United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, N.W., Ninth Floor

 Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 10-1372

BRIONES UTILITY CO., 

Respondent.

BRIEFING NOTICE

The parties are requested to brief all issues presented in the Complainant’s Petition for 

Discretionary Review. In particular, the parties are asked to address whether the judge erred in 

vacating Citation 1, Item 1, which alleged a violation of 29 C.F.R. § 1926.652(a)(1) (protection 

of employees in excavations). 

The parties are advised that when the merits or characterization of an item are before the 

Commission for review, the appropriateness of the penalty is also subject to review. 

Accordingly, the parties may address the amount of the penalty if they so choose.

All briefs are to be filed in accordance with Commission Rule 93.1 The first brief is to be 

filed within 40 days of this notice. A party who does not intend to file a brief must notify the 

Commission in writing setting forth the reason therefor within the applicable time for filing 

 

1

 The Commission requests that all briefs include an alphabetical table of authorities with 

references to the pages on which they are cited, and that an asterisk be placed in the left-hand 

margin of the table to indicate those authorities on which the brief principally relies. The 

Commission also requests that copies of cited authority, other than statutes, case law, law journal 

articles and legal treatises, be provided to the Commission and to the opposing party. Parties 

should be cautioned that these materials will be considered only if appropriate.
briefs, and shall serve a copy on all other parties. The time for filing briefs (or similar notices of 

intent) of opposing parties shall commence on the date of service.

BY DIRECTION OF THE COMMISSION

Dated: September 4, 2012 ___/s/____________________________

Ray H. Darling, Jr.

Executive Secretary
UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION

)

Secretary of Labor, )

)

Complainant, )

) OSHRC Docket No. 10-1372

v. )

)

Briones Utility Company, )

)

Respondent. )

)

PETITION FOR DISCRETIONARY REVIEW

Pursuant to Occupational Safety and Health Review Commission Rule of Procedure 91, 

29 C.F.R. § 2200.91, the Secretary of Labor petitions the Commission for discretionary review 

of the administrative law judge’s (ALJ) decision vacating the Secretary’s citation in this matter.

STATEMENT OF ERROR

This case arises from a May 12, 2010 inspection by the Occupational Safety and Health 

Administration (OSHA) of Briones Utility Company (BUC). During the inspection, OSHA 
Compliance Safety and Health Officer (CSHO) Raul Carrillo observed one worker inside a 

trench with inadequate cave-in protection. OSHA issued BUC a citation alleging a serious 

violation of 29 C.F.R. § 1926.652(a)(1) for failing to provide adequate protection from cave-ins 

in the excavation. 2 After an evidentiary hearing, the ALJ vacated the citation, finding that the 

Secretary failed to establish that BUC’s employee was exposed to the hazard of a cave-in. Dec. 

10. 

The ALJ’s decision to vacate the citation based on lack of employee exposure is not 

supported by the record or the applicable law. The ALJ only considered whether the facts 

established that the employee was actually in the zone of danger, and failed to consider whether 

it was reasonably predictable that he would be exposed to a hazard while in an improperly shored 

trench. And, the record evidence establishes both that the BUC employee was actually exposed 

to a hazardous condition and that it was reasonably predictable that he would be in the zone of 

danger. 

The ALJ also erred in holding that the BUC employee’s presence in the noncompliant 

trench was necessary and, thus, excusable. This alternative holding was erroneous for three 

reasons: (1) the evidence does not support the ALJ’s finding that the employee’s presence in the 

trench was required to install additional shoring; (2) BUC waived this argument by failing to 

raise it as an affirmative defense during the pre-trial conference; and (3) the Secretary did not 

have an opportunity to brief the issue.

STATEMENT OF FACTS

 

2

The citation initially alleged a second serious violation of 29 C.F.R. § 1926.652(c)(2). OSHA 

withdrew this citation prior to the trial. See Tr. 68-69; 88. 
A. OSHA’s Inspection and Citation of an Inadequately Protected Trench at a BUC 

Worksite.

BUC is an underground utility excavation and trenching company owned by Alfredo 

Briones. Dec. 2. On May 12, 2010, BUC was excavating a trench in San Antonio, Texas, to 

expose a sewer and gas line conflict for San Antonio Sewer and Water and City Public Service. 

