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. 17-0274

SPEEDY ROOTER/CAPITAL PLUMBING, 

INC., 

 Respondent.

 

APPEARANCES: 

Matthew R. Epstein, Esquire, 

U.S. Department of Labor, Office of the Solicitor

Philadelphia, Pennsylvania 

 For the Secretary

Richard H. Mylin, III, Esquire, 

 York, Pennsylvania 

 For the Respondent 

BEFORE: Keith E. Bell

 Administrative Law Judge

DECISION AND ORDER

On October 5, 2016, Occupational Safety and Health Administration (OSHA)

Compliance Officer (CO) Elaine Dailey responded to a complaint of an employee working in an 

unprotected trench at a residence at 1735 East Canal Road, Dover, Pennsylvania (worksite or 

Canal Road worksite). Speedy Rooter/Capital Plumbing, Inc. (Speedy Rooter or Respondent) 

had excavated a trench and was replacing a lateral sewer line at the worksite. 
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On January 13, 2017, OSHA issued a Citation and Notification of Penalty (citation) to 

Speedy Rooter with one willful and three serious violations of OSHA’s construction standard for

a total proposed penalty of $29,394. The citation alleged Respondent had not trained its 

employees on cave-in hazards, had not kept materials at least two feet from the edge of the

trench, had not inspected the trench, and had not provided an adequate cave-in protection system 

in the trench. 

Respondent filed a timely notice of contest, bringing this matter before the Occupational 

Safety and Health Review Commission (Commission) pursuant to section 10(c) of the 

Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c) (Act). 

A one-day hearing was held in Philadelphia, Pennsylvania on June 13, 2018. Four 

witnesses provided testimony: OSHA Compliance Officer, Elaine Daily; William Fishel (owner 

of the residence at the worksite); Austin Bryant (worker at the Canal Road worksite); and Andrea 

Crone (owner and manager of Speedy Rooter). Both parties submitted post-hearing briefs. 

STIPULATIONS

The parties agreed to and stipulated the following facts. 

1. Respondent was hired to repair a sewer line at 1735 E. Canal Road, Dover, Pennsylvania 

(the “worksite”), in September 2016. Successive service calls resulted in Respondent 

who hired Jerry Ricketts and Austin Bryant to replace the entire sewer line from the 

home at that property to the sewer main on Canal Road. (Tr. 261). 

2. Andrea Crone is the sole owner of Respondent and is a licensed plumber. She hired Jerry 

Ricketts and Austin Bryant to perform work at the worksite. Ms. Crone obtained permits 

and One-Call documentation for the worksite. (Tr. 261). 

3. Andrea Crone or Respondent owned the excavator used at the worksite which was used 

by Jerry Ricketts who had signed an equipment use agreement. (Tr. 261). 

4. The plywood and 2x4s installed in a trench and photographed by CSHO Dailey were not 

an OSHA approved shoring system and not intended as such. (Tr. 261-62). 

 The primary dispute is whether the individuals working at the Canal Road worksite, Mr. 

Ricketts and Mr. Bryant, were employees of Speedy Rooter. Respondent asserts that because 

Mr. Ricketts and Mr. Bryant were independent subcontractors the citations against Speedy 
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Rooter must be vacated.1 Respondent presented minimal assertions to refute the Secretary’s 

allegations that the four cited OSHA standards had been violated. 

For the following reasons, I find Mr. Ricketts and Mr. Bryant were employees of Speedy 

Rooter, the citations are affirmed and a penalty of $29,394 is assessed.2

JURISDICTION

Based upon the record, I find that at all relevant times Speedy Rooter was engaged in a 

business affecting commerce and was an employer within the meaning of sections 3(3) and 3(5) 

of the Act. I find that the Commission has jurisdiction over the parties and subject matter in this 

case.3 (Tr. 259-60). 

FACTS

The Company and the project

At the time of the hearing, Speedy Rooter had been in business for 14 years and 

performed interior and exterior plumbing work, including repair and replacement of sewer lines. 

(Tr. 24, 244). Speedy Rooter was solely owned and managed by Andrea Crone, a licensed 

plumber. (Tr. 242, 261). 

The project at the Canal Road worksite started a few weeks before the OSHA inspection. 

The Fishels hired Speedy Rooter to repair a clogged sewer line. (Tr. 30, 59, 79). Mrs. Fishel 

called Speedy Rooter and spoke to Andrea Crone. (Tr. 78-79, 232). Ms. Crone sent Jerry 

Ricketts and Austin Bryant4

 to the Fishel home on two consecutive days to clear the line. (Tr. 

59-60, 261). When the clog reoccurred the third day, Mr. Ricketts told Mr. Fishel that the house 

1

 Respondent asserted the affirmative defense of employee misconduct. (Tr. 260). However, this 

defense was not pursued during the hearing or in the post-hearing brief. The defense is deemed 

abandoned. See Georgia-Pacific Corp., 15 BNA OSHC 1127, 1130 (No. 89-2713, 1991).

2

 The following facts and analysis are based upon facts found to be credible and supported by the 

totality of the evidence. As a general note, I find the majority of Ms. Crone’s testimony and assertions to 

be self-serving in nature and unsupported. 

3 The parties agreed and stipulated that Respondent was an employer engaged in business affecting 

commerce and that the Commission has jurisdiction over the matter. (Tr. 259-60). 

4 Mr. Ricketts was interviewed by CO Dailey on October 13, 2016, eight days after the inspection 

was opened. (Ex. CX-14A). His statement in response to the CO’s interview questions was documented

and then read back to Mr. Ricketts. (Tr. 134-35). Mr. Ricketts signed the written statement in the 

presence of the CO. Id. Mr. Ricketts did not testify and could not be found for service of the subpoena to 

appear at the hearing. (Tr. 133-34). 
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sewer trap, which was underground and located seven to eight feet from the house, needed to be 

replaced. (Tr. 35, 60). 

Ms. Crone contacted Pennsylvania’s One-Call5 service with a request to have the 

underground utilities marked before digging out the sewer trap. (Tr. 174, 246, 261; CX-13). Ms. 

Crone informed One-Call that the excavation would be about 4x8 feet wide and 5 to 6 feet deep. 

(CX-13). Ms. Crone assigned Jerry Ricketts and Austin Bryant to replace the sewer trap and 

delivered the backhoe owned by Speedy Rooter to the Canal Road worksite. (Tr. 179-80, 261; 

CX-14C). 

On September 18, 2016, Mr. Bryant and Mr. Ricketts used the excavator to dig a hole 

that was approximately six feet deep. (Tr. 35, 60-61, 63-64; CX-13). Mr. Ricketts was in the 

excavation about 10 minutes to replace the trap. (Tr. 247). Mr. Fishel saw that “mostly” Mr. 

Ricketts worked inside the excavation. (Tr. 64). No cave-in protection was used. (Tr. 38). 

Replacing the sewer trap did not fix the problem. (Tr. 64-65). A week later, Ms. Crone 

sent Mr. Ricketts and Mr. Bryant back to the Canal Road worksite where they determined the 

cast iron sewer lateral from the house to the Dover Borough’s main line needed to be replaced. 

(Tr. 65, 240-41, 247). Mr. Bryant was then assigned to a service call at another location, so Mr. 

Ricketts did most of the work for the sewer lateral excavation. (Tr. 39, 65). The trench was 

open for two days when work was interrupted by a four-day rainstorm. (Tr. 66, 248; CX-14A). 

Ms. Crone visited the worksite during the rainstorm to check on the trench. (Tr. 186, 235). Ms. 

