UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

 DOCKET NO. 16-1220

 

Appearances:

Lindsay A. Wofford, U.S. Department of Labor, Office of the Solicitor, Dallas, Texas

 For Complainant

John P. Dibiasi, Esq. of Lewis, Dibiasi, Zaita & Higgins, Saddle River, New Jersey 

For Respondent

Before: Administrative Law Judge Brian A. Duncan

DECISION AND ORDER

Procedural History

As he was driving along a public roadway, Compliance Safety and Health Officer Matthew 

Hoover noticed an open excavation at the intersection of Cypress Creek Bend Drive & Tuckerton 

Road in Cypress, Texas, which he stopped to inspect pursuant to Complainant’s National Emphasis 

Program on trenching. (Tr. 37). When he arrived at Respondent’s worksite, he observed Rubin

Calzada, Respondent’s foreman, standing at the edge of the excavation and looking down upon 

two employees, who were installing cathode wires to previously installed water mains. Those 

wires prevent the creation of corrosive environments for the pipe. (Tr. 61, 190). Based on CSHO 

Hoover’s observations, he concluded that Respondent committed three violations of the trenching 

and excavation standards found at Subpart P. These violations included a failure to provide proper 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

SJ LOUIS CONSTRUCTION OF TEXAS 

LTD, 

 

 Respondent.
2

ingress/egress from the trench and failure to provide adequate means of protection against caveins. See Citation and Notification of Penalty. 

Complainant issued a Citation and Notification of Penalty, alleging three separate 

violations of the Occupational Safety and Health Act. Id. Respondent filed a timely notice of 

contest, arguing that both the means of egress and the walls of the trench were compliant with the 

cited standards. This brought the matter before the Occupational Safety and Health Review 

Commission pursuant to Section 10(c) of the Act. Prior to trial, Complainant withdrew Citation 

1, Item 2, leaving only two citation items for the Court’s review. (Tr. 19–20). With Citation 1, 

Item 2 thus withdrawn, the total penalty proposed by Complainant is $45,100. 

This matter was originally assigned to Judge John Schumacher, who is no longer with the 

Commission. On December 15, 2017, the case was re-assigned, and a trial was held on June 22, 

2018 in Houston, Texas. Two witnesses testified at trial: (1) CSHO Matthew Hoover, and (2) 

Lucus Menebroker, Respondent’s Vice President and Area Manager. Both parties submitted posttrial briefs for the Court’s consideration. 

Jurisdiction & Stipulations

The parties stipulated the Commission has jurisdiction over this proceeding pursuant to 

Section 10(c) of the Act and that, at all times relevant to this proceeding, Respondent was an 

employer engaged in a business and industry affecting interstate commerce within the meaning of 

Sections 3(3) and 3(5) of the Act, 29 U.S.C. § 652(5). (Tr. 18–19). See Slingluff v. OSHRC, 425 

F.3d 861 (10th Cir. 2005). The parties also stipulated to other factual matters, which were read 

into the record. (Tr. 18–19).
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Factual Background

Respondent is a large underground utilities contractor. On the day of CSHO Hoover’s

inspection, one of Respondent’s crews was in the process of installing cathode wires to a section 

of water main that it had previously installed as part of a larger project for the West Harris County 

Regional Water Authority. (Tr. 61, 166–67). As noted earlier, CSHO Hoover observed two of 

Respondent’s employees working in the bottom of a trench that had no immediately visible signs 

of protection installed and appeared to be lacking an adequate means of ingress/egress. (Tr. 37, 

42; Ex. C-1 at 1 to 3). Calzada directed the employees to exit the trench after CSHO Hoover 

arrived. (Tr. 93; Ex. C-1 at 3). 

Calzada told CSHO Hoover he opted not to use the available trench box because certain 

structural pins for the box did not fit or match up correctly. (Tr. 62). Instead, Calzada opted to use 

the benching method memorialized in an engineer-approved plan for this project. (Stip. No. 8; Tr. 

65–66).1 The engineer-approved plan provided two options for its implementation: 

Option I The Contractor can use Slope as shown in the Option I section of the 

specification. Applicable slopes may be obtained by either straight cut or benched 

method. Vertical cuts for the benched method shall not exceed four (4) feet. 

