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. 12-0643

K.M. DAVIS CONTRACTING, INC.,

Respondent.

ON BRIEFS:

Anne R. Ryder, Attorney, Office of the Solicitor; Charles 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

Andrew N. Gross, Esq.; General Counsel, H B Training & Consulting, LLC, Lawrenceville, GA

For the Respondent

DECISION

Before: MACDOUGALL, Acting Chairman; and ATTWOOD, Commissioner.

BY THE COMMISSION:

The Occupational Safety and Health Administration inspected a worksite where K.M. 

Davis Contracting, Inc. was engaged in an underground water line project for the City of Marietta, 

Georgia. At the time of the inspection, a KMD crew was installing vertical PVC pipes in an 

excavation that closely abutted a highway. Following the inspection, OSHA issued KMD a oneitem citation alleging a willful violation of 29 C.F.R. § 1926.652(a)(1) for failing to protect an 

employee working in an excavation from cave-ins.1 Former Administrative Law Judge Ken S. 

Welsch affirmed the violation, but characterized it as serious, and assessed a penalty of $5,000. 

 1 The cited provision states that “[e]ach employee in an excavation shall be protected from caveins by an adequate protective system . . . .” 29 C.F.R. § 1926.652(a)(1). 
2

The only issue on review is whether the judge erred in characterizing the violation as serious rather 

than willful. 

We are divided as to whether the record before us is sufficient to establish that the violation 

was willful. Schuler Haas Elec. Corp., 21 BNA OSHC 1489, 1495 (No. 03-0322, 2006); see also 

Sal Masonry Contractors, Inc., 15 BNA OSHC 1609, 1611 (No. 87-2007, 1992). To resolve this 

impasse, we agree to vacate the direction for review, thereby allowing the judge’s decision to 

become the final appealable order of the Commission, with the precedential value of an 

unreviewed administrative law judge’s decision. See, e.g., Action Elec. Co., 25 BNA OSHC 2120, 

2121 (No. 12-1496, 2016), appeal docketed, No. 16-1579 (11th Cir. Sept. 1, 2016); Cranesville 

Aggregate Cos., 25 BNA OSHC 2001, 2002 (No. 09-2011, 2016), appeal docketed, No. 16-2055 

(2d Cir. June 17, 2016); Texaco, Inc., 8 BNA OSHC 1758, 1760 (No. 77-3040, 1980) 

(consolidated); Rust Eng’g Co., 11 BNA OSHC 2203, 2205 (No. 79-2090, 1984); Safeway, Inc., 

20 BNA OSHC 1021, 1023 (No. 99-0316, 2003), aff’d, 382 F.3d 1189 (10th Cir. 2004); Timken 

Co., 20 BNA OSHC 1070, 1072 (No. 97-0970, 2003). See also 29 U.S.C. §§ 659(c), 660(a)-(b), 

661(i). 

Accordingly, the direction for review is vacated. The separate opinions of the two 

Commission members follow.

SO ORDERED.

/s/

Heather L. MacDougall

Acting Chairman

/s/

Cynthia L. Attwood 

Dated: April 26, 2017 Commissioner
3

Separate Opinion of Acting Chairman MacDougall

MACDOUGALL, Acting Chairman:

The City of Marietta, Georgia engaged K.M. Davis Contracting, Inc. to install an 

underground water line. On August 17, 2011, a KMD crew was working on the project at the site 

of an excavation that closely abutted a four-lane highway. After happening upon the worksite, an 

OSHA compliance officer inspected it. On January 18, 2012, OSHA issued KMD a citation 

alleging a willful violation of 29 C.F.R. § 1926.652(a)(1), which requires employers to protect 

workers in excavations from cave-ins.1 The one-day hearing before Administrative Law Judge 

Ken S. Welsch was held in this matter on June 14, 2012, in Atlanta, Georgia. The judge’s decision 

finding a serious, rather than willful, violation of the cited standard and assessing a penalty of 

$5,000 was issued on December 11, 2012. The Commission directed the case for review on 

January 25, 2013, on the sole issue of whether the judge erred by re-characterizing the violation as 

serious rather than willful, and briefing by the parties was completed on April 22, 2013. 

I set forth those dates to drive home the fact that after the judge’s decision and the 

Commission’s direction for review, it has taken nearly four years since briefing on this case was 

completed to issue this decision—in a case where a remand order would have been appropriate.2 

 1 Section 1926.652(a)(1) states: “Each employee in an excavation shall be protected from caveins 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.” Paragraph (b) sets forth requirements for “sloping and benching 

systems,” and paragraph (c) sets forth requirements for “shield systems” and other protective 

systems. 29 C.F.R. § 1926.652(b), (c). 

2 Given the circumstances, while I feel compelled to highlight the amount of delay in this case, I 

am hesitant to discuss the reasons for the delay based on deference to the agency’s confidential 

and collegial deliberations and decision-making process. I do not wish for my separate opinion to 

have a chilling effect on intra-agency discussions. See McKinley v. Bd. of Governors of Fed. 

Reserve Sys., 647 F.3d 331, 339 (D.C. Cir. 2011) (citing Ryan v. Dep’t of Justice, 617 F.2d 781, 

790 (D.C. Cir. 1980)) (discussing that intra-agency memoranda are exempt from disclosure under 

Exemption 5 of the Freedom of Information Act, 5 U.S.C. § 552(b)(5), to protect the deliberative 

process). However, at the same time, I note that open government law as a whole recognizes the 

value of candor; in particular, it reflects a judgment that decision-makers are accountable for 

agency decisions. See Government in the Sunshine Act, Pub. L. 94-409, § 2, 90 Stat. 1241 (1976) 

(imposing procedural requirements on agencies to ensure that “the public is entitled to the fullest 

practicable information regarding the decision-making processes of the Federal Government”); see 

also H.R. Rep. 94-880, pt. 1, at 2 (1976), reprinted in 1976 U.S.C.C.A.N. 2183 (Congress intended 
4

We should seek to do better. The mandate of the Commission is to provide fair and timely 

adjudication of workplace safety and health disputes between the Department of Labor and 

employers. See Dayton Tire v. Sec’y of Labor, 671 F.3d 1249, 1254 (D.C. Cir. 2012) (“The 

Commission does a disservice to both employers and employees when it fails to clarify health and 

safety standards promptly.”); see also 5 U.S.C. § 555(b) (providing for prompt disposition of 

agency proceedings); but see NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 265 (1970) (an 

agency “is not required to place the consequences of its own delay, even if inordinate, upon 

wronged employees to the benefit of wrongdoing employers”). In this case, the lengthy and 

unreasonable delay has done a great disservice to the parties since the judge failed to make 

necessary findings and to resolve conflicting testimony on a critical issue—whether the judge erred 

 

that, through the Sunshine Act, agencies become accountable directly to the people). In my 

opinion, within a multi-member agency where its members may disagree, and in particular where 

remand may be deliberated by one or more members, that should be taken into account without 

delay. Admittedly, it appears that during the history of the agency, some Commission decisions 

have issued after a “kalpa”—a Sanskrit word meaning an eon or a long period of time—a problem, 

as thoroughly discussed by my colleague, which is exacerbated by sustained periods of time when 

the Commission lacks all three members. Thus, I agree with my colleague that the Commission’s 

lack of a full complement can interfere with its statutory mandate. However, this is not one of 

those times. 

Truth be told, despite my colleague’s focus in her separate opinion on the amount of time the 

Commission lacked a full complement of commissioners generally and specifically while this case 

was pending on review (even though the Commission is taking official action on this case without 

a full complement of commissioners), the speed with which this case proceeded while on review 

had little to do with the number of commissioners. My colleague’s discussion on this point is 

nothing more than a red herring or a desire to use this case as a platform for a broader, more 

appropriately, political discussion. In my view, the delay in this case is due to the Commission’s 

internal case management system. 

This system, not found anywhere in the Occupational Safety and Health Act or Commission 

regulations and having little to do with the statutory authority of the commissioners or the number 

of them, currently guides case processing priorities and determines when a given case will be 

scheduled for consideration; then leading to the potential for a Commission decision. Under this 

system, despite the completion of briefing in April 2013, this case is only now being decided four 

years later. While I decline to provide further details out of respect for the agency’s deliberative 

process, it is this case management system that I believe would benefit from reevaluation and 

reform to make the Commission’s decisional process more efficient and bring its decision-making 

more in line with its sole statutory mandate to serve as an administrative court providing fair and 

expeditious resolution of disputes involving OSHA, employers charged with violations of federal 

safety and health standards, and employees and/or their representatives.
5

by re-characterizing the violation of § 1926.652(a)(1) as serious rather than willful. However, 

given the poor option of remanding a case 4 1⁄2 years after the initial hearing,3 I would affirm the 

judge’s decision and find based on the record evidence before us that the Secretary has not met his 

burden to prove that the violation was willful. 

Factual Background

On August 17, 2011, a four-man KMD crew was installing vertical PVC pipes (known as 

“risers”), which involved depositing sufficient soil around the risers to keep them upright while 

the entire excavation was backfilled, in a portion of the project that abutted the highway. After 

the compliance officer happened upon the worksite, he stopped, parked his car, and walked over 

to inspect the worksite. He then introduced himself to KMD’s foreman, who was standing at the 

edge of the excavation and directly above a laborer who was in the excavation. The CO asked the 

foreman if he knew why OSHA would stop at the site. According to the CO, the foreman replied: 

“Oh [expletive]. I know it’s an illegal hole.” The CO determined that the excavation was 

approximately 9.5 feet deep where the employee was standing, 17 feet wide, composed of Type C 

soil,4 and not sloped or shored.5 

On review, the Secretary argues that the judge erred in rejecting the violation’s willful 

characterization because the evidence shows that KMD’s foreman allowed the laborer to work in 

the unprotected excavation, even though the foreman knew it violated the OSHA standard, because 

he wanted to save time and finish the job quickly. While KMD does not dispute that the foreman 

understood OSHA’s cave-in protection requirements and knew that the laborer should not have 

been working in an unprotected excavation, KMD maintains that the evidence establishes the 

foreman did not initially realize the laborer had entered the excavation because his attention was

 3 Judge Welsch retired from the Commission shortly after he issued his decision in this case.

4 Appendix A to Subpart P (“Excavations”) of Part 1926 categorizes soil and rock deposits into “a 

hierarchy of Stable Rock, Type A, Type B, and Type C, in decreasing order of stability.” Type C 

soil is defined as: “(i) Cohesive soil with an unconfined compressive strength of 0.5 tsf (48 kPA) 

or less; or (ii) Granular soils including gravel, sand, and loamy sand; or (iii) Submerged soil or 

soil from which water is freely seeping; or (iv) Submerged rock that is not stable; or (v) Material 

in a sloped, layered system where the layers dip into the excavation or a slope of four horizontal 

to one vertical (4H:1V) or steeper.” Id. 

5 He also observed several trench boxes at the site that were not in use. 
6

directed elsewhere, and when he turned and saw that the laborer had entered the excavation, he 

began trying to get his attention in order to instruct him to get out. Although KMD concedes that 

the foreman may have exercised “poor judgment,”6 KMD argues that an instance of poor judgment 

during an unanticipated and unplanned sequence of events does not establish a willful state of 

mind. 

Whether the violation at issue here is properly characterized as willful turns largely on how 

conflicting testimony between the CO and KMD’s employees is resolved. Three KMD employees 

who were at the worksite at the time of the inspection testified at the hearing—the laborer observed 

inside the excavation, the foreman at the site, and the operator of an excavator used in the project. 