Crone visited the Canal Road worksite three times during the project. (Tr. 186-87, 235). 

Mr. Ricketts used the backhoe to dig the rest of the fifty-foot trench on October 3 and 4, 

2016. (Tr. 65, 248-49; CX-9, CX-14A). Mr. Ricketts estimated the trench was about 61⁄2 feet 

deep from the top of the sewer pipe. (Tr. 248; CX-14A). The excavated soil was piled along the 

edge of the trench. (Tr. 97; CX-9 p. 0048, CX-11A, CX-11B). Mr. Ricketts used a shovel to 

even out the trench floor so the pipe could be installed at the correct elevation. (Tr. 69). Gravel 

for the trench floor was delivered on October 4, 2016. (Tr. 166, 242). 

Mr. Fishel observed Mr. Ricketts working in the trench below the spoil pile. (Tr. 81-82; 

CX-11A). Mr. Fishel saw that the trench was over six feet deep because it was over Mr. 

Ricketts’ head.6

 (Tr. 81-82). After the old pipe was removed, 10-foot sections of new pipe were 

5

 One-Call is the Pennsylvania Underground Utility Line Protection Request service. (CX-13). 

6

 Fishel was six feet tall and saw eye-to-eye with Mr. Ricketts. (Tr. 81-82). 
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connected and then lowered into the trench by Mr. Ricketts and Mr. Bryant. (Tr. 248-49; CX14A). 

On October 5, 2016, the main sewer line was damaged during Speedy Rooter’s work. As 

a result, the Dover Borough issued an order for Speedy Rooter to cease work on the project. (Tr. 

68, 252). When the cease work order was eventually lifted, Mr. Fishel did not allow Speedy 

Rooter to complete the project. (Tr. 209). 

The Inspection 

On October 5, 2016, CO Dailey was assigned to investigate a complaint of an employee 

working in an unprotected trench at the Fishel residence (Canal Road worksite). (Tr. 96). CO 

Dailey arrived at the worksite that afternoon. (Tr. 96; CX-10, p. 2).7 The CO immediately saw, 

next to a long trench, a posted notice from the Dover Borough to “cease work until further 

notice” (cease work order). (Tr. 97; CX-11A). The Borough shut down the worksite that 

morning after the city’s main line was damaged. (Tr. 84; CX-10, p. 2). 

No one was working at Canal Road worksite when the CO arrived. After observing the 

open trench, CO Dailey identified herself to Mr. Fishel. They discussed the open trench and the 

work that occurred at the worksite. (Tr. 106). Mr. Fishel told her that he hired Speedy Rooter 

about three weeks earlier to fix a clogged sewer line. (Tr. 59, 249; CX-13). Mr. Fishel believed 

the project took so long because Mr. Ricketts and Mr. Bryant had been reassigned to other work

sites during the project. (Tr. 65).

CO Dailey photographed the open trench and the pile of excavated soil alongside it. (Tr. 

99-105). The trench was approximately 2 feet wide by 50 feet long. (Tr. 115-16, 143, 248; CX9, pp. 0045-0047). The trench walls were vertical. (Tr. 108; CX-11A, CX-11B). The CO saw 

the new sewer pipe resting on fresh gravel at the bottom of the trench. (Tr. 166; CX-9, p. 0044). 

CO Dailey collected a soil sample and observed that the soil type in the trench was “previously 

disturbed” because it was in the same location as the pre-existing sewer line. (Tr. 111-12). An 

excavator, ladder, sump pump, and shovels were near the trench. (Tr. 117). 

In the area of the trench where the new pipe connected to the old pipe, a plywood sheet 

had been placed on each side of the trench, connected by perpendicular 2x4s. (Tr. 108-111, 113-

14; CX-9, p. 0046; CX-11B). The plywood configuration was not designed to be a shoring 

7 Record exhibits will be referenced as RX for Respondent, CX for Secretary, and JX for joint 

exhibits.
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system to prevent cave-ins; it had been placed in the trench after Mr. Fishel expressed concern 

that something was needed to hold the soil when someone worked in the trench. (Tr. 68, 113-14, 

261-62). 

CO Dailey measured the depth of the trench at four places around the pipe connection. 

(Tr. 110-11, 115-16; CX-9, pp. 0045-0046, CX-10). The first depth measurement was 4 feet 2 

inches, the second was 4 feet 7 inches, the third was 5 feet 8 inches, and the fourth was 6 feet 8 

inches. (Tr. 110, 115-16; CX-9, pp. 0045-0046, CX-10). The spoil pile extended along the 50-

foot length of the trench. (Tr. 97; CX-9 p. 0048, CX-11A, CX-11B). CO Dailey measured the 

spoil pile as six feet high by eight feet wide. (Tr. 97, 100, 143; CX-7, CX-11B). The spoil pile 

was less than two feet from the edge of the trench. (Tr. 108, 139; CX-9, p. 0048). 

The CO testified that during the investigative interview, Ms. Crone admitted the trench

was deeper than five feet and that she knew that shoring was required for a trench over five feet 

in depth. (Tr. 123, 183). Further, when the CO provided OSHA’s definition of a competent 

person, Ms. Crone admitted the trench had not been inspected by a competent person. (Tr. 124). 

DISCUSSION

Ricketts and Bryant were employees of Speedy Rooter 

 Respondent asserts that Mr. Ricketts and Mr. Bryant were not employees. Respondent 

argues that Mr. Ricketts and Mr. Bryant were paid as independent subcontractors and that it did 

not control the worksite. (R. Br. 7, 9). As discussed below, these arguments are rejected as 

unsupported by the evidence. For the following reasons, I find Mr. Ricketts and Mr. Bryant were 

employees of Speedy Rooter under the Act. 

Darden Analysis

“[T]he Secretary has the burden of proving [the] cited respondent is the employer of the 

affected workers at the site.” All Star Realty Co., Inc., 24 BNA OSHC 1356, 1358 (No. 12-1597, 

2014) (citation omitted). The Act defines an employee as “an employee of an employer who is 

employed in a business of his employer which affects commerce.” 29 U.S.C. § 652(3).8

The Supreme Court has relied on the common law for guidance to determine whether an 

individual is an employee, or alternatively, the kind of person the common law would consider 

8

 The Act defines an employer as a “person engaged in a business affecting commerce who has 

employees.” 29 U.S.C. § 652(5). Person means “one or more individuals, partnerships, associations, 

corporations, business trusts, legal representatives, or any organized group of persons.” 29 U.S.C. 

§ 652(4). 
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an employee, in similarly worded statutes. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 

318, 322-23 (1992) (Darden). The Commission applies the Darden factors to determine if an 

individual is an employee of the cited employer. Sharon & Walter Constr., Inc., 23 BNA OSHC 

1286, 1289 (No. 00-1402, 2010) (S&W). 

The common-law agency doctrine set forth in Darden focuses on the company’s “right to 

control the manner and means by which the product” is accomplished. S&W, 23 BNA OSHC at 

1289 (citation omitted). The company’s control over the worker is a “principal guidepost” to 

determine the existence of an employment relationship. Froedtert Mem'l Lutheran Hosp., Inc., 

20 BNA OSHC 1500, 1506 (No. 97-1839, 2004) (citations omitted). Additional factors relevant

to the analysis include: 

the skill required [for the job]; the source of the instrumentalities and tools; the 

location of the work; the duration of the relationship between the parties; whether 

the hiring party has the right to assign additional projects to the hired party; the 

extent of the hired party's discretion over when and how long to work; the method 

of payment; the hired party's role in hiring and paying assistants; whether the 

work is part of the regular business of the hiring party; whether the hiring party is 

in business; [and] the provision of employee benefits and the tax treatment of the 

hired party. 

