Docket No. 90-2873

SECRETARY OF LABOR,

Complainant.

FLINT ENGINEERING & CONSTRUCTION CO.

Respondent.

OSHRC Docket No. 90-2873

DECISION

BEFORE: FOULKE. Chairman; WISEMAN and MONTOYA. Commissioners.

BY THE COMMISSION:

At issue is whether a Review Commission administrative law judge erred in finding an employer In serious violation of the Occupational Safety and Health Act where none of the cited employer's own employees was exposed to any of the violative conditions.

Flint Engineering & Construction Company ("Flint") was among a number of employers under contract to install a gas pipeline in Midwest City, Oklahoma. After the Occupational Safety and Health Administration Oklahoma City office was notified of an unprotected trench. Compliance Officer George McCown ("CO") was sent to the site. Upon arriving at the site, the CO asked the first group of workers he encountered to be directed to the person in charge of the project. The CO was told that he should see Jesse Winsett, who was later established to be a Flint employee and one of the foremen at the site. Winsett gave the CO permission to inspect the premises.

Several miles of 24-inch pipeline had already been laid during the six weeks the crew had been on the job, which was performed in "hopscotch fashion," opening up as many as three selected portions of the 4-to 5-mile site at a time. Flint personnel made the decisions on how to progress from day to day, where and when to dig, when to transfer the shoring materials from site to site, and how to compensate for the narrow roadside right-of-way they had been given.

Very early on the morning of the inspection, about 100 feet of trench had been opened. In the area where employees were working, the trench was approximately 11 feet deep and 11 feet wide, with an unretained spoil bank 6 to 8 feet high at the edge. Except for a small section that was partially sloped, the walls of the unshored trench were vertical.

Of the approximately ten to fifteen workers on the jobsite, three were actually in the trench at the time of the inspection. Asked their names by the CO, one gave his name as Dale McCulley and the other two refused to answer. Jesse Winsett, supervisor, equipment operator, and foreman for Flint, was the only witness, other than the CO, who was present at the site at the time of the inspection. He testified that he had seen no one in the ditch, but admitted that he had been there only "off and on." However. one photograph among the exhibits shows an employee in the trench, and other photographs show an access ladder and a grinder in the trench. Witnesses for Flint, Winsett and corporate safety manager Robert Baker, stated that they were unfamiliar with anyone by the name of Dale McCulley and that the name did not appear on Flint company records. They testified that Flint employees had been instructed not to enter the trench until it was safe to do so, and at the time of the inspection, the crew was waiting for the arrival of shoring materials from another worksite.

The Secretary cited Flint for serious violations of six standards, three of which are encompassed in the direction for review.[[1]] Items 4,5, and 6 of the citation alleged violations of three standards covering safe trenching practices: 29 C.F.R. § 1926.6510)(2) (the "spoil bank" standard).[[2]] 29 C.F.R. § 1926.651(k)(1) (the "daily inspection" standard).[[3]] and 29 C.F.R. § 1926.652(a)(1) (the "trench wall" standard).[[4]]

The judge found that the employees the CO saw in the trench were not Flint employees, and that Flint's employees had stayed out of the unprotected trench. Nevertheless, the judge held that "Commission precedent is well settled that an employer who creates or controls a hazardous condition, even when the only employees exposed to the condition are those of different contractors at the site, will be held liable under the Act," citing Anning-Johnson Co., 4 BNA OSHC 1193, 1199, 1975-76 CCH OSHD ś 20,690 p. 24,784 (No. 3684, 1976) (consolidated cases) and Grossman Steel & Alum. Corp., 4 BNA OSHC 1185, 1188-89, 1975-76 CCH OSHD ś 20,691, p. 24,791 (No. 12775, 1976). He further found that Flint controlled the cited condition, that employees were exposed to it, and that the violation was serious. He therefore affirmed the three items, assessing penalties as proposed by the Secretary: $240 for the spoil bank standard violation, $480 for the daily inspection standard violation, and $480 for the trench wall standard violation.