Dec. 2. CSHO Raul Carrillo drove past the BUC jobsite and observed the open trench. Tr. 19. 

Due to the potentially deadly hazards posed by trenches, OSHA compliance officers conduct 

inspections whenever they observe trenching operations taking place. Tr. 19-20. In accordance 

with this practice, CSHO Carrillo parked his car and proceeded onto the BUC jobsite. Tr. 20.

Upon entering the jobsite, CSHO Carrillo observed and photographed BUC employee, 

Armando Briones, in the trench without appropriate cave-in protection. Tr. 23; see also Compl. 

Exs. 4 & 7. After instructing Armando Briones to exit the trench, the CSHO introduced himself 

to Armando Briones’ supervisor (and BUC owner), Alfredo Briones, who was on-site observing 

the trenching operations, and held an opening conference. Tr. 21-22. Following the conference, 

the CSHO collected a soil sample from the spoil pile, and measured the length and depth of the 
trench. Tr. 22. Per the CSHO’s measurements, the trench was in Type C3

soil and was 

approximately seven feet deep and ten4feet long. Tr. 26-27. 

On June 10, 2010, OSHA issued BUC a citation alleging a serious violation of OSHA's 

trenching standard. Specifically, OSHA alleged that BUC violated 29 C.F.R. § 1926.652(a)(1) by 

failing to provide adequate cave-in protection to an employee working in a trench which 

measured seven feet deep, three feet wide, and ten feet long.5

B. The Excavation Standard and BUC’s Use of Aluminum Hydraulic Shoring in the Trench.

 

3 BUC owner Alfredo Briones claims that the soil inside the trench was Type B soil. Tr. 153. 

Although the CSHO’s field test at the worksite identified the soil as Type B as well, a laboratory 

analysis performed at the OSHA Technical Center on a soil sample taken from the trench’s spoil 

pile determined that the soil was in fact Type C. Tr. 30, 31, 32, 49. This result is consistent with 

the CSHO’s observation that previously disturbed soil, like the soil in which the trench was dug, 

is usually Class C. Tr. 49. In any event, and as the CSHO noted, the laboratory analysis of a soil 

sample is more accurate than a field test. Tr. 48.

4

The citation originally indicated that the trench was twenty feet long. Dec. 2 n.4 (citing Resp. 

Ex. 1). However, the CSHO clarified that the trench was actually ten feet long. Tr. 27; see also

Tr. 155. 

5

Section 1926.652(a)(1) provides:

(a) Protection of employees in excavations. (1) Each employee in an 

excavation shall be protected from cave-ins by an adequate protective 

system designed in accordance with paragraph (b) or (c) of this section 

except when:

(i) Excavations are made entirely in stable rock; or

(ii) Excavations are less than 5 feet (1.52 m) in depth and examination 

of the ground by a competent person provides no indication of a 

potential cave-in.
OSHA’s standard on excavations requires employers to protect employees from cave-ins 

when they are working in any excavation greater than five feet deep located in potentially 

unstable soil. Tr. 49; see 29 C.F.R. § 1926.652(a)(1). The standard allows employers to choose 

from a variety of protective systems. Tr. 49; see 29 C.F.R. § 1926.652(a)(1). For example, an 

employer can use sloping, benching, trench boxes, or aluminum shoring. Tr. 49; see 29 C.F.R. § 

1926.652(a)-(c). 

BUC elected to use a form of aluminum shoring in its trench called vertical aluminum 

hydraulic shoring. Tr. 50; Dec. 6. Vertical aluminum hydraulic shores protect employees by 

pushing back on a trench’s walls to prevent them from collapsing. Tr. 54. As depicted in BUC’s 

Exhibit 4 (a photograph), two pressurized cylinder pistons reach across the width of the trench 

and exert pressure upon two vertical aluminum pieces, called walers. Tr. 53-54; Compl. Ex. 4. 

The walers push against sheets, also called panels or fin forms, which rest directly on the walls 

of the trench. Tr. 54; Compl. Ex. 4. The sheets prevent the raveling or sloughing of the dirt. Tr. 