S&W, 23 BNA OSHC at 1289 (citing Darden, 503 U.S. at 323-24). 

Control over the manner and means of accomplishing work 

“Control over the ‘manner and means of accomplishing the work’ must include control 

over the workers and not just the results of their work.” Don Davis, 19 BNA OSHC 1477, 1482 

(No. 96-1378, 2001) (emphasis in original).

Respondent argues that Speedy Rooter did not have control of the Canal Road worksite, 

that Mr. Ricketts determined scope of work, that the homeowner’s sole contact for the job was 

Mr. Ricketts (not Speedy Rooter), and that Speedy Rooter provided no instructions for the 

worksite. (R. Br. 5, 7). As discussed below, I find Mr. Ricketts and Mr. Bryant did not have 

control over the means and manner of accomplishing the work. 

 To support its claim that Mr. Ricketts, not Speedy Rooter, had control of the worksite, 

Respondent asserts that Mr. Ricketts determined the scope of work. (R. Br. 8). This assertion is 

not supported by the record. Mr. Ricketts was assigned to the Canal Road worksite by Ms. 

Crone. (Tr. 59-60, 261). Mr. Ricketts and Mr. Bryant called in from the job site to let Ms. 

Crone know the approximate measurement for the length of the trench (from house to sidewalk), 
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what materials were needed, and that a backhoe was required. (Tr. 38, 252, 257; CX-14A, CX14B). Mr. Ricketts and Mr. Bryant provided information to Ms. Crone, so that she could 

determine the scope and costs of the job. Further, neither Mr. Ricketts nor Mr. Bryant could 

control the scope of work at the Canal Road site because they could not obtain a permit from the 

Dover Borough. (Tr. 177-78, 182). This demonstrates Speedy Rooter’s control over the 

worksite. 

 Respondent also asserts that because Mr. Ricketts was the homeowner’s primary contact, 

Mr. Ricketts controlled the worksite. (R. Br. 8). This is not supported by the record. The initial 

call for repair was made to Speedy Rooter directly, and then Speedy Rooter sent Mr. Ricketts out 

to make the repair. (Tr. 59, 79, 231). Further, Mr. Fishel testified that when the job was taking 

too long, he called Speedy Rooter and discussed the problem with Ms. Crone. (Tr. 80). He 

stated, “I never called Jerry. I don’t have his phone number. I have no connection with Jerry 

other than when he was on the job site.” (Tr. 80). This shows that, through Ms. Crone, Speedy 

Rooter had control of the worksite. Mr. Fishel’s contact with Mr. Ricketts was not related to 

overall control of the site. 

Ms. Crone accepted, scheduled, and assigned plumbing jobs for the Respondent. (Tr. 59-

60, 231, 252, 261; CX-14A). Ms. Crone hired Jerry Ricketts and Austin Bryant to perform work 

at the Canal Road worksite. (Tr. 261). Mr. Ricketts and Mr. Bryant received Ms. Crone’s 

approval before work began. (Tr. 29-30, 38, 252, 257). If additional supplies were required, Ms. 

Crone had to approve and authorize payment for the supplies.9

 (Tr. 30). 

Ms. Crone assigned the work and determined the scope of work at a job site.

10 Ms. 

Crone exercised significant control over the means and manner to accomplish the work. This 

factor weighs in favor of finding a traditional employer-employee relationship. 

9 Ms. Crone asserted that any purchase for additional supplies, such as plywood, was a cost for Mr. 

Ricketts and not Speedy Rooter. Ms. Crone claimed that Mr. Ricketts provided a bid for a job, which 

included supplies; she then simply marked up the bid with a profit margin for Speedy Rooter. (Tr. 237). 

I find this assertion is not credible. There is nothing in the record that suggests Mr. Ricketts evaluated a 

project’s cost or presented a bid to Speedy Rooter. Further, Ms. Crone acknowledged that in 2016 

Speedy Rooter’s total payment to Mr. Ricketts was $15,000 for 15-20 excavation jobs. (Tr. 238). This 

total income indicates that Mr. Ricketts was receiving wages only and was not receiving payment based 

on a bid that included the cost of supplies. 

10 Ms. Crone claimed that she did not re-assign anyone from the Canal Road worksite to another

worksite. (Tr. 212). She claimed they only stopped work at the Canal Road worksite due to rain. (Tr.

212). Ms. Crone’s claim is not credible. Both Mr. Fishel and Mr. Bryant stated that Ricketts and Bryant 
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Work location, hours worked, and right to assign additional projects

Ms. Crone controlled the daily schedule and work location. Mr. Bryant described that for 

a typical assignment, he received a text message with the location of the assigned job. He picked 

up Speedy Rooter’s van, which included the tools for plumbing work, and went to the assigned 

job. When finished with that job, he contacted Ms. Crone for his next assignment. (Tr. 19-20). 

Ms. Crone scheduled the Canal Road project with the homeowner and then assigned Mr. 

Ricketts and Mr. Bryant to the project. (Tr. 252, 261). Ms. Crone directed Mr. Bryant to leave 

the Canal Road job to work at a different Speedy Rooter site. (Tr. 39, 247). Mr. Ricketts

described himself as on-call 24 hours a day for plumbing emergencies. (Tr. 252; CX-14A). Ms. 

Crone determined which Speedy Rooter jobs were assigned to Mr. Ricketts and Mr. Bryant, thus 

controlling both the work location and schedule. (Tr. 19, 39, 231, 261; CX-14A). See Barbosa 

Group, Inc., 21 BNA OSHC 1865, 1867 (No. 02-0865, 2007), aff’d, 296 F. App’x 211 (2d Cir. 

2008) (unpublished) (finding employer-employee relationship where respondent made daily 

assignments).

This control over work assignments and location is indicative of an employer-employee 

relationship, not of an independent contractor relationship. 

Skills required 

Mr. Bryant described himself as self-trained and that he and Mr. Ricketts worked 

together to solve problems at a worksite. (Tr. 27-29, 34). Mr. Ricketts and Mr. Bryant were not 

licensed plumbers. (Tr. 34, 182). Only a licensed plumber could obtain a Dover Borough work 

permit for the Canal Road job. (Tr. 182). Ms. Crone was Speedy Rooter’s licensed plumber for 

the project. (Tr. 182, 261; CX-12). 

Mr. Ricketts and Mr. Bryant were not plumbers and had no specialized skill or training in

excavations. This factor weighs in favor of a traditional employer-employee relationship. See 

A.C. Castle Constr., 882 F.3d 34, 39 (1st Cir. 2018) (finding an employer-employee relationship 

would be called away to other Speedy Rooter jobs during the Canal Road project. (Tr. 39, 65, 247; CX14A). 

Generally, Ms. Crone’s testimony is given little weight because of her self-interest as Speedy 

Rooter’s owner. Further, Ms. Crone testified that Mr. Fishel sued Speedy Rooter in small claims court 

and Speedy Rooter countersued. (Tr. 214). According to Ms. Crone, Speedy Rooter was ordered to pay 

$2,000 to Mr. Fishel. (Tr. 214). I find that Ms. Crone’s testimony was affected by the defensive position 

of Speedy Rooter in the instant OSHA matter and the separate matter with Mr. Fishel. 
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where the company owner held the license that permitted work); see also, Absolute Roofing & 

Constr., 580 F. App’x 357, 361 (6th Cir. 2014) (unpublished) (Absolute) (high level of skill 

suggests an independent contractor relationship and a low-level of skill suggests an employeremployee relationship). 

