THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING 

COMMISSION REVIEW

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO.: 22-0339

K V, INC., 

 Respondent.

Appearances:

Joshua P. Falk and Afroz Baig, Department of Labor, Office of Solicitor, San Francisco, 

California

For Complainant

B. J. Driscoll and Ben Marsden, Smith, Driscoll & Associates, PLLC, Idaho Falls, Idaho

and Martin K. Banks, Parr Brown Gee & Loveless, LP, Salt Lake City, Utah

For Respondent

Before: Judge Joshua R. Patrick – U. S. Administrative Law Judge

DECISION AND ORDER

I. Introduction

On August 23, 2021, a trench collapsed and injured two of Respondent’s employees while 

they were fusing two pieces of gas main pipe. Respondent contacted OSHA and informed the Boise 

Area Office a trench collapsed and two of Respondent’s employees suffered injuries resulting in 

hospitalization. Two days later, Complainant sent CSHO Juan Luna to conduct an inspection. As 

a result of his inspection, CSHO Luna recommended, and Complainant issued, a Citation and 

Notification of Penalty.

Respondent did not implement any protective measures for the trench because it was less 

than five feet deep. Five feet is the threshold under which protective systems or sloping are not 
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required so long as a competent person has determined there is no indication of a potential cavein. See 29 C.F.R. § 1926.652(a)(1). Respondent designated Brandon Miller, the excavator operator,

as its competent person and contends he performed a competent and thorough inspection of the 

trench prior to its collapse. Complainant contends Miller was not qualified as a competent person

and that he performed an inadequate inspection of the trench, which rendered the exception 

inapplicable.

Based on the following findings of fact and conclusions of law, the Court finds Respondent 

should have implemented a protective system notwithstanding the depth of the trench. The Court 

also finds Respondent failed to provide adequate training to RL, one of the employees who was 

injured in the trench collapse. Accordingly, the Citation and Notification of Penalty is AFFIRMED. 

II. Procedural History

Complainant initiated an inspection in response to a report of an injury requiring 

hospitalization that occurred as a result of a trench collapse in St. Anthony, Idaho. As a result of 

the inspection Complainant issued a four-item Citation and Notification of Penalty (Citation) with 

a grouped penalty of $8,702. Each of the individual Citation items relates to Respondent’s alleged 

failure to protect its employees working in the trench or its failure to ensure those employees were 

properly trained. Respondent timely filed a notice of contest, bringing this matter before the 

Commission. 

Prior to trial, Respondent filed a motion to dismiss Citation 1, Item 1(c), which indicated 

Complainant would stipulate to its dismissal. The Court held the matter in abeyance until trial, at 

which time it recognized Complainant’s stipulation to the dismissal of Citation 1, Item 1(c). 

Accordingly, this decision only concerns Citation 1, Items 1(a), 1(b), and 1(d). 
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Trial in this matter was held on May 24-25, 2023, in Idaho Falls, Idaho, and completed on 

June 26, 2023, via Zoom. The following witnesses testified: (1) Compliance Safety and Health 

Officer (CSHO) Juan Luna; (2) Area Director David Kearns; (3) RL, an employee of Respondent; 

(4) Geoffrey Isbell, President—Energy Worldnet, Inc., provider of training modules; (5) Wade 

Gordon, part-owner and operator of Respondent; (6) Brandon Miller, excavator operator for 

Respondent; (7) James Mallea, inspector for Quality Control Inspections (QCI); and (8) John 

Hymel, Respondent’s expert. Both parties timely submitted post-trial briefs for the Court’s review. 

III. Stipulations and Jurisdiction

Complainant and Respondent reached a number of stipulations prior to trial, both factual 

and legal, which the Court will incorporate by reference.1 Those stipulations include: (1) the 

Commission has jurisdiction over this matter under section 10(c) of the Act; and (2) Respondent 

is an employer engaged in a business affecting interstate commerce within the meaning of section 

3(5) of the Act. 

IV. Factual Background

1. Respondent’s Business

Respondent is a construction company that performs trenching and pipe construction 

services in Idaho and is owned by Wade Gordon, Kenneth Elison, and Vicky Jo Elison. (Jt. Stip.

Nos. 3, 7). Gordon, who testified, is the operations manager and is responsible for the day-to-day 

operation of Respondent. (Jt. Stip. No. 9). Respondent had approximately 17 employees working 

on the St. Anthony project. (Tr. Jt. Stip. No. 24).

Respondent was hired by Intermountain Gas Company (IGC), which is owned by Montana 

Dakota Utilities (MDU). MDU, in turn, hired QCI to supervise the work performed by Respondent 

1. The parties reached 32 separate stipulations. See Joint Stipulation Statement, No. 22-0339 (May 15, 2023). Where 

applicable, the Court shall cite to those stipulations as follows: “Jt. Stip. No. ___”. 
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to ensure it complies with MDU’s safety and installation requirements. (Tr. 391, 581). According 

to Gordon, MDU requires QCI to have a representative on site every day to review the work 

Respondent performs. (Tr. 392). MDU also requires Respondent’s employees to complete training 

courses known as Operator Qualifications, or OQs. (Tr. 402). 

The OQs cover topics ranging from installation of steel pipe in ditches to backfilling. (Tr. 

293-310; Ex. C-37). These training courses are provided online through a company called Energy 

Worldnet. (Id.). At the time of the inspection, most of Respondent’s employees had received OQ 

training in some capacity, with the exception of RL. (Tr. 73, 150). According to Gordon, RL was 

a relatively new employee—he had approximately one month on the job at the time of the trench 

collapse. (Tr. 150, 442-43). Before providing access to the OQ training modules, Respondent’s 

practice was to begin with an introduction to the employee manual (which the employee was 

expected to read), on-the-job training, and the topics that were discussed at various morning 

meetings and toolbox talks on the jobsite. (Tr. 439-440). Respondent also provided annual safety 

training to supplement the daily meetings and OQs. (Tr. 398-402, 407; Ex. R-31). OQs were 

typically provided at the end of a one-to-two-month period. (Tr. 439). Eventually RL received OQ 

training, but this did not occur until after the accident leading to the inspection in this case. (Tr. 

100; Ex. C-4). 

2. The St. Anthony Project

The worksite at issue in this case was located in the alley between South 9th West and South 

10th West streets and was part of a larger, multi-year project to replace gas service and main lines 

throughout the town of St. Anthony, Idaho.2 (Tr. 47; Ex. C-10, C-14, C-21). The St. Anthony 

project was overseen by Daurel Palmer, the project manager. (Tr. 59). Palmer supervised two work 

2. Gas mains are pipes that provide gas throughout the town, whereas service lines are pipes that provide gas from the 

main lines to a home or business. 
5

crews of approximately 17 employees—one crew to install gas mains and another to install service 

lines. (Tr. 343, 534; Jt. Stip. No. 24). At the time of the inspection, Brandon Miller was the 

excavator operator, supervisor of the main crew, and, in addition to Palmer, served as Respondent’s 

designated competent person. (Tr. 537). Miller also supervised six employees, including the two 

employees injured at the worksite, RL and JB. (Tr. 537-38). 