Easement restrictions may limit the use of this option. See Drawing Option I. 

Option II The Contractor may use a Trench Shield as shown in the Option II 

section of this specification. Requirements set forth in in this Option shall include 

curricular trench shield(s) and or manhole boxes. All slopes above trench shield(s) 

shall conform to the guidelines set forth in Option I.

(Ex. R-8 at 8) (emphasis added). This set of options is similar to the way Subpart P provides 

employers the option to utilize sloping/benching or to use physical implements, such as shoring, 

to protect against cave-ins. (Ex. R-8). See generally 29 C.F.R. § 1926.652. Because no functional 

shoring was available, Calzada opted to use Option I. (Tr. 62).

 

1. Respondent did not provide CSHO Hoover with a copy of the engineering plan until after the inspection concluded 

and Hoover had returned to his office. (Tr. 64–65). 
4

According to CSHO Hoover, Calzada told him that they had benched and sloped the 

excavation to a horizontal-vertical (H/V) ratio of one to four, which more or less aligns with CSHO 

Hoover’s estimate of the height of the benches versus their width.

2

(Tr. 63). Calzada also told 

CSHO Hoover that he did not take any measurements of the benching or sloping and that the job 

was supposed to be a quick in-and-out operation, lasting approximately 15 minutes. (Tr. 63). 

Based on his measurements, CSHO Hoover determined Respondent’s trench was not in 

compliance. The trench itself measured 20-feet long, 12-feet wide across at the top, and was 

approximately 7 feet deep.3(Tr. 47, 52–53, 75; Ex. C-11). As illustrated in Exhibit C-1, the trench 

also had benches along either side of the excavation that started roughly half-way up the wall, thus 

measuring approximately 3 to 3.5 feet in height. (Tr. 49; Ex. C-1 at 1). According to Hoover, the 

bench running along the right-hand side of the excavation (indicated by an “R” on C-1) was 

roughly two-feet wide, though it did have a substantial portion of the bench missing roughly halfway down the length of the trench.

4

(Tr. 83; Ex. C-1 at 1). The left-hand side had a bench of sorts; 

however, as indicated by CSHO Hoover, the bench varied in width throughout the length of the 

trench and was never more than one-foot wide. (Tr. 54; Ex. C-1 at 1). Further, according to 

Hoover, the left-side bench wall slope measured 60 degrees, and the sloped wall opposite the 

excavator measured 50 degrees. (Tr. 49, 57; Ex. C-11 at 4, 8, 12 and 13). CSHO Hoover did not 

measure the slope of the wall beneath the excavator because he did not feel safe performing the 

measurement. (Tr. 50–51). 

 

2. CSHO Hoover testified the slope was 4:1, but later clarified he was using the ratio of rise over run, or vertical to 

horizontal. (Tr. 63). The Court has expressed the ratio of horizontal to vertical, which is the way it is expressed in R8 and Subpart P.

3. CSHO Hoover’s initial measurement of 8 feet was off by approximately one foot because he forgot to account for 

the angle of the trench rod, which he used to measure the trench. (Tr. 75). 

4. The Court will continue to refer to the sides of the trench in this manner; however, for clarification, the Court notes 

the labels “right” and “left” are based on an individual looking lengthwise down the trench to the location of the 

excavator, which is also noted on Ex. C-1 at 1. 
5

In addition to the alleged slope-related deficiencies, CSHO Hoover also determined the 

trench did not have an adequate means of ingress/egress. (Tr. 94). After arriving at the site, CSHO 

Hoover observed two employees exit from the trench at a point adjacent to the wall where the 

excavator was parked. (Ex. C-1 at 3). To exit the trench, the employees walked toward the 

excavator and began walking up the sloped portion of that wall. (Tr. 93). Then, they turned to the 

right wall of the trench and crawled onto the bench while using the trench wall as a handhold. (Tr. 

94; Ex. C-1 at 3). CSHO Hoover determined this was a violation based on the impediment posed 

by the excavator and the roughly three-and-a-half-foot step they had to take onto and off the bench 

in order to fully exit the trench. (Tr. 94; Ex. C-1 at 3). 

After the inspection, CSHO Hoover proposed, and Complainant approved, the issuance of 

a Citation and Notification of Penalty, alleging three separate violations of the Act. As noted above, 

Complainant withdrew Citation 1, Item 2, which leaves the two citation items discussed below. 

