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. 21-0562 

A-1 SEWER AND WATER 

CONTRACTORS, INC., 

Respondent. 

REMAND ORDER 

Before: ATTWOOD, Chairman; and LAIHOW, Commissioner. 

BY THE COMMISSION: 

On April 11, 2022, Administrative Law Judge Patrick B. Augustine issued a decision and 

order granting the Secretary’s motion for summary judgment pursuant to Federal Rule of Civil 

Procedure 56(a).1 For the following reasons, we vacate the judge’s decision and remand this case 

for a hearing. 

BACKGROUND 

On May 10, 2021, OSHA issued Respondent a serious citation alleging a violation of 29 

C.F.R. § 1926.652(a)(1) with a proposed penalty of $1,990. Respondent, appearing pro se, filed a 

timely notice of contest. On June 29, 2021, the case was assigned to Simplified Proceedings.2 

1 Federal Rule of Civil Procedure 56(a) provides, in relevant part, that “[t]he court shall grant 

summary judgment if the movant shows that there is no genuine dispute as to any material fact and 

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). See 29 C.F.R. 

§ 2200.40(j) (applying FRCP 56 to motions for summary judgment in Commission proceedings). 

2 The purpose of Simplified Proceedings is “to provide simplified procedures . . . so that 

parties . . . may reduce the time and expense of litigation while being assured due process and a 
 

 

 

 

 

 

 

 

After Respondent filed a declaration of affirmative defenses, the judge issued an order scheduling 

a merits hearing on February 28, 2022. See 29 C.F.R. § 2200.207(b) (allowing for affirmative 

defenses to be raised in Simplified Proceedings pre-hearing conference). 

On December 27, 2021, the Secretary filed a single motion with three requests: (1) to 

postpone the hearing date by one month; (2) to hold the hearing remotely; and (3) to permit the 

filing of a motion for summary judgment. The next day, on December 28, 2021, the judge issued 

an order: (1) granting the request to postpone the hearing date; (2) denying the request to conduct 

the hearing remotely; and (3) granting the request to file a summary judgment motion. On 

February 3, 2022, the Secretary filed a motion for summary judgment. 

When Respondent did not file a response to the Secretary’s summary judgment motion, the 

judge issued an order on February 24, 2022, directing Respondent to file its response by March 4, 

2022.3 On February 28 and March 3, 2022, Respondent filed, respectively, a response, and an 

amended response, opposing the Secretary’s motion for summary judgment and stating at the 

outset of both filings that it was “requesting a Hearing.” On April 11, 2022, the judge issued a 

decision and order granting the Secretary’s motion for summary judgment, affirming the citation 

as alleged, and assessing the $1,990 proposed penalty. 

hearing . . . .” 29 C.F.R. § 2200.200(a). Commission Rule 202(a) governs the eligibility of a case 

for Simplified Proceedings and provides that: 

[C]ases selected for Simplified Proceedings will . . . not involve complex issues of 

law or fact . . . [and] [c]ases appropriate for Simplified Proceedings will generally 

include . . . one or more of the following characteristics: (1) [r]elatively few citation 

items, (2) [a]n aggregate proposed penalty of not more than $20,000, (3) [n]o 

allegation of willfulness or a repeat violation, (4) [n]ot involving a fatality, (5) [a] 

hearing that is expected to take less than 2 days, or (6) [a] small employer whether 

self-represented or represented by counsel. 

29 C.F.R. § 2200.202(a). This case, which the judge set for a one-day hearing, appears to meet all 

of these criteria—a pro se respondent, small enough to warrant a 70% reduction in calculating the 

proposed penalty amount of $1,990, cited for one serious violation, which did not involve a fatality. 

3 The judge explained that “the filing of a motion by one side requires a response from the other 

side unless the other side has no objection to the motion” and “extend[ed] the date for Respondent 

to file its response [to the summary judgment motion] should it desire to do so” under Commission 

Rule 5, which provides, in relevant part, that “the Judge on their own initiative . . . may 

enlarge . . . any time prescribed by the[] rules . . . .” See 29 C.F.R. § 2200.5. 

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DISCUSSION 

We find that multiple procedural errors in this case warrant vacating the judge’s decision. 

First, the December 27, 2021 motion filed by the Secretary was deficient in two ways. 

Commission Rule 40(d), 29 C.F.R. § 2200.40(d), which applies to a Simplified Proceedings case 

pursuant to Commission Rule 205(b), 29 C.F.R. § 2200.205(b), requires a moving party to confer 

with the other party and state in its motion not only what efforts were undertaken to confer, but 

also whether the other party opposes or does not oppose the motion. Here, the Secretary stated 

that he had conferred with Respondent regarding the two hearing-related requests in his motion 

and that Respondent objected to both. However, the Secretary’s motion was silent as to whether 

he had conferred with Respondent regarding the more substantive request for permission to file a 

motion for summary judgment and as such, the motion was also silent on whether Respondent 

opposed that request.4 See AA Plumbing, Inc., 20 BNA OSHC 2203, 2204 (No. 04-1299, 

2005) (noting Secretary’s failure to confer with a pro se respondent when setting aside the judge’s 

default order); Action Concrete Constr., Inc., 22 BNA OSHC 1898, 1899 (No. 09-0923, 2009) 

(explaining that Secretary’s failure to confer deprived respondent of opportunity to have its 

position included). 

The Secretary’s motion also failed to provide sufficient grounds to support his request for 

leave to file a motion of summary judgment in this case. Commission Rule 205(b) states that 

“[l]imited, if any, motion practice is contemplated in Simplified Proceedings . . . .”5 29 C.F.R. 