Their accounts of the inspection day’s events differ from that of the CO, who was the Secretary’s 

only witness, on a key factual issue in dispute that relates to the alleged willful characterization—

the length of time the laborer was in the excavation. In addressing this issue, the judge made no 

explicit credibility finding based on demeanor and credited different aspects of each witness’s 

testimony without explanation. 

Specifically, he appears to have credited the CO’s testimony in finding that the foreman 

was at the side of the excavation the entire time and made no attempt to get the laborer out until 

the CO’s presence at the excavation.7 At the same time, the judge apparently credited the 

 6 Since KMD claims that the foreman attempted to remove the laborer from the excavation as soon 

as he realized the laborer was there, it is not clear—and KMD does not identify—what the foreman 

did that may have involved or reflected “poor judgment.” 

7 The foreman and excavator operator testified that the foreman was trying to remove the laborer 

from the excavation the moment his presence was discovered. After a riser being held up by the 

foreman fell over, the foreman testified that he had focused his attention on the excavator to his 

left. The foreman intended to direct the excavator operator to pick up the pipe when he turned the 

excavator back around. While focused on the excavator, the laborer used a ladder to the right of 

the foreman to enter the trench and, with his back to the foreman, pick up the pipe. When the 

excavator turned back around to dump the dirt into the excavation, the foreman and the excavator 

operator both then noticed the laborer in the excavation. According to the foreman, before the CO 

identified himself, he immediately attempted to get the laborer’s attention to get him out of the 

excavation, which the foreman described as difficult because the crew could not hear each other 

over the noise of the excavator and traffic on the adjacent highway. However, the CO testified 

that the foreman did not attempt to remove the laborer until the CO identified himself and pointed 

out the violation. The judge appears to have credited the testimony of the CO on this issue when 

he found: “There is no showing that the foreman attempted to remove the laborer from the 

excavation prior to the compliance officer’s presence,” and “[t]he laborer . . . was allowed to 

remain until OSHA initiated the inspection.” However, the judge also credited the foreman for 
7

testimony of the KMD employees in finding that the foreman did not direct the laborer to enter the 

excavation but that the laborer had entered the excavation of his own accord.8 After making these 

findings, the judge stated that the foreman’s failure to remove the laborer showed “a lack of good 

judgment,” but he found that the foreman’s “apparent attempt to quickly finish the job” was 

insufficient to establish willfulness. In sum, the judge concluded that “the KMD crew was 

overtaken by a quick sequence of unexpected events that were neither planned nor in compliance 

with KMD’s written safety program.” 

However, the judge made no credibility findings that would resolve the conflicting 

testimony on the issue of how long the laborer was in the unprotected excavation. According to 

the CO, he was driving home from another inspection when he passed the excavation and noticed 

an individual working inside it.9

 He claims that he saw two people standing above the excavation 

 

“attempt[ing] to deal with the unexpected conduct of the laborer.” It defies logic to surmise that 

the judge would credit the foreman for attempting to deal with the unexpected conduct of the 

laborer if the foreman’s actions were compelled by the CO’s presence. 

8 KMD personnel consistently testified that the foreman had not instructed the laborer to enter the 

excavation. The laborer testified that he was not directed to enter the excavation but entered 

“without thinking” when the riser fell over. The foreman also testified that the laborer went into 

the excavation of his own accord. When the foreman noticed the laborer in the excavation, he 

“couldn’t believe [the laborer] was in the hole.” He went on to testify that “[i]t just shocked me 

that he was down there.” In contrast, the CO testified that the foreman told him during the 

inspection that he had instructed the laborer to enter the excavation and hold up the fallen riser. 

Additionally, the CO testified that the laborer told him during the inspection that he had been 

instructed to go into the excavation by the foreman. The judge credited testimony of the KMD 

personnel on this issue and found that “[t]he laborer entered the excavation on his own.” 

9 There is no particular basis for either crediting or discrediting the CO’s testimony on this point, 

and the judge made no credibility finding on it. The photographs show that the excavation was 

relatively close to the highway, irregularly shaped, and of uneven depth. The CO was traveling 

on a highway and was separated from the excavation by at least two lanes of traffic. If the laborer 

was in the excavation at the time the CO drove by, the laborer’s head would have been at least 

three feet below the surface of the ground and his body partially obstructed from view by the riser, 

as well as the silt fence put up between the excavation and the highway edge. While it is possible 

the CO could have seen the laborer in the excavation, it is far from certain. The CO also testified 

that no one entered or left the excavation while he was gathering his materials from the trunk of 

his vehicle, and he observed the excavator unload two or three buckets of dirt into the excavation. 

One might engage in conjecture to stretch this testimony to conclude the foreman must have known 

the laborer was in the excavation and allowed the excavator to backfill the excavation while the 

laborer was holding the riser. However, it is a leap to conclude that the CO never took his eyes
8

and an excavator that was running and moving. The CO stated that he then turned around at the 

next stoplight, drove back, and parked at a gas station next to the site. After gathering his 

equipment from the back of his car, the CO walked toward the excavation, taking photographs for 

about twenty seconds as he approached.10 The CO introduced himself to the foreman, and the 

foreman then instructed the excavator operator to “[s]hut it down” and yelled and signaled to the 

laborer to get out of the excavation. The excavator operator raised the excavator bucket out of the 

excavation, and the laborer then climbed a ladder out of the excavation. Under questioning by the 

judge, the CO testified—without explanation—that the laborer was in the excavation for five to 

ten minutes prior to the moment that he initially saw the laborer in the excavation while driving 

past.11 The CO estimated that it then took about five minutes to turn around and park, and another 

 

off the excavation while he was removing items from his trunk. The laborer could have jumped 

into the excavation any time the CO took his eyes off the excavation. 

10 My colleague notes, based on her review of the CO’s testimony and the photographs, that

“[n]either the foreman nor any other KMD employees appeared to be talking to one another.” On 

the walk from the car to the excavation, which is depicted in the photographs taken by the CO on 

his approach, it is true that during this twenty-second time of observation, he did not hear or see 

the foreman or any other employees attempt to get the laborer out of the excavation. However, 

my colleague ignores that even the CO recognized, like the KMD employees in their testimony, 

that it was very noisy at and around the worksite. Indeed, the CO acknowledged that “[i]f they 

were yelling, I couldn’t hear them. It was loud.” In addition, the photographs provide no insight 

on this point as none of them depict the foreman’s mouth. Therefore, I am unsure what evidence 

upon which my colleague relies to determine that the foreman was not instructing the laborer to 

get out of the trench at the time these photographs were taken.

11 No explanation is provided by the CO as to why he believed that the laborer was in the 

excavation for five to ten minutes prior to when he stated he saw him in the excavation. In addition, 

the judge does not address this five to ten minutes of time. It appears that any reliance on this 

additional time is a theory based on speculation, not evidence; an inference based on conjecture 

cannot be used to make a legal determination. As the Supreme Court stated in Roura v. Gov’t of 

the Philippine Islands, 218 U.S. 386, 400 (1910): 

[I]n reviewing the action of the court below, we are, of course, confined to the 

record and the case therein made, and may not, as the result of mistaken suggestions 

as to the issues and proof, disregard our duty by deciding, not the case as made, but 

an imaginary one, wherein issues not made and not presented below would have to 

be supplied, and whereby conjecture and surmise must be indulged to replace the 

total absence of all proof on a particular subject.

Absent evidence establishing this purported five to ten minutes of time before the CO saw the 

laborer in the excavation, one might conclude that there was some motivation to pad the amount 
9

two minutes to gather his equipment and walk to the site, and stated that the laborer was in the 

excavation “maybe less than fifteen minutes.” The laborer testified, however, that he was only in 

the excavation for “roughly ten to fifteen seconds . . . maybe a little more.”12 Thus, the amount of 

time appears to be somewhere between at least fifteen seconds but less than fifteen minutes.13 The 

amount of time is important; without a finding on this central issue, further conclusions can only 

come from indulging in conjecture.

Discussion

A violation is willful if the employer acted with “an intentional, knowing, or voluntary 

disregard for the requirements of the Act or . . . plain indifference to employee safety.” Stark 

Excavating, Inc., 24 BNA OSHC 2215, 2222 (No. 09-0004, 2014) (consolidated) (quoting Kaspar 

Wire Works, Inc., 18 BNA OSHC 2178, 2181 (No. 90-2775, 2000), aff’d, 268 F.3d 1123 (D.C. 

Cir. 2001)). “ ‘A willful violation is differentiated by heightened awareness of the illegality of the 

conduct or conditions and by a state of mind of conscious disregard or plain indifference.’ ” Id.

(quoting Hern Iron Works, Inc. 16 BNA OSHC 1206, 1214 (No. 89-433, 1993)). “This state of 

mind is evident where the employer was actually aware, at the time of the violative act, that the 

 

of time the laborer was in the excavation to bolster the alleged willful characterization of the 

violation.

12 The foreman explained that the installation of the risers involved holding the riser in place with 

a shovel while standing at the edge of the trench as the excavator backfilled around it. However, 

just before the laborer entered the excavation, the foreman testified that he lost control of the pipe, 

and it fell over while the excavator was turning to pick up more dirt. The laborer added that he 

entered the excavation “without thinking” to pick up the fallen riser. The foreman and the 

excavator operator both confirmed that the laborer had not been in the excavation when the riser 

fell. It was the excavator operator’s belief that the laborer entered the excavation while the 

excavator turned to get more dirt. The foreman, laborer, and excavator operator each estimated 

the laborer was in the excavation for between fifteen and twenty seconds. 

13 My colleague repeatedly states that the judge found that the laborer was in the trench for fifteen 

minutes. However, the judge never made a finding of fifteen minutes, but rather identified a 

possible range of fifteen seconds to less than fifteen minutes—thereafter, he made inconsistent 

statements such as “[d]uring the fifteen minutes, the foreman remained on the side of the 

excavation.” It is these inconsistencies that permeate the judge’s decision and make it difficult 

upon review to determine what credibility determinations and factual findings were made by him. 

These inconsistencies are evident in my colleague’s opinion, as well, where she herself vacillates 

between fifteen minutes and finding “the laborer was in the excavation for at least several 

minutes.” 
10

act was unlawful,” or where the employer “possessed a state of mind such that if it were informed 

of the standard, it would not care.” Id. (quoting AJP Constr., Inc. v. Sec’y of Labor, 357 F.3d 70, 

74 (D.C. Cir. 2004)) (internal quotation marks omitted).14 

In determining whether the Secretary has met his burden of proving a violation, the 

Commission generally reviews the evidence in the record de novo and need not defer to the judge’s 

findings. See Metro Steel Constr. Co., 18 BNA OSHC 1705, 1706 (No. 96-1459, 1999); Worcester 

Steel Erectors, Inc., 16 BNA OSHC 1409, 1417-19 (No. 89-1206, 1993). However, the

Commission will ordinarily defer to the judge’s findings regarding the credibility of a witness, if 

those findings are based on the demeanor of the witness or other factors peculiarly observable by 

the judge. Metro Steel Constr. Co., 18 BNA OSHC at 1706; see also Asplundh Tree Expert Co., 

6 BNA OSHC 1951, 1954 (No. 16162, 1978) (the judge “must fairly consider the entire record 

and must adequately explain his findings”; it is “not sufficient for the [j]udge to merely state his 

ultimate findings and conclusions . . . [as he] must set forth sufficiently detailed findings and 

reasons”). If the judge did not make credibility findings, as is the case here, and such findings are 

necessary to resolve conflicting testimony on a critical issue, the Commission will typically 

remand the case to the judge for further consideration and explanation. Schuler-Haas Elec. Corp., 

21 BNA OSHC 1489, 1495 (No. 03-0322, 2006); Asplundh, 6 BNA OSHC at 1954 (remanding 

case to judge where he failed to “set forth sufficiently detailed findings and reasons to assist the 

Commission in fulfilling its role as the ultimate finder of fact”). 