Discussion

Citation 1, Item 1

Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows: 

29 CFR 1926.651(c)(2): A stairway, ladder, ramp or other safe means of egress 

was not located in trench excavations that were more than 4 feet (1.22m) or more 

in depth so as to require no more than 25 feet (7.62m) of lateral travel for 

employees. 

On or about March 3, 2016, near the intersection of Cypress Creek Bend Dr. and 

Tuckerton Rd., where employees were exposed to fall hazards when entering and 

exiting the eight foot deep excavation without utilizing a stairway, ladder, ramp, or 

other safe means of egress. 

Citation and Notification of Penalty at 6.

The Standard Applied and Was Violated

Respondent concedes that 1926.651(c)(2) applied to the trench at issue. See Resp’t Br. at 

11. The primary issue with respect to this alleged violation is whether Respondent installed or 
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otherwise constructed a safe means of ingress/egress from the trench. Based on the evidence 

introduced by the only witness that personally observed the trench and the manner in which 

Respondent’s employees exited from it, the Court finds Respondent failed to ensure a safe means 

of ingress/egress from the trench. The cited standard requires a ladder, stairway, ramp, or other 

safe means of egress. Because there was no ladder or stairway, the question remains as to whether 

Respondent provided a ramp or other safe means of egress. It did neither. 

First, Respondent contends the exit path taken by Respondent’s employees was, in fact, a 

‘ramp’ as defined by Subpart P. See 29 C.F.R. § 1926.651(c)(2). A ramp “means an inclined 

walking or working surface that is used to gain access from one point from another, and is 

constructed from earth or from structural materials . . . .” Id. Whatever Respondent prefers to call 

the path Respondent’s employees crawled up to exit the trench, it is surely not a ramp. To exit the 

trench, the employees first moved up the slope towards the side of the trench occupied by the 

excavator. (Tr. 93–94; Ex. C-1 at 3). Just a couple of feet up the slope, the employees then turned 

to their right to step up onto the bench on the right-hand side of the trench. (Id.). From there, the 

employees used their hands to push or pull themselves up the remaining three-plus foot wall to 

exit. (Id.). This “pathway” as Menebroker referred to it, is little more than an afterthought and 

certainly not an intentional surface designed to facilitate access from one point to another. (Tr. 

197–98). Contrary to Respondent’s assertion, the standard does not “merely” require a ramp, but 

one that was clearly designed as such and provides a safe means of egress. Respondent’s 

employees used multiple surfaces and means to climb out of the trench, none of which qualify, 

either individually or in tandem, as a ramp. 

Nor, for that matter, was the pathway used by Respondent’s employees a safe means of 

egress, as the phrase is employed under the cited standard. As observed by CSHO Hoover, the 
7

employees exited in the direction of the excavator, which, as depicted in Exhibit C-1, was parked 

at the far edge of the trench. (Ex. C-1 at 3). Respondent’s own trench safety policy states, “No 

spoil or equipment shall be permitted nearer than 2 feet from the edge of the excavation.” (Ex. R8 at 9). As the photographic evidence illustrates, however, the excavator was parked at the 

precipice of the trench’s far edge. (Ex. C-1 at 3). Thus, not only were additional loads imposed on 

that portion of the trench wall, but any reasonable and prompt means of escape were blocked by 

the excavator. See, e.g., 29 C.F.R. § 1926.651(j)(2) (requiring material and equipment to be placed 

at least 2 feet from edge of excavation). See Degen Excavating, Inc., 22 BNA OSHC 1904 (No. 

08-1271, 2009) (ALJ) (“While Robey and Maxwell may believe that Maxwell had no trouble 

exiting the trench, the photo demonstrates this was more likely due to Maxwell’s dexterity than 

the suitability of the means of exit. Indeed, in the event of a collapse, it is very possible the bank 

Maxwell was required to climb could have been adversely affected.”).