§ 2200.205(b). The Secretary, without referencing this rule, acknowledged that he was making 

his request “even though this matter is currently set for Simplified Proceedings.” But the Secretary 

offered no explanation for why such a motion would be appropriate given that context, making 

only general statements that the matter would be best resolved through summary judgment. 

4 We note that this stands in contrast with the Secretary’s motion for summary judgment itself, 

which does state that he informed Respondent of the motion the same day it was filed, and that 

Respondent opposed the motion. 

5 “Procedures . . . are simplified in a number of ways” and thus, formal pleadings are “generally 

are not required[,] . . . [d]iscovery is not permitted except as ordered by the judge[,] . . . [and] 

[h]earings are less formal” for cases assigned to Simplified Proceedings. 29 C.F.R. 

§ 2200.200(b)(2), (4), and (6). 

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Second, the judge erred by ruling on the Secretary’s three-in-one motion without providing 

Respondent an opportunity to respond. Commission Rule 40(h) states that a “party . . . upon whom 

a motion has been served shall file a response within 14 days from service of the motion.” 29 

C.F.R. § 2200.40(h). Yet the judge ruled on the Secretary’s motion the very next day after it was 

filed even though the motion made clear that two of the three requests were opposed by 

Respondent.6 See Daniel Koury Constr. Inc., 20 BNA OSHC 2089, 2091 (No. 04-1300, 2004) 

(vacating default judgment as “procedurally . . . flawed” and finding it “patently inadequate and 

unreasonable” to give pro se respondent only two days to respond to a show cause order in a 

Simplified Proceedings case); Stone & Webster Constr. Inc., 23 BNA OSHC 1939, 1944 n.4 (No. 

10-0130, 2012) (consolidated) (explaining that judge “improperly shortened the time periods set 

by the Commission’s rules” for filing a response to pending motion). Moreover, despite the fact 

that, as discussed above, “limited, if any” motion practice is “contemplated” for cases assigned to 

Simplified Proceedings, the judge provided no explanation for his decision to grant the Secretary’s 

request to file a motion for summary judgment. See 29 C.F.R. § 2200.205(b); Daniel Koury, 20 

BNA OSHC at 2091 (shortened time period for response to show cause order “inconsistent with 

the intent of the . . . procedures” for Simplified Proceedings, known then as “E-Z Trials”). 

Given these procedural errors, we conclude that this pro se Respondent was deprived of 

the opportunity permitted by the Commission’s procedural rules to be “fully heard” before the 

motion for summary judgment was ever filed. See Action Concrete Constr., Inc., 22 BNA OSHC 

at 1900; Structural Grouting Sys. Excavating, Inc., 21 BNA OSHC 1067, 1069 (No. 03-1913, 

2005) (vacating default judgment as judge “effectively provided [pro se respondent] no 

opportunity to respond at all” by mandating two-day response time to show cause order). In 

addition to depriving Respondent of this opportunity, neither the Secretary nor the judge has 

6 We note that Commission Rule 40(e), which requires a party filing a “procedural motion” to 

include a proposed order granting the requested relief, states that such a motion “may be ruled 

upon prior to the expiration of the time for a response.” 29 C.F.R. § 2200.40(e). Here, the judge 

made no mention of this rule in his order. In any event, we find nothing to suggest that the 

Secretary’s motion could be considered purely procedural, particularly where two of the requests 

were opposed by Respondent and the third sought leave to file a dispositive motion. See IAM v. 

J.L. Clark Co., 471 F.2d 694, 697 (7th Cir. 1972) (stating that “summary judgment is a form of 

relief which should be applied with caution to the end that litigants be allowed a trial on bona fide 

factual issues”). 

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___________________________________________________________________________ 

explained why permitting a motion for summary judgment was appropriate in this Simplified 

Proceedings case. Accordingly, we vacate the judge’s decision granting summary judgment and 

direct him to hold a hearing on the merits of the case. See 29 C.F.R. § 2200.209 (governing 

hearings held in Simplified Proceedings case). 

SO ORDERED. 

/s/ 

Cynthia L. Attwood 

Chairman 

/s/ 

Amanda Wood Laihow 

Commissioner 

Dated: June 1, 2022 

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United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

Complainant, 

v. OSHRC Docket No.: 21-0562 

A-1 SEWER AND WATER 

CONTRACTORS, INC., 

Respondent. 

DECISION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT 

The Court has reviewed and considered Complainant’s Motion for Summary Judgment 

(Motion) filed on February 4, 2022. Complainant seeks a determination the Citation should be 

affirmed as a matter of law on the basis of the arguments which are summarized below. On 

February 28, 2022, Respondent filed its Response opposing the Motion. On March 3, 2022, 

Respondent filed an Amended Response to the Motion. 

The Court’s resolution of the present dispute is limited to the sole issue of whether genuine 

issues of material fact remain such that summary judgment is inappropriate. The Court has 

reviewed the Motion, the Amended Response, accompanying arguments and exhibits and finds 
 

 

 

there are no disputed issues of material fact. Therefore, the Motion is GRANTED, and judgment 

is entered against Respondent as set forth below. 