Source of tools 

Speedy Rooter provided the essential tools necessary to complete the excavation and 

plumbing work at the Canal Road worksite. Mr. Bryant and Mr. Ricketts drove a Speedy Rooter 

van to the job site. (Tr. 19, 242; CX-14C). Speedy Rooter owned the backhoe used to excavate

the trench. (Tr. 261). Ms. Crone delivered the backhoe to the Canal Road site. (Tr. 235, 241, 

254; CX-14B, CX-14C). The ladder, shovels, and sump pump at the worksite were provided by

Speedy Rooter.11 (Tr. 19-20, 202, 241-42, 251-52; CX-14A, CX-14B). Ms. Crone contacted 

One-Call so utilities could be marked before excavating. (Tr. 174-78; CX-13). Ms. Crone 

acquired the necessary permit from the Dover Borough. (Tr. 177-78, 182; CX-12). 

Mr. Ricketts and Mr. Bryant occasionally used their own small hand tools at a worksite; 

however, all the essential tools were provided by Speedy Rooter. This factor supports an 

employer-employee relationship because the tools necessary for the job were supplied by Speedy 

Rooter. See Loomis Cabinet Co. v. OSHRC, 20 F.3d 938, 942 (9th Cir. 1994) (finding employer 

status where employer provided tools); Absolute, 580 F.App’x at 361 (all tools onsite were the 

property of employer).

The work was a regular part of Speedy Rooter’s business

Speedy Rooter was a plumbing contractor that did interior and exterior plumbing work, 

including excavation, repair, and replacement of sewer lines. (Tr. 24, 38, 244, 261). The owner, 

Ms. Crone, was a licensed plumber. (Tr. 261). Mr. Ricketts and Mr. Bryant did plumbing work 

for Speedy Rooter at the Canal Road worksite. (Tr. 261). The work by Mr. Ricketts and Mr. 

Bryant was a regular part of Speedy Rooter’s business. 

11 In her testimony, Ms. Crone claimed the ladder at the worksite belonged to Ricketts; no evidence 

was presented to support this assertion. (Tr. 202). In her October 7, 2016 signed interview statement, Ms.

Crone stated the A-frame ladder and extension ladder were owned by Speedy Rooter. (Tr. 241-42; CX14C). I give her signed statement, which was closer in time to the event and prior to receipt of the OSHA 

citation, greater weight. 
- 11 - 

This factor is indicative of a traditional employer-employee relationship. See generally

Slingluff v. OSHRC, 425 F.3d 861, 869 (10th Cir. 2005) (stucco contractor that hired worker to 

help with stucco work, employed the worker in question). 

Duration of the relationship and hiring or paying of assistants

Mr. Ricketts and Mr. Bryant each worked for Speedy Rooter for about two years. (Tr. 

16, 181, 243; CX-14C). During the two years that Mr. Ricketts worked for Speedy Rooter he 

completed about 30 excavation jobs in addition to other assignments. (Tr. 236-38). Mr. Bryant 

worked for Speedy Rooter about 40 hours a week during the 2016 busy season. (Tr. 17-18). 

Neither Mr. Ricketts nor Mr. Bryant hired an assistant. (Tr. 28). Speedy Rooter had a direct, 

individual relationship with both Mr. Ricketts and Mr. Bryant, and Ms. Crone assigned each to 

the Canal Road worksite. (Tr. 191). 

The duration and open-ended nature of the arrangement reflect a traditional employeremployee relationship. See Absolute, 580 F. App’x at 362 (citations omitted) (indefinite duration 

and indefinite nature of relationship favors employee status). I find these factors weigh in favor 

of an employer-employee relationship. 

Method of payment 

Each Friday, Mr. Bryant was paid based on an hourly rate, usually around $11 per hour, 

and generally in cash. (Tr. 17-18, 210). Mr. Ricketts was also paid on an hourly basis in cash 

each week. (Tr. 146, 210, 252; CX-14A). Ms. Crone confirmed that she typically paid Mr. 

Bryant and Mr. Ricketts in cash. (Tr. 210). 

I find that payment in cash, at an hourly rate is indicative of an employer-employee 

relationship. See Absolute, 580 F. App’x at 363. (a set hourly wage weighs in favor of employee 

status). 

Tax treatment and employee benefits

 Speedy Rooter provided no employee benefits to Mr. Ricketts or Mr. Bryant. (Tr. 188-

90). Speedy Rooter did not withhold income tax or social security tax from Mr. Bryant’s and

Mr. Ricketts’ pay; it sent IRS 1099 forms to Mr. Bryant and Mr. Ricketts. (Tr. 188, 204; CX17). The 1099 forms sent to Mr. Ricketts and Mr. Bryant for the 2016 tax year were placed in 
- 12 - 

evidence.12 (CX-17). There was no documentation provided for the 2015 tax year.13 (Tr. 203, 

205). 

The tax treatment and benefits are like those of an independent contractor relationship. 

However, the Commission has noted that tax reporting status alone is not the controlling factor in 

a Darden analysis. See S&W, 23 BNA OSHC at 1290. (“failure to withhold federal income and 

social security taxes was . . . not a bona fide reflection of an authentic independent contractor 

relationship.”) I find the tax treatment and lack of benefits are not dispositive to the 

determination of the type of employment relationship here, especially when considered in the 

light of routine payments to Mr. Ricketts and Mr. Bryant in cash. 

The agreements 

Ms. Crone testified that the Subcontractor Agreement (RX-15) and Equipment Use 

Agreement (RX-16) between Speedy Rooter and Mr. Ricketts proved he was an independent 

contractor. (R. Br. 4). Ms. Crone testified that she considered both Mr. Bryant and Mr. Ricketts

to be independent subcontractors; however, she only had a written agreement with Mr. 

Ricketts.

14 (Tr. 224-25). 

 The Subcontractor Agreement was a boilerplate agreement that was not personalized for 

Mr. Ricketts or Speedy Rooter. (Tr. 200; RX-15). The names of the parties to the agreement 

only appear in the signature blocks at the end of the agreement. (RX-15). The Subcontractor 

Agreement required the subcontractor (Ricketts) to furnish all labor and materials to perform the 

work and to contact public utilities before excavation. (RX-15, pp. 0128, 0130). As discussed 

above, Mr. Ricketts did not furnish all labor and materials or contact the public utilities for the 

Canal Road worksite. Rather, Speedy Rooter provided most of the materials, contacted the 

utility prior to excavation, and assigned Mr. Bryant to work alongside Mr. Ricketts at the 

worksite. 

Further, the Subcontractor Agreement required the subcontractor to maintain commercial 

general liability, automobile, commercial umbrella, and workers compensation insurance. (RX12 The 1099 for Jerry Ricketts misspelled his last name as “Richetts”. The 1099 for Austin Bryant 

misspelled his last name as “Brant” and had no tax identification number. (Tr. 51-52; CX-17). Mr. 

Bryant testified that he never provided his social security number to Ms. Crone. (Tr. 51-52). 

13 Ms. Crone claimed that Speedy Rooter sent a 1099 to Mr. Ricketts for the 2015 tax year but 

provided no documentation to support this claim. (Tr. 203, 205). 

14 Ms. Crone testified that she did not have agreements for every subcontractor. (Tr. 220). 
- 13 - 

15, p. 0132). Ms. Crone claimed that Mr. Ricketts provided a certificate of insurance to Speedy 

Rooter in 2015. (Tr. 196). However, Respondent submitted no document to support this claim. 