By way of comparison, the Court reviewed the maximum allowable distances between the 

steps of a ladder, which is an acceptable (and explicitly provided) means of providing safe egress 

under the standard. The maximum allowable distance between ladder rungs (10 to 14 inches) is

less than half of the vertical distance Respondent’s employees had to climb in order to exit the 

trench. See 29 C.F.R. §§ 1926.1053(a)(3)(i); see also 29 C.F.R. § 1926.1051(a) (“A stairway or 

ladder shall be provided at all personnel points of access where there is a break in elevation of 19 

inches (48 cm) or more, and no ramp, runway, sloped embankment, or personnel hoist is 

provided.”). Further complicating matters was the fact that the trench exhibited signs of sloughing 

and failure. Though Menebroker attempted to characterize the area of failure as an intentional 

“notch” used to facilitate ingress/egress, his characterization is rejected as not credible for three

reasons: (1) the employees did not use the alleged “notch” when they actually exited the trench; 
8

(2) Menebroker did not personally observe the trench or the conditions at the worksite; and (3) his 

testimony appeared to be post-citation speculation as to a possible explanation for the collapsed 

portion of the bench. (Tr. 196, 219–220; Ex. C-1, p.1). The Court finds there was no safe means 

of egress at the time of the inspection. The requirements of the standard were violated. 

Respondent’s Employees Were Exposed to the Hazard 

To establish exposure under Commission precedent, the Secretary must show 

Respondent’s employees were actually exposed to the violative condition or that it is “reasonably 

predictable by operational necessity or otherwise (including inadvertence), that employees have 

been, are, or will be in the zone of danger.” Fabricated Metal Prods., 18 BNA OSHC 1072, 1074 

(No. 93-1853, 1997). See Oberdorfer Industries, Inc., 20 BNA OSHC 1321 (“The zone of danger 

is determined by the hazards presented by the violative condition that presents the danger to 

employees which the standard is designed to prevent.”). The photographs show Respondent’s 

employees in the trench, then actually using an unsafe means to exit the trench, thereby exposing 

them to potential slip and fall hazards, as well as potential cave-in hazards imposed by the 

excavator. (Ex. C-1 at 3). Thus, Complainant established employee exposure. 

Respondent Had Knowledge of the Violation 

To prove this element, Complainant must show Respondent knew or, with the exercise of 

reasonable diligence, could have known of the violation. Dun-Par Engineered Form Co., 12 BNA 

OSHC 1962, 1965 (No. 82-928, 1986). The key is whether Respondent was aware of the 

conditions constituting a violation, not whether it understood the conditions violated the Act. 

Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079–80 (No. 90-2148, 1995). Complainant can 

prove knowledge of a corporate employer through the knowledge, actual or constructive, of its 

supervisory employees. Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). If a 
9

supervisor is, or should be, aware of the noncomplying conduct of a subordinate, it is reasonable 

to charge the employer with that knowledge. See Mountain States Tel. & Tel. Co. v. OSHRC, 623 

F.2d 155, 158 (10th Cir. 1980).

As with the previous element, Respondent’s knowledge of the violative conditions is not 

in serious dispute. Calzada, Respondent’s foreman, was standing at the edge of the trench watching 

them work in the violative trench. Because Calzada was their supervisor, his knowledge is 

properly imputed to Respondent. Accordingly, Complainant established actual employer 

knowledge of the violation. 

The Violation Was Serious

A violation is “serious” if there was a substantial probability that death or serious physical 

harm could have resulted from the violative condition. 29 U.S.C. § 666(k). Complainant need not 

show that there was a substantial probability that an accident would actually occur; he need only 

show that if an accident occurred, serious physical harm could result. Phelps Dodge Corp. v. 

OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). If the possible injury addressed by a regulation is 

death or serious physical harm, a violation of the regulation is serious. Mosser Construction, 23 

BNA OSHC 1044 (No. 08-0631, 2010); Dec-Tam Corp., 15 BNA OSHC 2072 (No. 88-0523, 

1993).

CSHO Hoover testified the lack of proper egress from the trench exposed Respondent’s 

employees to slip and fall hazards that could lead to broken bones and contusions. (Tr. 100). 

Further, as discussed in more detail below, Respondent’s employees were exposed to crushing

hazards imposed by an improperly protected trench, thereby heightening the hazards imposed by 

the lack of safe and prompt exit. Whether due to falling into the trench or being crushed by a 

collapsing trench without adequate egress, Respondent’s employees were exposed to the 
10

possibility of serious injuries up to, and including, death. Accordingly, the violation was properly 

characterized as serious. 