3. The Trench Collapse

On August 23, 2021, the main crew, supervised by Miller, was working in the alley 

identified above. According to Miller, he had dug the trench one to two hours earlier, inspected it, 

and had hand dug an area below a pre-existing sewer service line to allow the main line to run 

perpendicularly underneath it. (Tr. 431, 488, 495-96). JB, a pipe fuser and supervisor, and RL, a 

relatively new laborer, entered that area of the trench to fuse two sections of the main line. (Tr. 73, 

223-224; Ex. C-15). JB was RL’s supervisor that day and instructed RL to enter the trench. (Tr. 73, 

224-225). As JB and RL were fusing the pipe, one side of the trench collapsed, pinning both of 

them to the other side. (Tr. 77; Ex. C-10, J-8). Respondent had not installed any protective systems

or utilized sloping or benching to prevent a collapse. JB had minor injuries, but RL suffered 

multiple broken bones and had to be hospitalized for three to four days. (Tr. 227; Ex. J-10 at pp. 

1-2). Neither Miller nor Palmer was in the area at the time of the collapse.

At the time of the collapse, Miller was working around the corner end of the alley, which 

was roughly 80-100 feet away and out of view. (Tr. 538). At some point after Miller had dug the 

area where the trench collapsed, but before the actual collapse, JB and RL experienced a couple 

instances of sloughing. (Tr. 228-229). One sloughing incident—which occurred one to two hours 

before the cave-in and roughly 10 to 15 feet from where it the wall collapsed—required JB, RL, 

and Raymond Mendoza, another laborer, to stop work and remove roughly 20 to 30 shovelfuls of 
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material that had fallen into the trench. (Tr. 228-232, 245-47, 267; Ex. J-8, J-11 at pp. 13, 18).

Miller testified he was not aware of any sloughing. 

4. OSHA Inspection

CSHO Luna arrived at the worksite on August 25, 2021, which was two days after the 

accident. CSHO Luna was not able to observe the trench in person, because Respondent had to 

refill the trench for safety reasons. (Tr. 133; Ex. C-10). Nevertheless, he conducted multiple 

interviews, observed Respondent’s work practices, and inspected the area where the accident 

occurred. 

Although the trench had already been filled in, CSHO Luna was able to learn specific

details about how the trench was constructed. According to photographs taken by Respondent after 

the collapse, the trench measured approximately 4-feet deep and 24-inches wide. (Tr. 99-100, 225; 

Ex. J-2 to J-5, J-8, J-9, J-11, C-24, C-25). During his interviews with Miller and Palmer, CSHO 

Luna learned Respondent did not perform tests on the soil but, instead, assumed all soil in the St. 

Anthony project was Type C. (Tr. 93, 122-23; Ex. C-6 at 6). This assumption was confirmed by 

Complainant’s Salt Lake Technical Center, which classified CSHO Luna’s soil sample as Type C, 

with a 97.22% sand and gravel composition.3 (Ex. C-2, C-3, C-20). CSHO Luna also learned the 

area of the trench had been previously excavated—there were utility lines that ran parallel and 

perpendicular to the new line they were installing. (Tr. 174-175). According to its own internal 

investigation, Respondent concluded the previously disturbed soil around the parallel line affected 

the stability of the trench’s sidewall and caused the collapse. (Tr. 433; Ex. J-10). 

3. Although CSHO Luna did not take the sample directly from the trench, he did collect a sample from the area where 

the collapse occurred, as identified by Respondent’s representatives. (Ex. C-20). Other samples taken by CSHO Luna 

were not permitted into evidence, because they did not come from the same area as the collapse. (Tr. 329-332; Ex. C2, C-3). 
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V. Analysis

Based on what CSHO Luna observed, Complainant issued a four-item Citation, of which 

three remain at issue. Complainant grouped the individual items under one penalty because they 

ultimately arise from the same set of facts, starting with the trench collapse. The Court will handle 

the Citation items similarly. To the extent a certain finding or conclusion is applicable to more than 

one citation, the Court shall incorporate such findings by reference. 

A. Burden of Proof under Section 5(a)(2) of the Act

To establish a prima facie violation of a specific standard promulgated under section 5(a)(2) 

of the Act, the Secretary must prove by a preponderance of the evidence that: “(1) the standard 

applies to the cited condition; (2) the terms of the standard were violated; (3) one or more of the 

employer’s employees had access to the cited conditions; and (4) the employer knew, or with the 

exercise of reasonable diligence could have known, of the violative conditions.” Ormet Corp., 14 

BNA OSHC 2134, 2135 (No. 85-0531, 1991). 

The Secretary must establish his prima facie case by preponderance of the evidence. See 

Hartford Roofing Co., 17 BNA OSHC 1361, 1365 (No. 92-3855, 1995). “Preponderance of the 

evidence” has been defined as:

The greater weight of the evidence, not necessarily established by the greater 

number of witnesses testifying to a fact but by evidence that has the most 

convincing force; superior evidentiary weight that, though not sufficient to free the 

mind wholly from all reasonable doubt, is still sufficient to incline a fair and 

impartial mind to one side of the issue rather than the other. 

Preponderance of the evidence, Black’s Law Dictionary (10th ed. 2014).

B. Citation 1, Item 1(a)

Complainant alleged a serious violation of the Act in Citation 1, Item 1a as follows: 
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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 August 23, 2021, and times prior thereto, employees were working to install 

and fuse 4-inch gas line in a a [sic] narrow trench with unstable soil, exposing them 

to cave-in hazards. There was established knowledge and had been indications the 

soil was unstable, including prior cave-ins.

See Citation and Notification of Penalty at 6.

As indicated by the language of the standard, the default requirement for any trench or 

excavation is to supply protection in the form of shoring, sloping, or benching. See 29 C.F.R. § 

1926.652(a)(1), (b), (c). According to the preamble to the standard, this is because “there is a 

potential for a cave-in in virtually all excavations.” Occupational Safety and Health Standards—

Excavations, 54 Fed. Reg. 45,894, 45,927 (October 31, 1989) (to be codified at 29 C.F.R. Part 

1926). In fact, even Gordon himself admitted “there is no such thing as a safe ditch.” (Tr. 362). 

Notwithstanding this presumption, there are two exceptions to the protection requirement. 

