United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building – Room 2R90, 100 Alabama Street SW

Atlanta, Georgia 30303-3104

atlantaoshrcjudges@ohsrc.gov

Secretary of Labor,

 Complainant,

 v. OSHRC Docket No. 14-0774

Turpin, Inc., 

 Respondent.

Appearances: 

 

Jean C. Abreu, Esquire, U.S. Department of Labor, Office of the Solicitor, Atlanta, Georgia

For the Secretary

Ashley Turpin, Project Manager, pro se, Turpin, Inc., Forest Park, Georgia

 For the Respondent

BEFORE: Administrative Law Judge Heather A. Joys

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission 

pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651- 678 

(2014) (the Act). Turpin, Incorporated (hereinafter Turpin) is a boring company headquartered 

in Lake City, Georgia. On November 22, 2013, Occupational Safety and Health Administration 

Compliance Officer (CSHO) Matt Munson conducted an inspection of Turpin at 1955 Highway 

129 in Cleveland, Georgia. Based upon CSHO Munson’s inspection, the Secretary of Labor, on 

April 17, 2014, issued two Citations and a Notice of Penalty to Turpin. In Citation 1, containing 

two items, the Secretary alleged serious violations of 29 C.F.R. § 1926.651(j)(1) for failing to 

protect employees from soil or rock falling from an excavation face and 29 C.F.R. § 

1926.1053(b)(1) for failing to ensure a ladder used by employees to enter and exit an excavation 

extended three feet above the excavation’s edge. In Citation 2 the Secretary alleged a willful 

violation of 29 C.F.R. § 1926.652(a)(1) for failing to ensure employees in an excavation over 8 

feet deep were protected from cave-in. The Secretary proposed a total penalty of $29,810.00 for 
the Citations. Turpin timely contested the Citations. At the hearing, Turpin withdrew its notice 

of contest with regard to Item 2 of Citation 1,

1

 and the Secretary withdrew Item 1 of Citation 1 

(Tr. 6-7). Therefore, only Citation 2 is at issue in this proceeding. 

I held a hearing in this matter on December 4, 2014, in Atlanta, Georgia. The parties 

filed post-hearing briefs on February 24, 2015.2

For the reasons discussed below, Citation 2 is affirmed as a serious violation and a 

penalty of $3,000.00 is assessed. 

Jurisdiction

The parties stipulated jurisdiction of this action is conferred upon the Commission 

pursuant to § 10(c) of the Act. The parties also stipulated at all times relevant to this action, 

Turpin was an employer engaged in a business affecting interstate commerce within the meaning 

of § 3(5) of the Act. 

Background 

Turpin is a boring and utility company incorporated in the State of Georgia (Tr. 15, 27). 

Judy Turpin is CEO of the company (Tr. 26). Her sons, Ashley and Keith Turpin, are project 

managers for the company (Tr. 26-27). Ashley Turpin, who represented the company at the 

hearing, testified his duties as project manager include estimating the cost of and bidding jobs, 

oversight of worksites, and ensuring employee safety (Tr. 27, 30). As a boring company, 

Turpin’s jobs consist largely of boring holes under the surface of roadways in order to connect 

various utility lines (Tr. 55-56). Ashely Turpin testified 90 percent of the Turpin’s jobs require 

work in trenches over 5 feet deep and near roadways (Tr. 27).

In 2013, Turpin was performing boring work at a worksite on Highway 129 in Cleveland, 

Georgia (Tr. 15). The entire project was a multimillion dollar project covering a 2 mile stretch 

of Highway 129 or the bypass of the city of Cleveland, Georgia (Tr. 31, 55). Turpin had subcontracted to perform the boring work for the project, which Mr. Turpin estimated was about 

1 In its brief, Turpin states it will “accept” Item 2 of Citation 1 “if Citation 2 is also vacated.” This was not Turpin’s 

position in the Joint Prehearing Statement signed by Mr. Turpin or as stated at the hearing (Tr. 6-7). Both the 

Secretary and the Court proceeded under the understanding Item 2 of Citation 1 was not in contest. It would be 

highly prejudicial to the Secretary to now require him to prove the elements of a violation of that citation item. 