(Tr. 196-97). 

The Equipment Use Agreement was between Speedy Rooter (Equipment Owner) and 

Jerry Rickets (User) to operate a Kubota excavator and a John Deere backhoe. (RX-16). This 

agreement required Mr. Ricketts to maintain liability insurance with Speedy Rooter as an 

additional insured on the policy. Id. 

 Both agreements were dated October 5, 2015 and included a signature for Mr. Ricketts. 

(RX-15, RX-16). The signature of Mr. Ricketts was not authenticated.15 (Tr. 198). Further, Mr. 

Ricketts’ signature on the OSHA interview statement appeared to be significantly different than 

the signature on the agreements. (Tr. 199; CX-14A; RX-15, RX-16). Ms. Crone claimed she 

witnessed Mr. Ricketts signing the two agreements. (Tr. 198). Due to Ms. Crone’s clear desire 

to establish that Mr. Ricketts was an independent subcontractor, I give little weight to 

Respondent’s claim that Mr. Ricketts signed the agreements. 

 Further, I find these two agreements do not support Respondent’s claim that Mr. Ricketts 

and Mr. Bryant were independent subcontractors. First, despite Ms. Crone’s testimony that both 

Mr. Ricketts and Mr. Bryant were independent contractors, there was no written agreement with 

Mr. Bryant. (Tr. 191, 225). Second, the requirement to provide labor, materials, and contact the 

utility was not fulfilled by Mr. Ricketts. Finally, Respondent provided no documents to verify 

Mr. Ricketts carried the insurance required by the agreements. (Tr. 196-97). See Capeway 

Roofing Sys., Inc., 20 BNA OSHC 1331, 1342-1343 (No. 00-1968, 2003), aff’d, 391 F.3d 56 (1st 

Cir. 2004) (“The Commission has also noted that when one party has evidence but does not 

present it, it is reasonable to draw a negative or adverse inference against that party, i.e., that the 

evidence would not help that party's case”) (citations omitted). The evidence does not 

demonstrate the terms listed in the agreements were in effect. 

I find the subcontractor agreement and equipment use agreement do not demonstrate the 

existence of a true subcontractor relationship with either Mr. Ricketts or Mr. Bryant. See

generally S&W, 23 BNA OSHC at 1289-90 (finding the existence of a subcontractor disclaimer 

15 The only attempt to authenticate the signature was Ms. Crone’s testimony that she was present 

when Mr. Ricketts signed the two documents in 2015. (Tr. 198-200). 
- 14 - 

form and fact that company was paid as a subcontractor did not mean there was not an 

employer/employee relationship for purposes of the Act).

 Considering all aspects of the relationship between Mr. Bryant and Mr. Ricketts with 

Speedy Rooter, I find the relationship was more akin to that of an employer-employee than that

of an independent contractor. In particular, because of the Respondent’s significant control in

obtaining, assigning, and controlling the work, paying on an hourly basis (often in cash), and 

providing the tools and permits necessary to complete the work, I find that Mr. Bryant and Mr. 

Ricketts were employees of Speedy Rooter for purposes of the Act. 

Secretary’s Burden of Proof 

To establish a violation of an OSHA standard, the Secretary must prove: (1) the cited 

standard applies; (2) the terms of the standard were violated; (3) one or more employees had 

access to the cited condition; and (4) the employer knew, or with the exercise of reasonable 

diligence could have known, of the violative condition. Astra Pharm. Prods., 9 BNA OSHC

2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982). The 

Secretary has the burden of proving his case by a preponderance of the evidence. Id.

Citation 1, Item 1 

Respondent was cited for a serious violation of 29 C.F.R. § 1926.21(b)(2): 

(b) Employer responsibility. . . . (2) The employer shall instruct each employee in 

the recognition and avoidance of unsafe conditions and the regulations applicable 

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

illness or injury.

The Secretary asserts that Respondent did not provide training on the recognition and 

avoidance of cave-in hazards for employees working in a trench excavation at the Canal Road 

worksite.16 

The standard applies, employees were exposed, and the standard was violated 

 As discussed above, two Speedy Rooter employees, Mr. Ricketts and Mr. Bryant, worked 

at the Canal Road worksite. Mr. Ricketts and Mr. Bryant removed and installed a lateral sewer 

pipe in a trench excavation. The standard applies and employees were exposed. 

16 Respondent’s post-hearing brief was limited to the sole argument that Ricketts and Bryant were not 

employees of Speedy Rooter. Respondent presented no arguments to rebut the Secretary’s prima facie 

case for the four alleged violations. Respondent’s position on the citation items is gleaned from Ms. 

Crone’s hearing testimony and her interview with the CO.
- 15 - 

Speedy Rooter was required to train employees on hazardous conditions related to trench 

excavations. See Superior Custom Cabinet Co., Inc., 18 BNA OSHC 1019, 1021 (No. 94-200, 

1997) (instructions must be “specific enough to advise employees of the hazards associated with 

their work and the ways to avoid them”) (citations omitted). Mr. Bryant testified that he had 

received no training on the use of trench boxes. (Tr. 37, 255; Ex. CX-14B). When interviewed 

by the CO, Mr. Bryant stated that he had not received any safety training and did not know about 

soil classifications for trenching. (Tr. 255; CX-14B). 

During Mr. Ricketts’ interview statement to the CO, Mr. Ricketts revealed he had not 

received any safety training, did not know of any safety program, and did not know about soil 

classifications. (Tr. 144-45, 250-51; Ex. CX-14A). His only training was some college and 

plumbing training prior to working for Speedy Rooter. (Tr. 250; CX-14A). 

Ms. Crone testified that she knew that Mr. Ricketts had no OSHA training on excavation 

safety. (Tr. 181-82). When asked about training during the inspection, Ms. Crone told CO 

Dailey that safety was discussed at a group meeting held every three months. (Tr. 124-25, 243-

44; CX-14C). Ms. Crone claimed that she kept a log of the attendees at these meetings. (Tr. 

124-25, 243-44; CX-14C). However, Respondent did not provide a copy of the meetings’ logs 

or contents to support this claim. See Capeway, 20 BNA OSHC at 1342-1343 (reasonable to 

draw inference against the party with control over the evidence). 

Speedy Rooter did not provide training to recognize and avoid hazards associated with 

excavations. The standard was violated. 

Knowledge 

The Secretary must prove “the employer either knew, or with the exercise of reasonable 

diligence, could have known of the hazardous condition.” PSP Monotech Indus., 22 BNA 

OSHC 1303, 1305-06 (No. 06-1201, 2008) (PSP). The employer’s knowledge is directed to the 

physical conditions that constitute a violation. Phoenix Roofing, Inc., 17 BNA OSHC 1076,

1079-1080 (No. 90-2148, 1995), aff’d, 79 F.3d 1146 (5th Cir. 1996) (unpublished). The 

Secretary need not show that an employer understood or acknowledged that the physical 

conditions were actually hazardous. Id. 

Several factors are considered in assessing reasonable diligence, including the employer's 

“obligation to inspect the work area, to anticipate hazards to which employees may be exposed, 

and to take measures to prevent the occurrence.” Cranesville Block Co., Inc./Clark Div., 23 
- 16 - 

BNA OSHC 1977, 1986 (Nos. 08-0316 & 08-0317, 2012) (Cranesville) (citation omitted). The 

employer's conduct is viewed in its totality and “whether a reasonable employer would have

done more.” Capform, Inc., 16 BNA OSHC 2040, 2042 (No. 91-1613, 1994). 