55; Compl. Ex. 4. Even though the sheets are between the walers and the walls, they are not part 

of the shoring’s structural support. Tr. 55. 

Employers using aluminum hydraulic shoring must select, construct, and implement the 

shoring system in accordance with one of the design options listed in 29 C.F.R. § 1926.652 (c). 

See Dec. 5. Subsection (c) requires employers to ensure that that the support system they choose 

is in accordance with either: (1) designs contained in appendices A, C, or D; (2) the shoring 

manufacturer’s tabulated data; (3) tabulated data approved by a professional engineer; or (4) 

tabulated data created by a professional engineer. § 1926.652(c)(1)-(4). 
BUC chose to use tabulated data generated by the shoring manufacturer (the option 

provided at § 1926.652(c)(2)). See Resp. Ex. 7 at “Section XVI. Trench Safety” (stating that 

aluminum hydraulic shoring shall be installed according to the manufacturer’s recommendation, 

i.e. the manufacturer’s tabulated data). Although the tabulated data generated by the 

manufacturer of the vertical aluminum shoring used by BUC was not introduced into evidence, 

CSHO Carrillo explained that he had seen manufacturer’s data for that type of shoring. Tr. 67. 

The data required a “horizontal distance [between hydraulic cylinders] of approximately four to 

six feet” for Type C soil. Dec. 7 (citing Tr. 67). Put another way, manufacturers of this type of 

shoring require that hydraulic cylinders be placed no more than six feet apart.6 Tr. 67; see §

1926.652, App. D, Figure No. 1. In a ten-foot long, seven foot deep trench, like the trench at 

issue in this case, this data would have required a minimum of two vertical aluminum hydraulic 

shores.7 Tr. 70-72. 

Even though the tabulated data required a minimum of two vertical aluminum hydraulic 

shores, BUC owner Alfredo Briones allowed his employee Armando Briones to enter the trench 

with only one shore installed. Tr. 50, see Compl. Exs. 4, 7 (depicting Armando Briones working 

inside the trench with only one shore installed). Although Alfredo Briones thought that his 

employee was safe within the single shore, Armando Briones did not remain within the shore. 

See, e.g. Tr. 142-43 (Alfredo Briones testifying that the four-foot area where the shore is in place 

“is the right protection for one people to be inside.”); see also Tr. 57-58 (“He was outside. He 

was outside that protected area of that shore.”); Tr. 125 (Q. “Your head, your body is out – You 

are outside the shore?” A: “(Perusing [Complainant’s Exhibit 7]) Half.”); Compl. Exs. 4, 7. The 

 

6 A complete protective system usually consists of three shores, though sometimes, fewer may be 

used if it is not feasible to install all three shores in a trench. See Tr. 59, 70-71.

7

Even if the soil had been type B, the data would have required a second shore. See Tr.70.
CSHO observed Armando Briones outside the shore for at least twenty to thirty seconds, but 

noted that he could have been outside of the shored area for longer than that time. Tr. 74-75. 

Further, it appears that Armando Briones only returned to the shored area when he saw the 

CSHO. Id. 

The single shore was installed at one end of the trench. Tr. 65, 138-40. It extended 

approximately four feet along the trench’s ten-foot long walls, leaving six feet, or three-fifths, of 

the trench unshored. Tr. 65-66. The composite sheets in this case measured four feet in width 

by approximately eight feet in height. Tr. 139-40. One sheet rested against each of the trench’s 

ten-foot long walls. Tr. 141. However, because the sheets were only four feet wide, they only 

covered four feet of the walls’ ten-foot length. Tr. 142-43. Due to their height, the sheets 

extended from the floor of the trench to its mouth, clearing the lip of the trench by approximately 

one foot. Tr. 140. 

One vertical aluminum waler was located in the center of each sheet, bisecting the sheets’ 

four-foot width. Tr. 50, 55, Compl. Exs. 2, 7. Consequently, each sheet extended approximately 

two feet from either side of each waler. Tr. 65-66. The walers pushed against the sheets, which 

rested directly on the trench’s walls. Tr. 55, 65-66. The two pressurized cylinder reached across 

the trench and pressed into the walers. Tr. 53-54; see Compl. Ex. 4. The distance from the 

cylinders to the nearest trench end was two feet; the distance from the cylinders to the furthest 

trench end was eight feet. Tr. 65-66. 