The first exception is for trenches dug entirely in stable rock. 29 C.F.R. § 1926.652(a)(1)(i). This 

exception does not apply because the entire St. Anthony project was presumed, and confirmed, to 

be Type C soil. The second exception permits work in an unprotected trench so long as: (1) the 

trench is under five feet deep; and (2) “examination of the ground by a competent person provides 

no indication of a potential cave-in.” Id. § 1926.652(a)(1)(ii). Because the presumption is that 

every trench should be protected, it is incumbent upon Respondent to prove the exception applies. 

Dover Elevator Co., 15 BNA OSHC 1378, 1381 (No. 88-2642, 1991) (holding that the party 

claiming the benefit of an exception bears the burden of proving that its case falls within that 

exception).

As in any case brought under section 5(a)(2) of the Act, Complainant must establish the 

four elements of its prima facie case, including whether the standard applies and was violated. 
9

Ormet Corp., 14 BNA OSHC 2134. Here, the default requirement of the standard is to provide 

protection. So, the failure to provide protection constitutes a prima facie violation of the Act unless 

Respondent can prove the aforementioned exception.4 The depth of the trench not being at issue, 

Respondent presented evidence that its designated competent person performed an inspection that

revealed no indication of a potential cave-in. In response, Complainant contends Miller was not 

properly designated as a competent person, that he failed to perform the required inspection, and, 

alternatively, any inspection he performed failed to take proper account of many indications of a 

potential cave-in. Respondent contends Miller was qualified by training and experience to perform

adequate inspections as a competent person, and that he did so in this case.

This applicability of the exception turns on three main issues: (1) Miller’s status as a 

competent person; (2) the meaning of “no indication of a potential cave-in” as it relates to the 

inspections Miller claims to have performed; and (3) whether Miller should have been aware of 

the sloughing observed and abated by RL, JB, and Mendoza. Based on the following analysis, 

though the Court finds Miller was qualified as a competent person, the trench showed signs of a 

potential cave-in, and Miller should have been aware of those signs or disregarded them as 

immaterial. Thus, the Court concludes the exception advanced by Respondent does not apply.

1. Miller Was a Competent Person

Complainant contends Respondent’s use of the Energy Worldnet training courses as its

primary, classroom-style instructional tool was insufficient to qualify Miller as a competent person.

Complainant requested records from Energy Worldnet to determine the content of Miller’s training 

and determined the training modules he took did not provide specific training or knowledge about 

soils analysis, the use of protective systems, or the requirements of the excavation standard. 

4. The Court will address each of the 5(a)(2) elements below; however, for the purposes of the discussion above, the 

Court is merely addressing the prima facie elements of whether the standard applies and was violated. 
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Compl’t Br. 16-17 (citing Westar Mech., Inc., Nos. 97-0226, 2000 WL 1182858 at *9 (OSHRC 

August 14, 2000) (consolidated). Because Miller’s formal training through the OQ program 

purportedly did not touch on each of the foregoing subjects, Complainant contends Respondent 

failed to meet the requirements of the exception. The Court disagrees.

According to the Act, a competent person is “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.” 29 C.F.R. § 1926.650(b). The Commission has held that the ability 

to identify hazards cannot come from on-the-job training alone; rather, some measure of trenchspecific instruction is required. See, e.g., A.P O’Horo Co., 14 BNA OSHC 2004, 2010 (No. 85-

369, 1991) (affirming training violation because employer relied too heavily on on-the-job training 

and experience instead of providing specific trenching instructions, which foreman had never 

received); Concrete Constr. Co., 15 BNA OSHC 1614, 1615 (No. 89-2018, 1992) (sole reliance 

on employee handbook held insufficient). 

Notwithstanding the above, in Ford Development Corp., No. 90-1505, 1992 WL 406378 

at *8 (OSHRC, Dec. 29, 1992), the Commission made clear that “our decision should not be read 

as requiring employers always to demand that their employees undergo formalized training, nor as 

compelling employers in every instance to gather written verification of job skills from their 

employee’s former employers.” Rather, the Commission noted the plain language of the standard 

required “some positive action” on the part of the employer. Id. The employer in Ford did not 

provide any training to the competent person in question during his three-year tenure at the 

company and, instead, relied on his previous one-day trench safety seminar he had attended four 

years prior. Id. Illustrating the significance of the failure, the Commission noted the alleged 
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competent person had not learned how or when to perform soil tests, nor did he know the standard 

even had requirements for manual testing and soil sampling. Id.

In this case, the Court finds Miller was trained and qualified as a competent person. While

the formal instruction he received from Energy Worldnet OQs was not, of itself, sufficient to 

qualify him as a competent person, the OQ modules did cover such topics as: soil typing, visual 

inspections, sloping and protective systems, spoil piles, water accumulation, unexpected soil 

movement, and the definition of a competent person. (Ex. C-37). Further, Miller also received 

training through on-the-job instruction from experienced competent persons, morning meetings 

and toolbox talks, and the company’s annual training. (Tr. 482-85). Other than the apparent failure 

to conduct adequate (or more frequent) inspections, the Court cannot find anything in Miller’s 

responses to CSHO Luna’s questions or to Complainant’s cross-examination to undermine the 

conclusion that Miller was capable of identifying hazards or that he had authority to act upon 

hazards he identified.5 (Tr. 536-573; Ex. C-6). See C.J. Hughes Constr., Inc., No. 93-3177, 1996 

WL 514965 (OSHRC, Sept 6, 1996) (concluding foreman was qualified as competent person based 

on training and experience). Accordingly, the Court finds Miller was properly designated as a 

competent person. 

2. The Trench Exhibited Indications of a Potential Cave-In

More so than the question of whether Miller was a competent person, this case hinges on 

whether the trench exhibited indications of a potential cave-in and whether Respondent could have 

been aware of it. To repeat, the exception to the default protection requirement requires an 

examination by a competent person that reveals no indication of a potential cave-in. 29 C.F.R. § 

5. Complainant points out that, on cross, Miller could not distinguish between a designated competent person and a 

person competent to perform a job. (Tr. 554). The Court finds this “failure” to be the result of an inartful question, as 

opposed to an admission about his knowledge of competent persons. On direct, Miller capably described a competent 

person as “someone who can recognized hazards and take action on those hazards.” (Tr. 473). 
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1926.652(a)(1)(ii). Complainant contends there were multiple indications of a potential cave-in,

including the sloughing witnessed by three of Respondent’s employees, and that Miller, the 

competent person, either ignored or failed to recognize those indications. Respondent argues Miller 

performed multiple inspections, each of which took into consideration many of the signs

Complainant claims were indications of a potential cave-in. Further, Respondent contends Miller 

was not made aware of the sloughing and, alternatively, minimizes any impact that sloughing 

would have had on Miller’s decision to rely on the exception. (Tr. 499, 507-509). The Court finds 

the trench exhibited signs of a potential cave-in, and that Respondent, via Miller, could have been 

aware of the sloughing.