 14 Both the cited worksite and KMD’s principal place of business are in Georgia, which is located 

in the Eleventh Circuit. Accordingly, the Eleventh Circuit and/or the D.C. Circuit would have 

jurisdiction if the case is appealed. See 29 U.S.C. § 660(a) (parties may appeal to circuit where 

worksite is located and/or employer is headquartered; employer may also appeal to D.C. Circuit). 

In general, “[w]here it is highly probable that a Commission decision would be appealed to a 

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

case—even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Serv., 18 

BNA OSHC 2064, 2067 (No. 96-1719, 2000) (citation omitted). The Eleventh Circuit does not 

recognize good faith as a defense to a willfulness characterization. See Fluor Daniel v. OSHRC, 

295 F.3d 1232, 1240 (11th Cir. 2002). In the D.C. Circuit, an employer “cannot be found to have 

willfully violated a standard if it exhibited a good faith, reasonable belief that its conduct 

conformed to law . . . or if it made a good faith effort to comply with a standard or eliminate a 

hazard.” Am. Wrecking Corp. v. Sec’y of Labor, 351 F.3d 1254, 1263 (D.C. Cir. 2003) (citing A.J. 

McNulty v. Sec’y of Labor, 238 F.3d 328, 338 (D.C. Cir. 2002); A. E. Staley Mfg. Co., 19 BNA 

OSHC 1199, 1202 (No. 91-0637, 2000) (consolidated), aff’d, 295 F.3d 1341 (D.C. Cir. 2002)).
11

Here, unfortunately, the judge is no longer with the Commission; thus, without assigning 

this case to a new judge (and holding a new hearing), further credibility assessments cannot be 

made. If the Commission’s review of this case had been handled expeditiously, the case might 

have been appropriately remanded to a new judge. However, given the passage of over five years 

since the date of OSHA’s inspection, witnesses may be unavailable and their memory poor, 

resulting in actual prejudice to either or both of the parties. For these reasons, I would conclude 

that the Commission, as the ultimate fact finder, should decide this case based on the limited record 

before us and the limited credibility determinations made by the judge. See Schuler-Haas, 21 

BNA OSHC at 1495 (deciding to resolve matter based on record before Commission where judge 

who presided over hearing was deceased); Sal Masonry Contractors, Inc., 15 BNA OSHC 1609, 

1611 (No. 87-2007, 1992) (deciding to “complete the adjudication of th[e] matter” despite lack of 

credibility determinations where judge had retired); cf. Asplundh, 6 BNA OSHC 1951. The 

question then, is whether there is sufficient evidence in the record to find that the Secretary met 

his burden to prove a willful violation of § 1926.652(a)(1). I would say that there is not.

The amount of time the laborer was in the unprotected trench appears to be somewhere 

between ten to fifteen seconds to less than fifteen minutes. In finding a “quick sequence of 

unexpected events that were neither planned nor in compliance with KMD’s written safety 

program,” it is not clear whether the judge erred in his application of Commission precedent15—

which would seem more likely if the foreman had stood on the side of the unprotected trench with 

the laborer inside for nearly fifteen minutes—or if the foreman did not have time to react and form 

the requisite state of mind because the laborer had been in the unprotected trench for mere 

seconds.16 There is a world of difference between seconds and minutes in assessing KMD’s state 

 15 See, e.g., Stark Excavating, Inc., 24 BNA OSHC 2215, 2227 (No. 09-0004, 2014) (consolidated), 

aff’d, 811 F.3d 722 (7th Cir. 2016) (finding one excavation violation willful where, “[d]espite the 

foreman’s testimony that he had no idea at the time whether the excavation walls were sloped in 

accordance with ‘the OSHA regulation’ because he was ‘in a hurry’ and not ‘paying attention,’ the 

evidence show[ed] that he knew—or at least deliberately avoided knowing” they were not).

16 Id. at 2223 (finding another excavation violation not willful where, “[b]ased on our review of 

the record, we find the Secretary has not shown that the superintendent was, in fact, aware that the 

excavation was noncompliant”) (citing Gen. Motors, 22 BNA OSHC 1019, 1043 (No. 91-2834E, 

2007) (consolidated) (“[T]he Commission and courts distinguish ‘between mere negligence and 

willfulness, holding that the former is sufficient for affirming a non-willful violation, but that 
12

of mind, and without a finding on this issue, further conclusions can only come from free-ranging 

guesswork. We cannot engage in guesswork or play detective; instead, it is our duty to review this 

case based on the record, including the evidence, relevant findings of fact, and necessary credibility 

determinations. 

I am mindful that the Commission is reviewing a judge’s decision that concluded the 

Secretary failed to prove a willful violation. Thus, where we are compelled to make the necessary 

findings without the judge’s further assistance, it obviously cannot be said that the evidence in the 

record permits only a willful finding.17 It is the Secretary who has the burden of proof, and he 

must produce the necessary facts in the record to establish the violation and its characterization. 

Trinity Indus. Inc., 15 BNA OSHC 1788, 1789 (No. 89-1791, 1992) (finding that the Secretary has 

the burden of establishing a violation of the OSH Act by a preponderance of the evidence). Not 

only did the judge fail to make certain credibility findings, but the record leaves us with gaps in 

the evidence as to what occurred on August 17, 2011. See U.S. Steel Corp., 10 BNA OSHC 1752, 

1756 (1982) (holding that “[i]t is patently unfair to decide a case on facts not presented at trial”). 

Thus, I would find that the Secretary failed to prove his case for willfulness by a preponderance of 

the evidence and affirm the judge’s decision that the Secretary failed to prove that the violation 

was willful.18 See Trinity, 15 BNA OSHC at 1790 (based on record on review, Secretary could 

not prove that training was inadequate) (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 

 

willfulness is characterized by an intentional, knowing failure to comply with a legal duty.’ ” 

(citation omitted))).

17 Although my colleague’s opinion is that examination of the findings of facts, credibility 

determinations, and the evidence “can lead to only one supportable conclusion,” the judge and I 

both reach the conclusion that the violation is not appropriately characterized as willful. This 

highlights the circular nature of my colleague’s reasoning that since her view is the “only one 

supportable conclusion,” remand was never really an option so the delay in this case had no impact. 

18 To reverse in view of the judge’s failure to consider the entire record and to make necessary and 

specific credibility findings may unfairly deprive KMD of fair play and its opportunity to be 

heard—justice requires that due process and full litigation should be afforded an employer before 

penalizing it pursuant to the OSH Act. Given the judge’s failure to make needed credibility 

determinations and the overall insufficient evidence in the record to find that the Secretary met his 

burden to prove a willful violation of § 1926.652(a)(1), any abrupt reversal of the decision finding 

a serious rather than willful violation would not only be contrary to this burden and Commission 

precedent, but it would be inherently unfair to the employer. 
13

767, 776 (1986) (burden of proof is deciding factor when necessary facts cannot be determined 

conclusively from record)). 

The Commission reached a similar conclusion in an earlier decision where the judge had 

rejected a violation’s willful characterization but failed to address conflicting testimony. In Sal 

Masonry Contractors, Inc., 15 BNA OSHC at 1613, the Commission found that “the testimony 

supporting a willful determination [was] in conflict.” Acknowledging that normally this would 

result “in remanding the case to the judge for further consideration and explanation,” the 

Commission concluded this was not an available option. Id. “Because the judge failed to resolve 

the conflicts,” the Commission was “unable to choose from the conflicting versions of testimony, 

and . . . conclude[d] that the violation was not proven to be willful.” Sal Masonry, 15 BNA OSHC 

at 1612; see also Asplundh, 6 BNA OSHC at 1954 (noting that “[i]n a case where the evidence 

permits only one result, the Commission can make the necessary findings without the Judge’s 

assistance,” but in view of the judge’s failure to consider the entire record and to make necessary 

and specific credibility findings, rejecting the judge’s conclusion and remanding for the judge to 

make specific findings on the question of whether violations of Asplundh’s body belt rule were in 

fact as infrequent as claimed). 

In considering this case, I would not adopt abstract theories without proof, nor substitute 

bare possibility for facts in evidence. Mere possibilities, conjectures, or theories should not be 

allowed to take the place of evidence. Where proof is wanting, as it was in Sal Masonry and is 

here, the allegation of fact should be deemed not established. The judge’s failure to resolve 

conflicts where the evidence does not permit only one result—a point made obvious by the judge’s 

finding that the violation was serious, not willful—and given my determination that remand is a 

poor option due to the lengthy passage of time, I would find that the Secretary has not met his 

burden of proving willfulness by a preponderance of the evidence. 

Accordingly, I would find a serious, not willful, violation of the cited standard and affirm 

the judge’s assessment of a penalty of $5,000.

/s/

Heather L. MacDougall

Dated: April 26, 2017 Acting Chairman
14

Separate Opinion of Commissioner Attwood

ATTWOOD, Commissioner: 

I would find that the judge erred by re-characterizing the violation as serious.1

 Whether 

the violation at issue here is properly characterized as willful largely turns on how the conflicting 

 1 As an initial matter, I note that I disagree with my colleague’s statement that this case should 

have been remanded, and but for the Commission’s lack of “expeditious” handling it might have 

been. As this separate opinion demonstrates, although I would conclude that the judge erred in 

characterizing the violation as serious rather than willful, I am of the view that a close examination 

of the judge’s own findings of fact, credibility determinations, and the evidence related to the 

appropriate characterization of the violation—the very type of de novo examination the

Commission was created to conduct—can lead to only one supportable conclusion: that the 

violation was willful. Thus, in my judgment, remanding this case for any purpose would never 

have been either necessary or appropriate. 

In any event, it is by no means clear that a remand would have resulted in more expeditious 

handling of the case. At the time this case was directed for review, the judge who decided it had 

already retired. Thus, if remanded, the case would have necessarily required a new hearing before 

a new judge. Given that the case was not directed for review by the Commission until January 25, 

2013, any potential new hearing would not have occurred, under the very best of circumstances, 

until the spring of 2013—at least one year after the prior hearing and almost two years after the 

date of the violation. 

In my view, it strains credulity to believe that a new hearing—again, held by a new judge almost 

two years after the date of the violation—would necessarily lead to a more accurate or just decision 

for either party. My view is further cemented by the burden a remand would have placed on the 

parties who—through no fault of their own—would have been required to participate in and endure 

the expense of an entirely new hearing. Therefore, it would have been just as inappropriate to 

remand this case early in its review as it is now. 

As to whether this case should have been resolved earlier, I share my colleague’s concern regarding 

the time it sometimes takes for the Commission to decide a case and about the Commission’s 

frequent lack of a full complement of three members. Regarding the latter concern, there has been 

a full complement of commissioners for only 12 of the 50 months that this case has been on the 

Commission’s docket. Unfortunately, over the past 20 years, such a situation has been the norm. 

