United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

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

Washington, DC 20036-3457 

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 10-1055

BARDAV, INC., d/b/a MARTHA’S 

VINEYARD MOBILE HOME PARK,

Respondent.

ON BRIEFS: 

Scott Glabman, Senior Appellate Attorney; Charles F. James, Counsel for Appellate 

Litigation; Joseph M. Woodward, Associate Solicitor of Labor for Occupational Safety 

and Health; M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, 

Washington, DC 

For the Complainant 

Frederick J. McCutchon, Esq; Bonnie K. Kirkland, Esq.; Wood, Boykin & Wolter, 

Corpus Christi, TX

For the Respondent 

DECISION 

Before: ROGERS, Chairman; ATTWOOD and MACDOUGALL, Commissioners.

BY THE COMMISSION: 

Bardav, Inc. owns and operates Martha’s Vineyard Mobile Home Park in Corpus Christi, 

Texas, where two Bardav employees were injured when an excavation caved in. The 

Occupational Safety and Health Administration conducted an inspection of the worksite and 

issued Bardav three citations with fourteen items and a total proposed penalty of $50,250. The 

Secretary withdrew one citation item, and of the remaining items, Administrative Law Judge 

Patrick B. Augustine vacated five and affirmed eight, for which he assessed a total penalty of 

$20,675. 

At issue on review are three of the affirmed items—an alleged willful violation of 29 

C.F.R. § 1926.651(k)(2) (removal of employees from excavation where competent person finds 
2

evidence of potential hazard), and alleged serious violations of 29 C.F.R. § 1926.651(h)(1) 

(water accumulation in excavation) and 29 C.F.R. § 1926.21(b)(2) (safety training). Also at 

issue is one of the vacated items—an alleged willful violation of 29 C.F.R. § 1926.652(a)(1) 

(cave-in protection). For the reasons set forth below, we vacate Citation 2, Item 1 (the 

competent person item); we affirm Citation 2, Item 2 (the cave-in protection item), as willful; we

affirm Citation 1, Item 11, and Citation 1, Item 9 (the water accumulation and safety training

items, respectively), as serious; and a total penalty of $18,500 is assessed for the three affirmed 

items.

BACKGROUND

After discovering that an underground water pipe at the Martha’s Vineyard Mobile Home 

Park was leaking, David May, Bardav’s owner, contracted with Jacob Morgan, a plumbing 

technician, to fix the leak. To reach the pipe, which was buried 31 inches underground, Morgan

began digging with a small excavator and noticed that the ground was like “quicksand”—he 

would “get a scoop completely full, remove that, and just in the movement of doing that would 

cause at least three times that much to cave back in.” As a result, Morgan decided that shoring 

was needed, so he and two Bardav maintenance employees—D.O. and M.G.—used two-by-fours 

and plywood they found on the property in an attempt to stabilize the excavation.

At that point, David May’s son, John May, arrived at the worksite with replacement parts 

for the leaking pipe. According to Morgan’s testimony, John May argued with Morgan about 

whether shoring was necessary and, in the presence of David May, told the Bardav maintenance

employees to remove the two-by-fours and plywood from the hole, which they did. M.G.

testified that “the idea was to create a dam,” but that the workers “ended up taking [the wood] 

out [of the hole] because it didn’t work.”

Morgan was unable to fully expose the leaking pipe with his excavator on the day he 

arrived at the mobile home park, so David May had a backhoe brought in the following morning.

The backhoe operator succeeded in exposing the pipe, and after the water was shut off, Bardav’s

two maintenance employees entered the excavation to install the pipe replacement parts. Once 

the repair was made, the two employees remained in the excavation while the water was turned 

back on. Almost immediately a new leak occurred that flooded the excavation, and the walls 

collapsed onto the two employees. The backhoe operator dug around M.G. and was able to free 

him, but in the process, the backhoe struck M.G.’s leg. D.O. remained stuck in the excavation 
3

for more than an hour until the Corpus Christi Fire Department freed him with the help of a city 

vacuum truck, which suctioned out the wet sand around his lower body. Both employees were 

taken to a hospital by ambulance and treated for injuries, which included loss of blood flow, 

hypothermia, dehydration, and lacerations.

DISCUSSION

I. Willful Citation 2, Item 1 – 29 C.F.R. § 1926.651(k)(2) (Excavation Inspections by 

Competent Person)

The Secretary asserts that Bardav violated § 1926.651(k)(2), which provides that 

“[w]here the competent person finds evidence of a situation that could result in a possible cavein, indications of failure of protective systems, hazardous atmospheres, or other hazardous 

conditions, exposed employees shall be removed from the hazardous area until the necessary 

precautions have been taken to ensure their safety.” In affirming this item, the judge agreed with 

the Secretary that Morgan was the competent person at the worksite, and that Bardav’s 

employees were allowed to continue working inside the excavation without a protective system

even after Morgan had specifically identified the potential cave-in hazard. On review, Bardav 

contends that this was error because Morgan was not a competent person as defined by the 

excavation standard. We agree.

By its terms, § 1926.651(k)(2) applies only when a competent person finds evidence of a 

potential excavation hazard. To qualify as a “competent person,” the individual must have 

“authorization to take prompt corrective measures to eliminate” any potential hazard he/she 

identifies. 29 C.F.R. § 1926.650(b) (Definitions). Here, the scope of Morgan’s authority was 

insufficient to render him a “competent person” because he lacked the authority to undertake 

corrective measures to cure hazards that he identified at the job site.

While David May hired Morgan to be “in charge of the [pipe repair] operations,” Morgan 

and D.O. testified that John May—acting on behalf of his father and Bardav—overruled 

Morgan’s attempt to shore the sides of the excavation, and that the maintenance employees 

complied with John May’s order to remove the plywood. Morgan also testified that he “had no 

authority,” “wasn’t in charge,” and “c[ould]n’t override” the Mays, because “[t]hey’re the 

customer,” “[i]t’s their property,” and “[r]egardless of how I would like to do it, it belongs to 

them.” The judge made a demeanor-based credibility finding, accepting Morgan’s testimony 
4

that John May ordered the shoring removed. We defer to the judge’s finding in this regard.1 

Accordingly, we find that Morgan lacked “authorization to take prompt corrective measures,” 

and conclude that the judge erred in holding that he was a competent person under the standard. 

29 C.F.R. 1926.651(k)(2); see JPC Group, Inc., 22 BNA OSHC 1859, 1861 n.6, 2009-12 CCH 

OSHD ¶ 33,027, p. 54,336 n.6 (No. 05-1907, 2009) (concluding that employee who stated that 

“he lacked the authority to remove employees from exposure to a hazard” and testified that “he 

lacked the authority to stop the job without permission from a supervisor” did not qualify as a 

competent person under § 1926.650(b)). Because the Secretary has not shown that anyone else 

at the site was a competent person, he has failed to establish that the cited standard applies. See 

Astra Pharm. Prods., Inc., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ¶ 25,578, pp. 31,899-

900 (No. 78-6247, 1981) (“In order to prove a violation . . . the Secretary must show . . . that . . . 

the cited standard applies . . . .”), aff’d in pertinent part, 681 F.2d 69 (1st Cir. 1982). Therefore, 

we vacate Citation 2, Item 1.2

II. Willful Citation 2, Item 2 – 29 C.F.R. § 1926.652(a)(1) (Protection of Employees in 

Excavations)

The Secretary claims that Bardav violated § 1926.652(a)(1) because the company did not 

use cave-in protection during the repair of the leaking pipe. The cited standard provides as 

follows:

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

shall be protected from cave-ins by an adequate protective system designed in 

accordance with paragraph (b) or (c) of this section except when:

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

 

1

In so finding, the judge discredited M.G.’s contradictory testimony (that the shoring was 

removed because it was not working) due to his demeanor, as well as the fact that his testimony 

was internally inconsistent and conflicted with other evidence. We find no basis to disturb this 

credibility finding. L&L Painting Co., 23 BNA OSHC 1986, 1990, 2012 CCH OSHD ¶ 32,233, 

p. 56,096 (No. 05-0055, 2012) (“The Commission generally accepts a judge’s credibility finding 

where it is based on the judge’s observation of a witness’[s] demeanor,” and where “the judge 

provide[s] a sufficient basis for his rejection of [certain] testimony.”) (internal quotation marks 

and citation omitted). In addition, we note that John May testified similarly to M.G., denying 

that he ordered the shoring removed and stating that its removal was due to its ineffectiveness, so 

the judge effectively discredited John May’s testimony in this regard.

2 While a different provision of the excavation standard requires daily inspections by a 

competent person at an excavation site, the Secretary did not allege a violation of that provision 

here. See 29 C.F.R. § 1926.651(k)(1) (“Daily inspections of excavations . . . shall be made by a 

competent person for evidence of a situation that could result in possible cave-ins . . . .”).
5

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

ground by a competent person provides no indication of a potential cave-in.

29 C.F.R. § 1926.652(a)(1). The judge vacated this item without reaching the merits of the 

violation because he concluded that it was duplicative of the competent person item alleging a 

violation of § 1926.651(k)(2). The Secretary challenges the judge’s ruling on review, but we

need not address this ruling given our conclusion that § 1926.651(k)(2) is inapplicable here. We 

thus turn to the merits of the alleged cave-in protection violation, even though the judge did not, 

because “both parties were afforded a right to present fully their evidence[,] . . . the transcript is 

copious, the exhibits complete, and the [j]udge’s findings of fact detailed.” Accu-Namics, Inc., 1 

BNA OSHC 1751, 1756, 1973-74 CCH OSHD ¶ 17,936, p. 22,234 (No. 477, 1974), aff’d, 515 

F.2d 828 (5th Cir. 1975).

In order to prove a violation of the cited standard, the Secretary must show by a 

preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to 

comply with the cited standard, (3) employees had access to the violative condition, and (4) the 

cited employer either knew or could have known of the condition with the exercise of reasonable 

diligence. Astra Pharm. Prods., 9 BNA OSHC at 2129, 1981 CCH OSHD at pp. 31,899-900. 

As it did before the judge, Bardav contends that § 1926.652(a)(1) does not apply here. 

Specifically, Bardav claims the excavation was shallow and sloped at the proper angle, such that

no hazard existed, and that no cave-in occurred in the manner contemplated by the standard. 

Bardav’s argument fails because the applicability of § 1926.652(a)(1) does not depend on the 

existence of a hazard or the eventual occurrence of a cave-in. On the contrary, the provision 

applies to any excavation, unless the employer shows that the excavation meets one of two 

exceptions—it was “made entirely in stable rock;” or it was “less than 5 feet . . . in depth and 

examination of the ground by a competent person provides no indication of a potential cave-in.” 

29 C.F.R. § 1926.652(a)(1); see Ford Dev. Corp., 15 BNA OSHC 2003, 2010, 1991-93 CCH 

OSHD ¶ 29,900, p. 40,803 (No. 90-1505, 1992) (“[T]he party claiming the benefit of an 

exception bears the burden of proving that its case falls within that exception.”). Here, Bardav 

has shown neither of the facts that would entitle it to rely on these exceptions. The company 

stipulated that the soil at the mobile home park was sandy loam, not stable rock, and there is no 

evidence in the record that a competent person ever examined the ground to determine whether 

there was any indication of a potential cave-in. As a result, we find that § 1926.652(a)(1) 

applies.
6

In addition, we find that the record establishes noncompliance. Morgan, David May, and 

both maintenance employees testified that no shoring system was used in the excavation at any 

point during the two-day pipe repair. Although M.G. and David May both testified that the sides 

of the excavation were sloped, Morgan testified to the contrary, stating that he did not slope, or 

even try to slope, the sides because the saturation of the soil made effective sloping impossible. 

Unlike David May, who acknowledged that he had no “experience . . . in trenching or 

excavation,” particularly with respect to “degrees of slope as it relates to safety of employees 

working in a trench,” Morgan had been involved in more than 100 excavations in his work as a 

plumbing technician, making his asserted understanding of sloping more credible than that of

David May. Moreover, as previously noted, the judge generally credited Morgan’s testimony.

3

Finally, the Secretary has established both the exposure and knowledge elements of his 

prima facie case. The testimony of Bardav’s maintenance employees, together with that of 

Morgan, shows that the employees were in the unprotected excavation on both days at issue. See 

Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD ¶ 20,448, p. 24,425 (No. 

504, 1976) (Secretary may establish exposure by showing “that employees . . . in the course of 

their assigned working duties . . . have been in a zone of danger”). The record also shows that 

David May had knowledge of the cited conditions on both days because he was standing at the 

side of the excavation, observing the digging of the hole and the repair of the leaking pipe. See 

 

3

Three months after the cave-in, an OSHA compliance officer commenced what she testified 

was a “complaint investigation” at Bardav’s mobile home park. In fact, there is a document in 

evidence from OSHA’s investigatory file dated March 24, 2010—one day before the inspection 

began—that OSHA Assistant Area Director Steven McDanel testified “instituted” the inspection. 

Upon questioning by Bardav’s counsel, McDanel responded in the affirmative when asked 

whether he “kn[e]w that the complainant was [D.O.].” In the document, an OSHA employee 

recorded what Bardav’s counsel thus concedes was a complaint concerning the excavation at 

issue in this case. (In Commissioner Attwood’s view, any thought that the document might be a

first-hand account by an OSHA official is undercut by the fact that there is no evidence OSHA 

personnel set foot on the worksite in the three months between the time of the cave-in and the 

inspection.) The document states that the sides of the excavation had been “cut 4 inches up and 

six inches forward,” a slope that would be in accordance with the standard’s requirements. 

However, Bardav has failed to raise this document as a basis for vacating Citation 2, Item 2, on 

review, despite having been asked by the Commission to address the merits of this item. Indeed, 

Bardav’s brief to the Commission makes only one reference to the document, in the context of 

the safety training item at issue. In any event, this piece of evidence—whose author is unknown, 

and which contains various measurements that conflict with other evidence in the record—is 

outweighed by Morgan’s testimony that he did not, and did not even attempt to, slope the sides 

of the excavation.
7

Am. Wrecking Corp., 19 BNA OSHC 1703, 1710, 2001 CCH OSHD ¶ 32,504, p. 50,402 (No. 

96-1330, 2001) (consolidated) (finding actual knowledge, and imputing it to employer, where 

supervisor “continued to work in the area [of the violative condition] through the time of the 

accident”), aff’d in relevant part, 351 F.3d 1254 (D.C. Cir. 2003); compare Prestressed Sys., 

Inc., 9 BNA OSHC 1864, 1869, 1981 CCH OSHD ¶ 25,358, p. 31,500 (No. 16147, 1981) 

(stating that where violative condition “may not have been visible, an inference of [actual] 

employer knowledge cannot be drawn from the mere presence of the . . . condition at the 

worksite”). Thus, we find that the Secretary has established a violation of § 1926.652(a)(1), and

we affirm Citation 2, Item 2.

Regarding characterization, the Secretary urges that this is a willful violation. The 

Secretary argues that the company was indifferent to the safety of its employees because, despite 

Morgan’s warnings that the excavation was not safe without shoring, and despite David and John 

May’s direct observation of the wet and unstable soil conditions, John May ordered the removal 

of the attempted shoring and refused to allow the installation of a protective system. We agree 

with the Secretary.