Ms. Crone knew a trench would be excavated at the worksite and knew that someone had 

to work in the trench to connect the new sewer line. (CX-12). She knew that Mr. Ricketts had 

no prior training in trench excavations.17 Further, she knew that Speedy Rooter had not provided 

training on trenching hazards to Mr. Ricketts or Mr. Bryant. 

Respondent, through Ms. Crone, had knowledge that Mr. Ricketts and Mr. Bryant

worked at the Canal Road worksite without any training in trenching hazards. Knowledge is 

established. 

Serious Characterization

The Secretary characterized this violation as serious. The Act states that “a serious 

violation shall be deemed to exist in a place of employment if there is a substantial probability 

that death or serious physical harm could result from” the violative condition. Sec. 17(k) of the 

Act; 29 U.S.C. § 666(k). A serious characterization is appropriate when “a serious injury is 

the likely result should an accident occur.” Pete Miller, Inc., 19 BNA OSHC 1257, 1258 (No. 

99-0947, 2000). 

According to CO Dailey, an employee is exposed to serious injury or death from 

engulfment if a cave-in occurs in a trench excavation. (Tr. 140-41). Training provides an 

employee with the ability to recognize the hazards of working in a trench excavation. (Tr. 140). 

The serious characterization is supported. See Mosser Constr., Inc, 23 BNA OSHC 1044, 1047 

(No. 08-0631, 2010) (Mosser) (recognizing cave-in includes “potentially serious or deadly 

consequences”); Communications, Inc., 7 BNA OSHC 1598, 1602 (No. 76-1924, 1979) 

(employees likely would suffer serious physical harm from collapse of trench 6′2′′ deep, 

particularly if they were in a bending position).

Penalty

Section 17(j) of the Act requires the Commission to give due consideration to four criteria 

in assessing penalties: the size of the employer’s business, the gravity of the violation, the 

17 When asked if Mr. Ricketts had any excavation training, Ms. Crone testified, “I knew he didn’t 

have any OSHA training when that came up in conversation. But he did have plumbing and some college 

training.” (Tr. 181-82). 
- 17 - 

employer’s good faith, and the employer’s prior history of violations. Compass Envt’l, Inc., 23 

BNA OSHC 1132, 1137 (No. 06-1036, 2010), aff’d, 663 F.3d 1164 (10th Cir. 2011). The gravity

of the violation is generally accorded greater weight. See J. A. Jones Constr. Co., 15 BNA OSHC 

2201, 2213-14 (No. 87-2059, 1993). 

The maximum penalty for a serious violation is $12,471.18 29 U.S.C. § 666(b), 29 C.F.R. 

§ 1903.15(d)(3) (2016). The penalty was adjusted for a moderate gravity based on a high 

severity and lesser probability. (CX-6). The size adjustment of 70% reduced the penalty to 

$2,672. Id. I find the penalty adjustments are appropriate for this violation. 

Citation 1, Item 2 

Respondent was cited for a serious violation of 29 C.F.R. § 1926.651(j)(2): 

(j) Protection of employees from loose rock or soil. . . . (2) Employees shall be 

protected from excavated or other materials or equipment that could pose a hazard

by falling or rolling into excavations. Protection shall be provided by placing and 

keeping such materials or equipment at least 2 feet (.61 m) from the edge of

excavations, or by the use of retaining devices that are sufficient to prevent 

materials or equipment from falling or rolling into excavations, or by a 

combination of both if necessary.

The Secretary asserts that an employee at the Canal Road worksite worked in a trench 

where the spoil pile was placed at the edge of the excavation. Respondent does not dispute that 

the spoil pile was at the edge of the excavation. 

The standard applies, employees were exposed, and the standard was violated 

Excavated soil was piled along the edge of the trench. (Tr. 97; CX-11A, CX-11B). Mr. 

Ricketts was in the trench connecting the pipes below the spoil pile. (Tr. 81-82, 97, 249; CX14A). The standard applies and employees were exposed. 

The standard requires the excavated soil to be either behind a retaining device or no 

closer than 2 feet from the edge of the excavation. The spoil pile was six feet high by eight feet 

wide and less than 2 feet from the edge of the trench. (Tr. 97, 100, 143; CX-7, CX-9 p. 0048). 

The CO’s photographs show the excavated soil was piled along the edge of the 50-foot trench 

18 OSHA established new penalty maximums effective August 1, 2016, for violations occurring after 

November 2, 2015, pursuant to the Inflation Adjustment Act of 2015, Pub. Law 114-74 § 701, 129 Stat. 

559-602 (2015). 81 Fed. Reg. 43430 (July 1, 2016). The violation in the instant case occurred after 

November 2, 2015, and the penalty was assessed after August 1, 2016, but on or before January 13, 2017,

thus the statutory maximum of $12,471 applies to serious violations and $124,709 to willful violations. 

Id. 
- 18 - 

excavation with no retaining device to keep the soil from falling into the trench. (Tr. 139; CX-9 

p. 0048, CX-11A, CX-11B). 

No retaining device was used at this worksite and the soil was placed closer than 2 feet 

from the excavation’s edge. The standard was violated. 

Knowledge 

The Secretary must prove “the employer either knew, or with the exercise of reasonable 

diligence, could have known of the hazardous condition.” PSP, 22 BNA OSHC at 1305-06. 

Commission precedent states that the employer's conduct is viewed in its totality and “whether a 

reasonable employer would have done more.” Capform, 16 BNA OSHC at 2042. Further, an 

employer has constructive knowledge of conditions that are “readily apparent.” See Hamilton 

Fixture, 16 BNA OSHC 1073, 1091 (No. 88-1720, 1993), aff'd, 28 F.3d 1213 (6th Cir. 1994). 

As discussed above, Ms. Crone knew that the work at the Canal Road worksite required 

digging a long trench to install a new sewer lateral. (Tr. 236: CX-12). The spoil pile was in 

plain view as demonstrated by photographs and Mr. Fishel’s observation of Mr. Ricketts at work 

in the trench below the spoil pile. (Tr. 81-82; CX-11A, CX-11B). See KS Energy Servs., Inc., 

22 BNA OSHC 1261, 1267-68 (No. 06-1416, 2008) (signage was in plain view establishing 

constructive knowledge); A. L. Baumgartner Constr., Inc., 16 BNA OSHC 1995, 1998 (No. 92-

1022, 1994) (finding constructive knowledge where a condition is “readily apparent to anyone 

who looked”). 

Despite this, Ms. Crone made no effort to anticipate the hazard of the spoil pile and took 

no action to prevent the spoil pile from being on the edge of the excavation. See Cranesville, 23 

BNA OSHC at 1986 (reasonable diligence includes the employer’s obligation to inspect the 

worksite, anticipate hazards, and take action to prevent occurrence of hazards). The spoil pile 

was in plain view and Ms. Crone knew that soil would be excavated to create the trench. 

Knowledge is established. 

Serious Characterization

A serious characterization is appropriate when “a serious injury is the likely result should 

an accident occur.” Pete Miller, 19 BNA OSHC at 1258. This item was characterized as serious 

because a cave-in would result in serious injury or death. (Tr. 139). CO Dailey testified that a

spoil pile on the edge of an excavation creates additional pressure on the trench walls increasing 

the likelihood of a cave-in. (Tr. 139). The Commission has recognized that a trench cave-in is a 
- 19 - 

serious hazard. See Mosser, 23 BNA OSHC at 1047 (finding cave-in includes “potentially 

serious or deadly consequences”); Communications, 7 BNA OSHC at 1602 (employees likely 

would suffer serious physical harm from collapse of trench 6′2′′ deep, particularly if they were in 

a bending position). The serious characterization is supported. 