Therefore, Turpin is bound by its written and oral representations it has withdrawn its notice of contest with regard 

to Item 2 of Citation 1.

2 To the extent either party failed to raise any other arguments in its post-hearing brief, such arguments are deemed 

abandoned.

 
five percent of the entire project (Tr. 55). In total, Turpin was to perform 15 bores (Tr. 55). The 

parties stipulated on November 22, 2013, at the time of the OSHA inspection, Turpin was 

working at 1955 Highway 129 (Tr. 15). Turpin was to perform two bores at that location (Tr. 

31). The parties also stipulated at the time of the inspection the excavation was 8.7 feet deep and 

25 feet wide (Tr. 15). 

Working for Turpin on the site were William Bain, the foreman and competent person, 

and two employees - Roberto Maldonado and Edwin Shacklock (Tr. 15, 63, 114; Exh. J-13, p. 

11). Mr. Maldonado had been an employee for a little over one year, while Mr. Shacklock was a 

new employee (Tr. 114; Exh. C-7).4 Mr. Bain had been an employee of Turpin for ten years and 

a foreman for the last seven years (Exh. J-1, pp. 9-10). 

According to Mr. Bain, when he and his crew arrived on site at approximately 8:00 a.m. 

on November 22, 2013, several State officials were already there due to the project having 

disturbed a State waterway (Exh. J-1, p. 27). Upon pulling into the worksite, Mr. Bain was 

approached by someone he believed was a State Department of Transportation (DOT) official. 

This official told Mr. Bain he needed to cover his excavation at the end of the workday (Exh. J-1, 

p. 28). Mr. Bain informed the DOT official he did not have sufficient materials to cover the 

excavation but would follow his usual procedure of putting up barricades (Exh. J-1, p. 28). Mr. 

Bain then proceeded to start digging the excavation with his excavator (Exh. J-1, p. 28). He 

testified he tried to do everything possible to slope the excavation but was unable to do so (Exh. 

J-1, pp. 28-29). He testified he did not want to use the trench boxes Turpin had available on the 

site because the excavation was “not that deep” and the trench boxes were inconveniently located 

across the parking lot, which he had already gotten complaints about “destroying” with his 

excavator (Exh. J-1, pp. 28-29). Because he could not properly slope the excavation, Mr. Bain 

testified his final plan was to use the trench boxes. To do so he needed to enlarge the excavation 

(Exh. J-1, p. 29). 

At some point after lunch, Mr. Bain was again approached by a State official (Exh. J-1, 

pp. 29-30). This individual again told Mr. Bain he needed to either cover or refill the excavation 

at the end of the day. Mr. Bain testified he told the official he did not have sufficient equipment 

3 Mr. Bain was not available to testify and, by agreement of the parties with prior court approval, his testimony was 

presented via deposition which was marked and admitted as Exhibit J-1.

4 Mr. Bain testified he had worked with Mr. Mandolado for five or six years (Exh. J-1, p. 11). However, Mr. 

Maldonado’s statement indicates he had been with the company for just over one year.

 
to do so but the official did not waiver (Exh. J-1, p. 30). Mr. Bain then called Ashely Turpin. 

According to Mr. Bain, Mr. Turpin told him to “finish the damn job.” (Exh. J-1, p. 30). Mr. Bain 

testified he interpreted Mr. Turpin’s statement to mean he did not care how the job got finished 

(Exh. J-1, p. 35). Mr. Bain testified he considered himself in a “Catch-22” at that point because 

he did not have sufficient time to complete the bore and refill the excavation, nor sufficient 

materials to cover it. Mr. Turpin did agree to contact the general contractor to ask whether 

Turpin could borrow a trench box (Exh. J-1, p. 31). Mr. Bain testified, however, the boxes were 

not large enough, given the requirements the State officials had imposed (Exh. J-1, pp. 31, 33, 

39-40). He stated at that point he was “at the point of frustration where I just kept 

digging....And I was thinking I’ll try to figure it out later...” (Exh. J-1, p. 31). 