The language of the exception is “clearly intended to afford the individual the freedom to 

exercise appropriate judgment in determining whether there were indications of a potential 

collapse.” See C.J. Hughes, 1995 WL 514965 at *5 (emphasis added). Respondent must show 

Miller “acted in a competent manner” and reasonably concluded the trench in question did not 

exhibit any indication of a potential cave-in. Id. In other words, this is not a mere “judgment call”, 

as Respondent would have it; rather, Miller’s actions must be judged against what a reasonable 

person would have done under the circumstances presented in this case. 

In C.J. Hughes, the Commission reversed the ALJ, who concluded the Secretary 

established the potential for a cave-in based on three indicators: fissures in the wall of the trench, 

vibrations from the adjacent roadway, and the presence of a spoil pile. Id. The Commission 

determined the conclusions of the CSHO, upon which the ALJ based its decision, were of 

“questionable weight.” Id. With respect to the fissures, the CSHO later admitted they could have 

been scars left from the excavator. As to the vibrations, the Commission noted the CSHO was the 

only witness to experience them. Finally, with respect to the spoil pile, the Commission stated, “If 
13

we accepted the theory that this spoil pile constituted an indication of possible collapse, the same 

would be true for almost every trench; and it would be practically impossible for an employer to 

qualify for the exception set out in section 1926.652(a)(1)(ii).” Id.

When reaching the above conclusion, the Commission noted, “the standard does not afford 

any guidance in determining what constitutes an ‘indication of a potential cave-in.’” Id. at *5, n.8. 

Nevertheless, the manner in which the Commission analyzed the purported indications of a 

potential cave-in suggests that any one indication of a potential cave-in would be sufficient. Id.

This method of analysis jibes with the standard’s default requirement that all trenches be protected 

unless the employer can prove there is “no indication of a potential cave-in.” See 29 C.F.R. § 

1926.652(a)(1)(ii) (emphasis added). In this case, the Court will analyze whether any individual

indication of a potential cave-in identified by Complainant would have been sufficient to 

undermine the exception, or whether the indicators should be considered collectively. In either 

case, whether individually or collectively, Complainant’s case proves to be a much stronger one 

than in C.J. Hughes.

Complainant identified three indications of a potential cave-in. First, Complainant argues 

the trench was dug in previously disturbed soil: there were pipelines running perpendicular and 

parallel to the trench where a new gas main was being installed. Complainant notes the testimony 

of AD Kearns and Respondent’s expert, John Hymel, both of whom testified previously disturbed 

soil is a factor to consider when performing an inspection because “the integrity of the soil may be 

compromised to some extent.” (Tr. 178, 681). In fact, Gordon testified Respondent concluded the 

previously disturbed soil from the parallel pipeline weakened the trench wall and, ultimately, 

caused the collapse. While the Court agrees this is an important factor to consider, previously 
14

disturbed soil is not, of itself, an indication of a potential cave-in. (Tr. 681). In fact, according to 

the regulations, previously disturbed soil can be rated as high as Type B (not the case here). 

Second, albeit relatedly, is the fact that the soil was Type C. Not only was this established 

by testing the samples acquired by CSHO Luna, but Respondent stated it treated all the soil in St. 

Anthony as Type C. Complainant points out that Palmer and Miller had expressed “concern” about 

the soil type, but Palmer also noted they had not experienced any problems with the stability of 

the soil during the St. Anthony project. (Ex. C-8 at 10). Again, as with the discussion of previously 

disturbed soil, the mere fact of the soil being Type C is not, alone, an indication of a potential cavein. To be sure, a looser, less compact soil is more likely to slough or collapse, especially when the 

depth of the trench increases, thereby increasing the downward pressure on the walls of the trench. 

(Tr. 681). However, there is a reason why there are two exceptions to the cited standard. The first, 

which permits the trench to be unprotected if it is dug in solid rock, implies that the second—

which permits the trench to be unprotected if, upon proper inspection, it does not exhibit 

indications of a potential cave-in—could potentially be dug in Type B or C soil so long as the 

conditions were appropriate. See 29 C.F.R. § 1926.652(a)(1)(i), (ii). 

This leads to the third, and more significant, indication: the sloughing experienced by JB 

and RL. JB and RL were charged with fusing the gas main line, which ran underneath a 

perpendicular sewer service line. Miller had previously dug the trench with the excavator and hand 

dug the area below the perpendicular line to allow for the installation and fusing of the new gas 

main. Approximately one to two hours prior to fusing the pipe, however, RL testified that he, JB, 

and Raymond Mendoza had to enter the trench to clean up approximately 20-30 shovelfuls of dirt 
15

that had sloughed off the wall of the trench into the excavation.6 (Tr. 168, 200, 231-32). On crossexamination, counsel for Respondent confronted RL with his statement to the CSHO where he 

stated the sloughing was approximately 10-15 shovelfuls. (Tr. 245-247). Regardless of the number 

of shovelfuls or their size, it took three people to remove the dirt from the excavation. Even Gordon 

testified 10-15 shovelfuls of material sloughing into the trench would be significant enough to 

warrant reporting it to him. (Tr. 390).

While Respondent used many euphemisms for sloughing, i.e., “little fall-offs”, the fact of 

the matter is sloughing—especially in amounts requiring three employees to clean it up—is an 

indication of a potential cave-in. Although the standard does not specifically define “potential 

cave-in”, the text, structure, history, and purpose of the standard belie any ambiguity Respondent 

seeks to impute through its use of terms designed to minimize what actually occurred. See Kisor 

v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (holding that before concluding that a rule is genuinely 

ambiguous, a court must exhaust all the “traditional tools” of construction).

For starters, the exception uses the term “potential”, which is commonly used to describe 

an event that is possible, as opposed to imminent. Potential, MERRIAM-WEBSTER.COM, (last visited 

Jan. 25, 2024); see also Fla. Gas Contractors, Inc., No. 14-0948, 2019 WL 995716 at *3 (OSHRC, 

Feb. 21, 2019) (citing Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 276 

(2009) (undefined term “carries its ordinary meaning”); Animal Legal Defense Fund v. U.S. Dep’t. 

of Agric., 789 F.3d 1206, 1216 (11th Cir. 2015) (referring to contemporaneous dictionary for the 

common usage and meaning of an undefined statutory term)). This common understanding of the 

term is also supported by the standard’s structure, history, and purpose. As noted above, the default 

6. RL testified regarding another instance of sloughing, but there was no evidence to suggest how substantial the 

sloughing was, nor whether any other employee was witness to it. (Tr. 228). As such, it does not factor into the Court’s 

decision.
16

requirement of the standard is to protect the trench, whether through equipment or sloping and/or 

benching. See 29 C.F.R. § 1926.651(a). The reason for this is indicated in the preamble to the 

regulation:

OSHA believes that there is a potential for a cave-in in virtually all excavations. 

