United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20thStreet, N.W., Ninth Floor

Washington, DC 20036-3457

 

 

	

SECRETARY OF LABOR,

	

 

Complainant,

	

 

v.

	

OSHRC Docket No.11-2559

JIM BOYD CONSTRUCTION,INC.,

	

Respondent.

	

 

 

ON BRIEFS:

Anne R. Ryder, Attorney; Heather R. Phillips, Counsel for Appellate
Litigation; Ann Rosenthal, Acting Associate Solicitor of Labor for
Occupational Safety and Health;
M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor,
Washington, DC

For the Complainant

 

J. Larry Stine, Esq.; Mark A.Waschak, Esq.;Wimberly, Lawson,Steckel,
Schneider & Stine, P.C., Atlanta, GA

    For the Respondent

DECISION

Before: ATTWOOD, Chairman;andMacDOUGALL,Commissioner.

BY THE COMMISSION:

In March 2011, the Occupational Safety and Health Administration
inspected a trench dug by Jim Boyd Construction, Inc.(JBC)at a
construction worksite locatedon theU.S.Marine Corps Logistics Base in
Albany, Georgia.Following the inspection, OSHA issued JBCtwo
citationsalleginga total of fourviolations ofOSHA’s excavation standard.
Thewillfulcharacterization of Citation2, Item1,is the only issue
onreview.1 <#ftn1> In that item, the Secretary alleged thatJBC
violated29 C.F.R. § 1926.652(a)(1),whichrequiresthatthewalls
aboveatrench shield be sloped back so that thebase of the slope is below
thetop of the shield.2 <#ftn2>

Following a hearing,formerAdministrative Law Judge Ken S.Welschaffirmed
the violation but characterized it as serious,stating that “[a]lthoughon
a technical level it could be argued that [JBC]
substituted[its]judgment” for that of thecited standard, the company“had
reason to believe that the construction of the trench was
acceptable”because third-party safetypersonneldid not object to its
design. For the reasonsthat follow, we reverse the judge’s decision,
affirm the violation as willful, and assess a penalty of $27,500.

BACKGROUND

At the time of the inspection, the trench measured approximately 600
feet in length,and ranged from12 to 16 feet in width and 2 to 12 feet
indepth. The trench’s nearly vertical walls were, as stipulated by the
parties, composed ofTypeB soil, and in most areas the ground on either
side of the trench was covered by a 12-to-18 inch thick concrete slab.
Inside the trench were numerous,pre-existing pipesthatcrisscrossed the
trench and each other. For the project,JBC rented trench shields that
measured 6 to 8 feet inheight. The trench shields were not installed
uniformly,andseveral areas of the trench’s wallswere leftunprotected.
The onlyunprotectedareasat issueon reviewaretheportionsof the trench
wallsthatextendedfrom2 to 4 feetabove the topsofsome ofthe shields.

JBC’s supervisor at the worksite,superintendent DanielLayfield, was the
company’s only employee to testifyat the hearing. Heacknowledged that
the trench shields were “[p]robablynot” in compliance with §
1926.652(a)(1), but stated that he had “installed [them] to the best of
[his] ability.” Layfieldexplained that the trench’s pre-existing pipes
made stacking the shields (so that theywouldrise above the top of the
trench’s vertical walls) difficult,and that he believed stacking them
would haveincreased therisk of contactingoverhead power lines when
hoisting pipe intothe trench. Headmitted that beyond considering whether
to stack the shields, he “did nothing else to the ditch” because he
believed “[t]here was no hazard.” According toLayfield,his belief was
based on the fact thatsafety representatives from themarine base,
andfromtheproject’s construction managerandgeneral contractor, had all
inspectedthe trench and “had no problemwith what [he] had installed.”