I. Multi-Employer Worksite Defense

Under the principles of Anning-Johnson and Grossman Steel, the Commission and the courts have long held that it a hazardous condition exists at a multi-employer worksite:

(1) an employer that neither creates nor controls the condition may, under certain circumstances be relieved of liability for exposing its employees to the hazard.[[5]] and

(2) an employer that does create or control a hazardous condition, on the other hand, obligated to protect not only its own employees, but those of other employers as well.[[6]]

If the employees in the trench were not Flint's own employees.[[7]] Flint's multi-employer worksite defense turns on whether it created or controlled the hazardous condition. Flint admits that it treated the trench." The judge, on the other hand, based his decision on a finding that "[I]t is obvious from the record Flint controlled the cited condition." Flint countered that "[s]ince Respondent was not the general contractor it cannot be said to have controlled the entire excavation area." Although the Secretary did not show that Flint was the general contractor, the evidence does suggest that even as a subcontractor. Flint had considerable control over and responsibility for the work area. For example, while other employers may have been under contract to cut or weld pipe once it was placed, it was Flint that decided when and where to excavate: when and where to have the crane place the pipe: and when and how to slope, shore, or otherwise protect the open trenches. An employer need not be labeled the "general contractor" to have control over a hazard, particularly one it has itself created. See Brennan v. OSHRC (Underhill Constr. Corp.). 513 F.2d 1032 (2d Cir.1975). In order to be relieved of liability, as part of its multi-employer worksite affirmative defense. Flint must show that it neither created nor controlled the open trench.

As Flint correctly notes, under Anning-Johnson, a subcontractor that neither creates nor controls a hazardous condition may defend against the Secretary's charge by showing that its employees were protected by means of realistic measures taken as an alternative to literal compliance with the cited standard.

Preventing its own employees from entering the trench, according to Flint, constitutes such a realistic alternative to shoring the trench. We concur that this action would have sufficed had Flint been a non-creating, non-controlling subcontractor on the worksite.

However, where, as here, an employer is "in control of an area, and responsible for its maintenance," to establish a violation the Secretary need only show that a hazardous condition existed and "that the area of the hazard was accessible to the employees of the cited employer or those of other employers engaged in a common undertaking." Underhill, 513 F.2d at 1038 (emphasis added). Similarly, in Beatty Equip. Leasing, Inc., 4 BNA OSHC 1211, 1975-76 CCH OSHD ś 20,694, (No. 3901, 1976), aff'd. 577 F.2d 534 (9th Cir. 1978), the Commission noted:

[i]n our rule governing liability on multi-employer construction sites, we specifically adopted [Underhill] to the extent that it would impose liability on a subcontractor who creates a hazard or has control over the condition ... even though only employees of other subcontractors are exposed.

Id. at 1212, 19715-76 CCH OSHD at p. 24,802 (citation and footnote omitted and emphasis added). In this case, the Secretary's showing that a hazard existed and that employees were exposed is unrebutted.

ll. Knowledge of Employee Exposure

The record establishes that Flint knew that its own employees could be exposed to the hazard (it the unprotected trench and, as a realistic alternative to actual compliance with the standard. Flint instructed them not to enter the trench until it was properly shored. At the same time, Flint knew that there were a number of other subcontractors' employees on the site involved in various aspects of installing the new pipeline. Under Otis Elevator Co., 6 BNA OSHC 2048, 2050, 1978 CCH OSHD ś 23,135 (No. 16057, 1978), access to the violative condition not actual exposure, is the test. Thus, the Secretary has established that Flint had the requisite notice or knowledge that employees could reasonably be expected to be exposed to the unprotected trench it has left open.

Flint contends that "Respondent had no notice that these unidentified workers were in the trench on the day in question. Till this day. it is unknown who employed these men.... [T]he exposed employees were not [Flint's] and. were working there without [Flint's] knowledge." Flint's foreman testified that he did not see anyone in the trench when he was at the site off and on. As the Secretary notes, however, there were construction materials and an access kidder in the trench in plain view. Only a failure to exercise reasonable diligence could leave Flint without knowledge. Even a non-creating, non-controlling subcontractor may not "close its eyes" to hazards. Grossman Steel, 4 BNA OSHC at 1189, 1976-77 CCH OSHD at p. 25,481. A creating, controlling subcontractor like Flint must be all the more vigilant.