However, experience has shown that the probability of a cave-in depends on the 

combined effects of many factors. These factors include the depth of the excavation, 

the type of soil involved, the ability of the soil to resist stress imposed on the soil 

from the weight of the soil itself and from static and dynamic surcharge loads, and 

from changes in the ability of the soil to resist stress due to exposure to 

environmental conditions over a period of time. In recognition of the low 

probability of a cave-in occurring in certain circumstances, the proposal . . . sets 

forth two exceptions to the requirement to provide cave-in protection.

Occupational Safety and Health Standards—Excavations, 54 Fed. Reg. at 45927. The first 

exception—a trench dug entirely in stable rock—is self-explanatory in light of the preamble’s 

discussion of factors impacting the probability of a cave-in. The second exception, at issue here, 

requires a more thoroughgoing inspection on behalf of the competent person to ensure the high 

burden of “no indication of a potential cave-in” is met. Because the purpose of the standard is to 

provide protection in almost all instances—given the belief that every trench has the potential to 

cave in—the exception to that rule must be cabined in scope and limited in application.

The Appendix to the standard provides further contour to the understanding of what an 

indication of a potential cave-in might be. The Court found the following definition instructive: 

Distress means that the soil is in a condition where a cave-in is imminent or is likely 

to occur. Distress is evidenced by such phenomena as the development of fissures 

in the face of or adjacent to an open excavation; the subsidence of the edge of an 

excavation; the slumping of material from the face or the bulging or heaving of 

material from the bottom of an excavation; the spalling of material from the face of 

an excavation; and ravelling, i.e., small amounts of material such as pebbles or little 

clumps of material suddenly separating from the face of an excavation and trickling 

or rolling down into the excavation.

29 C.F.R. § 1926, Subpart P, App. B. In such instances where “distress” is identified, the Appendix

requires the employer to reduce the maximum allowable slope from 1:1 to 1⁄2:1, at a minimum. Id.
17

Regardless, however, the key is that an event such as sloughing, or even the separation of small 

amounts of material from the face of an excavation, is a hazard-increasing event requiring 

intervention in otherwise compliant trenches.

The Court finds the sloughing observed by RL, JB, and Mendoza is properly categorized 

as an indication of a potential cave-in. When considering the additional factors identified by 

Complainant, such as Type C soil and the presence of adjacent, previously excavated utilities, the 

Court finds this particular portion of the trench required intervention. While this may not have 

been the case initially, it is incumbent upon the competent person to respond to changing 

conditions. (Ex. C-34 at 17, J-12 at 36-37). That final point leads to the next issue regarding 

Miller’s inspection of the trench. 

3. Miller (and Respondent) Knew or Could Have Known of the Sloughing

The OSHA Technical Manual and the Compliance Directive for the excavation standard 

require an employer to inspect a trench after a sloughing event. (Ex. C-34 at 17, J-12 at 36-37).

Complainant contends Miller was or, with the exercise of reasonable diligence, could have been 

aware of the sloughing experienced by RL, JB, and Mendoza. Respondent argues Miller was not 

directly aware of the sloughing, nor was he informed by anyone that sloughing had occurred. As 

such, Respondent contends that, even if the sloughing was sufficient to be characterized as an 

indication of a potential cave-in, Miller was not aware of it. Based on what follows, the Court finds 

Respondent and, by extension, Miller had at least constructive knowledge of the sloughing that 

preceded the cave-in. 

The Court finds Miller knew or could have known of the sloughing for a couple of reasons. 

According to Gordon, JB was designated as RL’s immediate supervisor. (Tr. 466). As noted above, 

JB directed and helped RL and Mendoza clean up the material that had sloughed into the trench.
18

Because it is undisputed JB was a supervisor, his knowledge of the sloughing is imputable to 

Respondent. See Dover Elevator Co., No. 91-862, 1993 WL 275823 at *7 (OSHRC, July 16, 1993)

(“An employee who has been delegated authority over other employees, even if temporarily, is 

considered to be a supervisor for the purposes of imputing knowledge to an employer.” (citing 

Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1537 (No. 86-360, 1992))); see also id. (“[A]n 

employee who is empowered to direct that corrective measures be taken is a supervisory 

employee.” (citing Mercer Well Serv., Inc., 5 BNA OSHC 1893 (No. 76-2337, 1977))). By 

extension, because Respondent is charged with JB’s knowledge of the hazard, the Court finds 

Miller should also have been aware of the sloughing, whether by JB reporting it to him or by virtue 

of a proper and timely inspection. Lending further support to this conclusion, the Court notes that, 

according to Miller, both Mendoza and JB were qualified as competent persons due to their training 

and experience. In other words, Respondent had, at a minimum, two individuals with training and 

experience akin to Miller, one of whom was a supervisor, that were directly aware of the hazard.

Separate and apart from what JB witnessed, however, the Court finds Miller had, at the 

very least, constructive knowledge of the sloughing. According to undisputed testimony and 

documentary evidence, the sloughing occurred approximately one to two hours before the cave-in 

occurred. (J-8 at 2). While Miller was stationed around the corner when the trench collapsed onto 

RL and JB, the Court is hard-pressed to conclude Miller was unaware, or could not have been 

aware, of the prior sloughing experienced by RL, JB, and Mendoza. 

According to Respondent, Miller was performing inspections almost constantly. Miller 

testified he performed an inspection at the beginning of the day, every 30 minutes to an hour, 

during breaks, just before the cave-in while hand-digging the area under the service line, and 

continuously throughout the day as he excavated. (Tr. 487-493). This testimony was echoed by 
19

Jim Mallea, the inspector for QCI, which performs inspections of new pipeline installations for 

MDU. (Tr. 581, 587). In fact, Mallea testified he observed Miller perform the above-mentioned 

inspections, as well as performed his own inspections of the site, and did not observe any 

indications of a potential cave-in.

Respondent’s evidence on the topic of Miller’s inspections is problematic for several

reasons. First, a substantial amount of testimony regarding Miller’s inspections on the day of the 

collapse was prompted by overwhelmingly leading questions, some of which could easily be 

confused for testimony.

7 Second, albeit related to the first point, the testimony provided by Miller 

and Mallea at trial was inconsistent with their deposition testimony. For example, Miller testified 

that he walked the trench every 30 minutes to an hour and conducted inspections on personal 

breaks and lunch breaks. (Tr. 487-489, 493). Miller also testified his inspection coincident with 

hand-digging out the perpendicular service line occurred “within the hour” of the cave-in. (Tr. 495-

496). However, on cross examination Miller could not recall what time he dug out the trench,

where the cave-in occurred, or what time the cave-in even happened. (Tr. 538).