During this same time, Mr. Maldonado and Mr. Shacklock began to perform the work to 

grade the bottom of the excavation or to “shoot the grade.” Mr. Shacklock testified he entered 

the excavation via the ladder (Tr. 115-116). He first smoothed out about 5 feet of the gravel at 

the bottom of the excavation (Tr. 116). Then, Mr. Shacklock and Mr. Maldonado together 

measured the excavation and made two grade markings at the bottom of the excavation. This 

was done by Mr. Shacklock holding a rod and Mr. Maldonado using an instrument referred to as 

a “transit” to “take the shot.” (Tr. 117; Exh. J-1, p. 42). Mr. Shacklock then marked the two 

grade shots with green spray paint (Tr. 117). Mr. Shacklock testified this operation took 5 to 10 

minutes (Tr. 119). After he had placed the second mark, Mr. Shacklock testified Mr. Bain turned 

around and saw him in the excavation (Tr. 120). Mr. Bain then ordered Mr. Shacklock out of the 

excavation (Tr. 120; Exh. J-1, p. 41). Mr. Shacklock immediately got out of the excavation (Tr. 

121). 

CSHO Munson testified on November 22, 2013, he was driving past Turpin’s worksite 

on Highway 129 when he saw a ladder sticking out of an excavation (Tr. 62). Pursuant to a 

National Emphasis Program for Trenching, he stopped to inspect the site (Tr. 62). He took a 

photograph of the worksite before initiating his inspection (Tr. 62; Exh. C-11a). Mr. Bain was 

running an excavator at the time, while Mr. Shacklock and Mr. Maldonado were standing outside 

of the excavation. After Mr. Shacklock and Mr. Maldonado told CSHO Munson Mr. Bain was 

in charge, CSHO Munson held an opening conference with Mr. Bain (Tr. 65). CSHO Munson 

then conducted a walk around inspection of the worksite during which he took more photographs 

of the excavation (Tr. 66; Exhs. C-11b-11g). CSHO Munson observed conditions from which he 
concluded someone had been in the excavation (Tr. 66-67). He later confirmed through 

interviews with Mr. Shacklock and Mr. Mandolado that Mr. Shacklock had been in the 

excavation to take measurements and get elevations (Tr. 85-86; Exhs. C-6 and C-7).

CSHO Munson then measured the excavation using a trench rod (Tr. 69). He found the 

excavation to be 8.7 feet deep (Tr. 70; Exh. C-11d). He observed fissuring of the soil on the 

excavation walls and water in the bottom of the excavation (Tr. 73-75; Exhs. C-11c, 11e). From 

these observations, CSHO Munson concluded employees in the excavation were exposed to the 

hazard of being struck by the excavation wall (Tr. 73). 

CSHO Munson noted the excavation had been dug in previously disturbed soil as 

evidenced by a pipe that had been installed prior to the excavation being dug (Tr. 74; Exh. C11b). Based on this observation, CSHO Munson judged the soil to be type C (Tr. 74). CSHO 

Munson took a soil sample which he sent to OSHA’s lab in Salt Lake City (Tr. 78; Exh. C-11g). 

The lab report confirmed the soil to be type C (Tr. 79; Exh. C-5). 

Based upon his measurements and the type of soil, CSHO Munson determined the 

excavation had not been properly sloped (Tr. 79-80). Although Turpin had two onsite, no trench 

boxes or other protective system had been in use (Tr. 82-84). CSHO Munson recommended a 

citation for a violation of 29 C.F.R. § 1926.652(a)(1) be issued because Mr. Shacklock had been 

in the excavation without proper cave-in protection. He recommended the citation be classified 

as willful because Turpin had the necessary equipment onsite, but had not used it, and because 

Turpin had been cited for similar violations in the past (Tr. 86-87). 

The Citation 

The Secretary has the burden of establishing the employer violated the cited standard. To 

prove a violation of an OSHA standard, the Secretary must show by a preponderance of the 

evidence that (1) the cited standard applies; (2) the employer failed to comply with the terms of 

the cited standard; (3) employees had access to the violative condition; and (4) the cited 

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

violative condition. JPC Group, Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009). 