Penalty

The maximum penalty for a serious violation is $12,471. The gravity was assessed as 

moderate based on high severity and lesser probability. (CX-7). The size adjustment of 70% 

reduced the penalty to $2,672. Id. I find the penalty adjustments are appropriate for this

violation. 

Citation 1, Item 3 

 Respondent was cited for a serious violation of 29 C.F.R. § 1926.651(k)(1): 

(k) Inspections. 

(1) Daily inspections of excavations, the adjacent areas, and protective systems 

shall be made by a competent person for evidence of a situation that could result 

in possible cave-ins, indications of failure of protective systems, hazardous 

atmospheres, or other hazardous conditions. An inspection shall be conducted by 

the competent person prior to the start of work and as needed throughout the shift. 

Inspections shall also be made after every rainstorm or other hazard increasing 

occurrence. These inspections are only required when employee exposure can be 

reasonably anticipated.

The Secretary asserts that a competent person did not conduct a daily inspection of the 

trench excavation. Respondent asserts that Mr. Ricketts was a competent person. (Tr. 181).

The standard applies, employees were exposed, and the standard was violated 

 A 50-foot long trench excavation was dug at the Canal Road worksite to replace a lateral 

sewer line. (Tr. 65, 248-49; CX-12). Mr. Ricketts and Mr. Bryant worked in and around the 

excavation. (Tr. 67, 81-82, 248-49, 261). The standard applies and employees were exposed to 

the hazard. 

A competent person is defined as “one who is capable of identifying existing and 

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

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

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

The standard requires the excavation and its adjacent areas to be inspected for hazardous 

conditions by a competent person before the start of work daily (or more often when conditions 
- 20 - 

change). The inspection of an excavation consists of more than a “casual observation.” 

Capform, Inc., 13 BNA OSHC 2219, 2221-22, (No. 84-0556, 1989), aff'd, 901 F.2d 1112 (5th

Cir. 1990) (unpublished). OSHA’s excavation standard requires a competent person to “ensure 

compliance with applicable regulations and to make those inspections necessary to identify 

situations that could result in possible cave-ins, indications of failures of protective systems, 

hazardous atmospheres, or other hazardous conditions, and then to [e]nsure that corrective

measures are taken.” U.S. Dep’t of Labor, OSHA, Interpretation Letter to G. Kennedy (March 

23, 1992), https://www.osha.gov/laws-regs/standardinterpretations/1992-03-23. 

Ms. Crone asserted that Mr. Ricketts was a competent person and that he had inspected

the trench. (Tr. 181, 238, 243; CX-14C). She knew he had no OSHA excavation training, but 

believed he was a competent person because there had been no problems or citations from 

OSHA or a municipality during the two years Mr. Ricketts had worked for Speedy Rooter. (Tr. 

181, 216-17). Ms. Crone believed the lack of citations was proof that he was a competent 

person.19 (Tr. 217-18). 

 Ms. Crone’s belief that Mr. Ricketts was a competent person was not reasonable. The 

lack of citations from OSHA or a municipality is not a valid benchmark to determine if someone 

is able to identify hazards and make necessary corrective actions. As explained in the preamble 

to the excavation rule, 

it is important to note that what constitutes a “competent person” depends on the 

context in which the term is used. In order to be a “competent person” for the 

purposes of this standard one must have had specific training in, and be

knowledgeable about, soils analysis, the use of protective systems, and the 

requirements of this standard. One who does not have such training or knowledge 

cannot possibly be capable of identifying existing and predictable hazards in 

excavation work or taking prompt corrective measures. 

Occupational Safety and Health Standards—Excavations, 54 Fed. Reg. 45894, 45909 (Oct. 31, 

1989) (to be codified at 29 C.F.R. part 1926). 

Respondent presented no evidence that Mr. Ricketts had the skills to identify hazards in a 

trench excavation or the ability to correct hazards at a worksite. In his signed written statement, 

Mr. Ricketts stated he did not know about soil classifications. (Tr. 250; CX-14A). Further, he 

19 When asked why she believed Mr. Ricketts was a competent person for the Canal Road worksite, 

Ms. Crone responded: “So, not having other OSHA violations or other, any, citations from any other 

municipality leads me to believe if he’s performing the job for 40 or 50 dig sites and you have no

violations or no problems, then he’s a competent person to make decisions on the site.” (Tr. 217). 
- 21 - 

stated that he had not inspected the trench. (Tr. 251; CX-14A). When questioned by the CO 

about what makes a trench safe, he could not provide an explanation. (Tr. 145). During the 

inspection, Ms. Crone admitted to the CO that Mr. Ricketts did not meet OSHA’s definition of a 

competent person. (Tr. 124). Further, Ms. Crone admitted in her testimony that she did not 

believe a competent person would go into the trench at the Canal Road worksite. (Tr. 238-39). 

Mr. Ricketts was not a competent person as defined by the standard. He had no training 

in trench excavations. Nor did he have knowledge about soil types or protective systems. He 

was not trained about the hazards affiliated with a trench excavation or use of protective systems 

in a trench. Without this knowledge he could not adequately assess the hazards in the trench 

excavation. Respondent cannot rely on a lack of citations at its worksites as proof that Mr. 

Ricketts was a competent person. See generally R. Williams Constr. Co. v. Sec’y, 464 F.3d 1060, 

1064 (9th Cir. 2006) (company cannot discharge its duty to have a competent person by relying 

on general work experience or common sense). 

 I find that Mr. Ricketts was not a competent person as defined by the standard and thus 

there was no inspection of the trench by a competent person. The standard’s requirement was 

violated. 

Knowledge 

The Secretary must prove “the employer either knew, or with the exercise of reasonable 

diligence, could have known of the hazardous condition.” PSP, 22 BNA OSHC at 1305-06. 

Commission precedent states that the employer's conduct is viewed in its totality and “whether a 

reasonable employer would have done more.” Capform, 16 BNA OSHC at 2042. 

As discussed above, Ms. Crone knew that the work at the Canal Road worksite required 

Mr. Ricketts or Mr. Bryant to get into the trench to connect the new pipe to the existing sewer 

main. (Tr. 236; CX-12). Ms. Crone knew Mr. Ricketts had no training on excavation hazards or 

abatement. (Tr. 181-82). Further, Respondent provided no training or safety guidelines for 

trench inspection. Ms. Crone made no effort to ensure the trench excavation was inspected by a 

competent person before employees worked in the trench. See Cranesville, 23 BNA OSHC at 

1986 (reasonable diligence includes the employer’s obligation to inspect the worksite, anticipate 

hazards, and take action to prevent occurrence of hazards). Knowledge is established. 
- 22 - 

Serious Characterization

A serious characterization is appropriate when “a serious injury is the likely result should 

an accident occur.” Pete Miller, 19 BNA OSHC at 1258. This item was characterized as serious 

because an inspection is needed to determine if the trench is safe to work in; a cave-in would 

result in serious injury or death. (Tr. 139). See Mosser, 23 BNA OSHC at 1047 (finding a cavein includes “potentially serious or deadly consequences”); Communications, 7 BNA OSHC at 

1602 (employees likely would suffer serious physical harm from collapse of trench 6′2′′ deep, 

particularly if they were in a bending position). The serious characterization is supported. 

Penalty

The maximum penalty for a serious violation is $12,471. The gravity was determined as 

moderate based on a high severity and lesser probability. (CX-8). The size adjustment of 70% 

reduced the penalty to $2,672. Id. I find the penalty adjustments are appropriate for this

violation. 