Flint claims that "[s]hort of posting watchmen along all unshored portions of [the] excavation site or fencing in the entire area. Respondent could not have foreseen or insured that workers would not enter into the trench of their own accord." However. the Secretary points out that "[t]here was no evidence that ... Flint took measures to barricade the excavation or to alert other employers to keep their employees from the zone of danger until a protective system was in place." As the Commission said in Knutson Constr. Co., 4 BNA OSHC 1759. 1761. 1976-77 CCH OSHD ś 21,185, p. 25,481 (No. 76-5. 1976) aff'd.566 F.2d 596 (8th Cir. 1977) "the duty we imposed...in Grossman Steel & Aluminum Corp. and Anning-Johnson Co. is a reasonable one..." Faced with the hazard of a temporarily unprotected trench. Flint would not be expected to order its employees to walk off the job. or to demand that other employers employees clear the worksite altogether. See, e.g., Anning- Johnson. 4 BNA OSHC at 1197, 1975-76 CCH OSHD at p. 24,782, and Lee Roy Westbrook Constr. Co.,13 BNA OSHC 2101, 2104, 1987-90 CCH OSHD ś 28,464, p. 37, 693 (No. 84-9, 1989). To the contrary, we think that the very same "realistic measures" Flint took with respect to its own employees (telling them to stay out of the trench) would have fulfilled Flint's obligation to protect the employees of other employers. The record here shows no effort on Flint's part to advise or notify the other employers' employees at the site that no one could safely enter the trench until it was properly shored.

III. Characterization

Flint notes that although the trench had been opened and left unprotected, shoring materials were en route from another site at the time the inspection took place and were used to protect the trench properly after the inspection was over. It argues that "the fact that an inspection occurred during this brief lapsed time should not raise this technical violation" to serious. We take this to constitute a request that the Commission modify the characterization of this citation to other-than-serious.

The Secretary responds that even if a hazardous condition exists only briefly, or if employees are exposed to a hazardous condition only briefly, brief duration does not negate the violation or its seriousness.[[9]] She cites Walker Towing Corp., 14 BNA OSHC 2072, 1991 CCH OSHD ś 29,239 (No. 87-1359, 1991) (passing an unguarded edge constitutes brief exposure to fall hazard, resulting in a serious violation and a $480 penalty); Whiting-Turner Contracting Co., 13 BNA OSHC 2155, 1987-90 CCH OSHD ś 28,501 (No. 87-1238, 1989) (brief exposure to a fall hazard while waiting for a welder to finish constitutes serious violation and $500 penalty); and Morgan and Culpepper, Inc. v. OSHRC, 676 F.2d 1065, 1069 (5th Cir. 1982) (professional engineers' brief exposure to fall hazard during walkaround inspection constitutes a serious violation and $50 penalty), in support of her position, as well as H.H. Hall Constr. Co., 10 BNA OSHC 1042, 1981 CCH OSHD ś 25,712 (No. 76-4765, 1981) (five to ten minutes in an unsafe trench results in serious violation and $1,000 penalty.)

Flint admits that the unprotected trench was dangerous, and its efforts to keep its own employees out of the trench belie its position that it was cited for a technically.

Commission precedent compiles a finding of a serious violation under these circumstances.

IV. Duplicativeness

As a final matter we address Flint's claim that the citations for violating the spoil bank standard at section 1926.651(j)(2) and the trench wall standard at section 1926.652(a)(j) are duplicative. Flint asserts that the shoring "included" a plywood extension to protect employees from all debris re-entering the trench and argues that employee exposure to the spoil pile would have been abated if the walls had been adequately shored. Citing an unreviewed judge's decision in support.

The Secretary maintains that the hazard involved in loose soil rolling or failing into an excavation is related to yet distinct from a cave-in resulting from the collapse of a trench. The Commission has held citations to be duplicative only where they involve substantially the same violative conduct Cleveland Consolidated, Inc. 13 BNA OSHC 1114, 1986-87 CCH OSHD ś 27,829 (No. 84-0696, 1987) In H.H. Hall, 10 BNA OSHC at 1049 1981 CCH OSHD at p. 32,058. the Commission held that the fact that compliance with two standards resulted in the same general hazard does not render them duplicative. In Capform, Inc., 13 BNA OSHC 2219, 1987-90 CCH OSHD ś 28,503 (No. 84-0556, 1989). the Commission vacated one of two citations under the former trench standards since with one necessarily resulted In compliance with the other.