“Willful violations are characterized by . . . a plain indifference to employee safety, in 

which the employer manifests a heightened awareness . . . that the conditions at its workplace 

present a hazard.” Barbosa Group, Inc., 21 BNA OSHC 1865, 1868, 2004-09 CCH OSHD 

¶ 32,877, p. 53,198 (No. 02-0865, 2007) (internal quotation marks and citation omitted), aff’d, 

296 F. App’x 211 (2d Cir. 2008) (unpublished). “The state of mind of a supervisory 

employee . . . may be imputed to the employer for purposes of finding that the violation was 

willful.” Branham Sign Co., 18 BNA OSHC 2132, 2134, 2000 CCH OSHD ¶ 32,106, p. 48,263

(No. 98-752, 2000). Here, we find that despite Morgan’s specific warning that shoring was 

necessary to protect the employees working in the excavation, Bardav refused to permit the 

installation of cave-in protection. Indeed, Bardav was aware of the need for such protection, as 

Bardav had been informed of a prior excavation collapse involving M.G. This prior incident, 

along with Morgan’s warnings and the obviousness of the unsafe conditions, gave Bardav a 

heightened awareness of the hazard posed by the unprotected excavation, and its failure to install 

a protective system in this case constitutes plain indifference. See Elliot Constr. Corp., 23 BNA 

OSHC 2110, 2116-17, 2012 CCH OSHD ¶ 33,231, p. 28,310 (No. 07-1578, 2012) (affirming 

willful violation of jobsite inspection standard when supervisor knew from prior experience and 
8

from information learned that day that carbon monoxide would be present and yet failed to 

monitor for it); Adrian Constr. Co., 7 BNA OSHC 1172, 1175, 1979 CCH OSHD ¶ 23,390, 

p. 28,310 (No. 15414, 1979) (“A violation is willful if the evidence shows that the employer 

ignored an obvious and grave danger . . . .”). For these reasons, we conclude that a willful 

characterization is appropriate here.

The Secretary proposed a penalty of $21,000 for this item but states on review that “a 

penalty of at least $15,000 is warranted.” In assessing a penalty, “section 17(j) of the OSH Act, 

29 U.S.C. § 666(j), requires the Commission to give due consideration to the gravity of the 

violation and the employer’s size, history of violation, and good faith.” Burkes Mech., Inc., 21 

BNA OSHC 2136, 2142, 2004-09 CCH OSHD ¶ 32,922, p. 53,564 (No. 04-0475, 2007).

The Secretary gave Bardav a sixty percent reduction for size and a ten percent reduction 

because of its lack of prior OSHA violations. With regard to gravity, Bardav’s employees were 

inside the excavation on two consecutive days, despite Morgan’s warnings of potential hazards.

Moreover, John May’s refusal to permit Morgan’s shoring efforts demonstrates Bardav’s 

indifference and lack of good faith. Accordingly, Chairman Rogers and Commissioner Attwood

find that a penalty of $15,000 is appropriate for this violation.

III. Serious Citation 1, Item 11 – 29 C.F.R. § 1926.651(h)(1) (Water Accumulation in 

Excavations)

The Secretary claims that Bardav violated § 1926.651(h)(1) because the company did not 

ensure that adequate precautions were taken to protect employees working in an excavation with 

an accumulation of water. The cited standard provides as follows:

Employees shall not work in excavations in which there is accumulated water, or 

in excavations in which water is accumulating, unless adequate precautions have 

been taken to protect employees against the hazards posed by water accumulation. 

The precautions necessary to protect employees adequately vary with each 

situation, but could include special support or shield systems to protect from caveins, water removal to control the level of accumulating water, or use of a safety 

harness and lifeline.

29 C.F.R. § 1926.651(h)(1). The judge affirmed this item. On review, Bardav contends that 

there was no accumulation of water in the excavation until the second leak. Alternatively, 

Bardav contends that precautions were adequate in light of the risks and circumstances that 

existed immediately prior to the second leak. Both of Bardav’s arguments fail.

Bardav’s accumulation argument is unavailing because, as Morgan testified, water was 

present throughout the entire excavation and repair process and, as D.O. testified, the leaking 
9

pipe was submerged beneath 1 to 1.5 feet of water during at least some portions of the repair. 

The judge credited this testimony over the conflicting testimony from M.G., who stated that any 

water that was in the excavation was pumped out before any repair work was done. We find that 

both maintenance employees were working in an excavation containing accumulated and 

accumulating water.4 Bardav’s adequacy argument is equally unavailing, because Bardav failed 

to take precautions necessary to protect employees against the hazards posed by water 

accumulation. Indeed, it is undisputed that any attempts at shoring and water removal had been 

abandoned long before the collapse occurred.

The Secretary also established that Bardav’s employees were exposed to the violative 

condition, and that the company possessed the requisite knowledge. Regarding exposure, we 

agree with the judge that the maintenance employees were working in the excavation with 

standing water. Regarding knowledge, the accumulated water was in plain view of David May, 

who stood at the side of the excavation during the pipe repair. Thus, we find that the Secretary 

has established a violation of § 1926.651(h)(1), and we affirm Citation 1, Item 11.

The Secretary characterized this item as serious and proposed a $1,500 penalty. The 

judge affirmed the item as serious and assessed a penalty of $1,000. Neither the Secretary nor 

Bardav challenges the judge’s decision on these issues. See KS Energy Servs., Inc., 22 BNA 

OSHC 1261, 1268 n.11, 2004-09 CCH OSHD ¶ 32,958, p. 53,925 n.11 (No. 06-1416, 2008) 

(affirming judge’s serious characterization and assessed penalty where parties did not dispute 

these findings). Moreover, Chairman Rogers and Commissioner Attwood find that the reduced 

penalty amount assessed by the judge is appropriate given the partial overlap between this 

violation and the cave-in protection violation, as presented in this case. As a result, a $1,000 

penalty is assessed for this violation.

IV. Serious Citation 1, Item 9 – 29 C.F.R. § 1926.21(b)(2) (Safety Training)

The Secretary claims that Bardav violated § 1926.21(b)(2) because its employees were 

repairing an underground leaking water pipe without having been trained in the recognition of 

unsafe conditions in excavation work. The cited standard provides that “[t]he employer shall 

instruct each employee in the recognition and avoidance of unsafe conditions and the regulations 

 

4 We note that David May described the amount of water in the excavation during the repair as 

minimal, but this testimony is aligned with that of M.G., which the judge appropriately 

discredited. 
10

applicable to his work environment to control or eliminate any hazards or other exposure to 

illness or injury.” 29 C.F.R. § 1926.21(b)(2). In affirming this item, the judge found that 

although David and John May observed the wet and unstable soil in the excavation and were told

by Morgan that the conditions were unsafe, and although M.G. testified that he had repaired ten 

other underground leaks at the mobile home park during his employment with Bardav, neither of 

Bardav’s maintenance employees had ever been instructed by the company regarding the 

potential hazards associated with excavation work.

On review, Bardav never claims that it instructed these employees on excavation safety. 

It argues instead that no such instructions were required because “[w]ithout a hazard, no warning 

was necessary,” and the Secretary “failed to prove a hazard” or that one “could reasonably be 

anticipated.” Chairman Rogers and Commissioner Attwood find that Bardav is mistaken. It is 

well-settled under long-standing Commission 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. Indeed, 

the Commission has “specifically reject[ed] [the] argument that a training standard violation is 

contingent on . . . finding that [a] trench was hazardous.” Andrew Catapano Enters., Inc., 17 

BNA OSHC 1776, 1780 n.6, 1995-97 CCH OSHD ¶ 31,180, p. 43,606 n.6 (No. 90-0050, 1996) 

(consolidated). In other words, “even if [a particular] trench . . . [is] in compliance” with the 

excavation standards, an employer’s failure to give “instruction[s] in how to recognize or avoid 

unsafe conditions commonly encountered in trenching operations . . . would be a violation of 

section 1926.21(b).” H.H. Hall Constr. Co., 10 BNA OSHC 1042, 1049, 1981 CCH OSHD 

¶ 25,712, p. 32,058 (No. 76-4765, 1981) (internal quotation marks omitted).

Here, it is undisputed that Bardav’s employees were engaged in excavation activities on 

the days in question, and the record shows that such work was not uncommon at the mobile 

home park, as evidenced by M.G.’s repair of ten prior underground water leaks. Thus, Chairman 

Rogers and Commissioner Attwood reject Bardav’s contention that its training obligation 

depended on proof that the excavation was hazardous (or potentially so) and, in accord with our 

precedent, find that the cited standard applies.

5

 See generally Mineral Indus. & Heavy Constr. 

 

5 Bardav asserts that Morgan, not Bardav, was responsible for training the company’s two 

maintenance employees. However, Morgan could not hire, discipline, or fire the employees, nor 

could he assign them additional projects or control their work, as we have already observed. 
11

Grp. v. OSHRC, 639 F.2d 1289, 1294 (5th Cir. 1981) (“The goal of the Act is to prevent the first 

accident, not to serve as a source of consolation for the first victim or his survivors.”); Gen. 

Motors Corp., 22 BNA OSHC 1019, 1030, 2004-09 CCH OSHD ¶ 32,928, p. 53,612 (No. 91-

2834E, 2007) (consolidated) (“[W]ith regard to training, it would be unreasonable to require that 

an employee be exposed to a hazard before requiring that he be trained to recognize and avoid 

that hazard.”).

In her concurrence, Commissioner MacDougall views the applicability of the training 

standard—that is, whether an obligation to instruct exists at all—as dependent upon whether a 

“reasonably prudent employer” would believe that any training was necessary under the

circumstances. In so doing, she conflates two different legal concepts: (1) the duty to train; and 

(2) the adequacy of the training provided. Indeed, the plain language of the cited training 

provision requires an employer to provide instruction “in . . . the regulations applicable to [each 

employee’s] work environment.” 29 C.F.R. § 1926.21(b)(2) (emphasis added). Here, it is 

undisputed that the “regulation” on which training was required is the excavation standard that 

applied to the work performed by D.O. and M.G. Accordingly, Bardav was obligated by the 

training provision to instruct its employees regarding the requirements of that standard. See 

O’Brien Concrete Pumping, Inc., 18 BNA OSHC 2059, 2061, 1999 CCH OSHD ¶ 32,026, p. 

47,848 (No. 98-0471, 2000) (affirming § 1926.21(b)(2) violation where employer failed to 

instruct “employees about the requirements of OSHA’s regulations with regard to guarding the 

[concrete] hopper’s point of operation”). In this respect, the applicable regulations—in this case, 

the excavation standard—trigger the duty to instruct under the cited training provision.

Our concurring colleague further asserts that use of the reasonably prudent employer test 

to determine the applicability of § 1926.21(b)(2) is “well settled,” but none of the Commission 

precedent on which she relies supports this proposition. In each of the § 1926.21(b)(2) cases 

cited by the concurrence, the issue before the Commission was the adequacy of the employers’ 

 

Additionally, the work was located at Bardav’s mobile home park; the workers had been Bardav

employees for two months and six years, respectively; Bardav paid both employees regularly, by 

check; and David May set their work hours. We agree with the judge’s determination that under 

these facts, Bardav was responsible for training the two employees. See Nationwide Mut. Ins. 

Co. v. Darden, 503 U.S. 318, 323-24 (1992).
12

instructions, not whether the training standard applied in the first place.6 See Capform, Inc., 19 

BNA OSHC 1374, 1376, 2001 CCH OSHD ¶ 32,320, p. 49,477 (No. 99-0322, 2001) (“The 

question is whether those instructions adequately identified the hazards generally associated with 

[the work].”); Compass Envtl., Inc., 23 BNA OSHC 1132, 1134, 2009-12 CCH OSHD ¶ 33,071, 

p. 54,639 (No. 06-1036, 2010) (“Although a Compass project engineer provided the decedent 

with on-the-job training, that training did not address power line hazards.”), aff’d, 663 F.3d 1164 

(10th Cir. 2011); El Paso Crane & Rigging Co., 16 BNA OSHC 1419, 1425-26, 1993-95 CCH 

OSHD ¶ 30,231, p. 41,623 (No. 90-1106, 1993) (vacating § 1926.21(b)(2) item because safety 

instructions were adequate); Pressure Concrete Constr. Co., 15 BNA OSHC 2011, 2016, 1991-

93 CCH OSHD ¶ 29,202, p. 40,811 (No. 90-2668, 1992) (“Pressure Concrete claims that its 

employees were adequately instructed.”) As such, the Commission relied upon the reasonably 

prudent employer test only to decide the noncompliance element of the Secretary’s prima facie 

case—not the applicability element. For example, in El Paso Crane & Rigging, the Commission 

stated that “to establish noncompliance, the Secretary must establish that the cited employer 

failed to provide the instructions that a reasonably prudent employer would have given,” and 

then noted that “[t]he Secretary must also establish the usual elements of a violation.” 16 BNA 

OSHC at 1424, 1993-95 CCH OSHD at p. 41,620 (emphasis added). Similarly, in Pressure 

Concrete, the Commission set out the four prima facie elements of the Secretary’s burden, found 

“that [§ 1926.21(b)(2)] applies to the cited working conditions,” and then considered the 

reasonably prudent employer test in the context of the employer’s failure to comply with the 

standard. 15 BNA OSHC at 2015-16, 1991-93 CCH OSHD at p. 40,810.

Finally, our concurring colleague makes much of the Tenth Circuit’s decision in 

Compass Environmental, which Bardav cites for the proposition that an employer’s duty to train 

depends on the conditions at the particular worksite, whether those conditions create a hazard, 

and whether the industry has recognized the hazard. We note at the outset that the matter before 

us does not arise in the Tenth Circuit and, therefore, this decision is not binding precedent. See 

Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067, 2000 CCH OSHD ¶ 32,053, p. 48,003 (No. 

96-1719, 2000) (“Where it is highly probable that a Commission decision would be appealed to a 

 

6

Two of these cases, N&N Contractors, Inc., 18 BNA OSHC 2121, 2000 CCH OSHD ¶ 32,101 

(No. 96-0606, 2000), aff’d, 255 F.3d 122 (4th Cir. 2001), and Baker Tank Co., 17 BNA OSHC 

1177, 1993-95 CCH OSHD ¶ 30,734 (No. 90-1786-S, 1995), address other training standards 

and are, therefore, inapt.
13

particular circuit, the Commission has generally applied the precedent of that circuit in deciding 

the case—even though it may differ from the Commission’s precedent.”). In any event, we find 

the court’s reading of our decision to be inaccurate. According to the Tenth Circuit, the 

Commission’s decision in Compass Environmental applied “a training-specific test”—the 

reasonably prudent employer test—“to assess whether Compass violated § 1926.21(b)(2),” 

instead of holding the Secretary to his usual four-part, prima facie burden. 663 F.3d at 1169. 

But the Commission did no such thing, as evidenced by the fact that it also addressed the 

knowledge and exposure elements of the prima facie case. 23 BNA OSHC at 1136, 2009-12 

CCH OSHD at p. 54,641. Under Commission precedent, including our decision in Compass 

Environmental, the reasonably prudent employer test is, and has consistently been, used to 

determine whether an employer has failed to comply with § 1926.21(b)(2)—that is, to assess the 

adequacy of the content of the instructions at issue. Thus, the reasonably prudent employer test 

is irrelevant here—Bardav’s noncompliance is established by its own admission, as well as by 

testimony from D.O. that he received no excavation safety training at all from the company. In 

light of the foregoing, it is self-evident that the Commission has not, in § 1926.21(b)(2) cases, 

abandoned the usual four-part test for determining whether the Secretary has established a 

violation.