Although only one shore was installed in the trench at the time CSHO Carrillo arrived, 

BUC had at least one more shore on-site. Tr. 107, 142. In fact, BUC owner Alfredo Briones 

claimed that they were in the process of installing a second shore when CSHO Carrillo arrived at 
the jobsite. Tr. 141-42. Although the exact timeline is somewhat unclear, Alfredo Briones 

attempted to install the second shore at least once before CSHO arrived. Tr. 138-42. However, 

due to the trench’s slope, the second shore’s sheets overlapped the first shore’s sheets. Tr. 138, 

140-41. Nevertheless, when the CSHO asked BUC to abate the violation, they were able to do 

so by installing the second shore.8 Tr. 72-73. 

The second shore, like the first, was installed from outside the trench. Tr. 73. The CSHO 

explained that employees cannot be in the trench as they are installing the system. Id. The 

shores, which are lightweight, must be installed from the top of the trench going in. Id. BUC 

employee Armando Briones explained how in this case the shoring was assembled on the ground 

and then lowered into the trench. See Tr. 104-05. 

C. The ALJ’s Decision

The ALJ vacated the citation, holding that the Secretary failed to establish that BUC 

employee Armando Briones was exposed to a hazard. Dec. 12. Although the ALJ agreed that 

the trench’s shoring was “incomplete,” he nevertheless determined that an employee’s “mere 

presence” inside a trench with incomplete shoring did not constitute exposure to a hazard. Dec. 

10. The ALJ also found that leaning outside of the walls of the shored area did not expose 

Armando Briones to a hazard. Tr. 10. This finding was based in large part upon the CSHO’s 

testimony about how vertical aluminum hydraulic shores function. See id. at 9-10. Specifically, 

the ALJ referred to the CSHO’s testimony regarding the limited area that one shore can protect. 

 

8 Respondent’s Exhibit 1, a photograph taken after BUC abated the violation by installing the 

second shore, illustrates the company’s installation difficulties. Tr. 147-48, see also Tr. 148 (“In 

the picture, it shows the hydraulic shores....And it shows the one fin form is [overlapping] with 

the other . . . .”) 
Id. (citing Tr. 67, 76). After stating that Armando Briones was not protected outside of the 

single shore, the CSHO noted that the “shoring gives you a good two to three feet of protection 

on either side of that one shore, for that area.” Tr. 76. The ALJ concluded that this testimony 

showed that the pressure from the single shore was effective at least to the ends of the sheets, 

which extended two feet on either side of the cylinder. Dec. 8 (citing Tr. 57-58). 

The ALJ’s conclusions regarding the extent of the shore’s protection did not end there. 

After considering the CSHO’s testimony regarding the manufacturer’s tabulated data for its 

vertical aluminum hydraulic shores (four to six feet), the ALJ found that each individual shore 

would support half of that distance, or two to three feet. Id. at 9-10. The ALJ extrapolated that if 

the individual shore protected Armando Briones for one foot beyond the edge of the sheets, he 

was in no danger while standing at and leaning beyond the sheets.9 Id. at 10. 

Finally, the ALJ found that even if he were to find employee exposure, any such 

exposure was excusable because it was necessary. Dec. 12. Specifically, the ALJ determined 

that “Armando [Briones] was uncovering the sewer and gas pipes because further excavation 

was needed to install additional shoring.” Dec. 12. The ALJ concluded: “Thus, the actions of 

Armando were calculated to facilitate the installation of shoring that was readily available and 

would provide additional protection.” Id. 

REASONS THE PETITION SHOULD BE GRANTED

A. The ALJ Erred in Vacating the Citation Based on Lack of Employee Exposure to the 

Hazard.