Citation 2, Item 1

Complainant alleged a repeat violation of the Act in Citation 1, Item 1 as follows: 

29 CFR 1926.652(a)(1): Each employee in an excavation was not protected from 

cave-ins by an adequate protective system designed in accordance with 29 CFR 

1926.652(b) or (c).

On or about March 3, 2016, near the intersection of Cypress Creek Bend Dr. and 

Tuckerton Rd., where employees were exposed to crushed-by hazards without 

being protected when working in an excavation that was 8 feet in depth that had no 

protective system. 

S.J. LOUIS CONSTRUCTION OF TEXAS WAS PREVIOUSLY CITED 

FOR A VIOLATION OF THIS OCCUPATIONAL SAFETY AND HEALTH 

STANDARD, WHICH WAS CONTAINED IN OSHA INSPECTION 

NUMBER 316045335, CITATION NUMBER 2, ITEM NUMBER 1 AND 

WAS AFFIRMED AS A FINAL ORDER ON NOVEMBER 8, 2012, WITH A 

FINAL ABATEMENT DATE OF JANUARY 8, 2013, WITH RESPECT A 

WORKPLACE LOCATED AT 860 W. AIRPORT FRWY, HURST, TX 

46054.

Citation and Notification of Penalty at 6.

The Standard Applies and Was Violated

Respondent was cited for violating 29 C.F.R. § 1926.652(a)(1), which is the general

requirement for protecting the occupants of a trench. As with the previous citation item, 

Respondent does not dispute the applicability of the standard. Instead, Respondent contends that 

it procured, implemented, and followed a plan approved by a registered professional engineer in 

accordance with 29 C.F.R. § 1926.652(b)(4). While Respondent may have procured a plan 

designed by a professional engineer, the Court finds that it failed to abide by the plan’s terms. 

In lieu of abiding by the standard-imposed requirements for trench protection, an employer 

has the option to hire a professional engineer to design a plan that will provide equivalent 

protection. See 29 C.F.R. § 1926.652(b)(4). Depending on the type of protection used, the plan 
11

will be governed by 1926.652(b)(4) or (c)(4), which address sloping/benching and support 

systems, respectively. In this case, Respondent’s plan appears to comply with 1926.652(b)(4). 

However, while the plan itself may be compliant, Respondent failed to adhere to its terms.

To recap, CSHO Hoover measured the slope of the walls as follows: (1) left wall, 60

degrees; and (3) wall opposite excavator, 50 degrees. CSHO Hoover did not measure the wall 

beneath the excavator because he felt there was no safe way to do so. None of these walls were 

compliant with the OSHA standard of 45 degrees (H:V ratio of 1:1) for Type B soil. See 29 C.F.R. 

§ 1926.652(b)(1)(ii); see also Pt. 1926, Subpt. P, App. B. Thus, we compare the trench 

measurements with the allowable configurations under Respondent’s engineer-approved plan. 

Respondent’s plan provides two options: sloping or shielding. (Ex. R-8). Because Calzada 

did not use the trench box, the only other available option is Option I – Sloping. (Ex. R-8 at 9). 

According to the general description of Option I, which governs the use of slope as a protective 

measure, “Applicable slopes may be obtained by either straight cut or benched method.” (Ex. R8 at 8) (emphasis added). This point is clarified on the following page, which includes a notation 

on the Option I diagram, stating, “The contractor may use the benched method of slope.” (Ex. R-8 

at 9) (emphasis added). In other words, benching is simply another method by which the required 

slope can be attained, which is consistent with the dictates and structure of 29 C.F.R. § 1926.652. 

As an alternative to a pure application of either slope or benching, Option I allows for a 

single 3’6” vertical bench in “stiff clay.”

5

(Ex. R-8 at 9). Nevertheless, the diagram still indicates 

the remaining portion of the wall above 3’6” must be sloped or benched according to the soil type 

and depth of the trench. (Id.). The parties stipulated the trench was dug in Type B soil and was 

less than 12-feet deep, which means that the maximum allowable slope, per the plan, was 3/4:1 

 

5. Respondent’s plan does not appear to define the term “stiff clay”. CSHO Hoover stated that this can refer to Type 

B soil, though he did not agree that the trench at issue was dug in stiff clay. (Tr. 130–31). 
12

(H/V), or 53 degrees. (Tr. 19 at Stip. No. 9; Ex. R-8 at 9). Complainant maintains that, even when 

applying the terms of Respondent’s engineer plan, at least one wall of the excavation was not in 

compliance. The Court agrees. 