As to 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. 

See Compass Envtl., 23 BNA OSHC at 1136 n.5, 2009-12 CCH OSHD at p. 54,641 n.5 (“[The 

employer] incorrectly focused on the unforeseeability of the events that occurred on the day of 

the accident rather than the . . . lack of training about a known hazard.”); Gen. Motors Corp., 22 

BNA OSHC at 1030, 2004-09 CCH OSHD at p. 53,612 (finding it unreasonable to require that 

employee be exposed to a hazard before requiring that he be trained to recognize and avoid that 

hazard). And knowledge is established, especially as Bardav does not dispute that it provided no

training to the exposed employees.

7

 See generally Pressure Concrete Constr., 15 BNA OSHC at

2018, 1992 CCH OSHD at p. 40,813 (“[t]he fact that [the company] failed to train [employees] 

 

7 Our concurring colleague expresses concern that knowledge in certain § 1926.21(b)(2) cases 

may be established “simply by virtue of the fact” that an employer knew of its failure to train its 

employees. We do not share this concern. The relative ease of proving an element of the 

Secretary’s prima facie case in certain factual scenarios does not “obliterate” the element, nor 

does it allow the Secretary to offer no evidence whatsoever to establish knowledge.
14

in the recognition and avoidance of dangerous conditions establishes that it had at least 

constructive knowledge of the inadequacy of its training program.”). Accordingly, we find that 

the Secretary has established a violation of § 1926.21(b)(2), and we affirm Citation 1, Item 9.

Regarding characterization, a violation is serious “if there is a substantial probability that 

death or serious physical harm could result.” Capform, Inc., 16 BNA OSHC 2040, 2042, 1993-

95 CCH OSHD ¶ 30,589, p. 42,357 (No. 91-1613, 1994) (citing section 17(k) of the Act, 29 

U.S.C. § 666(k)). An employer’s failure to instruct its employees on potential hazards can result 

in serious injury. See, e.g., Pressure Concrete, 15 BNA OSHC at 2018, 1991-93 CCH OSHD at 

p. 40,813 (characterizing § 1926.21(b)(2) violation as serious because “it is abundantly clear that 

the consequences of [the employer’s] failure to instruct its employees could result in serious 

harm”). Here, Bardav failed to provide training in excavation safety despite M.G. having made 

ten underground pipe repairs while in the company’s employ, and despite his having been 

involved in a prior excavation collapse. As a result, we find that the record supports a serious 

characterization here.

As to penalty, the Secretary proposed $600, but the judge assessed a $2,500 penalty, 

noting that Bardav’s knowledge of past incidents clearly indicated that excavation training was 

needed. Bardav contends that “no evidence” supports the judge’s increased penalty assessment 

“when considering the totality of the circumstances.” We disagree. In light of the company’s 

awareness of M.G.’s experience with a prior excavation collapse and its failure to provide 

training over the course of several years, we find no basis to disturb the judge’s determination 

that a higher penalty is warranted here. See Roberts Pipeline Constr., Inc., 16 BNA OSHC 2029, 

2030, 1993-95 CCH OSHD ¶ 30,576, p. 42,331 (No. 91-2051, 1994) (“The [OSH] Act requires 

us to consider the gravity of the violation, the size of the employer, its good faith and safety 

history when assessing a penalty.”) (internal quotation marks omitted). We therefore assess a 

$2,500 penalty for this violation.
15

ORDER

We vacate Willful Citation 2, Item 1, but affirm Willful Citation 2, Item 2, and assess a 

$15,000 penalty for this violation. We affirm Serious Citation 1, Items 11 and 9, and assess a

$1,000 penalty and a $2,500 penalty, respectively, for these violations.

SO ORDERED.

/s/

Thomasina V. Rogers

Chairman

/s/

September 30, 2014 Cynthia L. Attwood

Commissioner
16

MACDOUGALL, Commissioner, concurring in part and dissenting in part:

I join the majority’s opinion finding that the Secretary has established violations of 

Citation 2, Item 2 (29 C.F.R. § 1926.652(a)(1)—protection of employees in excavation); Citation 

1, Item 11 (29 C.F.R. § 1926.651(h)(1)—water accumulation in excavation); and Citation 1, Item 

9 (29 C.F.R. § 1926.21(b)(2)—safety training). I also join in the decision to vacate Citation 2, 

Item 1 (29 C.F.R. § 1926.651(k)(2)—excavation inspections by competent person), for the 

reasons stated by the majority. However, I write separately because I disagree with the total 

penalty assessed, based upon my opinion that the two excavation citations should be held to be a 

single violation, and I believe the majority’s analysis of Citation 1, Item 9 does not apply the 

correct test applicable to citations alleging a failure to train.

I. Protection of Employees in Excavation and Water Accumulation in Excavation 

Citations Should Be Grouped, with a Single Penalty Assessed

Citation 2, Item 2, and Citation 1, Item 11, involve substantially the same violative 

conduct (e.g., same site location, same employees, and same cave-in danger) and the same 

abatement measures. Thus, I find it appropriate, as part of the Commission’s penalty discretion, 

to assess a single penalty for these two overlapping violations as the Commission has done in the 

past. See Hackensack Steel Corp., 20 BNA OSHC 1387, 1394, 2002-04 CCH OSHD ¶ 32,690, 

p. 51,560 (No. 97-0755, 2003) (as part of its penalty discretion, Commission may find it 

appropriate to assess a single penalty for distinct but potentially overlapping violations); 

Cleveland Consol., Inc., 13 BNA OSHC 1114, 1118, 1986-87 CCH OSHD ¶ 27,829, p. 36,430 

(No. 84-696, 1987) (two citation items involving substantially the same violative conduct held to 

be single violation and single penalty assessed); H.H. Hall Constr. Corp., 10 BNA OSHC 1042, 

1049, 1981 CCH OSHD ¶ 25,712, p. 32,056 (No. 76-4765, 1981) (assessing a single penalty for 

overlapping violations that involved allegations that the company failed to reinforce a trench to 

protect against “superimposed loads” and failed to protect against “moving ground”); Wright & 

Lopez, Inc., 10 BNA OSHC 1108, 1112, 1981 CCH OSHD ¶ 25,728, p. 32,077 (No. 76-256, 

1981) (where one action could abate two cited violations, single penalty assessed); Alpha Poster 

Serv., Inc., 4 BNA OSHC 1883, 1884, 1976-77 CCH OSHD ¶ 21,354, p. 25,644 (No. 7869, 

1976) (two items involving substantially the same violative conduct should merge into a single 

violation). See also OSHA’s Field Operations Manual, Chapter 4 (X) (B) (“Combining and 

Grouping Violations”). Compare Capform, Inc., 13 BNA OSHC 2219, 1989 CCH OSHD 
17

¶ 28,503 (No. 84-556, 1989) (citation items are impermissibly duplicative if the same abatement 

action would correct the violative conditions alleged in both items).

I note that the judge’s decision in Pentecost Contracting Corp., Nos. 92-3789 & 92-3790, 

1995 WL 500370 (OSHRC Aug. 18, 1995) (ALJ), is persuasive here. There, the judge 

considered a respondent’s argument in favor of grouping the same two violations at issue here—

violations of § 1926.651(h)(1) and § 1926.652(a)(1). Id. at *8. The judge held that grouping 

was appropriate, primarily because a single protective measure—an adequate shoring system—

could have protected against the hazards posed by both of the violations. Id. (finding single 

penalty appropriate “[b]ecause the hazard to be avoided (collapse or cave-in) is the same . . . and 

a single protective measure (proper shoring) would abate the hazard . . . .”). Likewise here, I 

find that the Secretary’s case focused upon the existence of a single risk at the worksite—the risk

of a cave-in. A single protective measure—an adequate shoring system—could have cured the 

violations at issue in each of these two citations. As such, I would group the two violations for 

penalty purposes and assess a single penalty of $15,000.1

 

1

I do not join in the majority’s opinion set forth in footnote 3. I believe that there is an 

insufficient basis in the record to support the majority’s conclusion that the sloping reference in 

question was based on a recording of a third-party complaint—my colleagues simply make an 

unsubstantiated inference of this fact from their review of a piece of evidence. The majority 

appears to credit the opinion of Assistant Area Director McDanel regarding the source of the 

hearsay sloping reference, without making any finding regarding the weight to assign the hearsay 

evidence. See, e.g., Hurlock Roofing Co., 7 BNA OSHC 1867, 1873, 1979 CCH OSHD 

¶ 24,006, p. 29,149 (No. 14907, 1979) (“[T]he weight to be assigned hearsay evidence will 

depend on the apparent reliability, and must take into account any possible bias or interest on the 

part of the person or persons who made the statements sought to be introduced.”) (citation 

omitted); see also School Bd. of Broward Cnty. v. Dep’t of Health, Educ. & Welfare, 525 F. 2d 

900, 906 (5th Cir. 1976) (agency considering hearsay evidence must consider those factors 

which “assure underlying reliability and probative value”); 4 Stein, Mitchell, Menzines, 

Administrative Law § 26.02 (2014) (discussing agency considerations in determining weight to 

be given hearsay evidence). Undisputedly, Mr. McDanel was not the author of the document in 

question. The reality is, as OSHA has conceded, we do not know the identity of the note’s 

author. Consequently, Mr. McDanel’s speculation aside, it is also possible that the sloping 

reference reflects a first-hand account by an OSHA official.

I also question the reliability of deeming the sloping reference to be a third-party complaint 

based on the timing of OSHA’s investigation occurring after the date stated on the document. 

Indeed, it is the veracity of the document—including both the sloping reference and the stated 

date—which is of concern given the uncertainty about the document’s author.

Notwithstanding, Bardav did not fully develop this piece of evidence before the judge, and 

Bardav failed to raise this document as a basis for vacating Citation 2, Item 2. As such, having 
18

II. The Correct Test to Be Applied to Training Standards is Whether the Secretary Has 

Proven That a Reasonably Prudent Employer Would Provide Training in the Same 

Circumstances

I also write separately to express concern regarding the majority’s analysis of Citation 1, 

Item 9, involving an alleged failure to provide safety training. In safety training cases, the 

Commission should properly consider whether the employer has failed to provide the training 

instructions that a reasonably prudent employer would have given in the same circumstances.

Compass Envtl., Inc., 23 BNA OSHC 1132, 1134, 2009-12 CCH OSHD ¶ 33,071, p. 54,640 (No. 

06-1036, 2010), aff’d, 663 F.3d 1164 (10th Cir. 2011) (applying reasonably prudent employer 

test even though employer failed to provide employee with any instructions regarding the hazard 

in question); N&N Contractors, Inc., 18 BNA OSHC 2121, 2126, 2000 CCH OSHD ¶ 32,101, p. 

48,243 (No. 96-0606, 2000) (“To establish noncompliance with a training standard, the Secretary 

must show that the cited employer failed to provide the instructions that a reasonably prudent 

employer would have given in the same circumstances.”), aff’d, 255 F.3d 122 (4th Cir. 2001); 

Capform, Inc., 19 BNA OSHC 1374, 1376, 2001 CCH OSHD ¶ 32,320, p. 49,476 (No. 99-0322, 

2001) (“Under § 1926.21(b)(2), an employer must instruct its employees in the recognition and 

avoidance of those hazards of which a reasonably prudent employer would have been aware.”) 

(internal quotations omitted); see also Baker Tank Co., 17 BNA OSHC 1177, 1179, 1993-95 

CCH OSHD ¶ 30,734, p. 42,683 (No. 90-1786-S, 1995); El Paso Crane & Rigging, Co., 16 BNA 

OSHC 1419, 1424, 1993-95 CCH OSHD ¶ 30,231, p. 41,620 (No. 90-1106, 1993)). Despite my 

colleagues’ constrained attempt to distinguish their own opinion in Compass Environmental, I 

believe the test is equally applicable to all training standards. See, e.g., Furmanite Am., Inc., No. 

13-0307, 2014 WL 4052894 (OSHRC June 25, 2014) (ALJ) (rejecting argument that reasonably 

prudent employer test applies only to certain training standards and holding that the test applies 

to training standards “generally”).2 

The majority’s failure to apply the reasonably prudent employer test is highly 

problematic as it is based on a tautological argument, employing circular logic that begins by 

assuming the very thing that is meant to be proven by the alleged violation. Under the majority’s 

 

considered the totality of all the evidence, I join the majority’s conclusion that the sloping 

reference, while relevant, is not sufficient to change the conclusions we draw from the weight of 

other probative, credible evidence.

2 Hence, in my opinion, the majority’s attempt to distinguish N&N Contractors, Inc., and Baker 

Tank Co., based on the fact that they involve a different training standard, is unavailing.
19

analysis, the Secretary can prove a violation of the training standard, without ever proving that 

any training obligation exists in the first place, merely by showing training was not provided. 

Nowhere is this more evident than in the majority’s application of its own rule, when the 

majority states: “Bardav’s noncompliance is established by its own admission, as well as by 

testimony from D.O. that he received no excavation safety training from the company.” Such 

reasoning suggests to the Secretary that he can prosecute that which he would otherwise be 

unable to prove under the Commission precedent issued prior to the majority’s opinion herein.3 

In an effort to avoid the reasonably prudent employer test, the majority has re-framed

Bardav’s argument in the form of a straw man, claiming Bardav believes its training obligation 

to be contingent upon the existence of some hazardous condition.4 The majority then promptly 

defeats the straw man that it has created, citing to the proposition that an employer is not relieved 

of training obligations simply because the condition in question complies with other applicable 

OSHA standards. It is undeniable that an employer is not relieved of applicable training 

obligations merely because the condition in question may be in compliance with other applicable 

standards. Here, for example, Bardav could not be relieved of an otherwise-existing training 

obligation merely by installing shoring in the excavation in question. However, the majority’s 

analysis looks straight past a threshold issue—no training violation could exist in the first place 

if the conditions in question were such that no reasonable employer would believe that any 

training was necessary under the circumstances.5 

 

3

Indeed, under the majority’s rationale, the element of knowledge is established simply by virtue 

of the fact that Bardav knew that it did not train its employees on excavation safety. Such 

reasoning—that a violation of a training standard is established if the employer knows it did not 

provide training—essentially obliterates the required knowledge element, permitting the 

Secretary to prosecute its citations without offering any proof regarding the element of 

knowledge.

4

In fact, Bardav’s argument in its brief upon review is entirely different: “Training violations 

depend on whether the employer failed to provide the instructions that a reasonable [sic] prudent 

employer would have given in the same circumstances.” 

5 A particular excavation, for instance, could be dug in a manner that a training requirement 

would be unfounded. This could be the case for—for instance—a shallow hole dug in the 

process of installing a mailbox post, or small holes dug to repair below-ground sprinkler pipes. 