Thus, during these 20 years, the Commission has been without a full complement of 

commissioners about 65 percent of the time. And during this period, the same three commissioners 

have never served together, without a break, for longer than one year, ten months. This is because 

the six-year terms for the three commissioner positions are staggered, meaning that every two 

years, the term of one commissioner ends. 29 U.S.C. § 661(b). And when a term ends, as last 

occurred in April 2015, it can take several years before the vacancy is filled, truncating the new 

commissioner’s term and leaving the Commission short-handed. Of the thirteen periods of 

commissioner vacancies in the last 20 years, almost half have lasted at least one year, and two have 

lasted more than three years. This case illustrates the point: as of the date of this decision, there 

has not yet been a presidential nomination to fill the currently empty third commissioner position, 
15

testimony of the OSHA compliance officer and three of the KMD employees present at the 

worksite is resolved in light of photographic evidence presented by the Secretary. The testimony 

differs with regard to two key issues material to the violation’s willful characterization: the length 

of time the laborer was in the unprotected excavation; and whether the foreman had been 

attempting to remove the laborer prior to the compliance officer’s arrival. 

BACKGROUND

1. The Compliance Officer’s Testimony

The compliance officer testified that he was driving home from another OSHA inspection 

when he passed the KMD worksite and noticed an individual inside an excavation.2 He also saw 

two people standing above the excavation, and an excavator, which was running and moving. 

After turning around at the next stoplight, the compliance officer drove back and parked near the 

 

which has now been vacant for 24 months. Moreover, commissioner turnover always has been 

high. Of the 24 commissioners who have served over the last 45 years, only six have served for 

more than one term, while seven have served for two years or less. 

The lack of three commissioners can have a destabilizing effect on the work of the agency and can 

result in delays in the decision-making process. By statute, the Commission may take official 

action “only on the affirmative vote of at least two members.” 29 U.S.C. § 661(f). Two 

commissioners may, as is the case here, disagree. Without a third—tie-breaking—commissioner, 

the two must compromise and reach a decision (see, e.g., Architectural Glass & Metal Co., Inc., 

19 BNA OSHC 1546, 1548 (No. 00-0389, 2001) (Eisenbrey, concurring) (joining in decision to 

remand to expedite ultimate resolution, but “would have preferred simply to vacate the dismissal 

order”)); agree to vacate the direction for review and write separately (see cases cited in joint 

opinion, supra); or hold the case pending the appointment of a third member. Resort to any of 

these options may result in delay. And holding a case in the hope of gaining a third commissioner 

may prove to be precarious if, as has happened, another commissioner’s term ends before the 

empty position is filled, resulting in what has been referred to as a single commissioner being 

“home alone.” Beverly Enters. Inc., 19 BNA OSHC 1161, 1197 n. 85 (No. 91-3144, 2000) 

(consolidated) (Weisberg, Sep. Op. on Feasibility of Abatement).

Although my colleague gives lip service to the need to protect the internal decision-making process 

of the Commission, she posits that responsibility for the delay encountered in this case rests with 

the Commission’s “internal case management system.” I have served as a Commission member, 

Acting Chairman, and Chairman, for all but three months (falling between the expiration of my 

prior term and the start of my current one) of this case’s pendency on review and strongly disagree 

with my colleague’s comments. As one might well imagine, there is more here than meets the eye. 

But out of respect for the confidentiality of the agency’s deliberative process, I will not comment 

further. 

2 KMD is an underground utility contractor. At the time of the inspection it was engaged in an 

underground water project for the City of Marietta, Georgia.
16

worksite so that he could conduct an inspection. As he was driving back past the worksite, he saw 

the excavator “going back and forth and doing something in the hole.” While gathering his 

equipment from the back of his car, the compliance officer saw the excavator pick up and lower 

into the excavation “about two or three buckets” of dirt from a spoil pile (“backfilling”); each time, 

the bucket came back out of the excavation empty. 

The compliance officer took a photograph while standing beside his car and then began to 

walk toward the worksite, taking a series of photographs along the way. He photographed the 

KMD laborer standing in the excavation and holding a white PVC pipe upright so that it protruded 

from the trench.3 Between the time that he observed the excavator dumping dirt into the 

excavation and the time that he saw the laborer holding the pipe, the compliance officer did not 

see anyone enter or exit the excavation. As the compliance officer neared the worksite, the 

excavator was in the process of lowering another bucket of dirt into the excavation, and it appeared 

to be about to drop the dirt at the base of the pipe that the laborer was holding. During this entire 

time, KMD’s foreman was standing at the edge of the excavation immediately above the laborer, 

looking down at the laborer, while the excavator backfilled around the pipe. Neither the foreman 

nor any other KMD employees appeared to be talking to one another, nor were they making any 

gestures or hand movements. 

Once the compliance officer came up to the foreman and asked if he knew why OSHA 

would stop at the worksite, the foreman replied: “Oh [expletive]. I know it’s an illegal hole.” The 

foreman then instructed the excavator operator to “[s]hut it down,” and yelled and signaled to the 

laborer to get out of the excavation. At that point, the excavator operator stopped dumping dirt at 

the foot of the pipe and raised the excavator bucket—which was blocking the laborer’s exit—and 

the laborer climbed a ladder out of the unprotected excavation. The compliance officer testified 

that the foreman told him he had instructed the laborer to go into the excavation, even though the 

foreman knew it was not permissible under the OSHA excavation standard, because the laborer 

 

3 The vertical pipe’s purpose was to mark the location of fittings (connections) in the underground 

water pipes. The PVC pipe was to rest on top of a fitting and extend to the top of the trench. 

Because it was not affixed to the water pipe fitting in any way, the PVC pipe had to be held in 

place until sufficient dirt had been backfilled around it to support it. Once the trench had been 

fully backfilled, KMD would partially fill the PVC pipe with gravel and then drop a small GPS 

device into it. The pipe was then filled with more gravel. The GPS device would then signal the 

location of the water pipe fitting, to enable ease of access should problems with the fitting (such 

as a leak) later arise. 
17

would only need to be in there for “five to ten minutes.” The laborer confirmed that the foreman 

had instructed him to go into the unprotected excavation. The compliance officer also testified 

that the excavator operator told him that he was aware the laborer was in the excavation, but did 

not instruct the laborer to get out because the foreman was in charge. 

The compliance officer estimated that it had taken him about five minutes to turn his car 

around and park, and another two minutes to gather his equipment and walk to the worksite, such 

that about seven minutes passed from the time that he first saw the laborer in the excavation from 

his car until the laborer exited the excavation. 

2. The KMD Employees’ Testimony 

 The KMD employees testified to a very different version of events. According to their 

testimony, the laborer was not instructed to go into the unprotected excavation, did not hold the 

PVC pipe upright while the excavator backfilled around it, and was not inside the excavation for 

more than a few seconds. Their version also has the foreman attempting to remove the laborer 

from the excavation before OSHA’s presence was known, rather than just watching him hold the 

pipe. 

The foreman, who was trained as a competent person under the excavation standard, 

testified that he did not instruct the laborer to go into the unprotected excavation, nor did he 

immediately realize the laborer had climbed into the excavation because he was looking in the 

direction of the excavator operator at the time.4

 He stated that prior to the laborer’s entry, he had 

been balancing his shovel on top of the pipe to hold it in place as he stood at the edge of the 

excavation. However, his shovel slipped, the pipe fell over, and he looked toward the excavator 

operator intending to ask him to pick the pipe up using the excavator bucket.5 The operator, 

 

4 Under the excavation standard “competent person means one who is capable of identifying 

existing and predictable hazards in the surroundings, or working conditions which are unsanitary, 

hazardous, or dangerous to employees, and who has authorization to take prompt corrective 

measures to eliminate them.” 29 C.F.R § 1926.650(b).

5 As the Secretary did not explicitly challenge this statement, my analysis assumes that this is how 

the PVC pipe came to have fallen over inside the excavation. The excavator operator testified that 

the pipe was initially propped up on the water pipe fitting by “somebody standing on top of the 

trench holding the shovel.” Presumably, this involved someone on the edge of the excavation 

placing the base of the PVC pipe on the fitting in the bottom of the excavation and then balancing 

it on that fitting by placing the shovel on the top of it and pushing the pipe upright. The shovel 

would then hold the pipe in place until it had been stabilized by backfill. 
18

however, had turned the excavator away to pick up more dirt from the spoil pile, and the foreman 

was waiting for the operator to turn back around so he could get the operator’s attention. Once the 

foreman looked back at the excavation and noticed the laborer inside, he began trying to get the 

laborer’s attention to tell him to get out, but the laborer could not hear him due to the noise from

the running excavator and the adjacent busy highway. 

The laborer testified that when the pipe fell over, “without thinking” and without any 

direction from the foreman, he “grabbed the ladder and ran down in the hole and stood [the pipe] 

back up and came right back out of the hole.” He stated that he realized he should not have been 

in the trench “[o]n [his] way out.” When asked how long he had been in the excavation, the laborer 

testified, “roughly 10 to 15 seconds . . . maybe a little more.”6

 

The excavator operator—who was also trained as a competent person under the excavation 

standard—similarly testified that he did not see the laborer go into the unprotected excavation, as 

he had turned the excavator away to pick up more dirt from the spoil pile. When he turned back 

around and first saw the laborer in the excavation, he claims that the foreman was yelling out the 

laborer’s name and waving at him, trying to get the laborer’s attention. The excavator operator 

then also began yelling at the laborer to try to get his attention. 

3. The Judge’s Decision

In addressing the two key factual issues, the judge credited the compliance officer’s 

testimony and relied on the photographic evidence (and explicitly discredited the KMD 

employees’ testimony) to make the following findings:

KMD’s claim that the laborer was in the excavation for 15 seconds is rejected as 

contrary to the evidence. A time of less than 15 minutes is deemed more 

appropriate based on the compliance officer’s activity in first observing the laborer 

in the excavation, parking his car, gathering his equipment, walking to the 

excavation, and taking photographs . . . . The laborer did not exit the excavation 

until after the foreman became aware of the OSHA compliance officer’s presence. 

There is no showing that the foreman attempted to remove the laborer from the 

excavation prior to the compliance officer’s presence. Although the area was noisy, 

the compliance officer did not hear or observe the foreman “yelling” or use hand 

signals to gain the attention of the laborer prior to exiting the excavation. The 

photographs support the compliance officer’s testimony. The compliance officer’s 

 

6 Contrary to the laborer’s testimony, on review, KMD asserts that “the actual time interval was 

most likely substantially less than the fifteen minutes alleged by the Secretary, and quite possibly

the five minutes that it would take to right the fallen pipe.” (emphasis added.)
19

estimate of less than 15 minutes from the time he first observed the laborer while 

driving on Cobb Parkway is accepted . . . . During the 15 minutes, the foreman 

remained on the side of the excavation and knew the laborer was in the unprotected 

excavation.7

The judge also found that “the foreman in this case with twenty-one years of experience 

was the same person who permitted the laborer to remain in an unprotected excavation for 15 

minutes in order to complete the task.” And the judge discredited the excavator operator’s 

testimony that he did not see the laborer until he looked in the excavation and saw the foreman 

yelling for the laborer to get out: “[The excavator operator’s] claim that he did not see the laborer 

in the excavation is rejected. The photographs taken by OSHA show the excavator’s bucket filled 

with dirt passing in front of the laborer holding the PVC pipe or passing by him.” The judge 

therefore ruled that KMD had violated the cave-in protection standard. However, although the 

judge found that “[d]uring the 15 minutes the foreman remained on the side of the excavation and 

knew the laborer was in the unprotected excavation” and “[t]here is no showing that the foreman 

attempted to remove the laborer from the excavation prior to the compliance officer’s presence,” 

he found that the violation was not willful:

The events occurred too quickly for KMD to have the requisite heightened 

awareness to establish willfulness. The laborer entered the excavation on his own 

and was allowed to remain until OSHA initiated the inspection. The conduct by 

the foreman shows a lack of good judgment and an attempt to deal with the 

unexpected conduct of the laborer. But it fails to establish willfulness. . . . KMD’s 

good faith effort to comply is evident from its consistent use of trench boxes at the 

site and that the same boxes were still on site, properly sized and ready for reinsertion in only five minutes. The foreman’s apparent attempt to quickly finish 

the job is not sufficient to elevate KMD’s conduct to willful.