Here, however, Flint could not meet two standards with one abatement effort. Flint's own safety manager testified that the intention was either to (1) shore the trench walls and (2) install a plywood extension to retain the spoil hank or to (1) use one trench box in the trench and (2) stack another on top to address the spoil bank hazard. Taking measures to abate the one hazard would not in and of itself result in the abatement of the other hazard. In this case the hazards and their respective abatement methods are sufficiently distinct so as to constitute separate violations deserving of separate penalties.

V. Order

In conclusion, the evidence shows that Flint was in charge of the excavation. It created and controlled the hazards in opening the trench before protective shoring materials or trench boxes were available, thereby endangering other employers employees. With respect to this particular hazard alone, Flint owed at least the same warning to others employees as the one it took the time to give its own.

Accordingly items 4, 5, and 6 are affirmed. Having considered the statutory criteria.including gravity see supra note 9, we concur with the judge's determination, undisputed by the parties, that the penalties proposed by the Secretary are appropriate. Therefore, we assess penalties in the amount of $240 for item 4, $480 for item 5, and $480 for item 6.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

December 21,1992

SECRETARY OF LABOR, Complainant. v. FLINT ENGINEERING & CONSTRUCTION COMPANY, Respondent.

OSHRC DOCKET NO. 90-2873

APPEARANCES:
Terry K. Goltz, Esquire

George R. Carlton, Jr., Esquire
For the Complainant- For the Respondent.

Before: Administrative Law Judge Louis G. LaVecchia

DECISION AND ORDER

This is a proceeding brought before the Occupational Safety and Health Review Commission ("the Commission") pursuant to section 10 of the Occupational Safety and Health Act of 1970. 29 U.S.C. et seq. ("the Act").

On August 31, 1990, the Occupational Safety and Health Administration ("OSHA") inspected an excavation site in Midwest City, Oklahoma where Respondent was installing a gas line. As a result of the inspection a citation alleging six serious violations was issued. Respondent contested the citation, and a hearing was held March 28, 1991.[[1]] The alleged violations are discussed below.

Item 3 - 29 C.F.R. 1926.303(c)(3)

George McCown is the OSHA compliance officer ("CO") who inspected the site.[[2]] He testified that during his inspection, he saw a portable right-angle grinder in a truck without the required guard over the abrasive wheel. He identified C-12 as a photo of the grinder, and noted that while he did not see it used, he saw employees using the same types of grinders in the trench, as shown in C-11. McCown said to the best of his recollection, the employee in C-11 was Dale McCulley, he explained there were ten to fifteen people at the site, and that while he talked to Mr. Winsett, the foreman, and several others, McCulley was the one he generally spoke to and through whom he verified exposure to the cited conditions. McCown did not recall if there were employees besides those of Flint at the site. (Tr. 6-9; 13-15; 20; 34: 40-48; 52).

Robert Baker is Flint's corporate safety manager.[[3]] He testified he and three employees under his supervision oversee all company projects, that he had been at the site the day before the inspection, and that he was there the day after. He said he had never heard of Dale McCulley, and that he had checked the company records and his name did not appear as an employee. Baker noted there were other individuals besides Flint employees on the site, but that to his knowledge, no one had used a grinder or sander in the trench. He also noted that while Flint uses sanders for other types of work, the grinder in C-12 was supplied by a subcontractor and did not belong to Flint. (Tr. 54-55; 59; 62; 65-66).

Jesse Winsett has been employed by Flint for thirteen years. He has been a foreman for the last five years, and he was a foreman at the subject site. He testified that he had never heard of Dale McCulley. (Tr. 9; 20; 40; 76-77; 83).

The subject standard provides, in pertinent part, as follows:

[P]ortable abrasive wheels used for external grinding, shall be provided with safety guards (protection hoods).

Based on the CO's testimony and C-11 unguarded grinders were used in the trench. The CO Identified the Individual in C-11 as Dale McCulley. who he believed was a Flint employee. The testimony of Baker and Winsett. considered in conjunction with the CO's inability to recall if there were employees other than those of Flint at the site. indicates McCulley was employed by another contractor at the site. Baker's testimony, moreover, indicates that the cited grinders did not belong to Flint, that they were supplied by another contractor, and that Flint employees did not use them. According to established Commission precedent, an employer who does not create or control the violative condition, and whose employees are not exposed to the condition, will not be found liable under the Act.[[4]] Anning-Johnson Co., 4 BNA OSHC 1993, 1199, 1975-76 CCH OSHD ś 20,690, ś 24,784 (Nos. 3694 and 4409, 1976), Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1188-89, 1975-76 CCH OSHD ś 20,691, p. 24,791 (No. 12775, 1976). Based on the record. the Secretary has not shown that Flint created or controlled the cited condition, or that Flint employees were exposed to it. This citation item is accordingly vacated.

