work of the individuals at the worksite and was responsible for putting cave-in protection in the trench (Tr. 68). Garcia also advised that he last inspected the trench on Thursday, the day before the OSHA inspection (Tr. 70).
During the inspection, Carpio took several measurements of the trench in several areas and found it to be10-feet deep in some areas and 5-feet deep in other areas. The width was 24 feet and the length was 41 feet. He did not measure the slope. Carpio stated the trench was required to have a 45-degree slope, which it did not have (Tr. 65-66).
As a result of Carpio’s and Diaz’s inspection, the Secretary issued the citation that gave rise to the instant case.
Citation No. 1
The Secretary alleges that American Engineering violated one of OSHA’s construction standards on excavations.
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 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.
Southwestern Bell Telephone Co., 19 BNA OSHC 1097, 1098 (No. 98-1748, 2000).
Item 1: Alleged Violation of § 1926.651(c)(2)
The Secretary charges American Engineering with violating § 1926.652(a)(1). The citation
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 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):
On or about 11/18/2009, at the intersection of Biscayne Blvd. and 30th St. in the city of Miami Beach, FL two employees were working inside an excavation at approximately 10 feet deep without cave-in protection. American Engineering & Development Corp. was previously cited for a violation of this Occupational Safety and Health Standard or its equivalent standard 1926.652(a)(1), which was contained in OSHA inspection number 311086177, citation number 1, item number 3, and was affirmed as final order on 03//21/2008, with respect to a workplace located at 4855 Technology Way, in Boca Raton, FL 33431.
Section 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 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.
Applicability of the Standard
In proving whether there is a violation, first it must be determined whether the cited standard applies. The Secretary cited American Engineering for a violation of § 1926.652(a)(1), a construction standard which addresses the protection of employees working in excavations. Applicability of the standard is not disputed. American Engineering created the trench and at the time of the inspection was laying felt fabric in the trench (Tr. 117). This work activity establishes American Engineering was engaged in construction work involving trenches on the jobsite. Therefore, the excavation standard applies to the work performed by American Engineering at the jobsite.
Noncompliance with the Terms of the Standard
The Secretary also must prove there was noncompliance with the terms of cited standard, § 1926.652(a)(1). There is no real dispute that the terms of the standard were violated. Coll-Gonzales advised Carpio they did not have cave-in protection. Further, he advised he did not slope because they were working on solid rock and since the employees were inside for only 20 to 30 minutes to lay the felt fabric, sloping the trench was not needed (Tr. 57).
Carpio measured the trench in several areas and found it to be 10-feet deep in some areas with 5 feet being the smallest depth measurement. The width was 24 feet and the length was 41 feet. Although he did not measure the slope, Carpio testified the trench was required to have a 45-degree slope (Tr. 65-66). Because the excavation was at least 5 feet in depth, a protective system is required for employees working in the excavation, unless the entire excavation consisted of stable rock. This trench was not entirely in stable rock, as the soil analysis from OSHA’s laboratory in Salt Lake City revealed the soil in the trench was Type B soil (Tr. 78). Because the trench was greater than 5-feet deep and not in solid rock, neither of the exceptions to the standard apply. The evidence shows Respondent did not use a trench box in the excavation. Since the excavation was not properly sloped and there was no trench box in use, the undersigned finds the Secretary has established that American Engineering failed to provide an adequate protective system for employees working in an excavation as provided for by the standard.