DISCUSSION

In my view, the photographic evidence directly contradicts the KMD employees’ version 

of events, wholly undermines their credibility, and renders their testimony implausible. The 

compliance officer’s testimony, on the other hand, is entirely consistent with the photographs and 

 

7 Elsewhere in his decision the judge explicitly rejected “KMD’s argument that the foreman was 

attempting to remove the laborer”: “The compliance officer heard and saw no evidence of such 

attempts . . . . His photographs and the amount of time the laborer was in the excavation support 

the compliance officer’s testimony.”
20

circumstances surrounding the violation. Therefore, as discussed below, I would find that the 

record supports the judge’s findings that the laborer worked in the unprotected excavation for 

several minutes and that the foreman knowingly failed to remove the laborer during that time. 

Based on this evidence, which I believe establishes the foreman’s heightened awareness of the 

standard’s requirements and the excavation’s violative condition, as well as his intentional 

disregard of the requirements of the standard, I would affirm the violation’s willful 

characterization. See Stark Excavating, Inc., 24 BNA OSHC 2215, 2227 (No. 09-0004, 2014) 

(consolidated), aff’d, 811 F.3d 922 (7th Cir. 2016) (excavation violation willful where supervisor 

allowed employee to work in an unprotected excavation with the knowledge that it violated the 

OSHA standard); MVM Contracting Corp., 23 BNA OSHC 1164, 1167-68 (No. 07-1350, 2010) 

(same); Fiore Constr. Co., 19 BNA OSHC 1408, 1409-10 (No. 99-1217, 2001) (same). 

1. Evaluation of Competing Testimony in Light of Photographic Evidence 

The credibility of a witness’s testimony can be determined by evaluating that testimony in 

light of other evidence in the record to which it can be compared, and by examining it for internal 

consistency and intuitive plausibility. See, e.g., Kulka Constr. Mgt. Corp., 15 BNA OSHC 1870, 

1874 (No. 88-1167, 1992) (crediting the compliance officer’s testimony over that of the 

employer’s on the basis that it was more consistent with the photographic evidence); see also 

Anderson v. Bessemer City, N.C., 470 U.S. 564, 575 (1985) (“[F]actors other than demeanor and 

inflection go into the decision whether or not to believe a witness. Documents or objective 

evidence may contradict the witness’s story; or the story itself may be so internally inconsistent or 

implausible on its face that a reasonable factfinder would not credit it.”). Although the judge made 

no demeanor-based credibility determinations,8 he evaluated the credibility of the compliance 

 

8 Throughout her separate opinion, my colleague appears to conflate the different types of 

credibility findings, and assume that the conflicting testimony here can only be resolved through 

a judge’s demeanor-based credibility findings. This, in my opinion, is a misreading of 

Commission precedent. In Sal Masonry Contractors, Inc., 15 BNA OSHC 1609, 1613 (No. 87-

2007, 1992), a decision to which my colleague cites, the Commission states that it was unable to 

resolve the conflicting testimony because “the judge failed to provide . . . credibility findings, and 

the record does not help . . . resolve the conflicts in the testimony” (emphasis added). Here, 

although the judge did not make demeanor-based credibility findings, he evaluated the evidence, 

including the testimony of the witnesses and the photographic evidence, and credited the 

Secretary’s evidence on the facts relevant to the characterization issue. This is a perfectly 

acceptable means of resolving conflicting evidence. 
21

officer and the KMD employees in light of the photographic evidence and credited the compliance 

officer.9 

I would agree with the judge that the series of photographs taken by the compliance officer 

as he approached the worksite directly contradicts the KMD employees’ testimony and confirms 

the compliance officer’s version of events. There are seven photographs that are directly relevant 

here.10 Of those, the first four photographs were taken as the compliance officer approached the 

worksite, before he made his presence known to the foreman and laborer. In order, the seven 

photographs show the following:

Ex. C-1. Taken while the compliance officer was still standing by his car, the 

foreman is holding a shovel and looking almost straight down into the 

excavation while standing at its edge; the excavator bucket is over the 

excavation. 

Ex. C-2. The foreman is standing in the same place and looking into the 

excavation while the excavator bucket is being lowered into the 

excavation. 

Ex. C-3. The photograph shows the legs of the foreman and the shovel in the 

same location, while the excavator bucket is fully inserted into the 

excavation. 

Ex. C-4. The photograph, taken once the compliance officer is standing at the 

edge of the excavation, shows the foreman’s legs and shovel in the 

same location as all the preceding photographs while the laborer holds 

the pipe and the excavator begins to dump dirt close to the bottom of 

the pipe. 

 

9 The judge, without explanation and without making a credibility determination, found that the 

foreman did not direct the laborer to enter the unprotected excavation—that the laborer had entered 

of his own accord. Although this finding is irrelevant to a determination of willfulness in this case 

(because, whether or not the foreman gave such an order, the foreman knowingly allowed the 

laborer to remain in the excavation for several minutes), it appears that the judge may have relied 

on it in rejecting the violation’s willful characterization. There is directly contradictory testimony 

on this point. The compliance officer testified that both the foreman and the laborer had told him 

that the foreman had ordered the laborer into the trench. In contrast, both employees testified that 

the laborer entered the excavation of his own volition. The judge explicitly discredited the 

laborer’s and the foreman’s testimony regarding every fact critical to a finding of willfulness. Yet, 

he apparently credited the testimony of the KMD employees and implicitly discredited the 

compliance officer’s testimony on this specific point. In light of the general lack of truthfulness 

of KMD’s witnesses, discussed below, and absent some objective reason to credit the KMD 

employees’ testimony on this point, I would reject this unsupported finding. 

10 In light of the significance of these seven photographs, I have attached them to my opinion in 

an Appendix.
22

Ex. C-5. The foreman is leaning over the edge of the excavation and extending 

his arm toward the pipe being held by the laborer, while dirt is 

continuing to be dumped from the excavator bucket. 

Ex. C-6. The laborer holding the pipe has turned toward the excavator operator, 

while the foreman continues to lean over the edge of the excavation. 

The compliance officer testified that at this point the foreman is trying 

to get the excavator operator to remove the bucket from the trench so 

that the laborer can reach the ladder to make his exit. 

Ex. C-7. The laborer still holds the pipe while watching the excavator bucket 

being removed. The foreman continues to look on.

The compliance officer’s testimony is internally consistent throughout and completely in accord 

with these photographs. That he stopped to inspect the worksite because he saw an individual 

inside the excavation while driving past is supported by the photographs showing the laborer inside 

the excavation when he arrived. His testimony that he observed the excavator backfilling the 

excavation while the laborer held the pipe and the foreman stood above watching is also plainly 

depicted in the photographs. When viewed in sequence, the photographs show that the excavator 

bucket was being lowered into the excavation and was in the process of dumping a load of dirt at 

the base of the pipe that the laborer was holding, all while the foreman stood directly above the 

laborer. In fact, the first photograph clearly shows that the excavator bucket is filled above the 

brim with dirt, while the seventh photograph shows that the bucket is partially empty. And the 

compliance officer’s testimony regarding the time that elapsed between his observations while 

driving past the worksite and his arrival at the edge of the excavation (which is explicitly credited 

by the judge) supports the conclusion that the laborer was inside the excavation for at least several 

minutes. 

On the other hand, the claims of the foreman and the excavator operator that, prior to the 

compliance officer’s arrival, they were attempting to get the laborer’s attention in order to get him 

out of the unprotected excavation, simply cannot be squared with the chain of events depicted in 

the photographs and confirmed by the compliance officer. Although the foreman testified that the 

first photograph shows him attempting to get the laborer’s attention, up until the fifth photograph—

taken just after the compliance officer made his presence known—none of the pictures depict the 

foreman, or any other employee for that matter, making gestures or motions that would suggest an 
23

attempt to remove the laborer.11 And the laborer’s testimony that he “ran down into the hole,” 

stood up the pipe, and exited the trench, all within 10 to 15 seconds, is demonstrably false.12

It is also undisputed that the foreman was standing in close proximity to the laborer while 

he was inside the unprotected excavation holding the pipe—the foreman admitted that he was only 

two or three feet back from the edge of the excavation and that the laborer was merely another 

three or four feet directly beneath the foreman in the excavation. Given their proximity the 

foreman’s claim that he never saw the laborer enter the excavation is not credible, even if he was 

looking towards the excavator. The photographs not only confirm this close proximity but show 

the laborer continuing to hold the pipe despite the foreman’s purported attempts to get his attention 

from just a few feet above.13 Indeed, after the compliance officer announced his presence, it took 

the foreman “[n]o more than a few seconds” to get his crew’s attention, stop the excavator, and 

 

11 The excavator operator testified that he had picked up a load of dirt from the spoil pile, turned 

the excavator back around toward the trench, and then spotted the laborer in the trench. He stated 

that the foreman “was waving his hands like he was looking at me, and then he was looking at 

Tyler, and it was just like he was trying to get his attention. He kept, you know, hollering at him, 

like ‘Tyler, Tyler.’ ” When asked about his own efforts to get the laborer’s attention, he gave two 

different responses. First, he said he really did not remember. “I don’t know if I [blew] the horn, 

the excavator got shut off, and then I was trying to get his attention or what.” On crossexamination, however, he stated that “[w]hen I turned back around, you know, I looked at him. 

Like I said, it looked like everybody was trying to get his attention, and then I’m like, ‘What are 

you doing?’ I don’t know if he ever heard me or not.” 

12 My colleague’s assertion that “[t]he foreman, laborer, and excavator operator each estimated the 

laborer was in the excavation for between fifteen and twenty seconds” does not appear to be 

accurate. It is true that the laborer estimated that he was in the trench for “10 to 15 seconds . . . 

maybe a little more.” However, the excavator operator testified that he did not see the laborer 

enter or exit the trench and did not know how long it took the foreman to get the laborer’s attention 

when attempting to remove him from the excavation. And his response that it would take him 

“15, 20 seconds” to turn his excavator from the front around to the place where he could not see 

what had been going on in front of him cannot be correlated with the time the laborer was, in fact, 

in the trench. Finally, it does not appear to me that the foreman gave any testimony related to the 

time the laborer was in the trench, and he also testified that he did not see the laborer enter it. As 

noted above at n. 8, before us KMD states that “quite possibly” the laborer was in the trench for 

five minutes.

13 It is instructive that once the laborer was in the unprotected excavation, holding the pipe upright, 

the foreman did not attempt to support the pipe with his shovel, as he had done before the pipe fell 

over. Instead, he opted to leave the laborer holding the pipe in the unprotected trench while the 

excavator dumped dirt around the base of the pipe.
24

remove the laborer from the excavation.14 Finally, in contradiction of the photographic evidence, 

the foreman expressly denied that the excavator operator dumped dirt at the base of the pipe while 

the laborer “was in the hole.” I would therefore credit the compliance officer’s account and agree 

with the judge that the laborer was in the excavation for at least several minutes and that neither 

the foreman nor the excavator operator attempted to remove him prior to becoming aware of the 

compliance officer’s presence. As I discuss below, in my view, these two findings require that the 

violation be characterized as willful.