Item 1 of Citation 2 alleges a willful violation of 29 C.F.R. § 1926.652(a)(1). The 

citation alleges:

An employee was exposed to cave in hazards while performing elevation 

measurements in an excavation approximately 8.7 feet deep. The employer failed 
to install a protective system for the trench opened in Type C soil. 

The cited standard requires “each employee in an excavation [] be protected from cave-ins by an 

adequate protective system designed in accordance with paragraph (b) or (c) of this section.” 

Designs for proper sloping and benching systems are set out in § 1926.652(b); and for support 

systems in § 1926.652(c). 

Applicability of the Standard 

The standard requires the protection of employees working in excavations from cave-ins. 

The standard applies to circumstances in which employees are working in excavations over 5 

feet deep and not dug in stable rock. 29 C.F.R. §§ 1926.652(a)(1)(i) and (ii). The standard 

defines excavation as any “man-made cut, cavity, trench, or depression in an earth surface, 

formed by earth removal.” There is no dispute in the record the worksite contained an 

excavation dug by Turpin’s employee that was not in stable rock (Exh. J-1, pp. 40, 44-47). The 

parties stipulated the excavation was over 5 feet deep. The standard applies to the cited 

conditions. 

Failure to Comply with the Terms of the Standard 

Section 1926.652(a)(1) allows an employer two methods of compliance. The employer 

may use a sloping or benching system as set out in § 1926.652(b) or a support system as set out 

in § 1926.652(c). The preponderance of the evidence establishes Turpin used neither method. 

There is no dispute in the record Turpin did not have a support system in the excavation at the 

time Mr. Shacklock entered it. Nor did Turpin slope or bench the excavation in accordance with 

§ 1926.652(b).5

The record evidence establishes the excavation at issue was dug in type C soil. CSHO 

Munson observed the soil conditions and took soil samples. Both the conditions he observed and 

the results of testing of his samples confirmed the soil was type C (Tr. 75; Exh. C-5). CSHO 

Munson testified he believed the soil sample he took to be representative of the entire 

excavation. Turpin contends the soil sample was not representative and disputes whether the 

entire excavation was dug in type C soil. I do not find Turpin’s evidence sufficient to rebut the 

5 Sections 1926.652(b)(1) and (2) provide for sloping and benching options consistent with Appendices A and B of 

Subpart P. Sections 1926.652(b)(3) and (4) provide for designs using either tabulated data or a design by a 

registered engineer. Turpin does not contend, and the evidence does not support a finding, it was using the options 

set out in § 1926.652(b)(3) or (4).

 
Secretary’s proof of the excavation’s soil type. Turpin presented no evidence of contrary soil 

testing results. Turpin’s contention, in its brief, that the excavation was in entirely type B soil is 

unsupported by any testimony or documentary evidence. Mr. Bain testified, based on his years 

of experience, he assessed the soil at the top 5 feet of the excavation to be type B soil and the 

bottom to be “old swampy clay mush” which he testified he believed was type C soil (Exh. J-1, 

p. 47). The sloping requirements for an excavation dug in type C soil and one dug in type B or 

type C soil are identical. See Appendix B to Subpart P of Part 1926 – Sloping and Benching. 

Therefore, even if I were to accept Mr. Bain’s assessment over CSHO Munson’s and the lab test 

results, the analysis of whether Turpin complied with the cited standard is the same. 

An excavation of 8.7 feet6

 in depth in type C soil or type B over type C soil would have 

to be sloped such that it would be 26.1 feet wide at a minimum. To be properly sloped, it would 

need to be wider, depending upon the width of the excavation at the bottom. Because the 

excavation at issue was approximately 6 feet wide at the bottom, it would have needed to be 

wider than 26.1 feet at the top. The parties stipulated the excavation was 25 feet at the top. Mr. 

Bain testified he was unable to bench or slope the excavation because of the poor soil conditions 

(Exh. J-1, pp. 28, 44-45). I find Turpin was in violation of the terms of the standard. 

Employee Exposure to the Hazard 

 There is no dispute Mr. Shacklock was in the excavation while no protective system was 

in place. Therefore, the Secretary has established he was exposed to the hazard of cave-in 

addressed by § 1926.652(a)(1).