I. PROCEDURAL BACKGROUND. 

Respondent was engaged in trenching and excavation work at the time of the inspection 

commenced on April 30, 2021, at Respondent’s worksite located at 1105 W. Busse Ave., Mount 

Prospect, Illinois7

. As a result of the inspection, the Occupational Safety Health Administration 

(OSHA) issued Respondent a Citation and Notification of Penalty containing one item classified 

as a serious citation8 and proposed a penalty of $1985.00 (Citation). See Citation and Notification 

of Penalty. Respondent timely contested the Citation. This case was designated as a simplified 

case. The Commission has adopted Rules for Simplified Proceedings, which apply in this case. 

See Subpart M of 29 C.F.R. Part 2200 (29 C.F.R. §§ 2200.200 - 2200.211). 

II. STANDARDS ON MOTION FOR SUMMARY JUDGMENT. 

The party seeking summary judgment always bears the initial responsibility of informing 

the court of the basis for its motion and demonstrating the absence of a genuine issue of material 

fact as to the issue(s) raised. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In order to prevail 

on a motion for summary judgment, there must be no genuine dispute as to any material fact, and 

the moving party must be entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). See also 

7 When Citation 1, Item was issued it stated the inspection occurred at 1105 W. Busse Avenue, Arlington Heights, 

Illinois. On February 3, 2022, the Court granted an unopposed Motion to Amend the Citation to reflect the location 

was in Mount Prospect, Illinois.

8 The Citation alleges Respondent violated 29 C.F.R. § 1926.652(a)(1) by failing to protect an employee in an 

excavation from cave-in hazards by a protective system. 

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29 C.F.R. 2200.40(g)(j) (motions for summary judgment governed by Fed. R. Civ. P. 56)9; Ford 

Motor Co. – Buffalo Stamping Plant, 23 BNA OSHC 1593 (No. 10-1483, 2011). In resolving a 

motion for summary judgment, a judge does not decide factual disputes; rather, the role of the 

judge is to determine whether any material factual disputes exist. Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (2005). In making such a determination, the fact finder must resolve all 

ambiguities and draw all reasonable inferences in favor of the non-moving party. United States v. 

Diebold, Inc., 369 U.S. 654, 655 (1962); Tufariello v. Long Island R.R. Co., 458 F.3d 80, 83 (2d 

Cir. 2006). If there is any evidence in the record from which a reasonable inference in favor of the 

nonmoving party can be drawn, summary judgment is improper. Celotex, 477 U.S. at 324. 

Conversely, if a review of the entire record could not lead a rational trier of fact to find for the 

nonmoving party, then there is no genuine issue for trial, and summary judgment is appropriate. 

Matsushita Elec. Ind. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 

As to whether a fact is “material,” the Supreme Court has stated: 

[T]he substantive law will identify which facts are material. Only disputes over 

facts that might affect the outcome of the suit under the governing law will properly 

preclude the entry of summary judgment. Factual disputes that are irrelevant or 

unnecessary will not be counted. See generally 10A C. Wright, A. Miller, & M. 

Kane, Federal Practice and Procedure § 2725, pp. 93–95 (1983). This materiality 

inquiry is independent of and separate from the question of the incorporation of the 

evidentiary standard into the summary judgment determination. That is, while the 

materiality determination rests on the substantive law, it is the substantive law’s 

identification of which facts are critical and which facts are irrelevant that governs. 

Any proof or evidentiary requirements imposed by the substantive law are not 

germane to this inquiry, since materiality is only a criterion for categorizing factual 

9 Summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits, 

show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of 

law. See Fed. R. Civ. P. 56. 

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disputes in their relation to the legal elements of the claim and not a criterion for 

evaluating the evidentiary underpinnings of those disputes. 

Anderson, 477 U.S. at 248. 

Under Federal Rule of Civil Procedure 56(c), a party to a summary judgment motion 

“asserting that a fact cannot be or is genuinely disputed must support the assertion,” and if a party 

“fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may 

. . . consider the fact undisputed for purposes of the motion . . . .” Fed. R. Civ. P. 56(e). A 

nonmovant cannot, in other words, overcome summary judgment merely based on the possibility 

that material facts it has not yet identified exist; instead, it must “present facts essential to justify 

its opposition” (unless it shows “by affidavit or declaration” that such facts are not yet available 

to it “for specified reasons”). Fed. R. Civ. P. 56(d); see also Celotex Corp. v. Catrett, 477 U.S. 

317, 324 (1986) (the nonmovant must “designate specific facts showing that there is a genuine 

issue for trial”). 

III. UNDISPUTED MATERIAL FACTS. 

On the date of the inspection, Respondent was in the process of installing a water line 

system for a residential building under construction. Szotko Decl. ¶ 4. There were two workers 

present at the worksite, Company owner and competent person Anthony Ciccone (Ciccone)10 and 

an employee by the name of Pablo Ramirez (Ramirez). Szotko Decl. ¶¶ 5, 9, 10, 14 and Resp’ t 

Am. Resp. at 3. 

10 Ciccone acknowledges he designated himself as the competent person and he was the owner of Respondent. See 

Resp’t Am. Resp. at 3. The Court finds there is no material dispute as to the status of Ciccone. 

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During the inspection Compliance and Safety Officer Emil Szotko (CSHO) observed two 

trenches at the worksite. One trench (Trench 1) ran from the sidewalk to the front wall of the house 

and a second trench (Trench 2) went from the street to the sidewalk. Szotko Decl.¶ 6. The CSHO 

inspected both trenches and took measurements and photographs. Szotko Decl. ¶¶ 6, 17. 