Exposure or Access
As an element of the Secretary’s burden of proof, the record must show that employees were exposed or had access to the violative condition. Walker Towing Corp., 14 BNA OSHC 2072 (No. 87-1359, 1991). Carpio and Diaz testified that they observed employees working in the excavation (Tr. 54, 113; Exhs. C-1, C-2, C-8). This fact too is not disputed by Respondent. Employees Carlos Prieto and Eddie Guzman were working in the unprotected trench in the presence of the excavator operator Coll-Gonzales, who had been left in charge at the time of the inspection (Tr. 54). Coll-Gonzales testified that employees were in the trench no more than five minutes when OSHA showed up. They had just started after lunch (Tr. 151). The Secretary has established exposure.Knowledge
Finally, the Secretary must establish actual or constructive knowledge of the violative conditions by American Engineering. In order to show employer knowledge of a violation the Secretary must show the employer knew, or with the exercise of reasonable diligence could have known of a hazardous condition. Dun Par Engineered Form Co.,12 BNA OSHC 1962, 1965-66 (No. 82-928, 1986). An employer is chargeable with knowledge of conditions which are plainly visible to its supervisory personnel. A.L. Baumgartner Construction Inc., 16 BNA OSHC 1995, 1998 (No. 92-1022, 1994). “Because corporate employers can only obtain knowledge through their agents, the actions and knowledge of supervisory personnel are generally imputed to their employers, and the Secretary can make a prima facie showing of knowledge by proving that a supervisory employee knew of or was responsible for the violation.” Todd Shipyards Corp., 11 BNA OSHC 2177, 2179 (No. 77-1598, 1984). See also Dun Par Engineered Form Co., 12 BNA OSHC 1962 (No. 82-928, 1986)(the actual or constructive knowledge of an employer’s foreman can be imputed to the employer).
Coll-Gonzales was left in charge when Garcia left the jobsite on the morning of November 18, 2009. However, Respondent asserts that Coll-Gonzales is not a supervisor for American Engineering and his knowledge of the violative conditions of the trench cannot be imputed to it (Respondent’s Brief, pp. 15-16). Coll-Gonzales testified at the hearing. Spanish is his native language and he is not fluent in English, therefore, Coll-Gonzales testified in Spanish with the aid of a translator, who posed counsels’ and the undersigned’s questions to him in Spanish, and who then translated his Spanish responses into English. Coll-Gonzales testified he is an operator and he has been employed by American Engineering for three years and was rehired in October 2009. He is not a supervisor or a foreman and he does not have the authority to hire, fire, or discipline employees (Tr. 140-142). Further, Coll-Gonzales testified Eric Garcia, his supervisor, told him on the morning of November 18, 2009, “there were some trenches that could not be accessed, you know, we couldn’t go into them.” The trench that the laborers were working in when OSHA got there was one that was not to be accessed (Tr. 148-149). Garcia testified that he left the jobsite at 7:00 a.m. and gave instructions to Coll-Gonzales regarding not entering the trench at issue and other trenches that Garcia felt were problematic (Tr. 265-266). He did not assign a foreman to the crew in which Coll-Gonzales was working, but testified that Coll-Gonzales had the authority to give instructions to the laborers who were working with him (Tr. 264, 281-283). Coll-Gonzales testified that he directed the two laborers to work in the trench (Tr. 149).
Although, Respondent disputes Coll-Gonzales was a supervisor, it cannot be disputed that he was left in charge when Garcia left the jobsite on November 18, 2009. Carpio testified that Coll-Gonzales told him he was in charge when Garcia was not onsite (Tr. 54). Whether Respondent considered Coll-Gonzales to be a supervisor or not, he was under the impression that he was in charge when Garcia was not onsite. Garcia testified that Coll-Gonzales did not have a foreman on site to report to and that he reported directly to him (Tr. 264). Further, Coll-Gonzales testified the two men in the trench are his helpers when he is the operator. “Whenever I tell them to do this or that, they do that . . . I can ask for help from them and they obey me and they do what I tell them to do.” (Tr. 160-161). An employee who has been delegated authority over another employee, even if only temporarily, is considered to be a supervisor for purposes of imputing knowledge to an employer. Tampa Shipyards, Inc., 15 BNA OSHC 1533 (Nos. 86-360 and 86-469, 1992). The undersigned finds that Coll-Gonzales was a supervisor for purposes of imputing knowledge to American Engineering. Accordingly, the undersigned finds that the Secretary has met her burden of employer knowlege and has established a prima facie case as to the cited standard.