While I certainly do not take a position about the application of the training standard in any of 

these hypothetical circumstances, I note these examples to illustrate the significance of the 

reasonably prudent employer test.
20

The majority also defends its rejection of the reasonably prudent employer test by 

focusing upon the second prong of the cited standard6—in other words, the question of whether 

Bardav trained employees on the regulations applicable to an employee’s work environment. 

Under this second prong, the majority contends, the reasonably prudent employer test does not 

apply. However, the Secretary never alleged, and never tried, the issue of whether Bardav 

violated the second prong of the cited standard. Instead, the Secretary alleged, and has 

consistently argued, that Bardav violated the first prong regarding recognition and avoidance of 

unsafe conditions.

7

 Thus, the inquiry as to whether Bardav failed to train its employees in the 

recognition and avoidance of unsafe conditions necessarily depends upon whether a reasonably 

prudent employer would have believed that training was necessary under the circumstances—in 

other words, whether a reasonably prudent employer would have believed that there existed any 

unsafe conditions requiring training. 

As an alternative rationale for departing from the reasonably prudent employer test here, 

my colleagues state that the Tenth’s Circuit’s reading of their decision in Compass 

Environmental, Inc. v. OSHRC, 663 F.3d 1164, 1168 (10th Cir. 2011), is inaccurate. 

Notwithstanding the majority’s reading of Compass, the reasonably prudent employer test is not 

limited to testing the adequacy of the employer’s instructions. To the contrary, the reasonably 

prudent employer test is equally applicable where, as here, the adequacy of an instruction is not 

at issue because no instruction has been given in the first place. See, e.g., Compass Envtl., Inc., 

23 BNA OSHC at 1134, 2009-12 CCH OSHD at p. 54,640 (applying reasonably prudent 

employer test even though employer failed to provide employee with any instructions regarding 

the hazard in question); Baker Tank Co., 17 BNA OSHC at 1179, 1993-95 CCH OSHD at p. 

42,683 (applying reasonably prudent employer test even where there existed no evidence “that 

Baker’s crew had been given any instructions about the hazards and precautions in th[e] job...”);

 

6

The cited standard provides that “[t]he employer shall instruct each employee in the recognition 

and avoidance of unsafe conditions and the regulations applicable to his work environment to 

control or eliminate any hazards or other exposure to illness or injury.” See 29 C.F.R. 

§ 1926.21(b)(2). 

7

The citation on this standard stated: “The employer did not ensure employees were trained in 

the recognition of unsafe conditions in trenching and excavation work, to include hazards, such 

as, but not limited to, the following: (a) hazards of working in trenches without an adequate 

employee protective system; (b) hazards of working in trenches where the soil is saturated and 

there is an accumulation of water; (c) safe means of egress.”
21

Pressure Concrete Constr. Co., 15 BNA OSHC 2011, 2015, 1991-93 CCH OSHD ¶ 29,902, p. 

40,810 (No. 90-2668, 1992) (applying reasonably prudent employer test notwithstanding 

employer’s stipulation that “nothing in [the safety manual] specifically addressed the dangerous 

working conditions that might be encountered on this job”).

8

 Perhaps more importantly, the 

majority’s opinion as to the precise framework for the reasonably prudent employer test is

immaterial here, as the majority has rejected both frameworks and has refused to apply the 

reasonably prudent employer test in either manner.

9

 

Again questioning the Tenth Circuit’s reading of the Commission’s Compass decision, 

the majority questions whether the reasonably prudent employer test applies within the 

framework of the ordinary four-part test, or as an alternative to the ordinary four-part test. See

Compass Envtl., 663 F.3d at 1168 (in determining whether the § 1926.21(b)(2) training standard

was violated, court construed the Commission’s application of the reasonably prudent employer 

test as recognizing that the ordinary four-part test is not well suited to training standards). 

Again, the majority’s red herring concern about the rule’s precise framework does not justify its 

decision to disregard the rule altogether in this case. As an adjudicative body, we are to apply or 

set forth a rule of law. The Commission should not rely upon different controlling rules of law 

for different training cases on an arbitrary case-by-case basis. Under existing Commission

precedent, Bardav cannot be liable for violating the cited training standard unless a reasonably 

prudent employer in Bardav’s position would have believed that training was required under the 

circumstances. 

Notwithstanding my criticism of the majority’s opinion regarding the training standard, I 

find that under these circumstances a reasonably prudent employer would have known that 

training was required here. Bardav was explicitly warned by Morgan that a risk of collapse 

existed here if adequate shoring was not installed. Indeed, the walls of the excavation 

continually collapsed throughout the time period in question. Moreover, the very same 

employee who was involved here—M.G.—had been involved in a prior collapse at the very 

 

8

To the extent that the majority cites the cases herein for its argument to the contrary, the 

majority misconstrues the case law.

9

Incredibly, the majority asserts that “the reasonably prudent employer test is, and has 

consistently been, used to determine whether an employer has failed to comply with 

§ 1926.21(b)(2),” but then concludes that the reasonably prudent employer test is “irrelevant” to 

the citation under § 1926.21(b)(2) here.
22

same site. Consequently, I find that Bardav violated 29 C.F.R. § 1926.21(b)(2), and I concur in 

the majority’s decision to affirm Citation 1, Item 9, as a serious violation and assess a penalty of 

$2,500.

/s/

Heather L. MacDougall

Dated: September 30, 2014 Commissioner
 

 DOCKET NO. 10-1055

Appearances: 

Michael Schoen, Esq., Matthew Sallusti, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas 

For Complainant 

Frederick McCutchon, Esq., Bonnie Kirkland, Esq., Wood, Boykin & Wolter, P.C., Corpus Christi, Texas 

For Respondent 

Before: Administrative Law Judge Patrick B. Augustine 

DECISION AND ORDER 

Procedural History 

This proceeding is before the Occupational Safety and Health Review Commission (“the 

Commission”) pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 

U.S.C. §651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) 

conducted an inspection of the Martha’s Vineyard Mobile Home Park, owned by Bardav, Inc. 

(Respondent), in Corpus Christi, Texas between March 25 and April 21, 2010. As a result of that 

inspection, OSHA issued a Citation and Notification of Penalty (“Citation”) to Respondent alleging 

willful, serious, and other-than-serious violations of the Act with total proposed penalties of 

$50,250.00. Respondent timely contested the Citation. At the beginning of the trial, Complainant 

withdrew Citation 1 Item 1. (Tr. 28). Therefore, only Citation 1, Items 2 through 11; Citation 2, 

Items 1 and 2; and Citation 3, Item 1 remained in dispute during the five-day trial conducted in 

Corpus Christi, Texas over the course of April 5, 6, 7, 28, and 29, 2011.

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor, 

Complainant,

v. 

Bardav, Inc. d/b/a Martha’s Vineyard Mobile 

Home Park, 

Respondent.

Some personal identifies have been redacted for privacy purposes.
2

Before addressing the substantive issues in this case, the court notes that it reviewed and 

considered the following post-trial submissions: Respondent’s Motion for Sanctions, Complainant’s 

Response to Respondent’s Motion for Sanctions, Respondent’s Supplemental Motion for Sanctions, 

and Complainant’s Response to Respondent’s Supplemental Motion for Sanctions. Respondent 

argued that the court should exercise its discretion to sanction Complainant because the original of 

a largely irrelevant document, rather than a photocopy, could not be located; because the third page

of a largely irrelevant document could not be located; because a witness1claimed he saw 

Complainant’s investigator take more investigative photographs than were produced in discovery; 

because Complainant’s investigator did not record, verbatim, conversations which were 

memorialized through signed witness statements; and because Complainant’s post-trial brief 

contains factual assertions and argument with which Respondent disagrees. 

As Respondent correctly stated in its motion, the imposition of sanctions falls within the 

sound discretion of this court, which the court declines to exercise based on the arguments in 

Respondent’s motions and Complainant’s responses. Commission Rules 52(f) and 101; 

Architectural Glass & Metal Company, 19 BNA OSHC 1546, 1547 (No. 00-0389, 2001); Jersey 

Steel Erectors, 16 BNA OSHC 1162 (No. 90-1307, 1993); Philadelphia Const. Equipment, 16 BNA 

OSHC 1128, 1993 CCH OSHD ¶30,051 (No. 92-899, 1993); Sealtite Corp., 15 BNA OSHC 1130, 

1991 CCH OSHD ¶29,398 (No. 88-1431, 1991); NL Industries, Inc., 11 BNA OSHC 2156, 1984-85 

CCH OSHD ¶26,997 (No. 78-5204, 1984). Respondent failed to convince the court that 

Complainant, or its counsel, engaged in any contumacious, improper, or otherwise sanctionable 

conduct. Furthermore, none of the allegations contained in Respondent’s motions established any 

prejudice to Respondent in defending itself against the substantive allegations in this case. The 

Respondent had the opportunity to cross exam the Complainant’s witnesses over the two largely 

irrelevant documents, the inability to locate the originals and regarding the witness statements given 

the CSHO. In addition, as previously stated, the court gave no weight to the testimony of [redacted] 

 

1 The court addresses the credibility of witness [redacted], who made that allegation, later in this decision.
3

that the CSHO took more pictures than were tendered to the Respondent. The Respondent also had 

the opportunity to question the CSHO on this matter. Finally, the assertion that Complainant’s 

post-trial brief contains factual assertions and arguments in which the Respondent disagrees does 

not constitute grounds for the issuance of sanctions. Post trial briefs contain the arguments of the 

parties. Because one party disagrees with the arguments raised in a post trial brief, does not make 

the arguments false or misleading as it is the court that ultimately makes the findings of facts and 

concludes the law. Accordingly, Respondent’s Motion for Sanctions and Respondent’s 

Supplemental Motion for Sanctions are DENIED.

Jurisdiction

Jurisdiction of this action is conferred upon the Commission pursuant to Section 10(c) of the 

Act. The record establishes that at all times relevant to this action, that Respondent was an 

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

Section 3(5) of the Act, 29 U.S.C. §652(5). (Tr. 11); Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 

2005). 

Applicable Law

To establish a prima facie violation of the Act, Complainant must prove by a preponderance 

of the evidence that: (1) the cited standard applied to the condition; (2) the terms of the standard 

were violated; (3) one or more employees had access to the cited condition; and (4) the employer 

knew, or with the exercise of reasonable diligence could have known, of the violative condition.

Astra Pharmaceutical Products, 9 BNA OSHC 2126, 1981 CCH OSHD &25,578 (No. 78-6247, 

1981). 

A violation was “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 occur; she need only show that 

if an accident occurred, serious physical harm would result. If the possible injury addressed by the 
4

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

Construction, 23 BNA OSHC 1044, 2010 CCH OSHD ¶33,049 (No. 08-0631, 2010); Phelps Dodge 

Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984); Dec-Tam Corp., 15 BNA OSHC 2072, 1993 

CCH OSHD ¶29,942 (No. 88-0523, 1993).

A violation was “willful” if it was “committed ‘with intentional, knowing or voluntary 

disregard for the requirements of the Act or with plain indifference to employee safety.’” Kaspar 

Wireworks, Inc., 18 BNA OSHC 2178, 2000 CCH OSHD ¶32,134 (No. 90-2775, 2000); Georgia 

Electric Co., 595 F.2d 309, 318-19 (5th Cir. 1979); Ensign-Bickford Co. v. OSHRC, 717 F.2d 1419, 

1422-23 (D.C. Cir. 1983). The employer’s state of mind is the key issue. AJP Construction, Inc., 

357 F.3d 70 (D.C. Cir. 2004). Complainant must show that Respondent had a “heightened 

awareness” of the illegality of its conduct. Id. Heightened awareness is more than simple 

knowledge of the conditions constituting the alleged violation; such evidence is already necessary 

to establish the basic violation. Id. Instead, Complainant must show that Respondent was actually 

aware of the unlawfulness of its action or that it “possessed a state of mind such that if it were 

informed of the standards, it would not care.” Id. 

Stipulations

1. Jurisdiction of this proceeding is conferred upon the Occupational Safety and Health 

Review Commission by Section 10(c) of the Occupational Safety and Health Act (“Act”). (Tr. 10-

11).

2. Respondent is engaged in a business affecting commerce within the meaning of Section 

3(5) of the Act, 29 U.S.C. Section 652(5). (Tr. 11). 

3. Inspection No. 314296740 occurred at Respondent’s workplace or jobsite. (Tr. 11-12).

4. Respondent was not subject to the Appropriations Rider set forth in Exhibit C-23 and 

was not otherwise exempt or subject to any limited scope inspection, specifically from December 

18, 2009 through the issuance of the Citation on May 13, 2010. (Tr. 303-306, 707-709). 
5

5. Donald Halterman, of the OSHA Salt Lake Technical Center, was qualified to testify as 

an expert concerning soil classification under the regulations. (Tr. 415). 

Discussion

Thirteen witnesses testified at trial: (1) Michel Caballero, OSHA Compliance Safety and 

Health Officer (“CSHO”); (2) Donald Halterman, OSHA’s expert witness on soil analysis; (3) 

Jacob Morgan, Corpus Christi area plumber; (4) [redacted], former maintenance employee for 

Respondent; (5) Abel Pulido, Corpus Christi Fire Department Battalion Chief; (6) Steve McDanel, 

OSHA Assistant Area Director; (7) Javier Cantu, former maintenance employee for Respondent, (8) 

Cheryl Rice, Respondent’s bookkeeper; (9) Liz Medrano, Respondent’s Property Manager; (10) 

[redacted], current maintenance employee for Respondent; (11) [redacted]; (12) David May, 

Respondent’s owner; and (13) Melissa Stokes, Respondent’s General Manager. (Tr. 38, 416, 485, 

655, 812, 870, 924, 954, 997, 1033, 1238, 1330, 1401). Based on their testimony and discussion of 

evidentiary exhibits, the court makes the following additional findings.

Respondent owns and operates a mobile home park in Corpus Christi, Texas. (Tr. 32, 932). 

On December 30, 2009, Respondent’s owner, David May, observed that a section of ground 

between the mobile home park swimming pool and a perimeter fence was very wet and spongy. (Tr.

660, 1036, 1332). He directed the two mobile home park maintenance employees, [redacted] and 

[redacted], to determine the cause. (Tr. 660-661, 1334). The following day, December 31, 2009, 

[redacted] and [redacted] dug in the area with shovels and buckets for approximately four hours, but 

were unable to find the exact source of the leak. (Tr. 661-662, 1145, 1151). The ground was 

saturated and soil was falling back into their excavation almost as fast as they could dig. (Tr. 1154, 

1159). Ultimately, [redacted] and [redacted] learned that a four-inch water pipe buried 

approximately 31 inches beneath the ground was leaking. (Tr. 294, 377, 553, 1099). 

Over the course of two days, December 31, 2009 and January 1, 2010, Respondent’s two 

maintenance employees, a third-party plumber, and the park owner’s son worked to expose and 
6

repair the leak. (Tr. 169-171, 176, 488, 668-669, 1050). Work stopped suddenly on January 1, 2010 

when portions of the excavation walls collapsed, temporarily trapping Respondent’s maintenance 

employees inside the excavation. (Tr. 512, 684). Both employees were eventually rescued and 

taken to a local hospital for treatment of minor injuries. (Tr. 703, 1016). Approximately three 

months later, as a result of an employee complaint, OSHA CSHO Michele Caballero was assigned 

to investigate the incident. (Tr. 45-46). Her investigation revealed events and worksite conditions, 

some unrelated to the excavation collapse, which prompted the issuance of the citation items in 

dispute in this case. 