The Citation involves Trench 1 because the CSHO witnessed Ramirez working inside of 

it. Szotko Decl.¶¶ 4, 7; Comp ’t. Exh. A-2. Ramirez was operating a vertical mounted drill against 

the building’s foundation inside Trench 1. Szotko Decl. ¶ 7, 8; Comp ‘t Exh. A-2, A-5. The travel 

area in the excavation where Ramirez was working was between the ladder and the vertical 

mounted drill and had vertical walls with no slopes or benches.11 Szotko Decl. ¶ 20. Ciccone was 

standing at the edge of Trench 1 and had verbal and visual contact with Ramirez which Ciccone 

stated he was supervising. Szotko Decl. ¶¶ 9. 14; Comp ‘t. Exh. A-2. 

Using an engineering rod and measuring tape, the CSHO measured Trench 1 as being 4-

feet wide, 20-feet long with a depth of five feet and six inches12. Szotko Decl. ¶ 17, Comp ‘t. Exh. 

A-3.13 The soil was previously disturbed during the construction of the building. Due to this 

disturbance, the CSHO classified the soil as Type B14. Szotko Decl. ¶ 18. The CSHO observed: 

11 Respondent argues the “travel area” was not greater than five feet in depth Resp’t Am. Resp. 4. The Court finds it 

is not the depth of the “travel area” that triggers the applicability of the regulation. The regulation is clear if any part 

of the excavation is greater than five feet the regulation applies. The regulation does not use the phrase “travel area.” 

The Court rejects Respondent’s interpretation the measurement must be taken within the “travel area.” Respondent’s 

argument does not raise a material disputed fact. 12 Respondent argues the use of the word “approximately 5.6 feet in depth” in the ADV of the Citation undermines 

Complainant’s position the excavation was greater than five feet. Resp’t Am. Br. at 5. The Court rejects this argument 

as exhibits provided by Complainant supporting its Motion indicate the measurement taken by the CSHO showed the 

trench was greater than five feet. The use of the word “approximate” does not detract from the objective evidence.

13 Respondent alleges the dimensions are falsified. Respondent provides no evidence as to how they were falsified. 

Mere allegations do not create a material disputed fact. Respondent was present during the inspection and could have 

raised any concern or requested re-measurement. Respondent offers no information which indicated that he did either. 

Resp’t Am. Br. at 6.

14 While there is a dispute between Complainant and Respondent as to the type of soil in the excavation the Court 

finds that dispute is not material. Respondent contends the soil was clay with a black dirt top and thus Type A soil. 

Comp ‘t Exh. C at 8. Complainant classified the soil as Type B because it was clay and sand. Szotko Decl. ¶ 18. 

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(i) the walls of Trench 1 were vertical with no sloping or bench systems; and (ii) there was no 

shoring or shielding protective systems installed inside Trench 1. See Szotko Decl. ¶¶ 19, 20; 

Comp ‘t. Exh. A-2-A-5. In light of the above undisputed material facts, the Court finds no genuine 

issue of material facts exist which prevent summary judgment from being entered against 

Respondent. 

IV. ANALYSIS OF COMPLAINANT’S PRIMA FACIE CASE 

A. Jurisdiction. 

The record supports Respondent is engaged in a business affecting interstate commerce 

and is an “employer” within the meaning of section 3 of the Act. The use of the term “affecting 

commerce” indicates a congressional intent to “exercise fully its constitutional authority under the 

commerce clause.” Godwin v. OSHRC, 540 F.2d 1013 (9th Cir. 1976); U.S. v. Dye Construction 

Co., 510 F.2d 78 (10th Cir. 1975); Brennan v. OSHRC, 492 F.2d 1027 (2nd Cir. 1974); see also 

Piping of Ohio, Inc., 16 BNA OSHC 1236 (No. 91-3481, 1993). Commerce, according to § 3(3) 

of the Act, “means trade, traffic, commerce, transportation, or communication among the several 

States, or between a State and any place outside thereof....” Following the Ninth Circuit in Usery 

v. Franklin R. Lacy, 628 F.2d 1226 commerce where it “is in a class of activity that as a whole 

affects commerce.” Clarence M. Jones d/b/a Jones Co., 11 BNA OSHC 1529, 1530 (No. 77-3676, 

1983). In that case, the Commission went on to find “[t]here is an interstate market in construction 

materials and services and therefore construction work affects interstate commerce.” Id., citing 

Respondent produced documentation which indicated that the soil had been disturbed during the construction of the 

building. Comp ‘t Exh. C at 8. While there may be a dispute as to what the soil was made up of, there is no dispute 

that the soil was previously disturbed. If soil has been previously disturbed, it is automatically not Type A soil. See 

29 C.F.R. p. 1926, sub-pt. P, app. A(b), definition of Type A soil. The Court finds the trench soil was Type B. 

6 
 

 

NLRB v. Int’l Union of Operating Engineers, Local 571, 317 F.2d 638, 643 n. 5 (8th Cir. 1963) 

(judicial notice taken that construction industry affects interstate commerce). Because Respondent 

is engaged in construction work, the undersigned finds it is engaged in a business affecting 

interstate commerce. 

Excavation work qualifies as “construction work” which is defined as “work for 

construction, alteration, and/or repair, including painting and decorating.” 29 C.F.R. § 1926.32(g). 

The construction industry of which excavation work is part of affects commerce, and even small 

employers within that industry are engaged in commerce. Slingluff v. OSHRC, 425 F.3d 861, 866-

67 (10th Cir. 2005);, d/b/a C. Jones Clarence M. Jones Co., 11 BNA OSHC 1529, 1531 (No. 77-

3676, 1983). The Court finds Respondent was engaged in interstate commerce. 