Item 4 29 C.F.R. § 1926.651 (j) (2)

George McCown testified that although Winsett told him the job had started six weeks earlier. he saw only the part of the excavation that was south of Fifteenth Street. He identified C-1 as a diagram he drew of the site, and C-2-5, C-11 and C-13 as photos he took. McCown noted the trench was about 127 inches deep, and that there was a spoil bank of excavated earth 6 to 8 feet high right on the edge of the west side of the trench that had no retaining device to keep it from failing back into the trench. He further noted he observed Dale McCulley and two other employees working in the trench in the area shown in C-5, which was below the spoil bank. McCown said the condition was hazardous and could have caused serious injuries to the employees in the trench; falling clods of dirt could have struck and injured them and could also have caused them to be injured by the grinders they were using (Tr. 10-12; 16-19; 41-44; 49-50; 53-54).

Robert Baker testified that a predominant amount of Flint's work involves pipeline construction. He said he had been to a number of seminars addressing trenching and pipeline work, and that he and his staff had attended a Texas A&M program and received certificates of training in excavation safety.[[5]] He also said all new employees go through an orientation which addresses pipeline safety, that those on the site had been trained, and that either he or Bobby Burns, the job superintendent, conducted daily safety meetings at the site which sometimes included representatives from the companies from whom they obtained shoring and trench boxes. Baker observed that although there were other individuals on the site, the Flint employees were instructed to not get into any type of excavation until it was shored, sloped or trench boxes were in place. (Tr. 56-62, 68-69).

Baker further testified the subject project was roughly a 5-mile excavation through the middle of Midwest City, that it had a very narrow right-of-way due to its passing through residential areas, and that work was taking place in three different areas at the same time. Baker noted he had talked to Burns the day before the inspection, after which they determined there was insufficient right-of-way to slope the trench and that shoring and trench boxes from other areas of the job would be used. He said the company's intent was to use the shoring, and if it was satisfactory, install 4 by 8 plywood sheets to retain the spoil bank, otherwise, the trench boxes, which protect the employees working inside them from cave-ins, would be stacked and locked in place to retain the spoil bank. Baker understood the shoring and trench boxes were en route when the CO was there, and observed that the shoring and the plywood were installed after the inspection. (Tr. 59-64).

Jesse Winsett testified he was present during part of the inspection, and that Bobby Bums was the overall superintendent of the job. He said he had been trained in trenching safety and that the company has safety meetings. He also said the same procedure was used on the entire job, which was to shore up the trench after it was opened. Winsett noted the spoil bank is normally kept 2 feet or more from the trench edge, but that since this was not possible at the site, plyboard was used. He further noted the portion of the trench the CO saw had been opened the night before. that the crew was waiting for the shoring material to arrive when the CO, was there and that he himself had told the crew to not get into the trench until it was shored. which was done after the CO, left. Winsett said no one should have been in the trench when the CO was there, and that no one was in it when he himself was present. (Tr. 77-85).

The subject standard provides as follows:

Employees shall he protected from excavated or other materials or equipment that could pose a hazard by falling or rolling into excavations. Protection shall be provided by placing and keeping such materials or equipment at least 2 feet (.61 m) from the edge of excavations, or by the use of retaining devices that are sufficient to prevent materials or equipment from failing or rolling into excavations, or by a combination of both if necessary.

Based on CO's testimony, Dale McCulley and two other employees were working in the trench below a 6 to 8-foot spoil bank located on the edge of the trench without a retaining device. The CO's testimony is supported by C-2-5, C- 11 and C-13, and was not rebutted by Respondent. The preceding discussion indicates McCulley was not a Flint employee, and there is nothing in the record to establish that the other two workers in the trench were employed by Flint. Moreover, the testimony of Baker and Winsett in regard to the training and instructions employees received and the trenching procedures used at the site suggests that Respondent's employees were not in the trench at the time of the inspection. Regardless, Commission precedent is well settled that an employer who creates or controls a hazardous condition, even when the only employees exposed to the condition are those of different contractors at the site. will be held liable under Act. Id. It is obvious from the record Flint controlled the cited condition. that employees were exposed to it, and that a serious violation has been established. This citation item is affirmed as a serious violation, and the proposed penalty of $240.00 is assessed.