6 As previously noted, the parties stipulated the excavation was 8.7 feet deep. In its brief, Turpin contends the 

excavation was “an average of 7.7 feet in depth.” The record contains no testimony or documentary evidence 

supporting that contention. Moreover, the photograph upon which Turpin relies was not presented at the hearing 

and is not part of the record in this proceeding. Therefore, I will not consider it for this or any other purpose.

 
Employer knowledge 

The Secretary has the burden to establish Turpin was aware of the violative condition. 

To establish employer 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). I find the 

preponderance of the evidence fails to establish Turpin had actual knowledge of the violative 

condition. Although both Mr. Shacklock and Mr. Maldonado were aware Mr. Shacklock had 

entered the excavation while no protective system was in place, there is no evidence either had 

sufficient supervisory authority such that their knowledge could be imputed to Turpin. Nor did 

the evidence establish Mr. Bain ordered Mr. Shacklock to enter the excavation or was even 

aware Mr. Shacklock had entered it until turning to see him in the excavation. Only the out-ofcourt statement of Mr. Maldonado supports a finding Mr. Bain ordered him and Mr. Shacklock 

to enter the excavation before the trench box was in place. In his statement to CSHO Munson, 

Mr. Maldonado states Mr. Bain told him to “get the elevations” and he did so, knowing it was 

not safe to enter the excavation without the trench box in place (Exh. C-7). Both Mr. Bain and 

Mr. Shacklock testified Mr. Shacklock entered the excavation on his own without Mr. Bain’s 

knowledge in an effort to get his part of the job done (Tr. 115-16; Exhs. C-6, J-1, p. 41). Both 

also state, upon seeing Mr. Shacklock in the excavation, Mr. Bain ordered him out (Tr. 120; Exh. 

J-1, p. 41). Although Mr. Bain’s testimony is not entirely consistent with his prior statements, 

Mr. Shacklock’s is. Moreover, I found Mr. Shacklock to be a straightforward witness and, 

therefore, credible. The Secretary has failed to establish Turpin had actual knowledge of the 

violative condition. 

To establish constructive knowledge, the Secretary must show Turpin could have 

discovered the condition with the exercise of reasonable diligence. “Reasonable diligence” 

includes 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.” Frank Swidzinski 

Co., 9 BNA OSHC 1230, 1233 (No. 76-4627, 1981). To determine whether an employer acted 

with reasonable diligence, consideration must be given to “several factors, including the 

employer’s obligation to have adequate work rules and training programs, to adequately 

supervise employees, to anticipate hazards to which employees may be exposed, and to take 

measures to prevent the occurrence of violations.” Precision Concrete Construction, 19 BNA 
OSHC 1404 (No. 99-0701, 2001). The Commission has held that “[r]easonable steps to monitor 

compliance with safety requirements are part of an effective safety program.” Southwestern Bell 

Tel. Co., 19 BNA OSHC 1097, 1099 (No. 98-1748, 2000 (citations omitted), aff’d without 

published opinion, 277 F.3d 1374 (5th Cir. 2001). I find the evidence establishes Turpin failed 

to take any such steps and constructive knowledge is established. 

As the project manager, Mr. Turpin had overall responsibility for the jobsite and the 

authority to discipline employees. According to his testimony, he does not regularly visit 

jobsites while work is ongoing (Tr. 29-31; see also Exh. J-1, pp. 48-49). He had never visited 

the worksite that was the subject of the inspection. Rather, Mr. Bain was the individual 

responsible for work on that site (Tr. 36; Exh. J-1, p. 11). According to the record, Mr. Bain had 

last received competent person training for trenching in 2004 (Exh. J-1, p. 13). He had also been 

involved in two prior OSHA inspections during which citations for violations of the same or 

similar standards had been issued for which he received no discipline (Exh. J-1, pp. 15-16). 

There is no evidence Mr. Bain had any authority to discipline employees or any obligation to 

monitor or inspect the worksite. 