As to whether Respondent was an “employer” under the Act, Ciccone stated Ramirez was 

his employee and he was supervising Ramirez. Szotko Decl. ¶ 13. Respondent does not dispute 

this fact. The Court finds Respondent was an “employer” under the Act. 

Finally, the Commission has jurisdiction over this proceeding pursuant to section 10(c) of 

the Act by Respondent filing its Notice of Contest. Joel Yandell, 18 BNA OSHC 1623, 1628 n.8 

(No. 94-3080, 1999). See also 29 U.S.C. § 659(c). 

B. Case Law Applicable to Analysis of the Prima Facie Case. 

Although the Commission recognizes the difficulties a self-represented litigant may face 

when participating in the Commission’s proceedings, the Commission still requires the selfrepresented litigant to follow the rules and exercise reasonable diligence in the legal proceedings 

in which it is taking part. Sealtite Corp., 15 BNA OSHC 1130 (No. 88-1431, 1991). An 

unrepresented employer must “exercise reasonable diligence in the legal proceedings” and “must 

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follow the rules and file responses to a judge's orders, or suffer the consequences, which can 

include dismissal of the notice of contest.” Wentzel d/b/a N.E.E.T. Builders, 16 BNA OSHC 1475, 

1476 (No. 92-2696, 1993) (citations omitted). 

For most standards, including the one at issue here, Complainant is not required to prove 

the existence of a hazard each time a standard is enforced.15 Bunge Corp. v. Sec’y of Labor, 638 

F.2d 831, 834 (5th Cir. 1981); Greyhound Lines-West v. Marshall, 575 F.2d 759, 762 (9th Cir. 

1978) (Complainant not required to prove violation related to walking and working surfaces 

constituted a hazard). Instead, the hazard is presumed, and the Complainant’s burden is limited to 

showing: (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 

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

JPC Grp., Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009); Sanderson Farms, Inc. v. Perez, 

811 F.3d 730, 735 (5th Cir. 2016); Atl. Battery Co., 16 BNA OSHC 2131 (No. 90-1747, 1994).16 

Complainant must establish his case by preponderance of the evidence. See Hartford 

Roofing Co., 17 BNA OSHC 1361 (No. 92-3855, 1995). “Preponderance of the evidence” has been 

defined as: 

15 The Commission has held that, when a standard prescribes specific means of enhancing employee safety, [a] hazard 

is presumed to exist if the terms of the standard are violated.”). Joseph J. Stolar Constr. Co., 9 BNA OSHC 2020, 

2024 n.9 (No. 78-2528, 1981). See also Kaspar Electroplating Corp., 16 BNA OSHC 1517 (No. 90-2866, 1993). See 

also Sanderson Farms, Inc. v. Perez, 811 F.3d. 730 (5th Cir. 2016). In this case the regulation cited does not require 

the Secretary to prove the existence of a hazard since it is a specification standard. It is not necessary to show 

Respondent understands or acknowledges the physical conditions were actually hazardous. Phoenix Roofing, Inc., 17 

BNA OSHC 1076, 1079-1080 (No. 90-2148, 1995) aff’d without published opinion, 79 F.3d 1146 (5th Cir. 1996). 16 The Commission has held that “[w]here it is highly probable that a case will be appealed to a particular circuit, the 

Commission generally has applied the precedent of that circuit in deciding the case— even though it may differ from 

the Commission's precedent.” Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). The Court 

applies the precedent of the Seventh Circuit where it differs from the Commission in deciding this case. 

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The greater weight of the evidence, not necessarily established by the greater 

number of witnesses testifying to a fact but by evidence that has the most 

convincing force; superior evidentiary weight that, though not sufficient to free the 

mind wholly from all reasonable doubt, is still sufficient to incline a fair and 

impartial mind to one side of the issue rather than the other. 

Preponderance of the Evidence, BLACK’S LAW DICTIONARY (10th ed. 2014). 

The cited regulation requires: 

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 in entirely stable rock; or (ii) Excavations are less than 5 feet 

(1.52 m) in depth and examination of the ground by a competent 

person provides no indication of a potential cave-in. 

29 C.F.R. § 1926.652(a)(1). 

C. The Regulation Applies. 

Under Commission precedent, “the focus of the Secretary's burden of proving that the cited 

standard applies pertains to the cited conditions, not the particular cited employer.” Ryder Transp. 

Servs., 24 BNA OSHC 2061, 2064 (No. 10-0551, 2014) (concluding “that the Secretary has failed 

to establish that the cited general industry standard applies to the working conditions here”); KS 

Energy Servs., Inc., 22 BNA OSHC 1261, 1267 (No. 06-1416, 2008) (finding “the cited ... 

provision was applicable to the conditions in KS Energy's traffic control zone”), aff'd, 701 F.3d 

367 (7th Cir. 2012); Active Oil Serv., Inc., 21 BNA OSHC 1092, 1094 (No. 00-0482, 2005) 

(finding “that the confined space standard applies to the cited conditions” because “the vault was 

9 
 

 

a confined space”); Arcon, Inc., 20 BNA OSHC 1760, 1763 (No. 99-1707, 2004) (“In order to 

establish a violation, the Secretary must show that the standards applied to the cited conditions.”). 

Respondent was engaged in the installation of a water line five feet six inches beneath the 

ground in an excavated trench. The cited regulation requires a protective system be used in the 

excavation of any trench deeper than five feet unless it is excavated in stable rock. The Court has 

previously found the soil was not stable rock and the soil was classified as Type B soil. Since the 

soil was Type B, protective systems identified in the regulation must be utilized. Complainant has 

established the cited regulation applies. 