DISCUSSION

I.  Characterization

“The hallmark of a willful violation is the employer’s state of mind at
the time of the violation—an ‘intentional, knowing, or voluntary
disregard for the requirements of the Act or . . . plain indifference to
employee safety.’ ” KasparWire Works, Inc., 18 BNA OSHC 2178, 2181 (No.
90-2775, 2000)(quotingValdakCorp., 17 BNA OSHC 1135, 1136 (No. 93-0239,
1995)),aff’d, 268 F.3d 1123 (D.C. Cir. 2001). In proving a violation was
willful, “it is not enough for the Secretary to show that an employer
was aware of conduct or conditions constituting the alleged violation,”
as “such evidence is already necessary to establish any
violation . . . .” HernIron Works, Inc., 16 BNA OSHC 1206, 1214 (No.
89-433, 1993). Instead, the Secretary must show that “the employer was
actually aware, at the time of theviolativeact, that 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.” AJP Constr.,Inc. v.Sec’yof
Labor, 357 F.3d 70, 74 (D.C. Cir. 2004)(quotingPropellexCorp., 18 BNA
OSHC 1677, 1684 (No. 96-0265, 1999))(emphasis omitted).

Before the judge and again on review, theSecretaryargues
thattheexcavationviolation was willful becauseLayfieldknew the trench
shields did not comply with § 1926.652(a)(1), butdisregarded
thestandard’s slopingrequirement because he believed the trench was
safe. To prove intentional disregard, the Secretary must show that the
employer (1)had a heightened awareness of the “applicable standard or
provision prohibiting the conduct or condition” and (2) “consciously
disregarded the standard.” Fluor Daniel v. OSHRC, 295 F.3d 1232, 1239-40
(11th Cir. 2002) (quotingJ.A.M. Builders Inc. v. Herman, 233 F.3d 1350,
1355(11th Cir. 2000));see alsoSal Masonry Contractors, Inc., 15 BNA OSHC
1609, 1611 (No. 87-2007, 1992)(“To show intentional disregard of a
standard, there must be evidence that the employer knew of the
applicable standard prohibiting the condition and that it consciously
disregarded it.”).

   

  We findthatLayfield’shearing testimony, along with evidence of
hisworkexperience,establishesaheightened awarenessof thecitedstandard’s
requirementthatisimputed to JBC.SeeFluor Daniel, 295 F.3d at 1239-40
(awareness of cited requirements established through the testimony
oftheemployer’s safety officer,theemployer’s existing knowledge of the
danger, and a prior emergency at the employer’s facility);ConieConstr.,
16 BNA OSHC1870,1872(No. 92-0264, 1994),aff’d, 73 F.3d 382 (D.C. Cir.
1995)(supervisor’sheightenedawarenessestablished by previous violation
of similar standards and testimony “that hehad received specific
training about the most recent OSHA regulations on excavations” imputed
toemployer in finding willfulness).At the hearing,Layfielddemonstrated
hisknowledgeof thecitedrequirementby testifyingthat § 1926.652(a)(1)
requires “the starting of your slope. . .18 inches below the top of your
box,” but where there is no sloping, like in the trench at issue here,
“[y]ouwould have to stack the box[es].” Layfieldclarified that he had
this knowledge before theOSHAinspection, explaining that prior to the
inspection he had actually considered stacking the shields.In
addition,therecord shows that hehadextensive trenching experience—at the
time of the inspection,Layfieldhad been engaged in excavation work for
more than twenty-five yearsand hadcompleted at least three trench safety
courses, including one that specifically covered OSHA’s Subpart P
excavation standards.

  We alsoagree with the Secretary thatLayfield’stestimony establishes
conscious disregard. According toLayfield:(1) he knew the trench was
“probably not” in compliance with thecitedstandard; (2) he had actually
considered stacking the shields to make the trench compliant; and (3) he
chose not to stack the shields because he believed that stacking would
increase the risk of contact with overhead powerlines.Fluor Daniel, 295
F.3d at 1240;KasparWire Works, 18 BNA OSHC at
2181.Layfield’scontemporaneous consideration ofwhether to stack the
shields(a means of complyingwiththe standard)showsthat heknewthe
trenchwasnot in complianceat the time of the violation.3 <#ftn3> JBC’s
only rebuttaltoLayfield’stestimonyisits claimthatthere is no reference
in time to whenhereached hisstatedconclusions, and
thereforehistestimonycannot establish conscious disregard. JBCignores,
however,thatin explainingwhy hedecidednottostack
theshields,Layfield’stestimony showsthathe made that decisionat the
timethe violation occurred—“Ifeltlike it would bring more hazards to try
to stack this box with the overhead utilities. . . .”(Emphasis added.)