2. The Violation’s Characterization

Although the judge found that the foreman failed to order the laborer to leave the 

unprotected trench for several minutes (resolving in the Secretary’s favor two key facts in dispute), 

he concluded that KMD’s violation was not willful. In so ruling, the judge—who devoted a mere 

three paragraphs of his opinion to discussing willfulness—reached conclusions that are contrary 

to his own findings of fact and misapplied the law. Based on my evaluation of the facts and 

application of the law to those facts, I would conclude that KMD’s actions were willful. 

“The hallmark of a willful violation is the employer’s state of mind at the time of the 

violation—an ‘intentional, knowing, or voluntary disregard for the requirements of the Act 

or . . . plain indifference to employee safety.’” Jim Boyd Constr., Inc., 26 BNA OSHC 1109, 1111 

(No. 11-2559, 2016) (quoting Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181 (No. 90-2775, 

2000) (citation omitted), aff’d, 268 F.3d 1123 (D.C. Cir. 2001)). “A willful violation is 

differentiated by heightened awareness of the illegality of the conduct or conditions and by a state 

of mind of conscious disregard or plain indifference.” Hern Iron Works, Inc., 16 BNA OSHC 

1206, 1214 (No. 89-433, 1993). To prove intentional disregard, the Secretary must show that the 

employer (1) had a heightened awareness of the “applicable standard or provision prohibiting the 

conduct or condition,” and (2) “consciously disregarded the standard.” Fluor Daniel v. OSHRC, 

295 F.3d 1232, 1239-40 (11th Cir. 2002) (quoting J.A.M. Builders, Inc. v. Herman, 233 F.3d 1350, 

1355 (11th Cir. 2000)). 

 

14 I note that KMD’s claim that the foreman attempted to remove the laborer from the excavation 

as soon as he realized the laborer was there is inconsistent with its concession on review that the 

foreman exercised “a momentary lapse of judgment,” as immediately removing the laborer is 

precisely what the foreman was required to do. See 29 C.F.R. § 1926.651(k)(2) (requiring 

competent person to remove exposed employees from hazardous areas of excavation when 

hazardous conditions observed).
25

a. Heightened Awareness of the Applicable Standard and the Violative Condition

The judge found that KMD did not possess heightened awareness because “[t]he record 

shows that the KMD crew was overtaken by a quick sequence of unexpected events that were 

neither planned nor in compliance with KMD’s written safety program . . . . The events occurred 

too quickly for KMD to have the requisite heightened awareness to establish willfulness”—

apparently positing that the foreman did not have time to absorb the fact that the laborer was in the 

illegal trench before the OSHA compliance officer arrived. I believe these characterizations distort 

the record evidence, are directly contrary to facts that the judge himself found, and misapply the 

law.

Heightened awareness can be shown through a supervisor’s testimony, a supervisor’s prior 

work experience, the employer’s safety requirements, and the employer’s previous violation of the 

same standard. Fluor Daniel, 295 F.3d at 1239-40 (finding heightened awareness of cited 

requirements established through, among other things, the testimony of the company’s safety 

officer); Altor, Inc., 23 BNA OSHC 1458, 1471 (No. 99-0958, 2011) (finding heightened 

awareness where employer previously had been cited for violation of standard and OSHA had 

previously discussed fall protection standards with employer) aff’d, 498 F. App’x 145 (3d Cir. 

2012) (unpublished); Fiore, 19 BNA OSHC at 1409 (finding heightened awareness of 

requirements of cave-in protection standard where foreman had 12 years’ excavation work 

experience, had completed 40-hour OSHA excavation training course, knew that OSHA standards 

required trench box, and had previously used trench box at same worksite); Conie Constr., Inc., 

16 BNA OSHC 1870, 1872 (No. 92-0264, 1994) (finding heightened awareness established 

through, among other things, the foreman’s testimony “that he had received specific training about 

the most recent OSHA regulations on excavations”) aff’d, 73 F.3d 1382 (D.C. Cir. 1995); Williams 

Enters. Inc., 13 BNA OSHC 1249, 1257 (No. 85-355, 1987) (finding heightened awareness based 

on the respondent’s “long familiarity” and experience with steel erection standards). 

In my view, the record plainly establishes KMD’s heightened awareness through the 

testimony, experience, and training of the foreman, as well as the requirements of the company’s 

safety manual and its extensive experience in the excavation business. First, the compliance officer 

testified without contradiction that the foreman had admitted to the compliance officer that he 
26

knew it was illegal for the laborer to work inside the unprotected excavation.15 Second, the 

foreman testified that he was trained in trench safety requirements at KMD, including training 

sufficient to qualify him as a competent person; attended safety meetings at KMD every week, 

several of which included discussion of trench safety as well as the need to use trench boxes; and 

knew that KMD’s safety manual required that employees be protected from cave-in hazards.16 

Significantly, he testified that he had used a trench box earlier in the day to install another PVC 

pipe. And he acknowledged knowing that the excavation here was composed of Type C soil with 

visible cracks.17 Third, he had 21 years of experience as a foreman, and 20 years of experience 

with KMD. Fourth, the fact that the foreman testified that he had been holding onto the pipe with 

his shovel from outside the excavation before it fell over supports the finding that he knew no one 

should enter the excavation. These facts irrefutably establish that KMD had a heightened 

awareness of the “applicable standard or provision prohibiting the conduct or condition.” Fluor 

Daniel, 295 F.3d at 1239-40; see Conie, 16 BNA OSHC at 1872 (imputing supervisor’s awareness 

to employer in finding willfulness); Hern, 16 BNA OSHC at 1214.

Yet the judge discussed none of these highly relevant facts in finding a lack of heightened 

awareness on KMD’s part, instead basing his finding on his unsupported agreement with KMD’s 

arguments that there was “a quick sequence of events” and that “the events took place too quickly” 

for there to be heightened awareness. Although it is certainly reasonable to conclude that the pipe 

dislodged from beneath the foreman’s shovel and fell over in the excavation “quickly,” the 

photographs, the compliance officer’s testimony, and the judge’s own findings establish that there 

 

15 KMD argues that the judge did not make a finding based on this undisputed testimony “very 

likely because the judge understood that the foreman never made such a statement.” However, at 

the hearing, the foreman explicitly acknowledged that, at the time of the inspection, he knew the 

trench was illegal. In fact, he testified that “I couldn’t believe [the laborer] was in the hole. It just 

shocked me that he was down there.” The whole import of his testimony was that, knowing the 

illegality of the excavation, he had been actively trying to remove the laborer.

16 KMD’s Safety and Health Manual paraphrases the provision of the excavation standard that 

KMD violated, and its “Safety Orientation Package,” in an obvious reference to 29 C.F.R. 

§ 1926.652, provides that “[n]o one shall enter a trench or excavation unless it is properly sloped, 

shielded or shored.”

17 Under the excavation standard, soils are categorized in a hierarchy of Stable Rock, Type A, Type 

B, and Type C, in decreasing order of stability. 29 C.F.R. pt. 1926, subpt. P, app. A(b). In addition, 

“[c]rack-like openings . . . could indicate fissured material” which can be an indication of 

potentially hazardous situations. Id. at app. A(d)(iii).
27

was nothing “quick” about the ensuing events. The foreman was not faced with an emergency that 

required split-second action. He merely needed to figure out a way to return the pipe to its upright 

position and support it there while the excavator backfilled around it without placing his laborer 

at risk. For these reasons, I would conclude that the judge erred in finding no heightened 

awareness. 

b. Conscious Disregard of the Requirements of the Standard

I am also of the view that the Secretary has established that KMD consciously disregarded 

the requirements of the cave-in standard and that the judge’s conclusion to the contrary is 

erroneous. An employer is found to have conscious disregard when, having knowledge of an 

OSHA requirement, it consciously and voluntarily chooses to violate it. Fluor Daniel, 295 F.3d 

at 1240; Reich v. Trinity Indus., Inc., 16 F.3d 1149, 1153 (11th Cir. 1994); W. Waterproofing Co. 

v. Marshall, 576 F.2d 139, 142-43 (8th Cir. 1978); Intercounty Constr. Co. v. OSHRC, 522 F.2d 

777, 779-80 (4th Cir. 1975); Kaspar, 18 BNA OSHC at 2181; Conie 16 BNA OSHC at 1872; Sal 

Masonry, 15 BNA OSHC at 1611. 

In his discussion of willfulness, the judge correctly found that the foreman knew that the 

laborer was in the unprotected trench for several minutes, yet chose not to take action until he 

learned of OSHA’s presence: “The laborer entered the excavation on his own and was allowed to 

remain until OSHA initiated the inspection.”18 (emphasis added.) Yet, in the very next sentence, 

the judge ruled that “[t]he conduct by the foreman shows a lack of good judgment and an attempt 

to deal with the unexpected conduct of the laborer. But it fails to establish willfulness.” Whether 

or not the foreman ordered the laborer into the excavation, his knowing failure to remove the 

laborer from the violative trench for several minutes is the epitome of “conscious disregard.” See 

Stark Excavating v. Perez, 811 F.3d 922, 928 (7th Cir. 2016) (finding conscious disregard where 

supervisor watched employee work in violative trench for 10 minutes). The judge also concluded 

that “[t]he foreman’s apparent attempt to quickly finish the job is not sufficient to elevate KMD’s 

conduct to willful.” On the contrary, it is precisely this kind of behavior that does elevate an 

employer’s conduct to willful. See Stark, 24 BNA OSHC at 2227 (foreman’s testimony that “he 

 

18 Elsewhere in his decision, the judge found that the foreman “permitted the laborer to remain in 

an unprotected trench for 15 minutes in order to complete a task” and “[d]uring the 15 minutes, 

the foreman remained on the side of the excavation and knew the laborer was in the unprotected 

excavation.”
28

was in a hurry and . . . just wanted to get the job done” supports finding that violation is willful); 

Stark Excavating v. Perez, 811 F.3d at 924 (violation willful given, among other factors, 

“[foreman’s] statement that he wanted to complete the project quickly”). It is impossible to square 

the judge’s well-supported findings regarding the foreman’s failure to remove the laborer from the 

violative trench over a period of several minutes with his determination that KMD did not 

consciously disregard the requirements of the standard. Therefore, I would reverse this finding.

c. Good Faith

Finally, the judge appears to rely on KMD’s “good faith” to support his re-characterization 

of the violation: 

KMD’s good faith effort to comply is evident from its consistent use of trench 

boxes at the site and that the same boxes were still on site, properly sized and ready 

for re-insertion in only five minutes. KMD has a good written safety program and 

attempts to regularly monitor each worksite. The same compliance officer was 

unable to find any safety problems at other KMD excavations.

There are several errors embedded in this statement. First, in cases involving conscious disregard 

of the requirements of a standard, “ ‘[t]he [employer’s] good faith effort’ must . . . have been made 

in an ‘effort to comply with the cited provision.’ ” Jim Boyd, 26 BNA OSHC at 1112 (quoting 

Calang Corp., 14 BNA OSHC 1789, 1793 (No. 85-319, 1990)); see Lanzo Constr. Co., 20 BNA 

OSHC 1641, 1648 (No. 97-1821, 2004) (“[A]n employer may defend against a showing of 

willfulness by producing evidence tending to show that it acted in good faith with respect to the 

requirements of the standard at issue.” (emphasis added)), aff’d, 150 F. App’x 983 (11th Cir. 2005) 

(unpublished). Here, KMD made no effort to comply with the cited standard; it merely made an 

effort “to quickly finish the job.” Second, the burden of proof for good faith effort is on the 

employer. N. Landing Line Constr. Co., 19 BNA OSHC 1465, 1476 (No. 96-0721, 2001) (citing 

Morrison-Knudsen Co., 16 BNA OSHC 1105, 1124 (No. 88-572, 1993)). There is simply no 

indication that the judge placed that burden on KMD, or, in my view, that KMD met it. Third, that 

the compliance officer found no other violations at KMD’s site is simply irrelevant to a 

determination of good faith effort. And fourth, that KMD had trench boxes on site, “ready for 

reinsertion,” weighs against KMD, as it chose not to use them. 