D. The Cited Regulation was Violated. 

The walls in Trench 1 were vertical without a sloping or benching protective system.17 

While Respondent stated to the CHSO that protective systems were used the day before, on the 

date of the inspection the evidence indicates there was no sloping or benching protective system 

being utilized. 

17 Under § 1926.652(b)(1), Option 1 requires the sloping of the sides of a trench at an angle not steeper than 1 1⁄2 

horizontal to one vertical (34 degrees measured from the horizontal), unless the employer uses another option 

described in the standard. Section 1915.652(b)(2) permits sloping or benching in accordance with Appendices A and 

B in Subpart P, 29 C.F.R. pt. 1926, sub-pt. P, app. A. When the employer elects to use sloping Option 2, soil 

classification per the requirements of Appendix A is mandatory. Appendix B contains the specifications for sloping 

and benching where an employee designs a protective system under § 1926.652(b) (sloping angles for Type A soil, 

53 degrees; Type B soil 45 degrees). 29 C.F.R. pt. 1926,sub-pt. P app. B, Table B-1. 

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Respondent contends it had flared the top of Trench 1 when excavating and a shoring 

system was not necessary. Comp ‘t Exh. C at 7; Resp ’t Am. Br. at 4. The referenced exhibit does 

show that one wall that ran parallel with the building was partially flared. Comp ‘t. Exh. C at 7. 

The cited regulation is a specific regulation which sets forth the requirements Respondent 

must meet when the regulation cited applies to the work being performed. Trench 1 did not have 

a slopping or benching system as set forth in the regulation. See 29 C.F.R. § 1926.652(b) and 20 

C.F.R. pt. 1926, sub-pt. P, app. (B)(c)(4)m Table B-1. Both sides of a trench must be sloped in 

accordance with the standards.18 The “flaring” does not meet the requirements of the regulation 

as it is not a method defined in the regulation. Finally, even if the “flaring” was considered a 

protective system it was not in compliance with the regulation as there was no sloping system in 

accordance with 29 C.F.R. § 1926.653(b). RJCL Corp. d/b/a RNV Construction, No. 20-0456, 

___W.L. ___ (O.S.H.R.C.A.L.J., Dec. 10, 2021). 

Respondent has argued the following language of the regulation applies to relieve him of 

violating the cited regulation: (ii) Excavations are less than 5 feet (1.52 m) in depth and 

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

See 29 C.F.R. § 1926.652(a). Resp’t Am. Br. at 1-2. It is not disputed Ciccone was the competent 

person at the worksite. However, this exception would not apply since the depth of the excavation 

was greater than five feet. Even if it had applied, Respondent, in his Amended Response. did not 

provide any documentation that he made a determination the trench had no cave-in potential, and 

18 Comp’ t. Ex. A-2 – A-5 and C show that Trench 1 did not have two sloping walls. 

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if he did, what did he do and what factors did he evaluate to make that determination.19 

Complainant has established a violation of cited standard. 

E. Employee Exposure to the Hazard. 

“The Secretary always bears the burden of proving employee exposure to the violative 

conditions.” Fabricated Metal Products, Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997) 

(citations and footnotes omitted). The Commission’s longstanding “reasonably predictable” test 

for hazard exposure requires the Secretary to “show that it is reasonably predictable either by 

operational necessity or otherwise (including inadvertence), that employees have been, are, or will 

be in the zone of danger.” Delek Ref., Ltd., 25 BNA OSHC 1365, 1376 (No. 08-1386, 2015) (citing 

id.). See also Rockwell Intl. Corp., 9 BNA OSHC 1092 (No. 12470, 1980); Gilles & Cotting, 3 

BNA OSHC 2002 (No. 504, 1976).20 

The zone of danger is the “area surrounding the violative condition that presents the danger 

to employees.” Boh Bros. Constr. Co., LLC, 24 BNA OSHC 1067, 1085 (No. 09-1072, 

2013)(citing RGM Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995)). The zone of 

danger is determined by the hazard presented by the violative condition and is normally that area 

surrounding the violative condition that presents the danger to employees which the standard is 

intended to prevent. RGM Construction, Co., 17 BNA OSHC at 1234; Gilles & Cotting, Inc., 3 

BNA OSHC at 2003. 

19 Respondent argues as the competent person he did make this examination. However, as noted, this exception to 

the regulation does not apply since the excavation was greater than five feet. Resp ’t Am. Br. at 2.

20 In Gilles & Cotting, Inc., the Commission rejected the “actual exposure” test, which required evidence that someone 

observed the violative conduct, in favor of the concept of “access,” which focuses on the possibility of exposure under 

the conditions. See Gilles & Cotting, Inc., 3 BNA OSHC at 2002 (holding “that a rule of access based on reasonable 

predictability is more likely to further the purposes of the Act than is a rule requiring proof of actual exposure”). 

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Here, the zone of danger presented was the presence of Ramirez in the excavation greater 

than five feet which exposed him to a cave-in hazard. Szotko Decl. ¶¶ 4, 7-10; Comp ‘t. Ex. A-2. 

Complainant has established exposure. 

F. Employer Knowledge. 

“The knowledge element of the prima facie case can be shown in one of two ways.” EllerIto Stevedoring, 567 F. App'x at 803 (citing ComTran, 722 F.3d at 1307). “First, where the 

Secretary shows that a supervisor21 had either actual or constructive knowledge of the violation, 

such knowledge is generally imputed to the employer.” Id. (citing ComTran, 722 F.3d at 1307– 

08). It is not necessary to show the employer knew or understood the condition was hazardous. 