  In sum,therecordestablishesthat JBC—through its
supervisor,superintendentLayfield—had a heightened awareness of
thecitedrequirement and consciously disregarded it. Thus, the
Secretaryhasestablishedthat the violation was willful.

II.  Good Faith Effort Defense

In rejecting theviolation’swillful characterization, the
judgeconcludedthat JBC “had reason to believe that the construction of
the trench was acceptable.” Asthe Secretary argueson review,thejudge’s
conclusionactuallyrests onthegood faithbeliefdefense to willfulness,even
though he never explicitlyidentifiedit as suchin his decision.
SeeSec’yof Labor v. Williams Enters.,Inc., 876 F.2d 186, 188-89 (D.C.
Cir. 1989) (judge’s“failure tolabelhis analysis withitscorrect name”
does not “free him from the standards developed by the Commission for
[his] line of reasoning”).The Commission, and many circuit courts,
havelong held that a violation is not willful if the employer shows that
it “exhibited a good faith,reasonable belief that its conduct conformed
to law,. . .or[]it made a good faith effort to comply with a standard or
eliminate a hazard.” Am. Wrecking Corp. v.Sec’yof Labor, 351 F.3d 1254,
1263 (D.C. Cir. 2003)(citations omitted).4 <#ftn4>

On review,JBChasexpresslywaivedthe good faith belief defense, claiming
that it is not “assert[ing] a ‘good faith’ substitution of judgment
defense.”5 <#ftn5>The companydoesassert, however,that it“made good
faitheffortsto comply with the standard”which, it claims,should obviate
willfulness.(Emphasis added.)The test for good faith is an objective
one—“whether the employer’s efforts were objectively reasonable even
though they were not totally effective in eliminating
theviolativeconditions.” A.E. Staley Mfg. Co., 19 BNA OSHC 1199, 1202
(No. 91-0637, 2000) (consolidated),aff’d, 295 F.3d 1341 (D.C. Cir.
2002). However, in cases involving conscious disregard (as opposed to
plain indifference), “[t]he [employer’s] good faith effort” must also
have been made in “an effort to complywith the cited provision[].”
SeeCalangCorp., 14 BNA OSHC 1789, 1793 (No. 85-319, 1990). See
alsoLanzoConstr. Co., 20 BNA OSHC 1641, 1648 (No. 97-1821, 2004) (“[A]n
employer may defend against a showing of willfulness by producing
evidence tending to show that it acted in good faithwith respect to the
requirements of the standard at issue.”)(emphasis added),aff’d, 150
F.App’x983 (11th Cir. 2005) (unpublished). Furthermore, the burden of
proof for good faith is on the employer. N. Landing Line Constr. Co., 19
BNA OSHC 1465, 1476 (No. 96-0721, 2001)(citingMorrison-Knudsen Co., 16
BNA OSHC 1105, 1124 (No. 88-572, 1993)).

According toJBC,Layfieldtook numerous “actions” to comply with the
standard, such as properly installing the trench shields in
non-obstructedareasof the trench, considering whether to stack the
trench shieldsin the cited areas, and consulting with
threeothersafetyrepresentativesat the worksite.6 <#ftn6>These actions,
however, are insufficient to negate willfulness.With regard to the first
action, compliance in other areas of the trench is not“an effort to
complywith the cited provision[]” in thedeficientareas of the trench.As
to the other actions,although JBC claims they were taken to render the
workplace safe, we findthey werein lieu of compliance;not an effort to
comply.SeeCalangCorp., 14 BNA OSHCat 1793.Stated simply, the fact that
JBC may have believedits “actions”regarding the deficient areasmadethe
trench safe does not constitute a good faith effort to comply with
thecitedstandard.