Citation 2 Item 1

Complainant alleged a willful violation of the Act in Citation 2, Item 1 as follows:

29 C.F.R. §1926.651(k)(2): Where the competent person found evidence 

of a situation that could result in a possible cave-in, indications of failure 

of protective systems, hazardous atmospheres, or other hazardous 

conditions, exposed employees were not removed from the hazardous 

area until the necessary precautions had been taken to ensure their 

safety: At this location, on or about January 1, 2010, maintenance 

employees were involved in the repair of a water main located between 

the facility swimming pool and brick fence adjacent to Stone Street. The 

employer disregarded the warnings and recommendations of the 

competent person and did not remove employees from an excavation, 

greater than 4 feet deep, when hazardous conditions were observed, such 

as, but not limited to the following: (a) fluidity of the saturated sand 

flowing back into the hole during digging efforts, (b) lack of a protective 

system in the excavation, (c) accumulated water in the excavation, and 

(d) lack of safe egress. 
7

The cited standard provides:

29 C.F.R. §1926.651(k)(2): Where the competent person finds evidence 

of a situation that could result in a possible cave-in, indications of failure 

of protective systems, hazardous atmospheres, or other hazardous 

conditions, exposed employees shall be removed from the hazardous area 

until the necessary precautions have been taken to ensure their safety.

On December 31, 2009, after the maintenance employees’ unsuccessful initial attempt to 

locate the leak, Respondent’s owner, David May (who also lived in the mobile home park at the 

time), telephoned Larson Plumbing and asked them to send a plumber out to help fix their leaking 

pipe. (Tr. 169, 487, 569, 658, 664, 1250). Mr. May also called [redacted], and asked him to come 

to the mobile home park to help with the pipe repair work. (Tr. 664, 975-976, 1241-1243, 1251, 

1294).2

Jacob Morgan, a supervisory plumber, arrived later that day with a “mini excavator.” (Tr. 

1042). Mr. Morgan had been working in the plumbing industry for seventeen years and had

personally been involved in over one hundred excavations during his plumbing career. (Tr. 486-

487). Mr. Morgan’s excavator had the potential to dig as far as eight feet underground, although in 

this instance, a nearby fence limited the excavator’s reach. (Tr. 488-489; Ex. C-60). Soon after Mr. 

Morgan began digging in the area of the leaking pipe, he observed that the majority of the wet,

sandy soil in the area would fall back into the hole with every scoop of the excavator. (Tr. 169-170, 

489-490, 493, 500-501, 512, 673-674, 676, 683, 760). 

Based on the behavior of the soil, Mr. Morgan decided that an excavation protective system 

was necessary. (Tr. 491, 504); See also 29 C.F.R. §1926, Subpart P. He testified that sloping was 

not possible because the sand was too wet, so he decided to install a shoring system on the sides of 

the excavation using 2x4’s and some plywood found on Respondent’s property. (Tr. 169-170, 491-

 

2

[redacted] was later paid by Respondent for the hours he worked on the pipe repair project. (Tr. 975-976). 
8

492, 566, 667, 1047, 1179, 1383, 1387). 

When [redacted] returned to the site after purchasing replacement parts for the pipe, he 

argued with Mr. Morgan about whether or not the shoring system was actually necessary. (Tr. 169-

171, 176-178, 493, 668-669, 682-683, 758). Mr. Morgan insisted that it was, but [redacted] ordered 

the two maintenance employees to remove the shoring system from the excavation. (Tr. 493, 682, 

757-759). Mr. Morgan then told [redacted] that he did not believe it was safe to work in the 

excavation without the shoring, and that the shoring would also help them dig down to the 

necessary depth to perform the repairs. (Tr. 495, 616, 757-762). [redacted], in the presence of 

David May, maintained his refusal to allow Mr. Morgan to shore the excavation and stated that

Respondent would not pay him for the time it would take to install and use it. (Tr. 169-171, 176-

178, 618, 668-669, 673, 758). Mr. Morgan later memorialized his interactions with [redacted] over 

the shoring system on an invoice. (Tr. 232, 534; Ex. C-53, C-59). Throughout the excavation work

the rest of the day, and through the following day, January 1, 2010, no shoring system or other kind 

of protective system was used in the excavation. (Tr. 675, 1190). [redacted] described the walls of 

the excavation as like “the sides of a bowl.” (Tr. 1056). 

By the end of the day on December 31, 2009, Mr. Morgan was able to dig approximately 31

inches to the underground level of the leaking pipe. (Tr. 490, 1053). [redacted] then entered the 

excavation and located the leak by feeling along the pipe, which was submerged beneath about 11⁄2 

feet of accumulated water. (Tr. 530, 682-683). David May then asked Mr. Morgan, [redacted], 

[redacted], and [redacted] to come back the next day to help complete the repair. (Tr. 1047, 1049). 

After observing the difficulty Mr. Morgan experienced while trying to excavate the wet sand 

on December 31, 2009, David May decided to call another company to send out a larger excavator 

the following morning that could more easily expose the leaking pipe. (Tr. 674, 1308, 1338-1339). 

On January 1, 2010, a larger backhoe, provided and operated by another company, dug for about 

thirty minutes, fully exposing the pipe so it could be repaired. (Tr. 770-771).
9

While the larger excavator was digging, [redacted] told [redacted] and Mr. Morgan to preassemble the four-foot-long replacement part so that it would be ready to install once the leaking 

parts were removed. (Tr. 772, 1064). Then [redacted] helped [redacted], [redacted], and Mr. 

Morgan install the replacement part from inside the excavation. (Tr. 1196, 1259, 1340). 

Just seconds after the new part was installed, when the water was turned back on to test the 

repair, a second leak began which flooded water into the excavation and caused the walls of the 

excavation to collapse onto [redacted] and [redacted]. (Tr. 380, 516, 684, 688, 774, 1073, 1197, 

1200). Mr. Morgan immediately shut the water supply off again. (Tr. 775). At that point, 

[redacted] and [redacted] were partially stuck in the excavation and could not get out. (Tr. 686-

687). 

It was quickly determined that they could not be pulled free by the others. So the excavator 

began digging around [redacted] and [redacted] in an attempt to free them. (Tr. 517). [redacted]

was removed quickly, although his leg was struck by the excavator in the removal process. (Tr. 517, 

690-691, 1075, 1079-1080). [redacted] could not be removed as easily, and therefore, 

Respondent’s Park Manager, Liz Medrano, called 911. (Tr. 518-520, 693-696, 815-816, 1015, 

1075). After multiple unsuccessful attempts to remove [redacted] by the Corpus Christi Fire 

Department, he was ultimately freed from the excavation approximately two hours later with the 

help of a City of Corpus Christi vacuum truck, which suctioned out the wet sand around his lower 

body. (Tr. 543, 690-698, 702-703, 1273; Ex. C-60). 

No one involved in the pipe repair ever measured the depth of the excavation, and since 

OSHA did not begin its investigation until three months after the incident, the precise 

measurements of the trench at the time of the accident are unknown. (Tr. 253). The court notes, 

however, that the regulation cited in this instance does not contain any minimum depth in order to 

be applicable. (Tr. 172, 868). The cited regulation applies when a competent person at an 

excavation site finds “evidence of a possible cave-in, indications of failure of protective systems, 
10

hazardous atmospheres, or other hazardous conditions.” (Tr. 221). The record established that Mr. 

Morgan was the only competent person for the purposes of excavation safety at this jobsite. (Tr. 

177, 221-222, 486-487). Based on his extensive experience in this type of work, he specifically 

identified cave-in hazards, indications that sloping would not work as a protective method, and the

need for a shoring system in the excavation. In addition, Mr. Morgan started to implement a 

shoring system, with the help of [redacted] and [redacted], which was later ordered to be removed 

by [redacted]. Even after the hazardous conditions of the excavation were identified by Mr. 

Morgan, the two maintenance employees continued to work inside the excavation without an 

adequate protective system. Therefore, the court finds that the cited standard applied and was 

violated. 

To establish employee exposure to a violative condition, Complainant must prove that it was 

reasonably predictable that employees “will be, are, or have been in the zone of danger” created by 

a violative condition. Fabricated Metal Products, 18 BNA OSHC 1072, 1995-1997 CCH OSHD 

&31,463 (No. 93-1853, 1997); Gilles & Cotting, Inc., 3 BNA OSHC 2002, 1975-76 CCH OSHD 

¶20,448 (No. 504, 1976). [redacted] and [redacted] were exposed to the violative condition each 

time they worked inside the unprotected excavation on December 31, 2009 and January 1, 2010. 

(Tr. 169, 177, 217, 495, 496, 661-662, 669, 768, 1050, 1187, 1374). 

The violation was serious in that an excavation collapse could have, and unfortunately did,

occur in this instance. [redacted] was taken to a hospital by ambulance and treated for loss of blood 

flow, hypothermia, dehydration, and lacerations. (Tr. 218, 703, 1016; Ex. C-44). [redacted] was 

taken to a hospital by ambulance and treated for his leg injury. (Tr. 216, 690, 1016; Ex. C-44). The 

potential injuries could have been much more serious, and possibly even fatal. (Tr. 284). 

Complainant has determined that “excavation work is one of the most hazardous types of work 

done in the construction industry [and] [t]he primary type of accident of concern in excavationrelated work is [the] cave-in.” Mosser Construction, Inc., supra. 
11

David May and [redacted] participated directly in the excavation and repair work, while Liz 

Medrano, Respondent’s Property Manager, and Melissa Stokes, Respondent’s General Manager,

periodically visited the excavation to observe the progress of the repair. (Tr. 217, 1012-1014, 1178, 

1184, 1337, 1344, 1402-1405). In addition, during the course of the excavation project, David May 

and [redacted] specifically provided the maintenance employees with directions and instructions. 

(Tr. 658, 671, 678, 754, 792, 929-930, 998, 1018, 1019, 1034, 1141, 1332, 1368, 1390, 1402). 

Although [redacted] was not a full-time employee of the mobile home park, and only assisted with 

various projects when requested to do so by his father, an employee who is delegated with authority 

over other employees, even temporarily, is considered to be a supervisor for the purposes of 

imputing knowledge to the employer. Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1992 CCH 

OSHD ¶29,617 (No. 86-360, 1992).

The periodic presence of all four supervisors, combined with Mr. Morgan’s specific demand 

for, and attempt to install, a protective system in front of both David May and [redacted], 

established Respondent’s knowledge of the violative condition. Shaw Construction, Inc., 6 BNA 

OSHC 1341, 1978 CCH OSHD ¶22,524 (No. 3324, 1978); A.P. O'Horo Co., 14 BNA OSHC 2004, 

1991 CCH OSHD ¶29,223 (No. 85-0369, 1991).

Complainant characterized the violation as willful because Respondent’s managers knew of 

the hazardous conditions in the excavation from their own observations and from the warnings and 

attempted shoring by Mr. Morgan, yet Respondent continued to allow the mobile home park’s two 

maintenance employees to work inside the excavation without proper protection. (Tr. 219). 

Complainant asserted that these actions constituted plain indifference to those employees’ safety 

and health. (Tr. 220). The court agrees. Mr. Morgan was hired by David May for his expertise in 

the field of repairing underground plumbing leaks. Mr. Morgan quickly identified the hazardous 

condition of the wet sand in the excavation, and the need for a protective system. Mr. Morgan even 

attempted to install a shoring system, which [redacted] ordered the maintenance employees to 
12

remove. Despite Mr. Morgan’s continued argument with [redacted] over the issue, in the presence

of David May at certain points, Respondent refused to allow for the use of a protective system and 

sent its maintenance employees into the excavation to perform work. Unfortunately, Mr. Morgan’s 

safety concerns were realized when the excavation collapsed trapping the two maintenance 

employees inside. These facts constitute plain indifference to the requirements of the regulations 

and to employee safety. Lakeland Enterprises of Rhinelander, Inc. v. Chao, 402 F.3d 739, 748 (7th

Cir. 2005).

It is also worth noting that this was not the first time that Respondent’s maintenance 

employees had experienced an excavation collapse at this mobile home park. Approximately four

years earlier, [redacted]3 was working alone, repairing an underground pipe in a four-foot-deep

excavation when it collapsed, dumping soil onto his back and knocking him down inside the 

excavation. (Tr. 180, 345, 1220). [redacted] told Liz Medrano and [redacted] about the incident 

after it occurred, but prior to the January 1, 2010 accident. (Tr. 180, 348, 1220). This instance 

provided heightened knowledge to the Respondent about the condition of the soil on its property, 

the need to evaluate the work environment and provide adequate safeguards and protections in the 

future when employees were working in excavations. 

In conclusion, the court finds that Complainant established all of the elements necessary to 

prove the willful violation alleged in Citation 2, Item 1. Citation 2, Item 1 will be AFFIRMED. 

Citation 2 Item 2

 

3 The court notes at this point that it found the majority of [redacted] testimony to be unreliable. In addition to his 

demeanor, his testimony was repeatedly inconsistent. For example: (1) he testified that Liz Medrano never entered the 

maintenance workshops, even though Ms. Medrano personally acknowledged that she did enter them (Tr. 1029-1030, 

1116-1117); (2) he testified that when Mr. Morgan first arrived, the shovel-dug excavation was only two feet deep, and 

then later testified that it was three to four feet deep (Tr. 1151, 1162, 1168, 1176); (3) he then later testified that after 

additional digging by two different excavators on two different days, the excavation was then only three feet deep; (Tr. 

1169-1170, 1173); (4) he also testified that the second, larger excavator brought in on January 1, 2010, only deepened 

the excavation by six inches (Tr. 1190). Given the potential importance of the depth of the excavation to Citation 2 

Item 2, it appeared to the court that [redacted] was intentionally understating its depth. To the extent [redacted]

testimony was inconsistent with the testimony of Mr. Morgan and [redacted], the court credits Mr. Morgan’s and 

[redacted] testimony over [redacted]. American Wrecking Corp., 19 BNA OSHC 1703, 2001 CCH OSHD ¶32,504 (No. 

96-1330, 2001).
13

Complainant alleged a willful violation of the Act in Citation 2, Item 2 as follows:

29 C.F.R. §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(c), nor had the employer complied 

with the provisions of 29 CFR 1926.652(b)(1)(i) in that the excavation 

was sloped at an angle steeper than the maximum one and a half 

horizontal to one vertical (or 34 degrees measured from the horizontal): 

At this location, on or about January 1, 2010, maintenance employees in 

an excavation greater than 4 feet deep were involved in the repair of a 

water main between the facility swimming pool and brick fence adjacent 

to Stone Street. No cave in protection was used during the repair of the 

broken 4-inch water main, exposing employees in the excavation to the 

hazards associated with cave-in.

The cited standard provides:

29 C.F.R. §1926.652(a)(1): Each employee in an excavation shall be 

protected from cave-ins by an adequate protective system designed in 

accordance with paragraph (b) or (c) of this section except when: 

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

less than 5 feet (1.52m) in depth and examination of the ground by a 

competent person provides no indication of a potential cave-in.