Utilizing the somewhat vague parameters provided by the engineering plan, Respondent

attempts to argue the trench complied with the plan by cherry-picking certain maximum and 

minimum measurements—including the single-bench option discussed above—and suggesting 

that compliance with those is all that is required. (Tr. 182–83). Menebroker testified that 

Respondent did not have to comply with the overall 53 degree slope requirement in the engineering 

plan. He asserted that the plan allowed multiple benches of 4 feet vertical for every 1 foot 

horizontal. Id; R-8, p. 8, Section 5.2.3; see also Resp’t Br. at 17. What Respondent disregards is 

that those maximum and minimum measurements are restrictions within the overall scheme of a 

maximum 53 degree slope to protect against cave-ins. Put simply, if the required overall slope is 

not achieved, then the trench is not compliant with the plan irrespective of whether the benches 

comply with the mandatory minimum and maximum measurements for width and height.6

Because the left wall exceeded the maximum allowable slope provided in both the standard 

and the engineer-approved trench safety plan, as it was 60 degrees, the Court finds Respondent 

violated 29 C.F.R. § 1926.652(a)(1). 

Respondent’s Employees Were Exposed and Respondent Had Knowledge

As with Citation 1, Item 1, Respondent did not specifically dispute its employees were 

exposed to a hazard or that it had knowledge of the violation. Both of its employees were working 

in the bottom of the improperly protected trench for a period of roughly fifteen minutes. This 

 

6. To further illustrate Respondent’s loose reading of the engineer’s excavation plan, multiple four-foot vertical to 

one-foot horizontal benches in a trench would result in an overall slope angle of approximately 75 degrees, or nearly 

vertical.
13

activity was observed and photographed by CSHO Hoover and clearly illustrates exposure to the 

cave-in hazard. (Ex. C-1 at 1 to 3). Second, Calzada, whom the Court has already found to be a 

supervisor, directly observed his employees working inside the non-compliant trench. As 

supervisor, his knowledge is properly imputed to Respondent. See Mountain States Tel. & Tel. 

Co., 623 F.2d at 158. Accordingly, the Court finds Complainant established a prima facie violation 

of 29 C.F.R. § 1926.652(a)(1). 

The Violation was Properly Characterized as Repeat

According to the Commission, “A violation is repeated under section 17(a) of the Act if, 

at the time of the alleged repeat violation, there was a Commission final order against the same 

employer for a substantially similar violation.” Potlatch Corp., 7 BNA OSHC 1061 (No. 16183, 

1979). Though substantial similarity can be shown in a number of ways, Complainant can 

establish a prima facie case of similarity “by showing that the prior and present violations are for 

failure to comply with the same standard.” Id. The Commission noted “it may be difficult for an 

employer to rebut” a showing of substantial similarity when the repeat designation is based on 

violations of the same specific standard “because in many instances the two violations must be 

substantially similar in nature to be violations of the same standard.” Id. Respondent can rebut 

Complainant’s prima facie case of substantial similarity by “evidence of the disparate conditions 

and hazards associated with these violations of the same standard.” Id. However, this is more 

likely when a general, performance-based standard is at issue, such as 29 C.F.R. § 1926.28(a). Id.

at nn. 9 & 10. 

Complainant established Respondent had been previously cited for violating 29 C.F.R. § 

1926.652(a)(1) on August 6, 2012, and the citation had become a final order of the Commission 

in November 2012. (Exs. C-6, C-7). In both instances Respondent’s employees were exposed to 
14

cave-in hazards while they were working inside a non-compliant trench. Compare Citation and 

Notification of Penalty with Ex. C-7. Although the relative size of the trenches was different, the 

basic facts surrounding the employees’ exposure and the plan governing trench protection were 

substantially similar: (1) the CSHO found employees inside the trench; (2) the soil was Type B;

(3) the trench was more than 5 feet deep; (4) the bench method of slope was incorrectly applied; 

and (5) a site-specific trench safety plan was utilized, albeit incorrectly. (Exs. C-7, C-8). The Court 

rejects Respondent’s claim that the differences in depth—7 feet in the current trench; 10 feet in 

the previous citation—illustrate a “significant difference”. Accordingly, the Court finds 

Complainant established that Citation 2, Item 1 was properly characterized as a repeat violation. 