Throughout itsreviewbrief, JBCalsorepeatedlypoints toits general effort
to comply withotherexcavationrequirements (often in different areas of
the trench) as an effort to comply with thecitedrequirement in
thedeficientareas. However,JBCneveridentifiesspecificmeasuresit took to
bring the deficient areas of the trench into compliance with the cited
requirement.Furthermore, JBC’s alleged actions,such as considering
whether to stack the trench shields or consulting with other
safetypersonnel,werenotattemptstocomply with the standardin the cited
areas—theymerely explain why JBCbelievedits noncompliance was
permissible. Thatbeliefisirrelevant,asJBCexpressly waived the good faith
belief defenseon review.

JBCfurthercontends thatthe company’scompliancewiththecitedrequirement
inthe non-obstructedareas of the trench,as well aswithseveralof the
excavation standard’s other requirements, is inconsistent with a willful
state of mind.Compliance in one area of a worksite does not constitute
an effort to comply in a completely different area—a willful violation
is not limited to situations or areasfor whichcompliance was easy or
convenient. LanzoConstr., 20 BNA OSHC at 1649 (employer’s compliance
with § 1926.652(a)(1) in other areas of trench did not constitute good
faith effort to comply, but instead illustrated “a heightenedawareness
of the requirements of the standard”);A.G.Mazzocchi, Inc., 22 BNA OSHC
1377, 1388 (No. 98-1696, 2008) (employer’s partial compliance did not
negate its decision to knowingly violate the standard);V.I.P. Structures
Inc., 16 BNA OSHC 1873, 1875 (No. 91-1167, 1994) (employer’s inability
to install safety nets at worksite due to mud was not sufficient to
negate willfulness).

As for JBC’s claim thatits compliance withsomeof the excavation
standard’s other requirementsshows thatit“did not do nothing,”the
companyrelieson Commission and circuit court casesaddressingplain
indifference, notconsciousdisregard. Whilesuchcompliancemight showJBCwas
not plainly indifferent toemployeesafety,ithas no bearingonwhetherthe
companyintentionally disregarded the requirementat issue here.
SeeAviation Constructors, Inc., 18 BNA OSHC 1917, 1920 (No. 96-0593,
1999) (willful characterization based on conscious disregard, despite
evidence of employer’s “efforts to comply with the
standard”).Moreover,JBCfailed topursue other options forcomplyingwith
thecited standard,such assloping the excavation walls,obtaining taller
trench shields,or—if complying with the cited requirementwas as
“extremely difficult” as JBC now claims—using a registered professional
engineer(RPE)to design a protective system,as permittedunderthe
standard. SeeCalangCorp., 14 BNA OSHC at 1793 (requiring employer to
show it attempted to comply withallalternative means of compliance
available under standard);29 C.F.R. § 1926.652(b)(4)(sloping/benching
designed by RPE), (c)(4)(support, shield,and other systems designed by RPE).

Finally,JBC maintainsthat its “actions” were reasonable because other
safetypersonnelat the worksite approved of the trench’s design.
However,as explainedabove,these opinionsmerelyrelate to the
reasonableness of JBC’s belief that the noncompliant aspect of the
trench posed no hazard; they do notnegatethe company’s awareness of the
standard’s requirement and failure to act accordingly. Put another way,
even if JBC’s belief weresomehowrelevant to the good faith effort
defense, it is not “objectively reasonable” for an employer to ignore a
known requirement on the basis that third-party safety personnel did not
object. See V.I.P. Structures, 16 BNA OSHC at 1875 (emphasizing that
“[r]esponsibilityunder the Act . . . rests ultimately upon each employer
. . . .”). Therefore,we findJBC’salleged efforts were not objectively
reasonable,and it has not established the good faitheffortdefense.

III.  Penalty

In assessing a penalty, the Commission gives due consideration to:(1)
“the size of the business of the employer being charged,” (2) “the
gravity of the violation,” (3) “the good faith of the employer,” and (4)
“the history of previous violations.” OSH Act§17(j), 29 U.S.C. § 666(j).
The gravity of the violation is the “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 & Automation,Inc., 20 BNA OSHC 2196, 2201 (No.
00-1052, 2005).