There is no evidence Turpin routinely trained its employees on excavation hazards to 

which they would likely be exposed given the nature of Turpin’s business. There is no evidence 

Turpin trained Mr. Maldonado in trench safety and his statement indicates he was “not sure” 

about company policy on excavation safety (Exh. C-7). Although the record contains evidence 

Mr. Shacklock may have been trained in the past, there is no evidence of recent training. The 

record supports a finding Turpin provided Mr. Shacklock with a New Employee Orientation 

Tape, but not that he ever reviewed it or was familiar with its contents (Exh. C-15). Mr. Turpin’s 

testimony regarding the training Turpin provides its employees was so vague it failed to rebut the 

Secretary’s evidence of lack of training (Tr. 37).

There is no evidence of, and Turpin did not allege, any employee discipline for past 

safety violations. Mr. Bain testified he was required to attend a class after the company had 

received citations (Exh. J-1, pp. 49-50). Otherwise, according to Mr. Bain, the only discipline 

Turpin issued was “cussing and screaming and....all the displeasure.” (Exh. J-1, p. 50). The only 

other evidence of employee discipline was three “essays” Turpin alleges were written by 

employees at various times, upon his observation of a safety issue (Tr. 39-42). Mr. Turpin 

declined to identify these as a form of discipline, so their purpose is not clear. Contrary to Mr. 
Turpin’s testimony, Mr. Shacklock credibly testified all three of the individuals who were 

required to write these essays were instructed to do so by Mr. Turpin during a meeting at the 

company’s warehouse several months after the citations at issue in this proceeding were issued 

(Tr. 125-26). Based upon the record as a whole, I find these essays were an after-the-fact 

attempt by Mr. Turpin to improve the appearance of the company’s safety program and fail to 

rebut the Secretary evidence of lack of employee discipline. 

I also find Turpin’s safety program lacking, based on evidence Mr. Maldonado and Mr. 

Shacklock performed work that necessitated entering an unprotected excavation without either 

appreciating that it was unsafe or concern for the consequences. Mr. Shacklock testified he 

entered the excavation because he did not believe it was unsafe (Tr. 122). Mr. Bain testified Mr. 

Maldonado was frequently in a hurry and proceeded with this task without his knowledge or 

consent (Exh. J-1, pp. 39-40). He also testified this was not the first time employees had 

proceeded to complete work in an unsafe manner without his knowledge on jobs for which he 

was foreman (Exh. J-1, p. 51). There is no evidence these employees were ever disciplined for 

this conduct. That employees felt free to proceed on their own and work in an unsafe manner 

establishes Turpin paid little attention to compliance and its safety program was lax.

Based upon the totality of the evidence, I find the Secretary has established Turpin had 

constructive knowledge of the violative condition. 

Unpreventable Employee Misconduct

Turpin has asserted a defense of unpreventable employee misconduct. To prevail on 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 those 

rules to its employees, (3) taken steps to discover violations, and (4) effectively enforced the 

rules when violations have been discovered. See, e.g., Stark Excavating, Inc., 2014 WL 5825310 

(Nos. 09-0004 and 09-0005, 2014), citing Manganas Painting Co., 21 BNA OSHC 1964, 1997 

(No. 94-0588, 2007). As discussed in detail above, Turpin has failed to meet its burden with 

regard to this defense. 

The only evidence Turpin had a work rule designed to prevent the violation was the 

orientation materials Turpin alleges were provided to Mr. Shacklock that make reference to 

trench safety (Exh. C-15). There is no other evidence of a written safety program or safety rules. 

Even if the employee orientation were adequate evidence of a company policy or rules, as noted 
above, Mr. Turpin’s testimony about how this was communicated to employees was vague and 

confusing (Tr. 37). Mr. Maldonado, who had been with the company for over a year at the time 

of the inspection, could not state the company’s policy on excavation safety (Exh. C-7). Mr. 

Bain, who was a foreman with oversight of jobs, had not received training on excavation safety 

since 2004. Although the evidence establishes Turpin held safety meetings on Monday 

mornings, there is no evidence employees received any training specific to excavation safety. 

Nor does the record contain evidence of Turpin making efforts to discover violations or to 

discipline employees found in violation of safety rules. Mr. Turpin admitted to visiting 

worksites infrequently. Although foremen had oversight of jobsites, Turpin presented no 

evidence foremen had authority to discipline employees for safety violations. The record 

contains no credible evidence of any disciplinary actions taken by anyone against any employee. 