An employer may rebut the Secretary’s prima facie showing of knowledge with evidence that it took reasonable measures to prevent the occurrence of the violation. In particular, the employer must show that it had a work rule that satisfied the requirements of the standard, which it adequately communicated and enforced. Aquatek Systems, Inc., 21 BNA OSHC 1400, 1401-1402 (No. 03-1351, 2006). Moreover, “[w]hen the alleged misconduct is that of a supervisory employee, the employer must also establish that it took all feasible steps to prevent the accident, including adequate instruction and supervision of its employee.” Archer-Western Contractors Ltd., 15 BNA OSHC 1013, 1016-1017 (No. 87-1067, 1991). As set forth below, American Engineering has not put forth sufficient evidence to show that it had a work rule which was adequately communicated and enforced and, therefore, has not made the requisite showing to rebut the Secretary’s prima facie case.Employee Misconduct (Isolated Incident)
Respondent contends that the violation was the result of an isolated incident of employee misconduct. In order to establish the affirmative defense of unpreventable employee misconduct, an employer is required to prove that it has: (1) established work rules designed to prevent the violation; (2) adequately communicated these rules to its employees; (3) taken steps to discover violations; and (4) effectively enforced the rules when violations are discovered. American Sterilizer Co., 18 BNA OSHC 1082, 1087 (No. 91-2494, 1997); e.g., Danis Shook Joint Venture XXV, 19 BNA OSHC 1497, 1502 (No. 98-1192, 2001), aff’d 319 F3d 805 (6th Cir. 2003); Precast Services, Inc., 17 BNA OSHC 1454, 1455 (No. 93-2971, 1995), aff’d without published opinion, 106 F.3d 401 (6th Cir. 1997). Oil Well Serv., 15 BNA OSHC 1809, 1816 (No 87-692, 1992). Also see Nooter Construction Co. 16 BNA OSHC 1572, 1578 (No. 91-0237, 1994). An employer may defend on the basis that the employee's misconduct was unpreventable. In order to establish the defense, the employer must show that the action of its employee represented a departure from a work rule that the employer has uniformly and effectively communicated and enforced. Frank Swidzinski Co., 9 BNA OSHC 1230, (No. 76-4627, 1981); Merritt Electric Co., 9 BNA OSHC 2088 (No. 77-3772, 1981); Wander Iron Work, 8 BNA OSHC 1354 (No. 76-3105, 1980), Mosser Construction Co. 15 BNA OSHC 1408, 1414 (No. 89-1027, 1991) .
The Secretary does not dispute that American Engineering had an applicable work rule (Secretary’s Brief, p.11). American Engineering has a Safety Manual which contains safety rules specific to excavation, trenching and shoring (Exh. R-6). Those rules are supplemented periodically by Safety Memos and Construction Tool Box Talks on a regular basis (Exh. R-6, pp. 17, 23-25). Paragraphs 14, 15, and 21of Respondent’s Excavation, Trenching and Shoring Rules provide:
14. A competent person shall conduct daily inspections on excavatins and on an ‘as needed basis’ throughout the shift. If unsafe situation exists (cave-ins, slides, etc.), all work shall cease until required safeguards have been taken . . . If there are indications of water accumulation, sloughing, cave-ins, water seepage, soil cracks, hazardous atmospheres, or protective system failure, work shall stop immediately until the necessary control measures are in place to safeguard workers.
15. All soil in Florida is the least stable - Type C. All trenches of 5 feet or deeper and must be appropriately sloped.
21. A protective system shall be used to protect worker in excavations from cave-ins. All vertical cut walls greater than 5 feet deep shall be sloped, braced, (timber, shoring, aluminum shoring, or trench boxes) or protected by a system designed by a professional engineer.
(Exh. R-6, pp. 23-24).