Phoenix Roofing, Inc., 17 BNA OSHC at 1079-1080 (citations omitted); Peterson Bros. Steel 

Erection Co., 16 BNA OSHC 1196, 1199 (No. 90-2304, 1999), aff’d 26 F.3d 573 (5th Cir. 1994).. 

Actual knowledge is established when a supervisor directly engages in or sees a 

subordinate’s misconduct. See, e.g., Secretary of Labor v. Kansas Power & Light Co., 5 BNA 

OSHC 1202, at *3 (No. 11015, 1977)(holding because the supervisor directly saw the violative 

conduct without stating any objection, “his knowledge and approval of the work methods 

employed will be imputed to the respondent”). In this case, Ciccone, Respondent’s owner, and 

competent person, was working with and directing the work of Ramirez on the day of the 

21 It is well settled an employee who has been delegated authority over other employees, even if only temporarily, is 

considered to be a supervisor for the purposes of imputing knowledge to an employer. Access Equipment Systems. 

Inc., 18 BNA OSHC 1718, 1726 (No. 95-1449, 1999)(employee who was “in charge of” or “the lead person for” one 

or two employees who erected scaffolds “can be considered a supervisor). The Commission has long held it is the 

substance of the delegation of authority not the formal title of the employee having the authority. Dover Elevator Co., 

16 BNA OSHC 1281 (No. 91-862, 1993). See Diamond Installations, 21 BNA OSHC 1688 (No. 02-2080, 2066 

(permitting imputation of knowledge based on temporary delegation). A person not having the authority to fire or fire, 

such power is not “sine qua non “of supervisory status. Rawson Contractors, Inc., 20 BNA OSHC 1078, 1080 (No. 

99-0018, 2003). 

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inspection. See Comp ‘t Ex. A-2; Szotko Decl. ¶¶ 4, 5, 9-16. Ciccone was also supervising 

Ramirez and was standing at the top of the trench looking down into it. 

Ciccone’s actual knowledge may be imputed to Respondent since Ciccone was its 

supervisory employee. Am. Eng’g & Dev. Corp., 23 BNA OSHC 2093, 2095 (No. 10-0359, 2012) 

quoting Access Equip. Sys., 21 BNA OSHC 1400, 1401 (No. 03-1351, 2006). Complainant has 

established Respondent had actual knowledge through its owner and competent person Ciccone 

and his knowledge is imputed to Respondent. 

G. The Characterization of the Violation. 

The Court finds the violation was serious within the meaning of section 17(k) of the Act. 

Under the Act, “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 a condition which 

exists ... unless the employer did not, and could not with the exercise of reasonable diligence, 

know of the presence of the violation.” 29 U.S.C. § 666(k). If the possible injury addressed by a 

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

Construction, 23 BNA 1044, 1047 (No. 08-0631, 2010); Dec-Tam Corp., 15 BNA 2072, 2077 

(No. 88-523, 1993). The Secretary need not show there was a substantial probability an accident 

would occur; he need only show if an accident occurred, serious physical harm could result. See 

Sec’y of Labor v. Phelps Dodge Corp. v. Occupational Safety & Health Review Comm'n, 725 F.2d 

1237, 1240 (9th Cir. 1984). 

Here, there was a substantial probability that death or serious physical harm could result 

from a cave-in of the trench. Szotko Decl. ¶ 24. Comp ‘t Exh. D. Complainant has established that 

Citation 1, Item 1 was a serious violation. 

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H. Penalty. 

When a citation is issued, it may include a penalty amount. See 29 U.S.C. § 659(a). OSHA 

has published a Field Operations Manual (“FOM”) to, among other things, guide its employees in 

determining what penalty, if any, to propose for violations. FOM at 1-1, 6-1. FOM, Directive No. 

CPL-02-00-150, effective April 22, 2011, available at 4 Employment Safety and Health Guide, 

(CCH), ¶7965, at 12,133, 12,139 (2015). The penalty amounts proposed in a citation become 

advisory when an employer timely contests the matter. Brennan v. OSHRC, 487 F.2d 438, 441-42 

(8th Cir. 1973); Revoli Constr. Co., 19 BNA OSHC 1682, 1686 n. 5 (No. 00- 0315, 2001). It is the 

Complainant’s burden to introduce evidence bearing on the factors and explain how he arrived at 

the penalty he proposed.22 Valdak Corp., 17 BNA OSHC at 1138; Orion Constr. Co., Inc., 18 BNA 

OSHC 1867, 1868 (No. 98-2014, 1999). 

“Regarding penalty, the Act requires that “due consideration” be given to the employer's 

size, the gravity of the violation, the good faith of the employer, and any prior history of 

violations.” Briones Util. Co., 26 BNA OSHC 1218, 1222 (No. 10-1372, 2016) (citing 29 U.S.C. 