Item 5 - 29 C.F.R. § 1926.651(k)(1)

George McCown testified the standard requires daily inspections by a person 16 competent to determine any hazards in the excavation, and that such person should have knowledge of soil analysis. protective systems and OSHA regulations. He further testified that when he asked Winsett whether anyone had been trained in these matters, Winsett responded that he had not been trained, but that a Mr. White, a company employee who was working on another project, had received excavation training earlier that year. McCown said that not having a competent person available to conduct inspections was a serious hazard because soil conditions can change daily. and an untrained person would be unable identify hazards. (Tr.19-22).

Robert Baker testified that none of the persons on his staff were at the site. Jesse Winsett testified he had been trained In trenching, sloping and shoring requirements. He indicated he had been trained by Burns, and that Burns was at a different area of the project the day of the Inspection. (Tr. 68. 77-78).

The subject standard provides as follows:

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.

"Competent person" is defined at 1926.650(b) as follows:

Competent person means 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.

The basis of this citation item was Winsett's response to the CO that he had not been trained in such matters as soil analysis, protective systems and OSHA regulations relating to excavations. It is evident from Winsett's testimony he was unfamiliar with soil analysis. (Tr. 84). Moreover, while he indicated Burns had trained him in trenching requirements, there was no evidence Burns was adequately trained in these matters. There was likewise no evidence that White, who Winsett said had been trained, was available to conduct daily inspections of the site. Finally, while the preceding discussion demonstrates Baker and his staff received excavation safety training, it is clear Baker was not present the day of the inspection and that none of his staff was at the site. The preceding discussion establishes employee exposure, and the serious nature of the violation is apparent. This citation item is affirmed as a serious violation, and the proposed penalty of $480.00 is assessed.

Item 6 - 29 C.F.R. § 1926.652(a)(1)

George McCown testified the standard requires employers to use one of several methods to protect employees in excavations. including sloping, shoring and the use of trench boxes. He further testified the only precaution he saw at the site was that the top 37 inches of the trench had been sloped back 43 inches; the rest of the trench walls were vertical and unprotected. McCown noted he took samples of the two different types of soil present at the excavation and submitted the samples to a lab for testing; the results, shown in C-14, indicated both samples were "Type B." McCown said he would have recommended the citation even if the soil had been "Type A" the most cohesive class of soil, since the walls were vertical and not sloped as required for either "Type A" or "Type B" soil (Tr. 22-34; 50; 53).

The subject standard provides, in pertinent part, as follows:

Each employee in an excavation shall be protected from cave-ins by an adequate protective system.

The CO testified that the walls of the trench at the site were vertical, other than the top 37 inches which had been sloped back 43 inches. He further testified that the sloping was inadequate, even if the soil had been "Type A." His conclusion is supported by Table B-1 of the standard, which provides the maximum allowable slopes for "Type A" and "Type B" soil, and by Figure B-1, which shows the required sloping for an excavation in "Type A" soil. Respondent did not rebut the CO's testimony, and the statements of Baker and Winsett set out in item 4, supra, demonstrate there was no other method of protection in use at the time of the inspection. The discussion in item 4 also demonstrates employee exposure to the unprotected trench, and the serious nature of the condition is obvious. This citation item is affirmed as a serious violation, and the proposed penalty of $480.00 is assessed.

Penalty Determination

Penalties have been assessed for Items 4, 5, and 6, supra. In assessing the penalties, due consideration has been given to the employer's size, history and good faith, as well as to the gravity of the violations.

Conclusions of Law

1. Respondent, Flint Engineering and Construction Company, is engaged in a business affecting commerce and has employees within the meaning of section 3(5) of the Act. The Commission has jurisdiction of the parties and of the subject matter of the proceeding.

2. On August 31, 1990, Respondent was in nonserious violation of 29 C.F.R. §§ 1926.21(b)(2) and 1926.59(h).

3. On August 31, 1990, Respondent was not In violation of 29 C.F.R. § 1926.303(c)(3).

4. On August 31, 1990, Respondent was in serious violation of 29 C.F.R. §§ 1926.651(j)(2), 1926.651(k)(l) and 1926.652(a)(1).