On review, neither party addresses the appropriateness of the penalty.
The Secretary proposed a $49,000 penalty, reasoning that the gravity of
JBC’s violation was high due to the high probability that the trench
would collapse, and includeda 30percentreduction on the basis of JBC’s
small size. Having affirmed the violation as serious, the judge assessed
a penalty of $4,500, which included the size reduction and a $400
reduction based on his finding that “JBC ha[d] [not] received [any]
prior citations.” The judge agreed with the Secretary’s gravity
assessment, stating that “[t]he violation was of high severity due to
the potential seriousness of any injuries had the trench collapsed”—a
“possibility” which he stated “was increased” by “the heavy equipment
operating in the area” and the “concrete slab” covering theground
adjacent to thetrench.

Weagree that a reduction for size is appropriatebecause JBC has only 40
employees, but disagreewiththe judge’s gravity assessment. The
companyusedtrench shieldsin thecitedareasof the trench, whichwe
findsignificantlyreducedboth the likelihood and severity of potential
injury. Thus,we find thatthe gravity of the violation is moderate. For
purposes of determining an appropriate penalty, we also note thatthe
companyconsultedwith safety representatives fromthe marine base,
andfromthe project’s construction managerandgeneral manager.In light of
these consultations, coupled with the use of the trench shields,we
findthata penalty reductionforsomegood faith is warranted. See Aviation
Constructors, 18 BNA OSHC at 1922 (“While we find that [the employer]
did not make good faith efforts to comply with respect to the particular
provision of the standard at issue here, we nevertheless conclude that
[the] overall circumstances should be taken into consideration in
assessment of an appropriate penalty [for a willful
violation].”);ManganasPainting Co., Inc., 21 BNAOSHC2043, 2055 (Nos.
95-0103, 2007)(consolidated)(good faith can be mitigating factor in
determining penalty for willful violation),rev’din part on other
grounds, 540 F.3d 519 (6th Cir. 2008). Accordingly, we assess a penalty
of $27,500.

ORDER

We affirm Citation2, Item1as willful, and assess a total penalty of $27,500.

SO ORDERED.

 

/s/          

Cynthia L. Attwood

Chairman

 

 

 

/s/          

Heather L. MacDougall

Dated:November 16, 2016        Commissioner

 

Straight Connector 1
 

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, SW

Atlanta, Georgia 30303-3104

 

 

 

	

 

Secretary of Labor,

	

 

 

 

Complainant,

	

 

 

 

v.

	

 

OSHRC Docket No. 11-2559

 

Jim Boyd Construction, Inc.,

	

 

 

 

Respondent.

	

 

 

 

Appearances:

 

Karen E. Mock, Esq., U. S. Department of Labor, Office of the Solicitor

Atlanta,Georgia

For Complainant

 

J. Larry Stine, Esq., & Mark A.Waschak, Esq.,Wimberly, Lawson,Steckel,
Schneider & Stine, P.C.

Atlanta, Georgia

For Respondent

 

Before: Administrative Law JudgeKen S. Welsch

 

DECISION AND ORDER

ON REMAND

 

  On September 26, 2013, the Review Commission remandedto the Court its
decisionin this matterissued June 13, 2013,to consider the applicability
of the Eleventh Circuit decision inComTranGroup, Inc. v. DOL, 722 F.3d
1304 (11thCir. 2013) which was issued almost two weeks later. In
theComTrandecision as noted by the Commission,the Eleventh Circuit held
that where “the Secretary seeks to establish that an employer had
knowledge of misconduct by a supervisor, [he] must do more than merely
point to the misconduct itself. To meet [his] prima facie burden, [he]
must put forth evidence independent of the misconduct” such as “evidence
of lax safety standards.” Id. at 1316.

 

 

The Review Commission in its Remand Order stated that “[B]ecauseit is
unclear if the issue of knowledge as presented in the case before us is
affected by the court’s decision inComTran, we remand this case in its
entirety to the judge for him to consider the applicability of the
Eleventh Circuit’s decision.”

  Pursuant to the Commission’s instruction, the Court held two telephone
conference calls with the parties. As a result of the conference calls,
the parties filed a Joint Stipulation on Remand on December 2, 2013. The
parties stipulated that:

1.Respondent Jim Boyd Construction, Inc. did not raise unpreventable
employee misconduct as a defense to the alleged violations in this case.