Citation 2, Item 1 

Respondent was cited for a willful violation of 29 C.F.R. § 1926.652(a)(1):

(a) Protection of employees in excavations. 

(1) Each employee in an excavation shall be protected from cave-ins by an 

adequate protective system designed in accordance with paragraph (b) or (c) of 

this section except when:

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

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

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

(2) Protective systems shall have the capacity to resist without failure all loads 

that are intended or could reasonably be expected to be applied or transmitted to 

the system.

The Secretary asserts an employee worked in a trench that was 6 feet 8 inches deep

without protection against cave-in. Respondent stipulated the plywood in the trench excavation

was not intended to be an adequate protective system. (Tr. 261). 

The standard applies, employees were exposed, and the standard was violated 

 As discussed above, two Speedy Rooter employees, Mr. Ricketts and Mr. Bryant

removed and installed sewer pipe in a trench excavation at the worksite. The standard applies 

and employees were exposed. The trench was over 5 feet in depth. (Tr. 110, 115-16). Mr. 

Ricketts connected pipes in the trench without using a protective system. (Tr. 261). The 

standard was violated. 
- 23 - 

Knowledge 

The Secretary must prove “the employer either knew, or with the exercise of reasonable 

diligence, could have known of the hazardous condition.” PSP, 22 BNA OSHC at 1305-06 (No. 

06-1201, 2008). Commission precedent states that the employer's conduct is viewed in its

totality and “whether a reasonable employer would have done more.” Capform, 16 BNA OSHC 

at 2042. 

Ms. Crone testified that she knew there was a requirement for a trench box or other cavein protection when an excavation was over 5 feet in depth. (Tr. 182-83). Speedy Rooter owned 

a trench box that was not delivered to the Canal Road worksite for use. (Tr. 148, 250; CX-14A). 

A trench box had been used at other jobs and Ms. Crone knew that additional equipment was 

needed at a site to lift and place the trench box into the excavation. (Tr. 242, 250; CX-14A, CX14C). 

Ms. Crone knew the excavation would be over 5 feet in depth. In her One-Call request 

for utility marking she stated that an excavation five to six feet deep would be dug at the 

worksite. (CX-13). Ms. Crone also knew the work at the Canal Road worksite required Mr. 

Ricketts or Mr. Bryant to get into the trench to connect the new pipe to the existing sewer main. 

(Tr. 236; CX-12). Despite her knowledge that an excavation was required, Ms. Crone did not 

exercise reasonable diligence to inspect the worksite. She took no steps to ensure a protective 

system was used in the trench excavation. See Cranesville, 23 BNA OSHC at 1986 (reasonable 

diligence includes the employer’s obligation to inspect the worksite, anticipate hazards, and take 

action to prevent occurrence of hazards). Knowledge is established. 

Willful Characterization 

The Secretary characterized Respondent’s violation of the requirement to provide a 

trench protective system as willful. The Secretary asserts that Respondent, through Ms. Crone, 

had a heightened awareness of the requirement to use a protective system and was plainly 

indifferent to the standard’s requirements. (S. Br. 24). Respondent did not present an argument 

to refute the Secretary’s position. 

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.” Burkes Mech., 

Inc., 21 BNA OSHC 2136, 2140 (No. 04-0475, 2007) (citations omitted); see also, Bianchi 

Trison Corp. v. Sec’y, 409 F.3d 196, 208 (3d Cir. 2005) (“Although the Act does not define the 
- 24 - 

term willful, courts have unanimously held that a willful violation of the Act constitutes an act 

done voluntarily with either an intentional disregard of, or plain indifference to, the [OSH] Act's 

requirements.”) (citations omitted). 

“The Secretary must show that the employer was actually aware, at the time of the 

violative act, that the act was unlawful, or that it possessed a state of mind such that if it were 

informed of the standard, it would not care.” Burkes, 21 BNA OSHC at 2140 (citations omitted). 

“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.” E. Smalis 

Painting Co., Inc., 22 BNA OSHC 1553, 1569 (No. 94-1979, 2009). It is not necessary to find 

evil or malicious motive to find a violation willful. Kaspar Wire Works, Inc., 18 BNA OSHC 

2178, 2181 (No. 90-2775, 2000) aff'd, 268 F.3d 1123 (D.C. Cir. 2001). Plain indifference to 

employee safety is present when the employer possesses a state of mind such that if it had been

informed of the standard it would not have cared. Valdak Corp., 17 BNA OSHC 1135, 1136 

(No. 93-0239, 1995) aff’d, 73 F.3d 1466 (8th Cir. 1996). 

Speedy Rooter owned a trench box. (Tr. 242, 250; CX-14A, CX-14C). Ms. Crone knew 

a trench box or other cave-in protection was needed when an excavation was over 5 feet in depth. 

(Tr. 183). Ms. Crone had been in business for 14 years and delivered trench boxes to previous 

worksites. (Tr. 242; CX-14C). Yet, Ms. Crone made no attempt to provide a protective trench 

system at the Canal Road worksite. 

Further, Ms. Crone had a heightened awareness trench protection was needed at the 

Canal Road worksite. She knew the trench would be over five feet in depth when she called to 

have the utilities marked and applied for a permit from the Dover Borough. (Tr. 177; CX-12, 

CX-13). Ms. Crone delivered the backhoe to the worksite and visited the worksite during the 

rainstorm that delayed the project. (Tr. 186, 235). 

Ms. Crone demonstrated plain indifference to the safety of Mr. Ricketts and Mr. Bryant. 

Ms. Crone knew the trench would be five to six feet in depth, Ms. Crone knew that cave-in 

protection was needed over five feet, Ms. Crone delivered the backhoe to the worksite to dig the 

trench, and Ms. Crone knew either Mr. Ricketts or Mr. Bryant would be in the trench to make the 

pipe connection. Despite this awareness, Ms. Crone made no effort to protect employees from a 

cave-in hazard. Ms. Crone’s actions demonstrate a plain indifference to employee safety. See 

Arcadian Corp., 20 BNA OSHC 2001, 2019 (No. 93-0628, 2004) (finding willfulness where 
- 25 - 

employer's approach to employee safety was reckless). Ms. Crone knew an employee would be 

working in the trench excavation and she did not implement any safety measures to protect 

employees from cave-in hazards. I find the willful characterization is established. 

Penalty

The maximum penalty for a willful violation was $124,709. The penalty was adjusted at 

a moderate gravity based on a high severity and lesser probability. (CX-9, p. 0037). The size 

adjustment of 80% reduced the penalty to $21,378. Id. I find the penalty adjustments are 

appropriate for the violation. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The foregoing decision constitutes the findings of fact and conclusions of law in 

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

ORDER

 Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

1. Citation 1, Item 1, alleging a Serious violation of 29 C.F.R. § 1926.21(b)(2), is 

AFFIRMED and a penalty of $2,672 is assessed. 

2. Citation 1, Item 2, alleging a Serious violation of 29 C.F.R. § 1926.651(j)(2), is 

AFFIRMED and a penalty of $2,672 is assessed.

3. Citation 1, Item 3, alleging a Serious violation of 29 C.F.R. § 1926.651(k)(1), is 

AFFIRMED and a penalty of $2,672 is assessed.

4. Citation 2, Item 1, alleging a Willful violation of 29 C.F.R. § 1926.652(a)(1), is 

AFFIRMED and a penalty of $21,378 is assessed.

 /s/ 

 Keith E. Bell

 Judge, OSHRC

Dated: November 19, 2019 

 Washington, D.C.