Order

On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Items 1 and 2 of serious citation number 1 are AFFIRMED as nonserious violations, and no penalties are assessed.

2. Item 3 of serious citation number 1 is VACATED.

3. Items 4, 5 and 6 of serious citation number 1 are AFFIRMED, and penalties of $240.00, $480.00 and $480.00, respectively, are assessed.

Louis G. LaVecchia Administrative Law Judge
DATE: May 18, 1992

FOOTNOTES:

[[1]]Flint withdrew its notice of contest of two citation items when the Secretary downgraded the violations to other-than-serious with no penalty assessed. The judge vacated a third citation item for an unguarded grinding tool because the Secretary failed to show either that Flint employees were exposed or that Flint created or controlled the hazard.

[[2]] Found in Subpart P--Excavations, the cited standard provides:
§ 1926.651 General requirements.
(j) Protection of employees from loose rock or soil.
(2) Employees shall be protected from excavated...materials...that could pose a hazard by falling or rolling into excavations.

[[3]] Found in Subpart P--Excavations, the cited standard provides:
§ 1926.651 General requirements.
(k) Inspections (1) 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, failure of protective systems...or other hazardous conditions.... These inspections are only required when employee exposure can be reasonably anticipated.

[[4]] Found in Subpart P--Excavations, the cited standard provides:
§ 1926.652 Requirements for protective systems.
(a) Protective of employees in excavations. (1) Each employee in an excavation shall be protected from cave-ins by an adequate protective system....

[[5]] See D Harris Masonry Contract. Inc., v. Dole. 876 F.2d 343 (3rd Cir. 1989); Electric Smith. Inc. v Sec'y of Labor 666 F.2d 1267(9th Cir. 1982): Central of Ga R Co. v. OSHRC 576 F.2d 620 (5th Cir. 1978); Novak & Co., Inc. 11 B N A OSHC 1763 1983-84CCH OSHD ś 26,756 (No. 80-7335, 1984)

[[6]] See Dun-Par Engineered Form Co. v. Marshall. 676 F.2d 1333 (10th Cir. 1982): Marshall v. Knutson Constr. Co.,566 F.2d 596 (8th Cir.1977) F.L. Hughes and Co., 11 BNA OSHC 1391. 1983-84 CCH OSHD ś 26,520 (No. 14519, 1983); H. B. Zachry Co., (Intl).8 BNA OSHC 1669. 1980 CCH OSHD ś 24,588 (No. 76-267,1980).

[[7]] The Secretary argues that the employees observed in the trench were in fact Flint employees. Since, as the Secretary acknowledges,affirmance of the citation does not depend on a determination of this issue, we make no factual finding as to whether the employees in the trench were Flint employees or those of another sub-contractor. For analytical purposes, however, we treat the ma s non-Flint employees.

[[8]] Flint contends, that the trench itself was not the hazard in question. Instead, it claims that the hazard was the absence of adequate shoring in the trench, and then only when combined with the presence of employees. We disagree. The open trench was the hazard.

[[9]] The duration of employees exposure is not determinative of the seriousness of a violation; it relates rather to the gravity factor in assessing a penalty. H.H. Hall Constr. Co., 10 BNA OSHC 1042, 1047, 1981 CCH OSHD ś 25,712 at p. 32,057 (No. 76-4765, 1981) and cases cited.

[[1]] Items 1 and 2 of the citation alleged violations of 29 C.F.R. § 1926.21(b)(2) and 1926.59(h), respectively. At the hearing, the Secretary amended items 1 and 2 to nonserious and reduced the proposed penalties to zero after which Respondent withdrew its contest of these items. (Tr. 4-6)

[[2]] McCown has been with OSHA for six years; his previous experience includes seven years as a safety officer with the United States Army and ten years as an accident loss control supervisor and manager with Aetna Insurance Company. (Tr. 6-8, 36-37).

[[3]] Prior to this position, which he has held for two years, Baker was a corporate safety manager for Western Oil Well Service Company for thirteen years. (Tr. 55).

[[4]] A general contractor on a multi-employer worksite is typically responsible for assuring the prevention or abatement of all conditions affecting the safety or health of employees on the site. Id. However, the Secretary did not establish Flint was. the general contractor in this case.

[[5]] Baker said the seminars and Texas A&M program had taken place in 1989 and 1990. (Tr. 68).