Penalty

In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act 

requires the Commission give due consideration to four criteria: (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. 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). It is well established that the Commission and its judges conduct de novo penalty 

determinations and have full discretion to assess penalties based on the facts of each case and the 

applicable statutory criteria. Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995); Allied 

Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975).

Several factors that are applicable to both Citation 1, Item 1, and Citation 2, Item 1, such 

as number of employees, good faith, and history. Therefore, the Court agrees with Complainant’s 

findings, if not his overall penalty assessment. Respondent has approximately 500 employees, 
15

which Complainant considers to be a large company and, therefore, ineligible for a size-based 

reduction in penalty. Complainant did not calculate any reduction for good faith attempts to 

comply based on Respondent’s failure to timely provide CSHO Hoover with documentation of a 

safety and health program and evidence of training. Although Respondent provided such material 

at trial and post-inspection, the Court finds the general state of the trench and the labored 

interpretation of the trench safety program provided by Menebroker indicate a lack of attention to

trench safety requirements. As such, the Court finds, albeit for different reasons, that Respondent 

did not exhibit good faith in this case. Further, Respondent has been cited for serious violations 

in the preceding five years, which Complainant used to increase the penalty by 10% under the 

guise of poor compliance history. The Court is not convinced that the existence of a single 

violation over the previous five years, without additional explanation or evidence, is sufficient for 

an increase in the proposed penalty. (Tr. 118–19; Ex. C-14). Further, Respondent’s history has 

been adequately addressed through the “repeat” characterization of Citation 2, Item 1. 

As to Citation 1, Item 1, specifically, Complainant proposed a gravity-based penalty of 

$6,000, which it increased by 10% for history, as discussed above. Regarding gravity, 

Complainant argued the violation presented a greater probability of occurring due to the ad hoc

nature of the egress “ramp”, the presence of sloughing on one of the benches, and the presence of 

the excavator at the edge of the trench where employees exited. (Tr. 42, 117). That said, he also 

determined that the likely injuries would be “reversible injuries with a limited period of disability” 

and assessed the severity of the violation as medium. (Tr. 117). The Court finds the foregoing 

adequately addresses both the conditions observed by CSHO Hoover and his assessment of the 

violation’s gravity. Accordingly, the Court adopts Complainant’s assessment of gravity and 

hereby imposes a penalty of $6,000 for Citation 1, Item 1. 
16

As to Citation 2, Item 1, Complainant proposed a gravity-based penalty of $7,000. This 

assessment was premised on CSHO Hoover’s determination that the violation was of high severity 

and greater probability. The Court agrees with both assessments. The two employees occupied a 

non-compliant trench, which was showing signs of failure, for approximately 15 minutes. (Tr. 63. 

In so doing, those employees were exposed to cave-in hazards, which can cause severe contusions, 

crushing injuries, and death. (Tr. 104). In addition, Complainant applied a multiplier of five to the 

original penalty based on Respondent’s size and the repeat nature of the violation. Given that 

Respondent was cited for the exact same violation under substantially similar conditions, the Court 

finds that the multiplier imposes the necessary “pocketbook deterrence” and, hopefully, 

encourages “prospective compliance”. See Joel Yandell d/b/a Triple L Tower, 18 BNA OSHC 

1623 (No. 94-3080, 1999) (quoting Bae v. Shalala, 44 F.3d 489, 494 (7th Cir. 1995)). Based on 

the totality of the circumstances discussed above, the Court hereby assesses a penalty of $30,000.

Order

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED

that:

1. Citation 1, Item 1 is AFFIRMED as a serious violation, and a penalty of $6,000 is 

ASSESSED; and

2. Citation 2, Item 1 is AFFIRMED as a repeat violation, and a penalty of $30,000 is 

ASSESSED.

/s/ Brian A. Duncan

Date: January 3, 2019 Judge Brian A. Duncan

Denver, Colorado U.S. Occupational Safety and Health Review Commission