* * * * *

As the long-standing Commission and circuit court precedent set out above plainly 

demonstrates, there is nothing particularly unusual about this case. In my view, it presents typical 
29

evidence that supports an evident conclusion. Therefore, I would determine that the foreman 

allowed the laborer to remain in an unprotected excavation for several minutes and failed to 

remove him—despite fully understanding the requirements of the applicable standard, the 

excavation’s violative condition, and the cave-in risks posed to the laborer—so that the crew could 

finish the job quickly. His decision to consciously disregard a known OSHA requirement 

demonstrates a willful state of mind. And, as a supervisory employee, his knowledge and actions 

can be imputed to KMD. See Rawson Contractors, Inc., 20 BNA OSHC 1078, 1080 (No. 99-

0018, 2003); Branham Sign Co., 18 BNA OSHC 2132, 2134 (No. 98-752, 2000); Conie, 16 BNA 

OSHC at 1872; Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1539 (No. 86- 0360, 1992) 

(consolidated).

 For all of these reasons, I would find that the violation was properly characterized as 

willful and assess the $53,900 penalty proposed by the Secretary. 

/s/

Cynthia L. Attwood 

Dated: April 26, 2017 Commissioner
30

Appendix 

Photographic Exhibits for

Commissioner Attwood’s Separate Opinion
31
32
33
34
35
36
37
1

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, SW

Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant,

 v.

 OSHRC Docket No. 12-0643

K. M. Davis Contracting, Inc.,

 Respondent.

Appearances: Rolesia Butler Dancy, Esq., U. S. Department of Labor, Office of the Solicitor

Atlanta, Georgia

For the Complainant

Andrew N. Gross, Esq., HB Training and Consulting

Lawrenceville, Georgia

For Respondent

Before: Administrative Law Judge Ken S. Welsch

DECISION AND ORDER

K. M. Davis Contracting Inc. (KMD) is an underground utility contractor in Marietta, 

Georgia. On August 17, 2011, a KMD laborer was observed holding a PVC pipe upright for the 

placement of a GPS device in an unprotected excavation along U. S. Highway 41 (Cobb Parkway) 

when the Occupational Safety and Health Administration (OSHA) initiated an inspection. 

As a result of the OSHA inspection, KMD received a citation on January 18, 2012, alleging 

a willful violation of 29 C. F. R. § 1926.652(a)(1) for failing to shore or slope the walls of an 

excavation more than 5 feet in depth. The citation proposed a penalty of $53,900.00. KMD timely 

contested the citation. 

The hearing was held on June 14, 2012, in Atlanta, Georgia. At the hearing, the parties 

stipulated jurisdiction and coverage (Tr. 4). The parties filed post hearing briefs on August 31, 

2012.

KMD denies the alleged violation and willful classification. KMD claims unpreventable 

employee misconduct because the laborer unexpectedly entered the excavation and the foreman 

was attempting to remove him when OSHA initiated the inspection. 
2

As discussed more fully, KMD’s violation of § 1926.652(a)(1) is affirmed as serious and 

a penalty of $5,000.00 is assessed.

BACKGROUND

KMD is a family-owned business in Marietta, Georgia, engaged in installing underground 

utilities. KMD has been in business for 20 years. In August 2011, it employed approximately 35 

employees (Tr. 191, 199). 

The City of Marietta, Georgia, contracted KMD in 2011 to install 2,700 linear feet of 

replacement main water line and fire hydrants along Cobb Parkway (Tr. 66). The contract also 

required KMD to bury approximately twenty, 12-foot PVC pipes (risers) for the placement of GPS 

devices. The GPS device would locate pipe fittings on the main water line after the excavation 

was backfilled. The white PVC pipes were to be placed upright in the excavation with 

approximately 2 feet above the ground level (Tr. 112-113, 114, 158, 189). 

On August 17, 2011, at the corner of Allgood Road and Cobb Parkway, the crew had dug 

an irregular shaped excavation approximately 9 feet deep. The walls of the excavation were 

vertical on three sides and the excavation also contained existing sewer and gas lines (Exhs. C-8, 

C-9; Tr. 33, 35-36, 38). To install the new main water line, the KMD crew used two sizes of trench 

boxes. The crew consisted of the foreman, an excavator operator (competent person), and two 

laborers (Tr. 61, 109, 150-151, 155). 

By the afternoon, the crew had completed the installation of the main water line and the 

placement of one PVC pipe (Exh. C-5: Tr. 19, 70, 110). Another PVC pipe needed to be installed 

near the side of the excavation. To install this PVC pipe, the laborers exited the excavation and 

the trench boxes were removed. The foreman standing on the side of the excavation attempted to 

hold the PVC pipe upright with the head of a shovel while the excavator placed dirt around the 

pipe.1

 However, the pipe fell over in the excavation. When it fell, a laborer entered the excavation 

and began holding it upright (Exh. C-7; Tr. 29-30, 96, 122, 159).

As the OSHA compliance officer was driving along Cobb Parkway, he observed 

“somebody working in the excavation” (Tr. 12, 64). He parked his car and initiated the inspection. 

As he approached the excavation, the compliance officer observed the laborer holding the PVC 

 1 According to KMD, in wide trenches, the PVC pipes were installed with the employees holding the pipe inside a 

trench box until it was secured by backfill. For narrow trenches, or where the pipe was to be placed near the side, an 

employee standing on the side of the excavation would hold the pipe upright with their hands or by the head of a 

shovel (Tr. 113, 156).
3

pipe upright and the excavator moving a bucket of dirt in front of him (Exh. C-6; Tr. 17). The 

foreman was standing at the side of the excavation above the laborer. The other laborer was also 

standing on the side of the excavation, near the ladder (Tr. 15-16, 19, 21) 

After introducing himself, the compliance officer observed the laborer ordered out of the 

excavation by the foreman and the excavator shut down (Tr. 23). According to the compliance 

officer, the foreman acknowledged that the excavation was “an illegal hole” (Tr. 22). He told the 

compliance officer that he knew it was necessary to use a trench box (Tr. 30). He had not put it 

back into the excavation because the job would take a short time – “five or ten minutes” 

(Tr. 42-43). 

The compliance officer measured the excavation where he observed the laborer to be 

91⁄2 feet deep and 17 feet wide (Exhs. C-8, C-10; Tr. 34). The excavation was 7 feet deep where 

the ladder was located. The compliance officer observed cracks in the wall of the excavation near 

where the laborer was holding the pipe (Tr. 34, 48). He also noted that vibration from the nearby 

traffic and the location of existing utilities lines could affect its stability (Tr. 38). He classified the 

soil as Type C. 

As a result of the OSHA inspection, KMD received a willful citation for violation of 

§ 1926.652(a)(1) because of the lack of a cave-in protection system. KMD issued written safety 

citations to the laborer and foreman for their conduct on August 17, 2011 (Exh. R-5). 

DISCUSSION

The Secretary of Labor has the burden of proving, by a preponderance of the evidence, an 

employer’s violation of a safety standard such as § 1926.652(a)(1). The Secretary must show: (a) 

the applicability of the cited standard, (b) the employer’s noncompliance with the standard’s terms, 

(c) employees access to the violative conditions, and (d) the employer’s actual or constructive 

knowledge of the condition. Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 

1994).

KMD claims the foreman was unaware the laborer had entered the excavation and was 

attempting to get him out as the OSHA compliance officer arrived on site. The laborer testified 

that no one directed him into the excavation (Tr. 80). KMD argues that the noise level from the 

excavator and highway traffic was so high that communication was difficult. It maintains that the 

total time the laborer was in the excavation was less than fifteen seconds (Tr. 81, 91, 99, 161).
4

According to the Secretary, the foreman told the OSHA compliance officer that he 

instructed the laborer into the excavation because there was no other way to retrieve the fallen 

PVC pipe. The compliance officer estimated that the laborer was in the excavation for 

approximately 15 minutes and throughout that time, the foreman was standing on the side of the 

excavation watching the laborer hold the pipe and directing the work (Exh. C-5: Tr. 30, 69, 94-95, 

101-102).

Alleged Violation of § 1926.652(a)(1)

The citation alleges that on “Cobb Parkway, Marietta, GA – The employee working in the 

excavation at a depth of 9 feet was not protected from potential wall collapses or cave-ins by the 

use of a protective system.”

Section 1926.652(a)(1) provides:

Each employee in an excavation shall be protected from cave-in 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. 

There is no dispute the Excavations standards at Subpart P, § 1926.650 et seq., applied to 

KMD’s excavation on Cobb Parkway on August 17, 2011. KMD does not dispute that the 

excavation was dug in Type C soil and exceeded 5 feet in depth. The excavation was in previously 

disturbed soil as evident by the existing sewer and gas lines (Exh. C-6; Tr. 38). It was 9 feet in 

depth and not in stable rock. The photographs establish that at the time the laborer entered the 

excavation to hold the PVC pipe, it lacked any cave-in protection system such as a trench box or 

other shoring and the walls were not slopped (Exh. C-4; Tr. 36). 

Thus, the Secretary has met her burden of proof with regard to the application of the 

standard, KMD’s failure to comply with the terms of § 1926.652(a)(1), and the laborer’s exposure 

to a 9-foot deep, unprotected, excavation without shoring or sloping.

The issue in dispute to establish a violation of § 1926.652(a)(1) is whether KMD had the 

requisite knowledge of the violative condition. 

KMD’s Knowledge

KMD argues that the events on August 17 transpired too quickly to support either KMD’s 

actual or constructive knowledge. The laborer entered the excavation on his own and exited 
5

immediately upon recognizing his mistake. According to KMD, he was only in the excavation a 

matter of seconds (KMD Brief, p. 9). 

In order to establish an employer’s knowledge of a violation, the Secretary must show the 

employer knew, or with the exercise of reasonable diligence could have known of a hazardous 

condition. Dun-Par Engineered Form Co., 12 BNA OSHC 1962, 1965-66 (No. 82-928, 1986). A 

supervisor’s actual or constructive knowledge of a hazardous condition may be imputed to the 

employer. Superior Electric Co., 17 BNA OSHC 1635, 1637 (No. 91-1597, 1996). A condition 

which is plainly visible to a supervisor is sufficient knowledge chargeable to the employer. A.L. 

Baumgartner Construction Inc., 16 BNA OSHC 1995, 1998 (No 92-1022, 1994). 

KMD’s foreman was present at the excavation and supervised the laborer’s work. He was 

standing on the side of the excavation immediately above the laborer holding the PVC pipe (Tr. 

94-95). Although there is an issue as to whether the laborer was instructed to enter the excavation, 

there is no dispute that the foreman knew the laborer was in the excavation by the time OSHA 

arrived on site. The photographs taken by OSHA show the foreman looking into the excavation 

where the laborer was holding the pipe (Exhs. C-2, C-3). The foreman as a supervisor, who 

directed the work of the crew, was responsible for the laborer’s safety (Exh. R-2). A supervisor's 

knowledge of the violative conditions and his own actions or inactions is imputed to his employer. 

Pride Oil Well Serv., 15 BNA OSHC 1809, 1814(No. 87-692, 1992). The foreman’s knowledge 

in this case is imputed to KMD.