A work rule is defined as “an employer directive that requires or proscribes certain conduct and that is communicated to employees in such a manner that its mandatory nature is made explicit and its scope clearly understood.” J.K. Butler Builders, Inc., 5 BNA OSHC 1075, 1076 (No. 12354, 1977). An employer’s work rule must be clear enough to eliminate the employees’s exposure to the hazard covered by the standard and must be designed to prevent the cited violation. Beta Construction Co., 16 BNA OSHC 1434, 1444 (No. 91-102, 1993). The undersigned finds that Respondent had a work rule designed to prevent the cited violation.Adequately Communicated
The second element of the misconduct defense is met when the employees were well-trained, experienced and knew the work rules. Texland Drilling Corp., 9 BNA OSHC 1023, 1026 (No. 76-5037, 1980). The employer must show that it has communicated the specific rule or rules that are in issue. Hamilton Fixtures, 16 BNA OSHC 1073, 1090 (No. 88-1722, 1994); New York State Electric & Gas Corp., 17 BNA OSHC 1129, 1134 (No. 91-2897, 1995). See Propellex Corp., 18 BNA OSHC 1677, 1682 (No. 96-0265, 1999) (although the record shows that the employees received training on general safety matters and procedures, the evidence is insufficient to establish that the specific rule was communicated to employees).
American Engineering communicates its work rules to employees in several ways including mandatory training which includes safety orientation, weekly safety talks and specific training on issues such as confined space, etc. (Tr. 184). Initially when hired, employees must go through a new employee safety orientation (Tr. 185). As to trenches, the new employee orientation provides “trench walls must be sloped in accordance with OSHA regulations, or you must be working in a trench box.” (Exhs. R-1, R-4 and R-5). As reflected by their signatures on the New Employee Safety Orientation forms, Coll-Gonzales and laborers Prieto and Guzman each received the new employee safety orientation (Exhs. R-1, R-4 and R-5). Daniel Westbrook, Safety Manager for American Engineering, testified that during safety orientations, employees review the safety manual and go through certain topics in it (Tr. 189). Because American Engineering has a large number of Spanish speaking employees, its safety classes are taught in Spanish and documents are translated into Spanish for those employees who do not speak English (Tr. 171-172, 187). Tool Box Talks, also mandatory, are held weekly on Mondays or Fridays and cover topics that need to be addressed and also are translated into Spanish (Tr. 192-194; Exh. R-7).
The evidence shows that the employees involved with the trench at issue here received training. The employee left in charge, Coll-Gonzales, testified he received safety training, attended tool box talks and he is familiar with the company’s trenching safety policy (Tr. 144-146 ). Further, in addition to new employee safety orientation, laborers Prieto and Guzman, although employed for only two weeks at the time of the inspection, told OSHA investigator Diaz they had received safety training (Tr. 118). Moreover, according to Garcia, both attended tool box training (Tr. 230, 257). It is noted, however, no documents were introduced reflecting their signatures for said training. The undersigned finds that American Engineering has effectively communicated its work rules in both English and Spanish to its employees.
Steps to Discover Violations
In addition to an effectively communicated work rule, an employer must take steps to discover violative conditions on the worksite. American Engineering’s Safety Manager, Daniel Westbrook, testified he drives and walks the jobsites daily looking for safety violations and does inspections and audits daily (Tr. 194, 224). In addition, Assistant General Superintendent Garcia helps to enforce safety rules and trains new personnel (Tr. 241). He talks with Westbrook daily regarding safety issues (Tr. 248). When in the field and noticing safety concerns, he addresses them immediately and expects the foreman to do the same (Tr. 256). Garcia testified that he looks at trenches everyday and requests trenching reports daily to make sure the inspections are being conducted daily (Tr. 258). The main line foremen, pipe foremen and superintendents are responsible for looking at trench conditions (Tr. 259). The testimony further revealed that supervisory employees communicate by cell phone and radio regarding jobsite conditions (Tr. 255). Garcia was at the jobsite the night before OSHA’s inspection and did not leave until 7:00 a.m. the morning of the inspection (Tr. 264-265). Before he left, he determined that three trenches were unsafe and gave instructions to Coll-Gonzales that those trenches were not to be entered, including the trench at issue here (Tr. 265-267).