Citation 2, Item 1 and Citation 2, Item 2, were both based on Respondent’s employees being 

exposed to cave-ins. Respondent could have eliminated the hazards identified in both proposed 

violations by either prohibiting employees from working inside the excavation (which is what 

action the regulation which is subject to Citation 2, Item 1 requires), or by properly implementing 

one of the excavation protection systems in 29 C.F.R. §1926, Subpart P (which is what action the 
14

regulation which is subject to Citation 2, Item 2 requires). Either choice would have abated the 

hazardous conditions alleged in both Citation 2, Item 1 and Citation 2, Item 2. In this instance, if 

the Respondent would have prohibited its employees from working in the excavation as required by 

29 C.F.R. §1926.651(k)(2) the hazard would have been eliminated and it would have been 

duplicative to require the implementation of excavation protection systems. The Commission has 

long held that citation items are impermissibly duplicative if the same abatement action would 

correct the violative conditions alleged in both items. Capform, Inc., 13 BNA OSHC 2219, 1989 

CCH OSHD ¶28,503 (No. 84-556, 1989). Accordingly, Citation 2 Item 2 will be VACATED. 

Citation 1 Item 2

Complainant alleged a serious violation of the Act in Citation 1, Item 2 as follows:

29 C.F.R. §1910.132(d)(2): The employer did not verify that the required 

workplace hazard assessment had been performed through a written 

certification that identifies the workplace evaluated; the person certifying 

that the evaluation has been performed; the date of the assessment and a 

statement which identifies the document as a certification of hazard 

assessment: At this location, on or about March 25, 2010, and at times 

prior thereto, the employer did not ensure a written hazard assessment, 

which addressed the work activities and identified the associated 

Personal Protective Equipment for the maintenance employees, had been 

developed.

The cited standard provides:

29 C.F.R. §1910.132(d)(2): The employer shall verify that the required 

workplace hazard assessment has been performed through a written 

certification that identifies the workplace evaluated; the person certifying 

that the evaluation has been performed; the date(s) of the hazard 
15

assessment; and, which identifies the document as a certification of 

hazard assessment.

Respondent did not conduct a workplace hazard assessment despite the fact that its two 

maintenance employees worked in excavations, used various power tools, performed minor 

electrical repairs, and handled hazardous chemicals to maintain the swimming pool. (Tr. 65, 87, 

124, 743, 1027-1028, 1130, 1221; Ex. C-5, C-6). A properly conducted hazard assessment would 

have alerted [redacted] and [redacted] to the dangers associated with their varied tasks and ensured 

that they used appropriate personal protective equipment. (Tr. 66). The court finds that the cited 

standard applied and was violated. 

[redacted] and [redacted] were exposed to the violative condition daily, as they performed

maintenance and repair work at Respondent’s mobile home park. (Tr. 66-68). Respondent was 

certainly aware of its failure to conduct and certify the completion of a hazard assessment. Melissa 

Stokes was even specifically aware that certain jobsite activities exposed Respondent’s maintenance

employees to certain hazards, as she bought them safety glasses on one occasion and required them 

to wear steel-toed boots. (Tr. 66-67). Employee exposure and the employer’s knowledge of the 

violative condition were established. 

Complainant characterized Citation 1 Item 2 as a serious violation. However, the court 

notes that Complainant elected to charge Respondent with a violation of 29 C.F.R. §1910.132(d)(2), 

which requires employers to certify that a hazard assessment was performed. The actual 

requirement to conduct a hazard assessment is contained in 29 C.F.R. §1910.132(d), which was not 

cited here. The court notes that there could be no certification of a hazard assessment since no 

assessment was performed. Where no hazard assessment was conducted it logically flows that 

there could be no certification completed. The specific subparagraph cited in this instance is 

essentially a record-keeping violation. Accordingly, the court finds that Complainant established 

all of the elements necessary to prove the violation alleged in Citation 1, Item 2, after 
16

MODIFICATION to an other-than-serious violation. Citation 1, Item 2 will be AFFIRMED as an 

OTHER-THAN-SERIOUS violation. 

Citation 1 Item 3

Complainant alleged a serious violation of the Act in Citation 1 Item 3 as follows:

29 C.F.R. §1910.151(c): Where employees were exposed to injurious 

corrosive materials, suitable facilities for quick drenching or flushing of 

the eyes and body were not provided within the work area for immediate 

emergency use: At this location, on or about March 25, 2010, and at 

times prior thereto, in the pool pump house, employees were using 

corrosive chemical swimming pool and spa additives without an 

approved emergency eye wash available onsite, or in the immediate area, 

in the event of a mishap.

The cited standard provides:

29 C.F.R. §1910.151(c): Where the eyes or body of any person may be 

exposed to injurious corrosive materials, suitable facilities for quick 

drenching or flushing of the eyes and body shall be provided within the 

work area for immediate emergency use.

During her inspection of the mobile home park, CSHO Caballero observed conditions in and 

around the maintenance workshop, the paint workshop, and the pumphouse, which were unrelated 

to the excavation work, and served as the basis for most of the following violations addressed in 

this Decision. (Tr. 264, 786). For example, in relation to Citation 1 Item 3, she observed containers 

of swimming pool chemicals and learned that [redacted] and [redacted] maintained the swimming 

pool at Respondent’s mobile home park. (Tr. 70, 1027-1028; Ex. C-6). At least weekly, one or both

employees treated the pool water with Burnout 35, Algae Stop, Soda Ash and/or Jumbo Chlorine 

Tabs, chemicals which were identified by their manufacturers as hazardous and dangerous. (Tr. 64, 
17

70-75, 710-713, 1130; Ex. C-6). Complainant charged Respondent with not having suitable 

eyewash facilities “within the work area for immediate emergency use” while handling these 

substances. 

The burden is on the Complainant, based on the nature of hazardous chemicals in the area 

and quantities, to provide evidence as to why a garden hose at the swimming pool, as well as a sink 

in the swimming pool restroom approximately ten yards away, would be insufficient under the 

circumstances. 

Under Commission precedent, whether an employer has provided suitable facilities depends 

on the totality of the relevant circumstances, including the nature, strength, and amounts of 

corrosive material to which employees are exposed, the configuration of the work area, and the 

distance between the area where any corrosive chemicals are used and the eyewash facilities. 

Atlantic Battery Company, Inc., 16 BNA OSHC 2131, 1994 CCH OSHD ¶30,636 (No. 90-1747, 

1994). The Commission has held that the Secretary cannot bear her burden of proving that the 

facilities provided are unsuitable merely by showing that the drenching or flushing facilities are not 

an eyewash fountain. Id.; see also, E.I. duPont de Nemours & Co., 10 BNA OSHC 1320, 1982 

CCH OSHD ¶25,883 (No. 76-2400, 1982). In Atlantic Battery, the Commission found that the 

Secretary had not proved that an aerated hose was an unsuitable means of flushing the eyes where 

the record failed to describe the strength and amount of sulfuric acid used by affected employees, or 

the nature of the acid mixing operation to which employees were exposed. The Commission in 

Gibson Discount Center, Store #15, 6 BNA OSHC 1526, 1978 CCH OSHD ¶22,669 (No. 14656, 

1978), held the availability of running water within a reasonable distance was found "suitable." 

Also, in Con Agra Flour Milling Co, 16 BNA OSHC 1137, CCH OSHD ¶39,045 (No. 88-1250, 

1993), the Commission affirmed a decision vacating a § 1910.151(c) citation as the Secretary failed 

to demonstrate that Con Agra's employees were more than "potentially" exposed to corrosive 

chemicals in the course of their duties.
18

The Complainant, in regards to the present citation, failed to carry her burden. While there is 

evidence in the record as to the strength of the corrosive chemicals to which employees were 

actually exposed, she failed to establish: (i) the amount of chemicals actually used by the 

employees; (ii) the nature or the process of the application of the chemicals to which the employees 

were exposed; (iii) the configuration of the work area; and (iv) the circumstances under which 

employees were more than potentially exposed to such chemicals. Without the above facts being 

presented the suitability of the available flushing facilities cannot be properly evaluated. Given the 

totality of the circumstances, it cannot be found that the garden hose available at the swimming 

pool, as well as a sink in the swimming pool restroom approximately ten yards away, were 

unavailable for immediate use. The record established that there was a garden hose available at the 

swimming pool, as well as a sink in the swimming pool restroom approximately ten yards away. 

(Tr. 728, 1133-1134). Either could have been quickly accessed and used to irrigate the maintenance 

employees’ eyes in case of an emergency. The totality of the circumstances in this instance, 

factoring in the type of chemicals involved and the location and type of available washing facilities, 

convince the court that Respondent did have suitable eyewash facilities available within the work 

area for immediate emergency use. Atlantic Battery Co., 16 BNA OSHC 2131, 1994 CCH OSHD 

¶30,636 (No. 90-1747, 1994); Gibson Discount Centers, 6 BNA OSHC 1526, 1978 CCH OSHD 

¶22,669 (No. 14657, 1978). Citation 1, Item 3 will be VACATED. 

Citation 1 Item 4a

Complainant alleged a serious violation of the Act in Citation 1, Item 4a as follows:

29 C.F.R. §1910.303(b)(2): Listed or labeled electrical equipment was 

not used or installed in accordance with instructions included in the 

listing or labeling: At this location, on or about March 25, 2010, and at 

times prior thereto, in the workshop, electrical equipment was not being 

used or installed properly, such as, but not limited to: (a) One plastic 
19

receptacle outlet box and one plastic bracket with outlets were not 

mounted within the wall but attached to the top shelf of the work bench 

and hung down over the bench top; the conductor wires exited the back; 

(b) Two re-locatable power strips were series connected (daisy chained) 

to provide more power outlets for battery chargers and portable tool 

charging stations; (c) Romex cable exited the outdoor light conduit and 

ran through a fence hole, strung in mid-air approximately 2-feet in length 

where it had been spliced and wrapped with black plastic tape, then 

entered through the wall of the adjacent water well pump house where it 

was connected to the electrical wiring of the pump.

The cited standard provides:

29 C.F.R. §1910.303(b)(2): Installation and use. Listed or labeled 

equipment shall be installed and used in accordance with any 

instructions included in the listing or labeling

While examining the large maintenance work shop and pumphouse, CSHO Caballero 

observed electrical power strips which were improperly connected, one to another in a series, so 

that they would reach charging stations for various power tools; an electrical outlet improperly 

suspended over a workbench, rather than installed in the wall; and Romex electrical wiring which 

was improperly run through a hole in an exterior wooden fence, then strung mid-air for a couple of 

feet, and then entered the pumphouse through a hole in its wall. (Tr. 89-91, 97, 106, 131-133, 718-

719, 1221, 1393; Ex. C-7). CSHO Caballero testified, without contradiction, that the identified 

electrical equipment was not supposed to be installed or used under those conditions pursuant to 

manufacturer instructions. (Tr. 134). Therefore, the court finds that the cited standard applied and 

was violated. 

The maintenance employees visited and worked inside the maintenance shops every day. In 
20

addition, their time cards and a time clock were located in the larger workshop, so they were 

required to enter that area at least twice a day to clock-in and clock-out. (Tr. 717-719, 1221; Ex. C7). They also periodically entered the pumphouse to check pressure gauges, to ensure that the 

pumps were working properly, and during the winter months, to turn lights on to help keep water 

pipes from freezing. (Tr. 97, 106, 720, 1119-1120). Therefore, the two maintenance employees 

were exposed to these violative electrical conditions. 

David May, Liz Medrano, and Melissa Stokes, all of which supervised the maintenance 

employees, acknowledged that they periodically visited the maintenance workshops and 

pumphouse as well. (Tr. (Tr. 658, 671, 678, 739, 754, 792, 929-930, 998, 1018, 1019, 1034, 1141, 

1332, 1368, 1390, 1402, 1029-1030, 1357, 1390-1391, 1398, 1442). All of the violative conditions 

were in plain view to anyone who accessed those areas. (Tr. 104, 134, 715). In addition, 

constructive knowledge under the Act includes an obligation for supervisors to inspect the work 

place. North Landing, 19 BNA OSHC 1465, 2001 CCH OSHD ¶32,391 (No. 96-721, 2001). 

Employer knowledge was established in that Respondent’s managers knew, or with the exercise of 

reasonable diligence, could have known of these obvious electrical violations. 

Lastly, failure to follow the manufacturer’s installation guidelines for electrical wiring and 

electrical equipment could have resulted in electrical shock or fire, posing a threat of serious 

physical harm or death to the employees. (Tr. 93). The violation was properly characterized as a 

serious violation. Accordingly, the court finds that Complainant established all of the elements 

necessary to prove the violation alleged in Citation 1 Item 4a. Citation 1, Item 4a will be

AFFIRMED. 

Citation 1 Item 4b

Complainant alleged a serious violation of the Act in Citation 1, Item 4b as follows:

29 C.F.R. §1910.305(b)(2)(i): In completed installations, each outlet box 

did not have a cover, faceplate, or fixture canopy: At this location, on or 
21

about March 25, 2010, and at times prior thereto, the energized junction 

box in the water well pump house was not provided with a faceplate. 

The cited standard provides:

29 C.F.R. §1910.305(b)(2)(i): Covers and canopies. (i) All pull boxes, 

junction boxes, and fittings shall be provided with covers identified for 

the purpose. If metal covers are used, they shall be grounded. In 

completed installations, each outlet box shall have a cover, faceplate, or 

fixture canopy. Covers of outlet boxes having holes through which 

flexible cord pendants pass shall be provided with bushings designed for 

the purpose or shall have smooth, well-rounded surfaces on which the 

cords may bear. 

There was a missing face plate on an electrical junction box inside the pumphouse at 

Respondent’s mobile home park, which exposed live wiring. (Tr. 97-99; Ex. C-8). The cited 

standard applied and was violated. As stated earlier, maintenance employees entered the 

pumphouse periodically and were exposed to the condition. (Tr. 97, 106, 720, 1119-1120). David 

May also acknowledged that he occasionally visited the pumphouse, and the record establishes that 

the missing face plate was in plain view. (Tr. 721; Ex. C-8). Therefore, employee exposure and 

employer knowledge were also established. Lastly, accidental contact with the live wiring could 

have resulted in serious injuries or death. Accordingly, the court finds that Complainant established 

all of the elements necessary to prove the violation alleged in Citation 1, Item 4b. Citation 1, Item 

4b will be AFFIRMED. 

Citation 1 Item 4c

Complainant alleged a serious violation of the Act in Citation 1, Item 4c as follows:

29 C.F.R. §1910.305(j)(1)(i): Fixtures, lampholders, lamps, rosettes, and 

receptacles had live parts normally exposed to employee contact. 
22

However, rosettes and cleat-type lampholders and receptacles located at 

least 2.44 m (8.0 ft) above the floor may have exposed terminals. At this 

location, on or about March 25, 2010, and at times prior thereto, 

energized outlets were not provided with faceplates, such as, but not 

limited to the following: (a) the shop work bench where the employee 

time card was connected; (b) the one receptacle outlet on the north end 

of the work bench where a portable tool charger was connected; and (c) 

the four-plex receptacle outlet in the paint work shop on the east wall 

adjacent to the door where power cords to equipment such as the spray 

paint machine were connected.