KMD’s argument that the laborer was in the excavation for only a brief time before exiting, 

is immaterial to a finding of a violation. The Review Commission has repeatedly held that 

although an employee’s exposure to a hazardous condition may have been comparatively brief, 

such exposure is still sufficient to support the finding of a violation. Walker Towing Corp., 14 

BNA OSHC 2072, 2075 (No. 87-1359, 1991) (brief exposures involved in passing or standing near 

an open edge constitutes access); Whiting-Turner Contracting Co., 13 BNA OSHC 2155, 2156 

(No. 87-1238, 1989) (although the risk of falling was not great, the consequences of a fall was 

significant, justifying a serious violation). A brief exposure to a hazardous condition does not 

negate a violation or its seriousness. Flint Engineering & Construction Co., 15 BNA OSHC 2052, 

2056 (No. 90-2873, 1992).

KMD’s claim that the laborer was in the excavation for 15 seconds is rejected as contrary 

to the evidence. A time of less than 15 minutes is deemed more appropriate based on the 
6

compliance officer’s activity in first observing the laborer in the excavation, parking his car, 

gathering his equipment, walking to the excavation, and taking photographs (Exh. R-1). The 

laborer did not exit the excavation until after the foreman became aware of the OSHA compliance 

officer’s presence. There is no showing that the foreman attempted to remove the laborer from 

the excavation prior to the compliance officer’s presence. Although the area was noisy, the 

compliance officer did not hear or observe the foreman “yelling” or use hand signals to gain the 

attention of the laborer prior to exiting the excavation (Tr. 21-22). The photographs support the 

compliance officer’s testimony. The compliance officer’s estimate of less than 15 minutes from 

the time he first observed the laborer while driving on Cobb Parkway is accepted (Tr. 69). During 

the 15 minutes, the foreman remained on the side of the excavation and knew the laborer was in 

the unprotected excavation. 

KMD’s violation of § 1926.652(a)(1) is established unless it can show unpreventable 

employee misconduct. 

Unpreventable Employee Misconduct

KMD asserts that the laborer who entered the excavation violated its work rules and was 

engaged in unpreventable employee misconduct. KMD claims the laborer entered the excavation 

on “his own volition” when he saw the PVC pipe fall and realized that he made a mistake when he 

exited the excavation (Tr. 6). KMD does not assert unpreventable misconduct on the part of the 

foreman. 

In order to establish the affirmative defense of unpreventable employee misconduct, an 

employer must show that it has (1) established work rules designed to prevent the violation, (2) 

adequately communicated these rules to its employees, (3) taken steps to discover violations, and 

(4) effectively enforced the rules when violations are discovered. American Sterilizer Co., 18 

BNA OSHC 1082, 1087 (No. 91-2494, 1997). 

The Secretary does not dispute that KMD has adequate written safety policies and rules 

requiring a protective system before employees enter an excavation (Secretary’s Brief, p. 14). The 

company’s Safety and Health Manual provides that “each employee in an excavation shall be 

protected from cave-ins by an adequate protective system” (Exh. R-2, p 2.4). KMD’s rule was 

designed to prevent the cited condition. 

With regard to KMD’s communication of its safety rules, the record shows that the laborer 

received training and testing by KDM as part of its safety program (Exh. R-6; Tr. 86). He had 
7

worked for KMD for more than three years (Tr. 75). KMD offered evidence of regular weekly 

safety meetings where the laborer was present (Exh. R-7; Tr. 164).2 On January 12, 2008, the 

laborer was given a test showing he understood the information regarding in part the need for a 

cave-in protection system (Exh. R-3; Tr. 77). The laborer even won a company safety award in 

2010 for demonstrating “safety awareness and follows the company’s safety policy” (Exh. R-4). 

However, as noted by the Secretary, no tests, orientation packages or other records were 

shown for the other three employees at the excavation site. Also, the sign-in sheets for the safety 

meetings fail to provide any detail regarding the specific information discussed, the length of the 

meeting, or who provided the training (Tr. 173). The sign-in sheets state only “trench safety” or 

“trench box safety.” Although the record shows that the employees received training on general 

safety matters and procedures, the evidence is insufficient to establish that the specific rule to avoid 

entering excavations without cave-in protection was communicated to the employees. Propellex 

Corp., 18 BNA OSHC 1677, 1682 (No. 96-0265, 1999).

As to the reasonable steps to discover violations, KMD’s safety officer purportedly visits 

each work crew weekly and conducts safety meetings. He checks work sites for safety and 

completes safety worksheets. Other company officers also inspect sites for safety with someone 

visiting every site at least once every workday (Tr. 192, 196-197).

The worksheets allegedly prepared by the safety officer during his site inspections were 

not made part of the record. Although foremen are part of KMD’s monitoring program, the 

foreman in this case with twenty-one years of experience was the same person who permitted the 

laborer to remain in an unprotected excavation for 15 minutes in order to complete the task. The 

lack of good judgment by a supervisor such as a foreman raises an inference of a lax safety 

program. Daniel Construction Co., 10 BNA OSHC 1549, 1552 (No. 16265, 1982). KMD’s 

argument that the foreman was attempting to remove the laborer is rejected. The compliance 

officer heard and saw no evidence of such attempts (Tr. 21-22). His photographs and the amount 

of time the laborer was in the excavation support the compliance officer’s testimony. 

KMD’s enforcement of safety rules is not supported by the record. KMD introduced recent 

discipline records involving violations of safety rules (Exh. R-9). Both the foreman and laborer 

received written safety citations as a result of the August 17, 2011, incident. The laborer was cited 

 2 Exhibit R-8, which also contains sign-in sheets, is not given weight because the meetings occurred after the OSHA 

inspection on August 17, 2011.
8

by KMD for entering a “ditch 10’ without box.” The foreman was cited for not stopping a “man 

from jumping into ditch to line up pipe on operator to fire hydrant” (Exh. R-5; Tr. 172). 

Despite receiving the written citation, the foreman testified that he did not understand the 

write-up (Tr. 187). The company’s safety manual provides that a written warning is supposed to 

be “followed by an explanation and/or training” (Exh. R-2, p. 16). There is no showing the 

foreman received such explanation and/or training. The foreman could not recall when he received 

the warning (Tr. 172). The laborer also could not recall when he received the warning. He did 

not lose any money as a result of the citation and it was the only safety warning he had ever 

received (Tr. 102). The other two employees on site did not receive any warnings although they 

were present and watched the unsafe conduct without apparent objection. 

Where multiple employees participate in or witness an activity that violates a work rule, 

“the unanimity of such noncomplying conduct suggests ineffective enforcement of the work rule.” 

GEM Industry, Inc., 17 BNA OSHC 1861, 1865 (No. 93-1122, 1996). There was one employee 

in the excavation and at least three employees outside the excavation including the foreman who 

were watching the laborer. All employees on site were purportedly aware of KMD’s work rule 

against working in an unprotected excavation, yet none of them assured compliance with the rule. 

Prior to the OSHA inspection, it is noted that most of the written safety warnings involved hard 

hats, safety vests and glasses (Exh. R-9).

The excavator operator (competent person) testified that he has worked for KMD for more 

than ten years and has never been disciplined by KMD. He was not familiar with other employees 

receiving discipline. He was not disciplined for the August 19 activity although the excavator was 

operating while the laborer was in the excavation (Tr. 138-139). His claim that he did not see the 

laborer in the excavation is rejected. The photographs taken by OSHA show the excavator’s 

bucket filled with dirt directly in front of the laborer holding the PVC pipe or passing by him 

(Exhs. C-6, C-7; Tr. 93). 

The foreman, who has worked for KMD for more than 20 years, also had no recollection 

of any prior discipline or of disciplining other employees. The foreman described a more informal 

system of verbal communications on how to perform tasks correctly (Tr. 187-188). There is no 

evidence of the foreman’s safety training and instruction. KMD’s monitoring results of the 

foreman’s safety practices on other projects were not submitted into the record. 
9

In the Archer-Western Contractors Ltd., 15 BNA OSHC 1013, 1017 (No. 87-1067, 1991), 

the Review Commission noted that “where a supervisory employee is involved, the proof of 

unpreventable employee misconduct is more rigorous and the defense is more difficult to establish 

since it is the supervisor’s duty to protect the safety of employees under his supervision . . . . A 

supervisor’s involvement in the misconduct is strong evidence that the employer’s safety program 

was lax.” Id. at 1017.

KMD’s claim of unpreventable employee misconduct is not established.

Willful Classification

KMD’s violation of § 1926.652(a)(1) was classified by OSHA as “willful.” “It is well 

settled that a willful violation is one committed with intentional, knowing or voluntary disregard 

for the requirements of the Act, or with plain indifference to employee safety.” Continental Roof 

Systems, Inc., 18 BNA OSHC 1070, 1071 (No. 95-1716, 1997). A willful violation is 

differentiated by an employer’s heightened awareness of the illegality of the conduct or conditions 

and by a state of conscious disregard or plain indifference when the employer committed the 

violation. Hern Iron Works, Inc., 16 BNA OSHC 1206, 1214 (No. 89-433, 1993). 

The record shows that the KMD crew was overtaken by a quick sequence of unexpected 

events that were neither planned nor in compliance with KMD’s written safety program. The 

experienced crew had used trench boxes earlier to perform its work in the excavation. At another 

KMD trench site approximately 150 yards from the excavation at issue, the OSHA compliance 

officer found no safety problems (Tr. 56-57). The events occurred too quickly for KMD to have 

the requisite heightened awareness to establish willfulness. The laborer entered the excavation on 

his own and was allowed to remain until OSHA initiated the inspection. The conduct by the 

foreman shows a lack of good judgment and an attempt to deal with the unexpected conduct of the 

laborer. But it fails to establish willfulness. There were a variety of other options available to 

retrieve the fallen pipe instead of allowing the laborer to remain in an unprotected excavation. 

KMD claims that the excavator could have picked up the fallen PVC pipe and put it back in place 

within five minutes. The trench boxes could also have been reinserted which would have taken 

five minutes (Tr. 116, 118).

KMD’s good faith effort to comply is evident from its consistent use of trench boxes at the 

site and that the same boxes were still on site, properly sized and ready for re-insertion in only five 

minutes. The foreman’s apparent attempt to quickly finish the job is not sufficient to elevate 
10

KMD’s conduct to willful. KMD has a good written safety program and attempts to regularly 

monitor each worksite. The same compliance officer was unable to find any safety problems at 

other KMD excavations.

KMD’s violation of § 1926.652(a)(1) is reclassified as serious. 

Penalty Assessment

Section 17(j) of the Act requires the Commission to give due consideration to four criteria 

when assessing penalties: (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). The gravity of the violation is given primary consideration. 

KMD employed approximately 35 employees at the time of the OSHA inspection (Tr. 48). 

KMD is not entitled to credit for history because of a serious citation within the past three years. 

It is entitled to credit for good faith because it has a good written safety program. The company 

safety training program and its communication to employees also appears adequate. 

A penalty of $5,000.00 is deemed reasonable for KMD’s serious violation of 

§ 1926.652(a)(1). The excavation was 9 feet in depth and dug in Type C soil. One employee was 

exposed to the unprotected excavation. His exposure was brief and resolved quickly.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This decision constitutes the findings of fact and conclusions of law in accordance with 

Rule 52(a) of the Federal Rules of Civil Procedure.
11

ORDER

Based on the foregoing decision, it is ORDERED that:

1. A willful violation of 29 C. F. R. § 1926.652(a)(1) is affirmed as serious and a penalty 

of $5,000.00 is assessed.

/s/ Ken S. Welsch

Ken S. Welsch

Judge

Date: December 11, 2012

Atlanta, Georgia