Effective implementation of a safety program requires “a diligent effort to discover and discourage violations of safety rules by employees.” Propellex Corp., 18 BNA OSHC 1677, 1682 (No. 96-0265, 1999); American Sterilizer Co., 18 BNA OSHC 1082, 1087 (No. 91-2494, 1997).
Based on Garcia’s discovery of the conditions the night before, his and Westbrooks’s frequent monitoring visits, the requirement of examination of the trenches by foremen, and the lack of a basis requiring more intensive supervision, American Engineering’s safety monitoring program was adequate. See New York State Electric & Gas Corp., (No. 91-2897, Oct. 27, 2000); Texas A.C.A., Inc., 17 BNA OSHC 1048, 1050 (No. 91-3467, 1995) (employer’s duty is to take reasonably diligent measures to detect hazardous conditions through inspections of worksites; it is not obligated to detect or become aware of every instance of a hazard). The undersigned finds that American Engineering took reasonable measures to prevent the occurrence of the violation.
American Engineering asserts that it has an effective progressive disciplinary program (Respondent’s Brief, p. 23). Westbrook testified the safety policies are enforced by verbal warnings, written warnings, suspensions and terminations, and that in the past year approximately 50 to 70 written warnings, suspensions and discharges have been issued, some for violations of the trenching policy (Tr. 196, 199). Garcia testified as to the progressive nature of the policy stating that a verbal warning is given for a first violation, second offense results in a written warning, third offense results in a suspension and the fourth time you may get terminated (Tr. 261). Adequate enforcement is a critical element of the defense of employee misconduct. For instance, an employer may show a progressive disciplinary plan consisting of increasingly harsh measures taken against employees who violate the work rule. See Asplundh Tree Expert Company, 7 BNA OSHC 2074 (No. 16162, 179). To prove that its disciplinary system is more than a paper program an employer must show evidence of having actually administered the discipline outlined in its policy and procedures. E.G. Connecticut Light & Pwr. Company, 13 BNA OSHC 2214 (No. 85-1118, 1989)(reprimand letters issued).
It is not disputed that Coll-Gonzales, Prieto and Guzman were disciplined. However, they were not disciplined until January 25, 2010, more than two months after the inspection and not until five days after Respondent’s [informal] conference with OSHA (Tr. 215, 227). Westbrook testified that the delay in disciplining them was so that he could weigh all of the information, stating it takes time to investigate and he does not take these matters lightly (Tr. 215-216). Eventually, Coll-Gonzales was disciplined with a written warning and counseling ( Exh. R-2). Further, he was given another orientation program after the incident which focused on safety issues relating to trenches, and he received a tool box training after the incident. (Tr. 152). Laborers Prieto and Guzman each were given a written warning and counseling (Exhs. R-9, R-10). “Commission precedent does not rule out consideration of post inspection discipline, provided that it is viewed in conjunction with pre-inspection discipline.” Precast Services Inc., 17 BNA OSHC 1454, 1456 (No. 93-2971, 1995) aff’d without published opinion, 106 F.3d 401 (6th Cir. 1997).
The undersigned has reviewed and considered in conjunction both the pre-and post inspection discipline in this case. Of 17 employee warning notices for trenching violations covering the period April 2008 through August 2009 resulting in verbal and written warnings, counseling and a suspension, all but two were issued on the same date of the incident. The other two were issued the day after the incident (Exh. R-8). This indeed reflects positively on Respondent’s disciplinary program prior to OSHA’s inspection. However, the post inspection discipline documents in the record tell a different story.