Turpin failed to establish the affirmative defense of employee misconduct. 

Classification

The Secretary alleged Item 1 of Citation 2 was a willful violation. A violation is 

“willful” if it was committed with intentional, knowing or voluntary disregard for the 

requirements of the Act or with plain indifference to employee safety. Ensign-Bickford Co. v. 

OSHRC, 717 F.2d 1419, 1422-23 (D.C. Cir. 1983); Valdak Corp., 17 BNA OSHC 1135, 1136 

(No. 93-0239, 1995), aff'd 73 F.3d 1146 (8th Cir. 1996). The employer's state of mind is the key 

issue. AJP Construction, Inc. v. Secretary of Labor, 357 F.3d 70, 74 (D.C. Cir. 2004). The 

Secretary must differentiate a willful from a serious violation by showing that the employer had 

a heightened awareness of the illegality of the violative conduct or conditions, and by 

demonstrating that the employer consciously disregarded OSHA regulations, or was plainly 

indifferent to the safety of its employees. Valdak Corp., 17 BNA OSHC at 1136. The Secretary 

must show that, at the time of the violative act, the employer was actually aware 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. Propellex Corp., 18 BNA OSHC 1677, 1684 (No. 96-0265, 1999). I find the 

Secretary has failed to prove willfulness for the reasons set forth below. 

The Secretary argues in his brief Turpin had a heightened awareness of the requirements 

of § 1926.652(a)(1), having been previously cited for the same standard. Turpin contends, 

because these citations were either vacated or reduced in classification, they cannot form the 

basis for the willful classification. On this, Turpin is mistaken. Even if the prior citations did 
not become a final order, the fact Turpin was previously inspected and cited put it on notice of 

the requirements of the standard. MJP Constr. Co., 19 BNA OSHC 1638, 1648 (No. 98-0502, 

2001). After Mr. Bain’s attempts to bench and then slope the excavation were unsuccessful, he 

ultimately recognized he needed to use the trench boxes (Exh. J-1, pp. 56-67). Although I find 

this evidence does establish Mr. Bain’s awareness of the need for proper protection before 

allowing an employee to enter the excavation, it does not establish anyone with supervisory 

authority for Turpin ordered Mr. Shacklock into the excavation or was aware he had entered it 

without the proper protection. Mr. Shacklock credibly testified when he entered the excavation, 

Mr. Bain was in the excavator facing away from the excavation (Tr. 120). When asked why he 

entered the excavation, he testified, “I just had got hired and I was trying to do a good job so [I] 

jumped ahead and went down there and tried to work.” (Tr. 115-16). Mr. Shacklock went on to 

testify after he had marked two grade points, Mr. Bain turned around and, upon seeing him in the 

excavation, ordered him out (Tr. 119). Absent credible evidence Mr. Bain was aware of Mr. 

Shacklock’s action prior to this time, I find the Secretary has failed to meet his burden to 

establish the violation was willful. See Southern Pan Services, Co., 21 BNA OSHC 1274 (99-

0933, 2005); citing American Wrecking Corp., 351 F.3d 1254, 1264-65 (D.C. Cir. 2003) and J.A. 

Jones Const. Co., 15 BNA OSHC 2201 (No. 87-2059, 1993). 

I am mindful Turpin was under pressure to complete the job that day and Mr. Bain’s 

requests for assistance were met with a curt “finish the damn job.” However, this evidence is not 

sufficient to rebut the credible testimony of Mr. Shacklock that he entered the excavation on his 

own. 