 

9 Neither the Secretary nor BUC argued that the shore provided this extra foot of protection. 
The ALJ decision to vacate the citation based on lack of employee exposure is not 

supported by the record or the applicable law. To establish employee exposure to a hazard, the 

Secretary must show that “it is reasonably predictable either by operational necessity or 

otherwise (including inadvertence), that employees have been, are, or will be in the zone of 

danger.” Fabricated Metal Products, 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997) (citations 

omitted); see also Kilby & Gannon Constr. Servs., LLC, 2012 WL 1899709, *12 (No. 10-0755, 

2012) (applying Fabricated Metal Products test to a trench citation). In other words, the 

Secretary can satisfy her burden by showing that an employee was actually in the zone of danger 

or that it was reasonably predictable that he would be in that zone. The ALJ’s decision ignores 

the second part of this test, focusing only on whether employee Armando Briones was actually in 

the zone of danger. The ALJ failed to assess whether it was reasonably predictable that he would 

be exposed to a hazard while in an improperly shored trench. 

The record evidence establishes both that employee Armando Briones was actually in the 

zone of danger (the unprotected portion of the trench) and that it was reasonably predictable that 

he would be in the zone of danger while in the trench. The photographs introduced into evidence 

depict Armando Briones leaning outside of the shore and working in the unprotected portion of 

the trench. Dec. 8 (“The pictures taken by the CSHO clearly show that . . . [Armando’s] upper 

torso [was] leaning slightly outside of the fin form.”); see also Tr. 124 (Armando Briones 

admitting that he was cleaning a pipe in the photo). In a trench, where death or serious injury 

can occur in seconds, simply leaning outside a shored area could be deadly. See Tr. 74 (“Again, 

cave-ins happen in seconds.”); Tr. 80 (Trenching accidents can lead to “fractures, broken bones, 

and death.”) 
Moreover, even if employee Armando Briones were not actually in the zone of danger at 

the time of CSHO Carrillo’s inspection, it was reasonably predictable that he would enter the 

zone of danger. The ALJ, however, failed to even evaluate whether it was reasonably 

predictable that Armando Briones might stray outside of any allegedly protected area, focusing 

only on whether the employee’s presence outside the single shore (in an area that both OSHA 

and the employer agreed was unsafe) constituted a hazard.10 It was reasonably predictable that 

Armando Briones might stray (even inadvertently) outside of the small, shored area, especially 

where his work had him stationed at the very edge of the shored area. See Dec. 8 (finding that 

the pictures show that the employee was standing at the threshold of the single shore). 

B. The ALJ Erred in Holding in the Alternative that Employee Armando Briones’ Presence 

in the Trench Was Necessary and Therefore Excused the Violation.

The ALJ’s alternative holding that “even if the Court were to find the slightest hint of 

exposure, it cannot say that such exposure was unnecessary . . . [and] the actions of Armando 

were calculated to facilitate the installation of shoring that was readily available and would 

provide additional protection,” was erroneous.

Contrary to the ALJ’s finding, there is no evidence that employee Armando Briones’ 

presence in the trench was necessary to install the second shore. The ALJ found that Armando 

Briones was in the trench uncovering the sewer and gas pipes because further excavation was 

needed to install the second shore. Dec. 12. However, the portions of the record upon which the 

ALJ relied do not support this finding. The record shows only that: (1) BUC attempted to install 

 

10 Even if the single shore’s alleged protection extended for one foot beyond the sheets (a fact 

that both the Secretary and the BUC appear to agree is untrue), the ALJ still erred by failing to 

consider whether it was reasonably predictable that employee Armando Briones would stray into 

the other half of the trench (outside of the tiny one foot area past the edge of the sheet).

 
the second shore prior to the CSHO’s arrival (Tr. 138-42); (2) the second shore did not fit 

properly (id.); (3) BUC needed to excavate further to install the second shore (id.); (4) to 

excavate in the trench, the company used an excavator (Tr. 166); (5) the excavator’s special tool, 

called a plate, protected the pipe (id.); and (6) after the inspection, the company was able to abate 

the violation by installing the second shore. Tr. 147-48.

In addition, CSHO Carrillo explained that employees cannot be in the trench as they are 

installing the system. Tr. 73. The shores, which are lightweight, must be installed from the top 

of the trench going in. Id. Employee Armando Briones similarly described how in this case the 

shoring was assembled on the ground and then lowered into the trench. See Tr. 104-05. And, 

following the inspection, the second shore, like the first, was installed from outside the trench. 