Similarly, Mallea testified he observed Miller performing inspections throughout the day; 

however, on cross-examination when confronted with his deposition testimony, Mallea admitted 

merely to seeing Miller in the area and could not recall what Miller was doing. (Tr. 587, 605). 

Mallea also testified on direct that he performed an examination of the trench; however, when 

presented with his deposition testimony that he had not, Mallea admitted it was not his role to 

inspect the trench for hazards but that everyone shared that responsibility. (Tr. 606-608). Finally, 

Mallea testified he was not in the area when the cave-in occurred, and there is no indication he was 

7. While the Court granted some leeway in the manner of questioning due to the parties agreeing to examine certain 

witnesses simultaneously, a substantial portion of Respondent’s examination of Miller was composed of leading 

questions. See, e.g., Tr. 502-506.
20

aware of the sloughing experienced by RL, JB, and Mendoza, which renders his conclusions about 

the state of the trench questionable, at best.

RL, who was in the area the entire time, has been consistent throughout. RL testified

regarding Miller’s inspections along the trench: “[H]e would normally not do it.” (Tr. 233). On 

cross-examination, RL testified that, on the day in question, he did not recall seeing Miller 

performing inspections along the trench. (Tr. 274). RL’s testimony regarding what Miller 

“normally” did, coupled with his inability to recall whether such inspections were done on the day 

of the collapse, suggests the inspections Miller purported to perform did not occur in the manner 

he suggested, if at all. 

The Court does not doubt Miller performed an initial inspection of the trench; however, the 

Court finds his testimony regarding the number, frequency, and quality of his inspections to be of 

limited value. If he was performing inspections as he claims, then either he should have been aware 

of the sloughing, which occurred an hour or two prior to the collapse and required three employees 

to clear it, or he ignored it. The alternative is that Miller was not performing the inspections he 

claims to have been performing and were necessary in light of the conditions experienced by RL 

and known by JB, a supervisor. In either case, due to the problems discussed above, the Court 

accords Miller and Mallea’s testimony little weight regarding the inspections performed or what 

conditions they observed. As such, the Court finds Miller could have known about the sloughing 

event, which should have indicated to him the potential for a cave-in. In short, although Miller 

qualifies as a competent person, the ground provided indication of a potential cave-in. Accordingly, 

the Court finds Respondent failed to establish the exception to the standard.

4. Complainant Established its Prima Facie Case

The primary issue in this case was whether Respondent established the exception to the 

cited standard. Nevertheless, Complainant is still required to establish its prima facie case. See 
21

Ormet Corp., 14 BNA OSHC at 2135 (listing prima facie elements). Although many of these 

matters have been discussed extensively above, the Court shall recap the legal conclusions 

stemming from the foregoing analysis.

The standard applies to the conditions at Respondent’s worksite, because it is an open 

excavation in the earth’s surface, which the standard defines to include trenches. See 29 C.F.R. § 

1926.650(a). As noted previously, Respondent violated the standard by failing to install an 

“adequate protective system designed in accordance with paragraph (b) or (c)” and failing to 

establish an exception to the standard. See id. § 1926.652(a). Respondent’s employees were 

exposed to the hazard because they were not only in the trench without an adequate protective 

system but were, in fact, injured due to the hazard coming to fruition. See, e.g., Wayne Farms, 

LLC, No. 17-1174, 2020 WL 5815506 at *3 n.2 (stating, in dicta, that injury suffered by employee 

is relevant to determination of actual exposure and that such evidence would likely be sufficient 

to establish exposure if the Commission were to reach that issue) (citations omitted); Phoenix 

Roofing, Inc., 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995) (“Exposure to a violative condition 

may be established either by showing actual exposure or that access to the hazard was reasonably 

predictable.”), aff'd, 79 F.3d 1146 (5th Cir. 1996) (unpublished). The Court also finds Respondent 

knew, or could have known, of the violative condition. However, in addition to asserting the 

exception to the standard, Respondent has also alleged Miller’s failure to perform an adequate 

inspection was the product of unpreventable employee misconduct. The Court shall address 

Respondent’s arguments in Section V.B.5, below.

Finally, the Court finds the violation was serious. Under section 17(k) of the Act, 29 U.S.C. 

§ 666(k), a violation is serious where there is a “substantial probability that death or serious 

physical harm could result” from the cited condition. See Manganas Painting Co., Inc., No. 
22

94-0588, 2007 WL 6113032 at *14 n.20 (OSHRC, March 23, 2007). Not only was there a 

substantial probability of an injury, but Respondent’s employees were, in fact, injured as a result 

of being exposed to an unstable, unprotected trench. Accordingly, the violation was properly 

characterized as serious.

5. Respondent Failed to Prove Unpreventable Employee Misconduct

Respondent asserts that any failure regarding Miller’s examination of the cited trench was 

the result of unpreventable employee misconduct. To establish this defense, an employer must 

show that it had: (1) established work rules designed to prevent the violative conditions from 

occurring; (2) adequately communicated those rules to its employees; (3) took steps to discover 

violations of those rules; and (4) effectively enforced the rules when violations were discovered. 

E.g., GEM Indus., Inc., 17 BNA OSHC 1861, 1863 (No. 93-1122, 1996), aff’d per curiam, 18 

BNA OSHC 1358 (6th Cir. 1996) (unpublished). In this case, however, it is not a rank-and-file

employee accused of misconduct but the supervisor, Miller. “[W]here a supervisory employee is 

involved, the proof of unpreventable employee misconduct is more rigorous and the defense is 

more difficult to establish since it is the supervisor’s duty to protect the safety of employees under 

his supervision.” L.E. Meyers Co., No. 90-945, 1993 WL 99197 at *4 (OSHRC, March 31, 1993) 

(citation omitted). In such a case, “[T]he employer must establish that it took all feasible steps to 

prevent the accident, including adequate instruction and supervision of its supervisory 

employee.” Id. (citing Daniel Constr., 10 BNA OSHC 1549, 1552 (No. 16265, 1982)).

First, the Court finds Respondent had work rules governing work in trenches, including 

one which parrots the OSHA standard requiring the competent person to verify there are no 

indications of a potential cave-in for trenches less than five feet deep. (Ex. R-36). The problem, 

however, is that Respondent did not adequately communicate the specifics of what would 
23

constitute an indication of a potential cave-in. During his testimony, Gordon stated he would find 

sloughing in the amount observed by RL and JB to be significant enough to require reporting, and, 

yet, Respondent claims no one reported the sloughing observed by RL and JB. (Tr. 390). Rather, 

the managers who testified repeatedly referred to sloughing as a normal occurrence and did not 

appear to grant it much significance. (Tr. 507, 513).