A violation is serious when “there is a substantial probability that death or serious 

physical harm could result” from the hazardous condition at issue. 29 U.S.C. § 666(k). The 

Secretary need not show that there was a substantial probability that an accident would occur; 

only that if an accident did occur, death or serious physical harm would result. As the Third 

Circuit has explained:

It is well-settled that, pursuant to § 666(k), when the violation of a regulation 

makes the occurrence of an accident with a substantial probability of death or 

serious physical harm possible, the employer has committed a serious violation of 

the regulation. The “substantial probability” portion of the statute refers not to the 

probability that an accident will occur but to the probability that, an accident 

having occurred, death or serious injury could result, even in those cases in which 

an accident has not occurred or, in fact, is not likely to occur. 
Secretary of Labor v. Trinity Industries, 504 F.3d 397, 401 (3d Cir. 2007) (internal quotation 

marks and citations omitted); See also, Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th

Cir. 1984); Mosser Construction, 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010); Dec-Tam 

Corp., 15 BNA OSHC 2072, 2087-2088 (No. 88-0523, 1993). The likelihood of an accident goes 

to the gravity of the violation, which is a factor in determining an appropriate penalty. J.A. Jones 

Constr. Co., 15 BNA OSHC at 2214.

 It is undisputed excavation cave-ins pose a serious risk to the safety of employees 

working in and around excavations. Turpin’s foreman conceded it is well known in the industry 

a cave-in can cause death or serious injury (Exh. J-1, p. 16). Although Mr. Shacklock was in the 

excavation a short time, he was exposed to the hazard posed by the unprotected excavation. I 

find Item 1 of Citation 2 a serious violation of 29 C.F.R. § 1926.652(a)(1). 

Penalty Determination

The Secretary proposed a penalty of $24,200.00 for Item 1 of Citation 2. The 

Commission, in assessing an appropriate penalty, must give due consideration to the gravity of 

the violation and to the size, history and good faith of the employer. See § 17(j) of the Act. The 

Commission is the final arbiter of penalties. Hern Iron Works, Inc., 16 BNA OSHC 1619, 1622, 

(No. 88-1962, 1994), aff’d, 937 F.2d 612 (9th Cir. 1991) (table); see Valdak Corp., 17 BNA 

OSHC 1135, 1138 (No. 93-0239, 1995) (“The [OSH] Act places limits for penalty amounts but 

places no restrictions on the Commission’s authority to raise or lower penalties within those 

limits.”), aff’d, 73 F.3d 1466 (8th Cir. 1996). In assessing a penalty, the Commission gives due 

consideration to all of the statutory factors with the gravity of the violation being the most 

significant. OSH Act § 17(j), 29 U.S.C. § 666(j); Capform Inc., 19 BNA OSHC 1374, 1378 (No. 

99-0322, 2001), aff’d, 34 F. App’x 152 (5th Cir. 2002) (unpublished). “Gravity is a principal 

factor in a penalty determination and is based on the number of employees exposed, duration of 

exposure, likelihood of injury, and precautions taken against injury.” Siemens Energy and 

Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005). 

Because I have found Item 1 of Citation 2 was a serious, and not a willful, violation, the 

maximum penalty under the Act is $7,000.00. CSHO Munson testified he rated the severity of 

the violation high because, should a cave-in occur, death of the employee in the excavation could 

result (Tr. 88). He rated the probability as low due to the short duration of exposure (Tr. 88). I 

agree the severity of the violation is high. Excavation work is recognized as some of the most 
hazardous work in the construction industry and cave-in hazards are more likely to be fatal than 

any other construction accident. 54 Fed. Reg. at 45897-98. Mr. Bain described the soil in the 

lower part of the excavation as “old swampy clay mush” that was “sliding” and “didn’t hold.” 

(Exh. J-1, pp. 46-47). Given these conditions there is a greater likelihood of an accident 

occurring. Mitigating these factors is the fact that only one employee was exposed and for a 

short duration. I also have considered that Turpin is a small employer. Taking all of these 

factors into consideration, a penalty of $3,000.00 is assessed.

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 decision, it is ORDERED that: 

1. Item 1, Citation 1, alleging a violation of § 1926.651(j)(1) is vacated;

2. Item 2, Citation 1, alleging a violation of § 1926.1053(b)(1) is affirmed as a serious 

violation, and a penalty of $1,760.00 is assessed; and 

3. Item 1, Citation 2, alleging a violation of § 1926.652(a)(1) is affirmed as a serious 

violation, and a penalty of $3,000.00 is assessed.

 

/s/ Heather Joys

Date: March 16, 2015 HEATHER A. JOYS

 Administrative Law Judge 

Atlanta, Georgia