Tr. 73. Consequently, “there was a method of installing shoring which did not require workers 

to stand in the unshored portion of the trench.” Pike Electrical Contractor v. OSHA, 576 F.2d 

72, 74 (5th Cir. 1978) (finding that Secretary’s interpretation of shoring standard as applying to 

installation of shoring was reasonable). 

What the record does not show is how employee Armando Briones’ presence in the 

trench was necessary to install the second shore. There is no evidence to suggest that BUC

needed to uncover the pipe to install the shore.11 Likewise, there is no evidence to show that the 

 

11 BUC’s arguments on this point are convoluted. In its post-trial brief, BUC repeatedly 

contends that employee Armando Briones leaned outside of the single shore because the CSHO 

asked him to pick up a shovel. BUC Post-Hearing Brief 10. BUC argues that Armando Briones 

was never working outside the shore. Id. at 8. Thus, although the ALJ determined that the 

employee was working outside of the shore, his alternative ruling is based on allegedly essential 

work that BUC claims not to have been doing. Moreover, the ALJ did not consider the only 

evidence in the record that might show why BUC needed to uncover the pipe: that was the job 

the company was hired to do. See Tr. 97, 133-36. San Antonio Water System hired BUC to 

expose the water and sewer lines. Tr. 97-98; 133-134. Given this, it is far more likely that 
employee had completed this allegedly essential task before BUC was actually able to install the 

second shore. Nor is there any evidence to suggest that BUC actually did further excavation 

before they installed the second shore. If the company truly needed to do further excavation 

before installing the shore, it had the necessary tool at hand and could install the second shore, 

from a safe position outside of the trench.

Moreover, BUC waived this affirmative defense. In a proceeding before the 

Commission, “the parties are required to file pleadings and a respondent must include in its 

answer ‘all affirmative defenses being asserted.’” C.P. Buckner Steel Erection, Inc., 23 BNA 

OSHC 1929, 1930 (No. 10-1021, 2012) (quoting Commission Rule 34(a),(b), 29 C.F.R. § 

2200.34(a),(b)). However, where a case is assigned to Simplified Proceedings, as this one was, 

“the parties generally are not required to file pleadings; instead, ‘[e]arly discussions among the 

parties and the Administrative Law Judge are required to narrow and define the disputes between 

the parties.’” C.P. Buckner Steel, 23 BNA OSHC at 1930 (quoting 29 C.F.R. § 2200.207(b)). 

The consequence of a party’s failure to raise an affirmative defense during these “early 

discussions” is quite clear: “Except under extraordinary circumstances, any affirmative defenses 

not raised at the pre-hearing conference may not be raised later.” 29 C.F.R. § 2200.207(b). As 

BUC did not raise this defense at the pre-trial conference, and neither BUC nor the ALJ noted 

any extraordinary circumstances, it was inappropriate for the ALJ to consider the defense. 

 

employee Armando Briones was uncovering the pipe to finish the job than that he was 

uncovering the pipe to somehow permit the installation of a second shore.
The ALJ also erred in basing his alternative holding on an issue that the Secretary did not 

have an opportunity to brief. ALJs certainly have “the duty to determine issues that are 

presented by the evidence properly before [them].” Kaiser Aluminum & Chemical Corp., 4 BNA 

OSHC 1162, 1165 (No. 3685, 1976) (citations omitted). In carrying out this duty, ALJs are not 

limited to the theories of counsel. Id. However, if an ALJ chooses to base an alternative 

holding on a theory that the parties have not advanced, the parties should be given notice and an 

opportunity to respond. See, e.g. id. (amending the pleadings, but staying the effective date of 

the order “to allow the parties a reasonable time in which to show good cause why the pleadings 

should not be so amended.”). 

CONCLUSION

For the foregoing reasons, the ALJ erred in vacating the citation, and the Commission 

should direct review of the ALJ’s decision. 

M. PATRICIA SMITH

Solicitor of Labor

JOSEPH M. WOODWARD

Associate Solicitor of Labor for

Occupational Safety and Health

HEATHER R. PHILLIPS

Counsel for Appellate Litigation
/s/ Allison Kramer 

ALLISON G. KRAMER 

Attorney

U.S. Department of Labor

200 Constitution Ave, N.W.

Washington, D.C. 20210

(202) 693-5789