The cited standard provides:

29 C.F.R. §1910.305(j)(1)(i): Equipment for general use – (1) Lighting 

fixtures, lampholders, lamps, and receptacles. (i) Fixtures, lampholders, 

lamps, rosettes, and receptacles may have no live parts normally exposed 

to employee contact. However, rosettes and cleat-type lampholders and 

receptacles located at least 2.44 m (8.0 ft) above the floor may have 

exposed terminals.

The missing faceplates listed in Item 4c, located inside the pumphouse at the Respondent’s 

mobile home park, were in plain view to anyone who looked inside or entered the maintenance 

workshops. (Tr. 104, 725-726; Ex. C-9). The cited standard applied and was violated. The 

maintenance employees and Respondent’s managers regularly visited the maintenance workshops

and were exposed to the condition. (Tr. 106, 718-719, 722-726, 1221-1222). Therefore, employee 

exposure and employer knowledge were also established. Accidental contact with the live wiring 

could have resulted in serious injuries or death. Accordingly, the court finds that Complainant 

established all of the elements necessary to prove the violation alleged in Citation 1 Item 4c.
23

Citation 1, Item 4c will be AFFIRMED. 

Citation 1 Item 5

Complainant alleged a serious violation of the Act in Citation 1, Item 5 as follows:

29 C.F.R. §1910.303(b)(7): Electrical equipment was not installed in a 

neat and workmanlike manner: At this location, on or about March 25, 

2010, and at times prior thereto, in both workshops and the large water 

well pump house, the electrical wiring to outlets and equipment was not 

installed in a neat and orderly fashion.

The cited standard provides:

29 C.F.R. §1910.303(b)(7): Mechanical execution of work. Electric 

equipment shall be installed in a neat and workmanlike manner.

The improperly installed electrical equipment, wiring, and outlets which serve as the factual 

basis for Citation 1, Item 5, were also listed as the basis for Citation 1, Item 3 and Citation 1, Item 

4. Correction of the hazards identified in Citation 1, Item 3, and Citation 1, Item 4 would have also 

corrected the violative conditions identified in Citation 1, Item 5. Therefore, the court finds that 

Citation 1, Item 5 is impermissibly duplicative of those previously discussed citation items. 

Capform, Inc., supra. Accordingly, Citation 1 Item 5 will be VACATED. 

Citation 1 Item 6a

Complainant alleged a serious violation of the Act in Citation 1, Item 6a as follows:

29 C.F.R. §1910.303(f)(2): Each service, feeder, and branch circuit, at 

its disconnecting means of overcurrent device, was not legibly marked to 

indicate its purpose, unless located and arranged to [sic] the purpose is 

evident: At this location, on or about March 25, 2010, and at times prior 

thereto, on the outside wall of the office, three circuit breakers in the 

electrical panel were not labeled as to their function and/or purpose.
24

The cited standard provides:

29 C.F.R. §1910.303(f)(2): Services, feeders, and branch circuits. Each 

service, feeder, and branch circuit, at its disconnecting means or 

overcurrent device, shall be legibly marked to indicate its purpose, unless 

located and arranged so the purpose is evident. 

In the circuit breaker box behind the mobile home park office, several of the circuit breaker 

switches were not labeled. (Tr. 111, 732, 1222; Ex. C-11). Maintenance employees accessed this 

circuit breaker box whenever they performed minor electrical work, by disconnecting power to an 

area themselves, and by performing electrical work in areas controlled by one or more of the 

unlabeled circuit breakers. (Tr. 111, 114). [redacted] testified that he accessed the circuit breaker 

box a couple of times a week. (Tr. 731, 788). Respondent’s managers also regularly accessed the

circuit breaker box, often to assist the maintenance personnel by shutting off power to a particular 

area. (Tr. 732, 737). Respondent’s managers’ use of the circuit breaker box established knowledge 

of the violative condition. An employer does not have to possess knowledge that a particular

condition violated the Act or its regulations, just knowledge that the condition existed. Shaw 

Construction, Inc., supra. The court finds that the standard applied, was violated, that Respondent’s 

maintenance employees were exposed to the condition, and that Respondent knew, or with the 

exercise of reasonable diligence, could have known of the condition. 

Accordingly, the court finds that Complainant established all of the elements necessary to 

prove the violation alleged in Citation 1, Item 6a. Citation 1, Item 6a will be AFFIRMED. 

Citation 1 Item 6b

Complainant alleged a serious violation of the Act in Citation 1, Item 6b as follows:

29 C.F.R. §1910.305(b)(1)(i): Conductors entering boxes, cabinets, or 

fittings were not protected from abrasions, and openings through which 

conductors were entering were not effectively closed. At this location, on 
25

or about March 25, 2010, and at times prior thereto, the electrical box 

located on the back, outside wall of the office had a conductor opening 

on the bottom left side of the box which was not completely closed. 

The cited standard provides:

29 C.F.R. §1910.305(b)(1)(i): Conductors entering cutout boxes, 

cabinets, or fittings shall be protected from abrasion, and openings 

through which conductors enter shall be effectively closed. 

One of the conductors which entered the bottom of the circuit breaker box behind the main 

office did not completely fill the knockout hole on the box, leaving a small opening of 

approximately one inch or less. (C-12). [redacted] and [redacted] were exposed to the condition 

because, as indicated above, they regularly accessed the circuit breaker box. (Tr. 118, 737). The 

condition was in plain view and managers accessed the circuit breaker box to shut off power to 

various areas for the maintenance employees. (Tr. 119; Ex. C-12). The court finds that the cited 

standard applied, was violated, that Respondent’s employees were exposed, and that Respondent 

knew, or with the exercise of reasonable diligence, could have known of the condition. 

Complainant argued that the violation was serious because dust, weather, or vermin, could 

enter the circuit breaker box through the small opening, which could lead to arcing and fire. (Tr. 

116; Ex. C-12). Based on the totality of the circumstances, the court does not agree that such a 

chain of events was reasonably likely to occur and therefore the severity and gravity as assessed to 

this citation by the CSHO was in error. Accordingly, the court finds that Complainant established 

all of the elements necessary to prove the violation alleged in Citation 1, Item 6b, after 

MODIFICATION to an other-than-serious violation. Citation 1, Item 6b will be AFFIRMED as an 

OTHER-THAN-SERIOUS violation. 

Citation 1 Item 6c
26

Complainant alleged a serious violation of the Act in Citation 1, Item 6c as follows:

29 C.F.R. §1910.305(b)(1)(ii): Unused openings in boxes, cabinets, or 

fittings were not effectively closed: At this location, on or about March 

25, 2010, and at times prior thereto, the electrical panel in the electrical 

box on the back, outside wall of the office, had openings for circuit 

breakers which were not closed. 

The cited standard provides:

29 C.F.R. §1910.305(b)(1)(ii): Unused openings in cabinets, boxes, and 

fittings shall be effectively closed. 

The circuit breaker box behind the office also had slots for circuit breakers which were 

unused and left open. (Tr. 120-121; Ex. C-13). The cited standard applied and was violated. For 

the reasons stated above, [redacted] and [redacted] were exposed to the condition, and Respondent’s 

managers had knowledge of the condition due to their periodic use of the circuit breaker box. (Tr. 

121-122, 737). The openings allowed anyone who accessed the circuit breaker box to easily place 

their fingers inside and behind the circuit breaker panel, potentially contacting live wiring. The 

violation was properly characterized as a serious violation. Accordingly, the court finds that 

Complainant established all of the elements necessary to prove the violation alleged in Citation 1 

Item 6c. Citation 1, Item 6c will be AFFIRMED. 

Citation 1 Item 7

Complainant alleged a serious violation of the Act in Citation 1, Item 7 as follows:

29 C.F.R. §1910.304(a)(2): Grounded conductors were attached to 

terminals or leads so as to reverse designated polarity: At this location, 

on or about March 25, 2010, and at times prior thereto, in the paint 

workshop, maintenance employees were connecting electrical cords to a 

four-plex receptacle outlet which, when tested, had reverse polarity, 
27

exposing them to the hazards of electric shock.

The cited standard provides:

29 C.F.R. §1910.304(a)(2): Polarity of connections. No grounded 

conductor may be attached to any terminal or lead so as to reverse 

designated polarity.

CSHO Caballero discovered a single four-plex electric receptacle in the paint workshop 

which indicated reverse polarization when she tested it with her meter. (Tr. 125). She explained 

that plugging electric tools into an outlet with reverse polarization could have resulted in shock or 

the inability to turn off a tool. (Tr. 125, 129). Since the condition was not open and obvious, and 

could only be determined through plugging in electrical testing equipment into the outlet, 

Complainant failed to introduce sufficient evidence to establish that Respondent knew, or with the 

exercise of reasonable diligence could have known, of the condition. There is also no evidence in 

the record to indicate there were prior incidents or events of the receptacle malfunctioning to impute

knowledge to the Respondent. Since employer knowledge is a required element for a prima facie

violation of the Act, Citation 1 Item 7 will be VACATED. 

Citation 1 Item 8

Complainant alleged a serious violation of the Act in Citation 1, Item 8 as follows:

29 C.F.R. §1910.305(g)(2)(iii): Flexible cords were not connected to 

devices and fittings so that tension would not be transmitted to joints or 

terminal screws: At this location, on or about March 25, 2010, and at 

times prior thereto, in the paint/workshop, the female end of an orange 

extension cord used by maintenance employees was not provided with 

strain relief. 

The cited standard provides:
28

29 C.F.R. §1910.305(g)(2)(iii): Flexible cords and cables shall be 

connected to devices and fittings so that strain relief is provided that will 

prevent pull from being directly transmitted to joints or terminal screws. 

CSHO Caballero observed and photographed an extension cord on which the outer 

sheathing had pulled away from the female end of the cord, exposing the internal conductor wires, 

due to a lack of strain relief during its use. (Tr. 136; Ex. C-15). The male end of the cord was 

plugged into an electrical outlet, but the female end was not connected to any tools at the time. (Tr. 

136; Ex. C-15). [redacted] and [redacted] regularly handled and used the extension cord with 

electric power tools. (Tr. 136, 740, 1129). The cord was hanging on the wall in the paint workshop 

in plain view to any of Respondent’s supervisors who, as indicated above, regularly visit both 

maintenance workshops. (Tr. 137). Complainant established that the cited standard applied and was 

violated, that Respondent’s employees were exposed to the condition, and that Respondent knew, or 

with the exercise of reasonable diligence could have known, of the condition. Lastly, the violation 

was properly characterized as a serious violation in that employees could have been seriously 

injured, or killed, if they had come into contact with the internal conductor wiring during its use. 

(Tr. 138). Accordingly, the court finds that Complainant established all of the elements necessary 

to prove the violation alleged in Citation 1 Item 8. Citation 1, Item 8 will be AFFIRMED. 

Citation 1 Item 9

Complainant alleged a serious violation of the Act in Citation 1, Item 9 as follows:

29 C.F.R. §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 work environment to control or eliminate any hazards 

or other exposure to illness or injury: At this location, on or about 

January 1, 2010, maintenance employees were involved in the repair of a 

leaking water main. The employer did not ensure employees were 
29

trained in the recognition of unsafe conditions in trenching and 

excavation work, to include hazards, such as, but not limited to, the 

following: (a) hazards of working in trenches without an adequate 

employee protective system; (b) hazards of working in trenches where the 

soil is saturated and there is an accumulation of water; (c) safe means of 

egress.

The cited standard provides:

29 C.F.R. §1926.21(b)(2): The employer shall instruct each employee in 

the recognition and avoidance of unsafe conditions and the regulations 

applicable to his work environment to control or eliminate any hazards 

or other exposure to illness or injury.

Two maintenance employees were directed to enter an unprotected excavation area and 

perform pipe repairs on December 31, 2009 and January 1, 2010. (Tr. 143-145). In addition, both 

David May and [redacted] observed the wet and unstable soil conditions in the excavation, and 

were specifically told by plumber Jacob Morgan that the excavation was unsafe and needed a 

protective system. (Tr. 145). In the past seven years, [redacted] testified that he has helped repair 

ten excavation-related plumbing leaks at the mobile home park. (Tr. 1035). Despite these facts, 

neither of Respondent’s maintenance employees had ever been instructed by Respondent on the 

potential hazards and injuries associated with excavation work. (Tr. 143-144, 809). The court also 

notes that Complainant requested employee training records before trial, but no such records were 

produced. (Tr. 148-149; Ex. C-52, C-54). The cited standard applied, was violated, and 

Respondent’s two maintenance employees were exposed to the condition. 

Respondent is also deemed to have knowledge of the training and instruction it provides, or 

in this case did not provide, to its employees. Failure to instruct employees on how to recognize 

and avoid unsafe conditions in the work they are assigned can, and unfortunately did in this case, 
30

result in serious injuries. (Tr. 146). Accordingly, the court finds that Complainant established all of 

the elements necessary to prove the violation alleged in Citation 1, Item 9. Citation 1, Item 9 will 

be AFFIRMED. 

Citation 1 Item 10

Complainant alleged a serious violation of the Act in Citation 1 Item 10 as follows:

29 C.F.R. §1926.651(c)(2): A stairway, ladder, ramp or other safe means 

of egress was not located in trench excavations that were 4 feet (1.22m) 

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

travel for employees: At this location, on or about January 1, 2010, 

between the facility swimming pool and the brick fence adjacent to Stone 

Street, maintenance employees were working in a trench at [a] depth 

greater than 4 feet and a ladder had not been provided for egress.

The cited standard provides:

29 C.F.R. §1926.651(c)(2): Means of egress from trench excavations.4 A 

stairway, ladder, ramp or other safe means of egress shall be located in 

trench excavations that are 4 feet (1.22 m) or more in depth so as to 

require no more than 25 feet (7.62 m) of lateral travel for employees. 

The precise dimensions of the excavation before the accident are not known. (Tr. 345). 

None of the witnesses ever measured the excavation, although numerous witnesses gave widely 

varying, and largely unreliable, estimates on its depth, ranging from as shallow as two feet seven 

inches, to as deep as ten feet. (Tr. 510, 666, 683, 686, 761, 818, 820, 866-867, 1066, 1159-1162, 

1268-1270, 1341, 1378, 1405). The preponderance of the evidence established that at the time of 

the collapse, the excavation was between four and five feet deep. This conclusion credits the 

 

4 The regulation makes specific reference to “trench excavation.” There is a specific definition which applies to a 

“trench excavation.” 29 C.F.R. §1926.650(b). Since the Secretary is the author of her own regulations, it is clear from 

its face that in order for this requirement to apply, the excavation must be a “trench excavation” as opposed to an 

excavation. 
31

undisputed testimony from several witnesses indicating that the leaking pipe was 31 inches 

underground, that the plumber reached the depth of the pipe on December 31, 2009 and that a larger 

excavator was used the following day to dig past the depth of the pipe creating several inches of 

space beneath the pipe and the bottom of the excavation. Despite initial claims of a greater depth, 

even CSHO Caballero ultimately conceded at trial that the excavation was “approximately four feet 

or greater.” (Tr. 274). The width of the excavation, which ranged from five to fifteen feet, was 

greater than the depth of the excavation. (Tr. 1056). 

The cited standard in Item 10 requires ladders or other safe means of egress for a “trench 

excavation” which is defined as “a narrow excavation (in relation to its length) made below the 

surface of the ground. In general, the depth is greater than the width, but the width of a trench 

(measured at the bottom) is not greater than 15 feet.” 29 C.F.R. §1926.650(b)(emphasis added). 