§ 666(j); Jim Boyd, 26 BNA OSHC at 1117; Capform, Inc., 19 BNA OSHC 1374, 1378 (No. 99-

0322, 2001), aff'd, 34 F. App'x 152 (5th Cir. 2002) (unpublished)). These factors are not 

necessarily accorded equal weight. J.A. Jones Constr., 15 BNA OSHC 2201, 2216 (No. 87-2059, 

18 1993) (citation omitted). When applying the penalty assessment factors, the Commission need 

not accord each one equal weight. See, e.g., Astra Pharm. Prods., Inc., 10 BNA OSHC 2070, 2071 

(No. 78-6247, 1982); Orion, 18 BNA OSHC at 1867 (giving less weight to the size and history 

22 Complainant’s proposed penalties are not accorded the same deference the Commission gives to reasonable 

interpretations of an ambiguous standard. See Hern Iron Works, 16 BNA OSHC 1619, 1621 (No. 88-1962, 1994) 

(rejecting Secretary’s contention that his penalty proposals are entitled to “substantial weight”); Nacirema Operating 

Co., 1 BNA OSHC 1001, 1003 (No. 4, 1972) (declining to agree with the result or methodology the Secretary used to 

calculate the penalty). 

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factors). Rather, the Commission assigns the weight that is reasonable under the circumstances. 

Eric K. Ho, 20 BNA OSHC 1361, 1379 (No. 98-1645, 2003) (Consol.), aff'd sub nom., Chao v. 

OSHRC, 401 F.3d 355 (5th Cir. 2005). 

i. Gravity. The gravity of the violation is the principal factor in a penalty determination. 

Assessing gravity involves considering: (1) the number of employees exposed to the hazard; (2) 

the duration of exposure; (3) whether any precautions have been taken against injury; (4) the 

degree of probability that an accident would occur; and (5) the likelihood of injury. See, e.g., 

Capform, Inc., 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001), aff’d, 34 F. Appx. 152 (5th Cir. 

2002) (unpublished). See also Ernest F. Donley’s Son, Inc., 1 BNA OSHC 1186 (No. 43, 1973) 

(viewing gravity as the probability of an accident's occurrence and the extent of exposure). “A lack 

of injuries is not a measure for determining gravity or any other penalty factor.” Altor Inc., 23 

BNA OSHC 1458, 1468 (No. 99-0958, 2011), aff’d 498 F. Appx. 145 (3d Cir. 2012) 

(unpublished). According to the CSHO, he considered the severity of the injury that was likely to 

occur from an accident, as well as the probability of an accident occurring. The likely severity of 

an injury resulting from trench wall cave-ins could cause injuries or temporary, reversible illness 

resulting in hospitalization and a limited period of disability. Szotko Decl. ¶ 24. Comp ‘t Exh. D. 

OSHA determined the likelihood of the violation was lesser, based on the CSHO’s determination 

the employees were exposed to cave-in hazards for a limited time. Szotko Decl. ¶ 25. Complainant 

assessed a gravity-based penalty of $7,802. Id. 

ii. Size. The gravity factor focuses on treating violations of similar quality and severity 

alike. In contrast, the other three factors—size, history, and good faith—require consideration of 

circumstances pertaining specifically to the cited employer. The Commission frequently relies on 

the number of employees to evaluate the merits of altering a penalty for size. The Commission has 

16 
viewed the size factor as “an attempt to avoid destructive penalties” that would unjustly ruin a 

small business. Colonial Craft Reprod., 1 BNA OSHC at 1064. See also Intercounty Constr. Corp., 

1 BNA OSHC 1437, 1439 (No. 919, 1973), aff'd, 522 F.2d 777 (4th Cir. 1975). This concern for 

small businesses must be tempered with the need to achieve compliance with applicable safety 

standards. Atlas Roofing Co. v. OSHRC, 518 F.2d 990, 1001 (5th Cir.1975) (OSHA penalties are 

meant to “inflict pocket-book deterrence”), aff'd, 430 U.S. 442 (1977). With respect to the size of 

the business, the CSHO recommended a 70% reduction of the gravity-based penalty. Szotko Decl. 

¶ 26. Based upon the evidence, the Court concludes no further reduction based on size is warranted. 

iii. History The next statutory consideration, history, examines an employer’s full prior 

citation history, not just prior citations of the same standard. Orion, 18 BNA OSHC at 1868; 

Manganas Painting Co., 21 BNA OSHC 2043, 2055 (No. 95-0103, 2007) (Consol.) (history 

includes prior uncontested citations). Even if the prior violations were of a different degree or 

nature, they still are properly part of the employer’s history for penalty purposes. Quality Stamping 

Prods., Co., 16 BNA OSHC at 1929. There was no penalty reduction for history. Comp ‘t Br. 15. 

iv. Good Faith. As to the final factor, good faith, this entails assessing an employer’s health 

and safety program, its commitment to job safety and health, its cooperation with OSHA, and its 

efforts to minimize any harm from the violation. Monroe Drywall Constr., Inc., 24 BNA OSHC 

1209, 1211 (No. 12-0379, 2013); Nacirema, 1 BNA OSHC at 1002. The CSHO provided a 15 

percent reduction for a quick fix of the hazard during the inspection which the Court determines 

is based on good faith. Szotko Decl. ¶ 26. No further reductions are necessary on good faith. 

Respondent did not address the penalty factors in its Amended Response. Therefore, the 

facts as presented by Complainant are not in dispute. Upon due consideration of section 666 (j) of 

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the Act, the enumerated penalty calculation factors, and the facts of this case, the Court assess a 

penalty of $1,990 for Citation 1, Item 1. 

ORDER 

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. Based upon the foregoing 

Findings of Fact and Conclusions of Law, it is ORDERED that: 

1. Citation 1, Item 1 is AFFIRMED as a serious citation, and a $1,990 penalty is assessed. 

SO ORDERED. 

Denver, CO 

Dated: April 11, 2022 /s/ 

Patrick B. Augustine 

First Judge – Denver OSHRC 

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