Further, nothing in the record reflects that Respondent communicated to its employees

when to report sloughing-related incidents to management. As for the annual and periodic training, 

the Court cannot discern the substance of any of the training provided to Respondent’s employees, 

and specifically its supervisors, outside of general statements that training on certain topics took 

place.8 The Court finds such general pronouncements and reliance on on-the-job training, which 

may vary depending on the trainer, to be insufficient to meet the substantial burden of establishing 

misconduct on behalf of a supervisor. See Stark Excavating, Inc., No. 09-0004, 2014 WL 5825310

at *5 (OSHRC, November 3, 2014) (consolidated), aff’d, 811 F.3d 922 (7th Cir. 2016) (noting 

supervisory misconduct is “strong evidence that the employer’s safety program is lax” (quoting 

CBI Servs., Inc., 19 BNA OSHC 1591, 1603 (No. 95-0489, 2001), aff’d per curiam, 53 F. App’x 

122 (D.C. Cir. 2002) (unpublished))).

Similarly, with respect to the question of whether steps were taken to ensure work rules 

were followed, the Court is unconvinced by the scant evidence in the record about how and when 

Miller’s work was supervised. Miller testified Palmer and Gordon would inspect his work 

“occasionally”; however, his testimony was largely in response to leading questions and failed to 

8. The Court recognizes that this conclusion appears to be at odds with its determination that Miller was both a 

competent person and adequately trained. However, the fact that the Court finds Miller was properly categorized as a 

competent person based on training and experience does not undermine the conclusion that Respondent’s efforts at 

training were lacking. Miller competently testified regarding his ability to identify hazards and his authority to correct 

them. The Court, by so finding, is merely concluding the evidence Respondent presented regarding its program for 

communicating work rules was insufficient as to this topic; not that Miller was insufficiently trained to be a competent 

person.
24

provide much detail beyond a simple “yes” or “sometimes, yeah.” (Tr. 524-525). Again, the Court 

finds such evidence to be insufficient in the face of the substantial burden imposed by a claim of 

unpreventable supervisory misconduct.

Finally, Respondent produced virtually no evidence regarding whether it effectively 

enforced the rules when violations were discovered. See Angel Enters., Ltd., No. 16-0940, 2020 

WL 4514841 at *8 (OSHRC, July 28, 2020), aff’d, 18 F.4th 827 (5th Cir. 2021) (citing Cooper/T. 

Smith Corp. D/B/A Blakely Boatworks, Inc., 2020 WL 1692541, at *3 (No. 16-1533, 2020) 

(employer failed to prove effective enforcement under UEM defense because there was “no 

documentary evidence that Blakely enforced any of its safety-related work rules before [the 

violation]”); Precast Serv., 17 BNA OSHC 1454, 1455-56 (No. 93-2971, 1995) (employer failed 

to prove effective enforcement under UEM defense because it “introduced no evidence that prior 

to [the project OSHA inspected] it had subjected an employee to termination, suspension, docked 

pay, or even a written reprimand or a verbal warning for failure to comply with a work rule.”); see 

also Fla. Gas Contractors, Inc., 27 BNA OSHC 1799, 1801-02 (No. 14-0948, 2019) (employer’s 

failure to provide documentation supporting claimed instances of discipline was a factor weighing 

against a UEM defense)). Gordon testified he has issued verbal and written warnings in the past; 

however, Respondent presented no documentation, beyond these general proclamations, that 

discipline had taken place in any context. (Tr. 420-21, 460). In fact, he specifically testified he has 

no recollection of enforcing the disciplinary policy with respect to the trenching safety rules during 

the entirety of the St. Anthony project. (Id.). In that respect, it is also worth noting that Respondent 

did not discipline any employee for the violations that occurred in this case. (Tr. 536-37).

Based on the foregoing, the Court finds Respondent failed to establish the affirmative 

defense of unpreventable supervisory misconduct. As such, Citation 1, Item 1 is AFFIRMED.
25

C. Citation 1, Item 1(b)

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

29 CFR 1926.651(k)(1): Daily inspections of excavations, adjacent areas, and 

protective systems were not made by a competent person for evidence of a situation 

that could have resulted in possible cave-ins, indications of failures of protective 

systems, hazardous atmospheres, or other hazardous conditions. An inspection was 

not performed by a competent person prior to the start of work and as needed 

throughout the shift: 

On August 23, 2021, and times prior thereto, the employer did not ensure a 

competent person inspected the trench prior to entry and as needed throughout the 

shift. Employees were working to install and fuse a 4 inch gas pipeline in a trench 

with unstable type-C soil where there had been prior cave-ins.

See Citation and Notification of Penalty at 7.

To determine whether Respondent established the exception to the standard cited in 

Citation Item 1(a), the Court had to analyze whether Miller was a competent person and whether 

he conducted an examination of the trench that, in essence, conformed to the requirements of § 

1926.651(k)(1). The Court has already found that: (1) the excavation standards apply to the work 

performed by Respondent; (2) although Miller was qualified by training and experience, he either 

failed to perform an adequate, and timely, inspection of the trench or failed to respond to an 

indication of a potential cave-in, i.e., sloughing,

9 which is a violation of this cited standard; (3) 

Respondent’s employees were exposed to the hazard, as illustrated by their injuries and presence 

inside the trench; (4) Respondent knew, or with the exercise of reasonable diligence, could have 

known of the violative condition through the constructive knowledge of Miller or actual 

knowledge of JB; (5) the violation was serious; and (6) Respondent failed to establish the defense 

of unpreventable supervisory misconduct. See Section V.B, supra. Thus, the Court finds the proof 

required to establish a violation of this citation item is satisfied by the evidence presented by 

9. To reiterate, the sloughing observed by RL, JB, and Mendoza was in an amount sufficient for Gordon to state he 

would want to be notified about it.
26

Complainant here and in opposition to Respondent’s assertion of the exception to § 1926.652(a)(1). 

As such, the Court incorporates the findings in Section V.B, supra, by reference and finds 

Complainant established a violation of § 1926.651(k)(1). The citation item is AFFIRMED.

D. Citation 1, Item 1(d)

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

29 CFR 1926.21(b)(2): The employer did not instruct each employee in the 

recognition and avoidance of unsafe conditions and the regulations applicable to 

his/her environment to control or eliminate hazards or other exposure to illness or 

injury:

On August 23, 2021, and times prior thereto, employees installed and fused 4” gas 

pipe in trenches. Each affected employee had not received sufficient training or 

instruction on how to identify and protect themselves from the hazards of cave-ins.

See Citation and Notification of Penalty at 9.

1. The Standard Applies and Was Violated

As noted by Complainant, the Commission has long-standing precedent “that an employer 

is required to provide excavation safety instructions under § 1926.21(b)(2) to employees engaged 

in excavation work, regardless of whether the potential hazards posed by excavations are actually 

present.” See Bardav, Inc., No. 10-1055, 2014 WL 5025977, at *8 (OSHRC Sep. 30, 2014). 