Accordingly, the cited standard did not apply since the Complainant has not established by a 

preponderance of the evidence that the depth of the trench excavation was deeper than it was wide. 

The width of the excavation, which ranged from five to fifteen feet, was greater than the depth. (Tr. 

1056). Since application of the standard is a required element, Citation 1 Item 10 will be 

VACATED. 

Citation 1 Item 11

Complainant alleged a serious violation of the Act in Citation 1, Item 11 as follows:

29 C.F.R. §1926.651(h)(1): The employer did not ensure that adequate 

precautions were taken to protect employees against the hazards posed 

by water accumulation. At this location, on or about January 1, 2010, 

between the facility swimming pool and the brick fence adjacent to Stone 

Street, the employer directed maintenance employees to continue working 

in an excavation, greater than 4 feet in depth, with an accumulation of 

water.
32

The cited standard provides:

29 C.F.R. §1926.651(h)(1): Employees shall not work in excavations in 

which there is accumulated water, or in excavations in which water is 

accumulating, unless adequate precautions have been taken to protect 

employees against the hazards posed by water accumulation. The 

precautions necessary to protect employees adequately vary with each 

situation, but could include special support or shield systems to protect 

from cave-ins, water removal to control the level of accumulating water, 

or use of a safety harness and lifeline.

The cited standard applied because Respondent’s employees were working in an excavation

for two days, with varying levels of accumulated water, attempting to repair a pipe leak. (Tr. 164). 

Initially, water pumps were used to remove water from the excavation, but they kept clogging and 

became ineffective. (Tr. 164-166). The record clearly established that [redacted] and [redacted]

worked inside the excavation at various times between December 31, 2009 and January 1, 2010 

while it contained standing water ranging from just a few inches to as much as 1 1⁄2 feet. (Tr. 164-

165, 522, 682, 1044, 1051, 1342, 1406). In fact, the maintenance employees wore waders while 

working in the excavation. (Tr. 767-768). 

The accumulated water was in plain view to every supervisor who visited the excavation, 

and despite Mr. Morgan’s conversations with [redacted] and David May about the hazardous 

condition of the excavation, no protective systems or other precautions were ever taken. The terms 

of the cited standard were violated and employer knowledge of the condition was established. The 

violation was serious because the accumulation of water inside an excavation creates hazardous 

conditions beyond those typically found in a dry excavation, such as drowning and increased 

instability of the surrounding excavation walls. (Tr. 167). Accordingly, the court finds that 

Complainant established all of the elements necessary to prove the violation alleged in Citation 1,
33

Item 11. Citation 1, Item 11 will be AFFIRMED.

Citation 3 Item 1

Complainant alleged an other-than-serious violation of the Act in Citation 3, Item 1 as 

follows:

29 C.F.R. §1910.1200(e)(1): The employer did not develop, implement, 

and/or maintain at the workplace a written hazard communication 

program which describes how the criteria specified in 29 CFR 

1910.1200(f), (g), and (h) will be met: At this location, employees 

engaged in swimming pool and spa maintenance, as well as small 

equipment operations and repairs, were exposed to hazardous chemicals 

such as, but not limited to, Leslie’s Swimming Pool Supplies 3-inch 

Jumbo Chlorine Tabs, BioGuard Strip Kwik, BioGuard Burnout 35, 

Leslie’s Ultra Bright, [and] Soda Ash. The employer had not developed 

a program which would address labeling and other forms of warning on 

chemical containers, Material Safety Data Sheets, and employee 

information and training on the hazards associated with chemicals used 

at this site. The written program must also contain the following: (a) a 

list of all hazardous chemicals on site, (b) the methods the employer will 

use to inform employees of the hazards associated with non-routine tasks 

involving chemicals, such as a spill, (c) the hazards of chemicals 

contained in piping that is not labeled, and (d) the method the employer 

will use to inform other employers (contractors) of the chemicals their 

employees might be exposed to while performing duties at this site. 

The cited standard provides:

29 C.F.R. §1910.1200(e)(1): Written hazard communication program. (1) 
34

Employers shall develop, implement, and maintain at each workplace, a 

written hazard communication program which at least describes how the 

criteria specified in paragraphs (f), (g), and (h) of this section for labels 

and other forms of warning, material safety data sheets, and employee 

information and training will be met, and which also include the 

following: [list of hazardous chemicals and methods of informing 

employees of hazards when performing non-routine tasks]

Employees regularly used the hazardous chemicals and substances listed in the citation

during the course of weekly swimming pool maintenance. (Tr. 140-141, 706-707, 710-713, 1027-

1028, 1130; Ex. C-7, C-21). The manufacturers’ labeling on those chemicals identified the 

hazardous nature of the substances. (Ex. C-6). Despite this fact, neither the maintenance employees 

nor managers of the mobile home park could produce a written hazard communication program or 

Material Safety Data Sheets for the chemicals. (Tr. 140-141, 1441). The cited standard applied, 

was violated, and Respondent’s two maintenance employees were exposed. 

 Respondent is deemed to have knowledge of written programs which it failed to develop, 

implement, and maintain. This knowledge is strengthened by the fact that Respondent purchased 

the pool chemicals for the maintenance employees to use, and required them to complete a log 

confirming their weekly maintenance of the pool. (Tr. 141-142, 713). Accordingly, the court finds 

that Complainant established all of the elements necessary to prove the violation alleged in Citation 

3, Item 1. Citation3, Item 1 will be AFFIRMED.

Affirmative Defenses

Respondent failed to argue any of its originally pled affirmative defenses in its Post Hearing 

Brief. Typically, this results in a waiver of any affirmative defenses listed in the Answer. See

Georgia-Pacific Corp., 15 BNA OSHC 1127, 1991 CCH OSHD ¶29,395 (No. 89-2713, 1991). 

However, Respondent alluded to certain defenses during the trial. Therefore, the court will briefly 
35

address them.

Fourth Amendment 

Respondent attempted to argue that Complainant’s walkaround inspection of the mobile 

home park violated its Fourth Amendment protection against unreasonable searches. Marshall v. 

Barlows, 436 U.S. 307 (1978). The court ruled during trial that this defense was untimely as it had 

never been previously raised in Respondent’s Answer. The court maintains its ruling on that issue 

and, in addition, briefly notes that the record clearly established that CSHO Caballero obtained 

permission from Park Manager Liz Medrano to enter the park property to conduct her inspection. 

(Tr. 49-50, 260-261, 1004-1005, 1438). The court also notes that no one, including Park Manager 

Medrano, ever attempted to withdraw that consent or otherwise protest CSHO Caballero’s presence 

on Respondent’s property. (Tr. 55-56). Respondent unequivocally waived any Fourth Amendment 

defense through its consent to the inspection. Cody-Zeigler, Inc., 19 BNA OSHC 1777, 2002 CCH 

OSHD ¶32,559 (No. 01-1236, 2002). Accordingly, Respondent’s assertion of a Fourth Amendment 

affirmative defense to the inspection is REJECTED. 

Unpreventable Employee Misconduct

Some of Respondent’s questioning related to an unpreventable employee misconduct 

defense. To establish that affirmative defense, Respondent must prove that: (1) it established work 

rules designed to prevent the violation, (2) it adequately communicated those rules to its employees, 

(3) it took steps to discover violations, and (4) it effectively enforced the rules when violations were 

discovered. American Sterilizer Co., 18 BNA OSHC 1082, 1995-97 CCH OSHD ¶31,451 (No. 91-

2494, 1997). The court notes that Complainant requested records of employee discipline for any 

purported violation of work rules, but none were ever produced (Tr. 144; Ex. C-58) and there is no 

evidence in the record to establish the existence of established work rules and the enforcement of 

those rules. The court also notes that [redacted], to whom many of the questions implying 

employee misconduct were posed, was never disciplined by Respondent in any way for the 
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excavation incident. (Tr. 809). A review of the record confirms that Respondent failed to prove any 

of the elements necessary to establish an unpreventable employee misconduct defense for any of the 

affirmed violations. Accordingly, Respondent’s assertion of unpreventable employee misconduct 

as an affirmative defense is REJECTED. 

Borrowed Servant Doctrine

Respondent argued during trial that because Mr. Morgan instructed [redacted] and 

[redacted] at various times during the excavation work, the borrowed servant doctrine shielded 

Respondent from liability for any OSHA violations proven in this case. (Tr. 582-583). However, 

the Commission has clearly stated that the borrowed servant doctrine is not a defense in OSHA 

proceedings as multiple entities may be deemed employers for the purposes of the Act. Frohlick 

Crane Service, 521 F.2d 628 (10th Cir. 1975); Froedtert Memorial Lutheran Hospital, 20 BNA 

OSHC 1500 (No. 97-1839, 2004); Baroid Division, NL Industries, 1977 CCH OSHD ¶22,280 (No. 

16096, 1976). Additionally, even if the doctrine did apply, the record established that [redacted]

and [redacted] were employed by Respondent the entire time; took direction from several of 

Respondent’s managers before, during, and after the excavation work; were paid by Respondent;

and used Respondent’s tools and materials; all of which occurred on Respondent’s property. (Tr. 

496-497, 580, 1370-1371). Accordingly, Respondent’s assertion of a borrowed servant doctrine as 

an affirmative defense is REJECTED.

Infeasibility

Respondent argued in its Answer that the infeasibility defense shielded the Respondent from 

liability. The defense of infeasibility requires an employer to prove that: (1) the means of 

compliance prescribed by the standard are technologically or economically infeasible, or necessary 

work operations are technologically infeasible after implementation; and (2) there are no feasible 

alternative means of protection or an alternative method of protection was used. V.I.P. Structures, 

Inc., 16 BNA OSHC 1873, 1993-95 CCH OSHD ¶30,485 (No. 91-1167, 1994). See also A. J. 
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McNulty & Co., 19 BNA OSHC 1121, 1129 (No. 94-1758, 2000). Employer has the burden of 

proving infeasibility of compliance. State Sheet Metal, 16 BNA OSHC 1155, 1161 (No. 90-2894, 

1993). The Respondent failed to establish infeasibility as an affirmative defense. The Respondent 

provided no proof that compliance with the Act and its regulations were infeasible. The 

Respondent abated the deficiencies noted in the citations after the inspection. This action itself 

establishes that it was feasible to comply with the Act and its regulations prior to the inspection. 

Accordingly, Respondent’s assertion of infeasibility as an affirmative defense is REJECTED. 

Vindictive Prosecution and Bias

Respondent attempted to argue the entire inspection, the resulting issuance of the Citation 

and the prosecution of this case is based either upon a theory of vindictive prosecution or bias. The 

court ruled during trial that this defense was untimely as it had never been previously raised as an 

affirmative defense in the Answer. The court maintains its ruling on that issue. 

Although there is no uniform test for proving vindictive prosecution, a threshold showing 

common to all tests is evidence that the government action was taken in response to an exercise of a 

protected right. Nat’l Eng’g & Contracting Co., 18 BNA OSHC 1075, 1077 (No. 94-2787, 1997) 

(consolidated), aff’d, 181 F.3d 715 (6th Cir. 1999). There is no evidence that a protected right was 

at issue here. The Respondent’s assertion of an affirmative defense or bias is REJECTED.

Penalty

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

requires the Commission to give Adue 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. 29 U.S.C. '666(j). Gravity is the primary consideration and is 

determined by the number of employees exposed, the duration of the exposure, the precautions 

taken against injury, and the likelihood of an actual injury. J.A. Jones Construction Co., 15 BNA 

OSHC 2201, 1993 CCH OSHD &29,964 (No. 87-2059, 1993).
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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. Allied Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975); Valdak 

Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995). In calculating the proposed penalties, CSHO 

Caballero generally credited Respondent with a sixty percent reduction due to its status as a small 

employer, and a ten percent reduction for its lack of OSHA violation history. (Tr. 69, 85, 110, 123, 

138, 147, 182, 223). 

With regard to Citation 2 Item 1, the court considered the totality of the circumstances, 

including the fact that Respondent is a very small business; that two of its employees were exposed 

to serious excavation hazards for two days; that a third-party plumber specifically warned 

Respondent’s managers of the hazardous nature of the excavation; that Respondent ordered its 

employees to remove the plumber’s initial attempts at a shoring system;, that the plumber’s safety 

concerns were realized when the excavation actually collapsed;, and that Respondent’s employees 

were actually injured. As a result, the court will assess the penalty for Citation 2 Item 1 at 

$15,000.00. 

With regard to Citation 1, Item 9, the court considered the totality of the circumstances. It 

considered the same factors that it considered in assessing the penalty for Citation 2, Item 1 in 

determining the penalty for Citation 1, Item 9. Other factors the court considered as to Citation 1, 

Item 9 were the established facts that two maintenance employees were not provided with the 

training required under the Act and there were past events clearly indicating training was lacking 

and needed. In the past seven years, [redacted] testified that he has helped repair ten excavationrelated plumbing leaks at the mobile home park. (Tr. 1035). The Respondent produced no training 

records. (Tr. 148-149; Ex. C-52, C-54). And finally, there was a prior incident in which [redacted]

was involved in the collapse of an excavation. For seven years and after having knowledge of past 

incidences, the Respondent provided no training. As a result, the court will assess the penalty for 
39

Citation 1, Item 9 at $2,500.00. 

Based on the totality of the circumstances discussed above with regard to each of the other 

affirmed violations, the court assesses the penalties as set out below.

ORDER

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

1. Citation 1 Item 1 was withdrawn by Complainant (Tr. 28);

2. Citation 1 Item 2 is MODIFIED to an other-than-serious violation, AFFIRMED as 

modified, and a penalty of $225.00 is ASSESSED;

3. Citation 1 Item 3 is VACATED;

4. Citation 1 Item 4a is AFFIRMED and a penalty of $750.00 is ASSESSED;

5. Citation 1 Item 4b is AFFIRMED, which for penalty purposes was grouped with Item 4a;

6. Citation 1 Item 4c is AFFIRMED, which for penalty purposes was grouped with Item 4a;

7. Citation 1 Item 5 is VACATED;

8. Citation 1 Item 6a is AFFIRMED and a penalty of $750.00 is ASSESSED;

9. Citation 1 Item 6b is MODIFIED to an other-than serious violation, AFFIRMED as 

modified, which for penalty purposes was grouped with Item 6a;

10. Citation 1 Item 6c is AFFIRMED, which for penalty purposes was grouped with Item 6a;

11. Citation 1 Item 7 is VACATED;

12. Citation 1 Item 8 is AFFIRMED and a penalty of $450.00 is ASSESSED;

13. Citation 1 Item 9 is AFFIRMED and a penalty of $2,500.00 is ASSESSED;

14. Citation 1 Item 10 is VACATED;

15. Citation 1 Item 11 is AFFIRMED and a penalty of $1,000.00 is ASSESSED;

16. Citation 2 Item 1 is AFFIRMED and a penalty of $15,000.00 is ASSESSED;

17. Citation 2 Item 2 is VACATED; and

18. Citation 3 Item 1 is AFFIRMED and a penalty of $0.00 is ASSESSED.
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___/s/_________________________________

Date: January 27, 2012 PATRICK B. AUGUSTINE

Denver, Colorado Judge, OSHRC