2.Respondent is not alleging that the actions of its superintendent at
the worksite were malfeasance.

3.The decision in theComTrancase should not affect the outcome of the
decision in this case.

In view of the parties’ stipulations, the Court concludes that
theComTrandecision has no

applicability to the Court’s decision inJim Boyd Construction Inc.issued
June 13, 2013 and the record in this matter does not need any further
development.

 

                    /s/              

                    KEN S. WELSCH

                    Judge

 

Date:  December 18, 2013

  Atlanta, Georgia

 

------------------------------------------------------------------------
"

<#ftnref-1> 

<#ftnref0> 

1 <#ftnref1>This is the second time this case has come before the
Commission. See Jim Boyd Constr., Inc., 24 BNA OSHC 1152 (No. 11-2559,
2013) (remand order).

2 <#ftnref2>Section 1926.652(a)(1) generally requires use of a cave-in
protective system “designed in accordance with paragraph (b) or (c) . .
. .” Paragraph (b), whichapplies to sloping and benching systems,
requiresthatwhen a trench shield does not extend up to the top of a
trench,the soil on each side oftheshieldmustbe sloped back so that the
top of the shield risesat least 18 inchesabove the top of the
verticalportion of thewalls. 29 C.F.R. § 1926.652(b); 29 C.F.R.
pt.1926,subpt. P, app. B, fig.B-1(Vertically Sided Lower Portion).
Paragraph (c), in relevant part, requires that the employer follow the
shield manufacturer’s tabulated data, which here requires that the
ground above the shield also be sloped, starting at a point six inches
below the top of the shield, with a maximum allowable slope of 1:1. 29
C.F.R. § 1926.652(c)(2). For deeper trenches, the tabulated data state
that employers may stack the shields.

3 <#ftnref3>At the hearing, JBC argued thatLayfield’sbelief that
complying with thecited standardwould create a greater hazard is
evidence thatthe violation was not willful. JBC, however,has never
asserted the greater hazard defenseandsuch evidence onlyshows thatJBC
was not plainly indifferent to employee safety—it does not change the
fact thatLayfieldknewofthecitedrequirement and chose not to comply with it.

4 <#ftnref4>Incontrast,the Eleventh Circuit(to which this case could be
appealed based on the worksite’s location in Georgia) has held thatan
employer’s “good faith disregard of the regulations” or good
faith“beliefthat its alternative program meets the objectives of OSHA’s
regulations” is “irrelevant”towhether a violation was willful.Reich v.
Trinity Indus., Inc., 16 F.3d 1149, 1153 (11th Cir. 1994) (emphasis
added);Fluor Daniel, 295 F.3d at 1240 (“Allowing a willful violation to
be imposed only in cases of bad faith would unduly restrict OSHA’s
authority to impose its most severe sanction, and thus undermine the
congressional purpose of creating a strong and effective federal job
safety statute.”)(internal quotation marks and citations omitted).

5 <#ftnref5>GivenJBC’s waiverof this defense, we do not address it.

6 <#ftnref6>In its review brief, JBC points to statements made
bytheOSHAcomplianceofficer—such ashis “acknowledg[ment] that [JBC] had
tried to address [the safety] issue by talking . . . with the rental
company that providedthe trench boxes, and had correctly installed
trench boxes in other portions of the project”—as evidence that it made
a good faith effort to comply. Whether any of JBC’sassertedefforts
constitute a “good faith effort” is a “question of law, and therefore
constitutes a legal determination about which the CO was incapable of
testifying.” SpiritAerosys., Inc., 25 BNA OSHC 1093, 1096 n.5 (No.
10-1697, 2014)(citingAdvanced Display Sys., Inc. v. Kent State Univ.,
212 F.3d 1272, 1283(Fed. Cir. 2000)). Accordingly, “neither the
Secretary nor the Commission is bound” by anyof the CO’s purportedlegal
conclusions. See GEM Indus.,Inc., 17 BNA OSHC 1184, 1187 n.6 (No.
93-1122, 1995)(“[N]either the Secretary nor the Commission is bound by
an erroneous interpretation of the Act made by a representative of the
Secretary.”).