After the inspection, the three employees were not disciplined until more than two months after the incident (Tr. 215, 227). This suggests lax enforcement and inconsistency in Respondent’s discipline program. Further, such a lengthy delay adversely impacts the significance of the discipline and its relationship to safety. Since discipline was issued on the same or next day in other incidents involving similar trench violations, the undersigned finds Westbrook’s testimony that the delay in disciplining the employees in the November 18, 2009 incident was so that he could weigh all of the information and investigate the incident, not credible. The testimony reveals that Respondent’s managers Westbrook and Garcia were aware of the incident on the day it occurred. Moreover, issuance of the employee warning notices shortly after the informal conference with OSHA on January 20, 2010, suggests the discipline may have been issued in an effort to defend the OSHA citation in this case. Also adversely impacting the effectiveness of Respondent’s discipline program is the fact that three of its employees were involved in the incident that resulted in the issuance of the citation. The number of employees who felt comfortable violating American Engineering’s work rules indicates a problem with adequate enforcement. The undersigned finds American Engineering has not demonstrated an effectively enforced discipline program, and therefore has not rebutted the Secretary’s prima facie case.
The Review Commission has long considered a violation as a repeated violation under § 17 of the Act, if at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation. Potlatch Corp., 7 BNA OSHRC No.1061, 1063 (No. 16183, 1979). American Engineering does not dispute and the record shows it was issued a serious citation for a violation of § 1926.652(a)(1) on February 12, 2008, at a worksite at 4855 Technology Way in Boca Raton, Florida, for employees working in an 8-foot excavation without adequate cave-in protection (Exh. C-10). According to the OSHA Worksheet, the trench was steeper than 34 degrees, employees were laying drainage and sewer pipes and the foreman was on the sideline observing the unsafe work practice (Exh. C-9). This prior citation was resolved by an Informal Settlement Agreement reflecting no changes to the issued citation and proposed penalty, which became a final order of the Review Commission on March 21, 2008 (Exh. C-9). A repeated violation of § 1926.652(a)(1) is established by the Secretary.
The Commission is the final arbiter of penalties in all contested cases. Secretary v. OSHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). The Commission must determine a reasonable and appropriate penalty in light of § 17(j) of the Act and may arrive at a different formulation than the Secretary in assessing the statutory factors. Section 17(j) of the Act requires the Commission to give “due consideration” to four criteria when assessing penalties: (1) the size of the employer's business; (2) the gravity of the violation; (3) the good faith of the employer; and (4) the employer's prior history of violations. 29 U.S.C. § 666(j). Gravity is the primary consideration and is determined by the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood of an actual injury. J. A. Jones Construction Co., 15 BNA OSHC 2201 (No. 87-2059, 1993).
In arriving at the proposed penalty Carpio determined that the violation was of high severity, based on the severity of injury because the hazard of cave-in would most likely result in suffocation that could lead to death in the event of a trench collapse. Because of the presence of underground utilities, previously disturbed soil, the vibration from the excavator and vehicles on the road, Carpio determined the probability of injury to be greater (Tr.73). Carpio’s testimony further reveals Respondent was not given a penalty reduction for size since it has in excess of 250 employees (Tr. 74). Nor was Respondent allowed a reduction for history because it had been issued a prior citation in October 2007 (Tr. 73). No reduction for good faith was allowed because this was a repeat citation (Tr. 74).
The undersigned finds that a high gravity is appropriate here because two employees worked in the trench for 20 to 30 minutes without an adequate protective system, exposing themselves to potential cave-in and serious injury or death. Further, American Engineering was previously cited for this same standard exposing employees to substantially similar hazards. American Engineering is not a small employer, as it has approximately 300 employees. These factors weigh against a small penalty. Although there is no evidence that American Engineering failed to cooperate with the investigation, the fact remains that it did not adequately enforce its discipline program and did not do so until the issuance of OSHA citations became imminent. This weighs negatively as to good faith. Considering these facts and the statutory elements, a proposed penalty of $25,000 is appropriate. 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.
Based upon the foregoing decision, it is ORDERED that:
Item 1, alleging a violation of § 1926.652(a)(1), is affirmed and a penalty of $25,000 is assessed.
SHARON D. CALHOUN
Date: December 21, 2010