Respondent’s employees were engaged in such work and were exposed to the hazard posed by 

excavations. Accordingly, the standard applies. 

The Court finds the standard was violated. While Complainant focuses on both RL and JB, 

the Court finds the evidence with respect to JB is less convincing and, ultimately, unnecessary to 

establish a violation of the standard. The record is clear Respondent did not provide RL with the 

tools to recognize or avoid hazardous conditions, nor was he trained regarding the regulations 

applicable to working in trenches. Respondent contends there were multiple avenues through 
27

which RL received training sufficient to meet the requirements of the standard. The Court shall 

address each of those avenues below.

When RL was hired, he went through orientation with Gordon. (Tr. 425). Gordon testified 

he provides new employees with a copy of its safety and health policy and encourages them to 

read it. (Tr. 425). Aside from discussing the course of his training however, Gordon did not follow 

up with RL or other new employees to ensure they had read or understood the materials they were 

provided. (Tr. 459). Instead, Gordon relied on on-the-job training, morning toolbox talks, OQ 

training through Energy Worldnet, annual training, and JSA meetings. However, RL did not receive 

the instruction required by the standard in any of these so-called trainings. 

First, merely providing an employee with a manual and expecting them to read it is 

insufficient for the purposes of the standard. See O’Brien Concrete Pumping, Inc., No. 98-0471, 

2000 WL 235285 at *3 (OSHRC, Feb. 16, 2000) (finding that supplying manuals for employees 

to read and having them signing an acknowledgment form was insufficient). Second, aside from 

saying that Respondent provides on-the-job training, there is no evidence to indicate what, if 

anything, was taught during that time. No one testified as to the training they provided RL, so the 

Court is left with what RL can recall about his training. According to RL, he did not recall being 

given instruction on trenching hazards, how to identify them, or what regulations governed his 

behavior at the worksite. (Tr. 221-224, 257-260). See also id. At *3 (finding record failed to 

establish training sessions provided specific instructions related to hazards encountered by 

employees).

Third, Gordon admits he does not supply new employees with access to the Energy 

Worldnet OQs, which provides education on trenching hazards, soil classification, and other 

information relevant to identifying and addressing hazards or compliance with applicable 
28

regulations. (Tr. 439). Because new employees like RL did not have access to the Energy Worldnet 

platform, they could not access other documents, such as the SF 418 document, which lays out the

operating procedures that govern contractors working for MDU. (Tr. 444). Although training on 

the operating procedures was discussed at Respondent’s annual meeting and safety training, RL 

was not hired until after the meeting took place. (Tr. 441-450). 

Fourth, Respondent contends it provided training through periodic seminars, morning 

meetings, and JSAs to discuss discrete safety issues. However, as illustrated by Complainant, the 

only periodic training RL participated in prior to the cave-in covered overhead hazards and power 

hazards. (Tr. 442-443; Ex. R-22, R-31). As for the morning meetings and JSAs, the Court finds 

Gordon and Miller’s testimony to be too general to satisfy the requirements of the standard. Both 

Miller and Gordon testified they had safety meetings in the morning prior to going to the worksite; 

however, it is unclear what, if any, topics regarding trench safety were discussed. When asked 

whether the morning meetings covered “safety issues”, Miller replied, “Yeah, sometimes.” (Tr. 

523). He also testified that JSA meetings covered “work rules”. Gordon testified in a similarly 

general manner. When asked about whether RL was encouraged to report any safety issues to him, 

Gordon testified, “We—we talk about those things every morning. If—I ask them if there’s an 

issue that we need to discuss about safety, any kind of safety.” (Tr. 426). Without some evidence 

to indicate the substance of the training provided to RL during the one-month period between his 

hire date and the date of the cave-in, the Court cannot conclude Respondent provided training 

sufficient to teach RL to recognize and avoid unsafe conditions or to understand the regulations 

applicable to his/her environment to control or eliminate hazards.

The foregoing is supported by RL’s testimony. RL testified he did not receive training in 

the morning meetings or during the JSA meetings. (Tr. 222, 260, 265-69). According to RL, the 
29

JSA was already filled out when he received the form, and he was expected to sign it. To his 

understanding, the form listed materials that were being used for the job that day. (Id.). Respondent

seemed to imply RL’s lack of recollection on certain topics merely meant he did not remember 

what he was trained. The Court finds RL’s inability to remember what he learned is a product of 

not being trained on those subjects. This is confirmed by the inability of Respondent to provide 

any evidence whatsoever regarding the substance of what RL would have been taught during the 

one-month period of his employment prior to the cave-in. 

Based on the foregoing, the Court finds Complainant established a violation of the 

standard. 

2. RL was Exposed to a Hazard

As discussed extensively in Section V.B, supra, RL, as well as JB and Mendoza, were 

exposed to the hazard posed by the trench at issue, as well as every other trench they had to work 

on during the course of their employment with Respondent. As such, it was incumbent upon 

Respondent to ensure they were trained in accordance with the requirements of § 1926.21(b)(2). 

See Bardav, supra at *10 (“As for the remaining elements of the prima facie case, exposure is 

established because Bardav’s employees were engaged in excavation work without first receiving 

required training.”).

3. Respondent Knew of the Violation 

It is the responsibility of the employer to ensure its employees are trained in accordance 

with § 1926.21(b)(2). In this case, that responsibility fell to Gordon. (Tr. 336-37). Because the 

evidence shows RL did not receive adequate training prior to his injury, the Court finds Respondent 

had actual knowledge of his lack of training. 
30

4. The Violation was Serious and is Affirmed

For the same reasons expressed above with respect to Citation items 1(a) and 1(b), the 

Court finds the violation was serious. Accordingly, Item 1(d) is AFFIRMED.

VI. Penalty

The foregoing items were grouped as one citation with a single penalty of $8,702. During 

direct examination of AD Kearns, counsel for Respondent stated, “We’re not contesting the amount 

of gravity or the basis on which it was calculated. That’s not an issue in dispute.” (Tr. 180). Upon 

questioning from the Court, Respondent confirmed that, if the citation were proven, the penalty 

was appropriate. (Id.). The Court sees no compelling reason to depart from the gravity or penalty 

assessments made by Complainant. Accordingly, the penalty assessment is AFFIRMED.

VII. Order

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing 

Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Items 1(a), 1(b), and 1(d) are AFFIRMED as serious, and a grouped penalty of 

$8,702 is ASSESSED.

2. Citation 1, Item 1(c) has been withdrawn by Complainant.

SO ORDERED.

/s/ Joshua R. Patrick

Dated: February 12, 2024

Denver, Colorado

Joshua R. Patrick

Judge, OSHRC