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. 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; and MACDOUGALL, 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 located on the U.S. Marine 

Corps Logistics Base in Albany, Georgia. Following the inspection, OSHA issued JBC two 

citations alleging a total of four violations of OSHA’s excavation standard. The willful 

characterization of Citation 2, Item 1, is the only issue on review.1

 In that item, the Secretary 

 

1

 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

alleged that JBC violated 29 C.F.R. § 1926.652(a)(1), which requires that the walls above a 

trench shield be sloped back so that the base of the slope is below the top of the shield.2

Following a hearing, former Administrative Law Judge Ken S. Welsch affirmed the 

violation but characterized it as serious, stating that “[a]lthough on a technical level it could be 

argued that [JBC] substituted [its] judgment” for that of the cited standard, the company “had 

reason to believe that the construction of the trench was acceptable” because third-party safety 

personnel did not object to its design. For the reasons that 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 from 12 to 16 feet in width and 2 to 12 feet in depth. The trench’s nearly vertical walls 

were, as stipulated by the parties, composed of Type B 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 pipes that crisscrossed the trench and each other. For the project, 

JBC rented trench shields that measured 6 to 8 feet in height. The trench shields were not 

installed uniformly, and several areas of the trench’s walls were left unprotected. The only 

unprotected areas at issue on review are the portions of the trench walls that extended from 2 to 4 

feet above the tops of some of the shields. 

JBC’s supervisor at the worksite, superintendent Daniel Layfield, was the company’s 

only employee to testify at the hearing. He acknowledged that the trench shields were 

“[p]robably not” in compliance with § 1926.652(a)(1), but stated that he had “installed [them] to 

the best of [his] ability.” Layfield explained that the trench’s pre-existing pipes made stacking 

the shields (so that they would rise above the top of the trench’s vertical walls) difficult, and that 

he believed stacking them would have increased the risk of contacting overhead power lines 

 

2

 Section 1926.652(a)(1) generally requires use of a cave-in protective system “designed in 

accordance with paragraph (b) or (c) . . . .” Paragraph (b), which applies to sloping and benching 

systems, requires that when a trench shield does not extend up to the top of a trench, the soil on 

each side of the shield must be sloped back so that the top of the shield rises at least 18 inches 

above the top of the vertical portion of the walls. 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

when hoisting pipe into the trench. He admitted that beyond considering whether to stack the 

shields, he “did nothing else to the ditch” because he believed “[t]here was no hazard.” 

According to Layfield, his belief was based on the fact that safety representatives from the 

marine base, and from the project’s construction manager and general contractor, had all 

inspected the trench and “had no problem with 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.’ ” Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 

2181 (No. 90-2775, 2000) (quoting Valdak Corp., 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 . . . .” Hern Iron 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 the violative act, 

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’y of Labor, 357 F.3d 70, 74 (D.C. Cir. 

2004) (quoting Propellex Corp., 18 BNA OSHC 1677, 1684 (No. 96-0265, 1999)) (emphasis 

omitted). 

Before the judge and again on review, the Secretary argues that the excavation violation 

was willful because Layfield knew the trench shields did not comply with § 1926.652(a)(1), but 

disregarded the standard’s sloping requirement 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) (quoting J.A.M. Builders Inc. v. Herman, 233 F.3d 1350, 1355 (11th Cir. 2000)); see 

also Sal 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.”). 

 
4

 We find that Layfield’s hearing testimony, along with evidence of his work experience, 

establishes a heightened awareness of the cited standard’s requirement that is imputed to JBC. 

See Fluor Daniel, 295 F.3d at 1239-40 (awareness of cited requirements established through the 

testimony of the employer’s safety officer, the employer’s existing knowledge of the danger, and 

a prior emergency at the employer’s facility); Conie Constr., 16 BNA OSHC 1870, 1872 (No. 

92-0264, 1994), aff’d, 73 F.3d 382 (D.C. Cir. 1995) (supervisor’s heightened awareness 

established by previous violation of similar standards and testimony “that he had received 

specific training about the most recent OSHA regulations on excavations” imputed to employer 

in finding willfulness). At the hearing, Layfield demonstrated his knowledge of the cited 

requirement by testifying that § 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]ou 

would have to stack the box[es].” Layfield clarified that he had this knowledge before the 

OSHA inspection, explaining that prior to the inspection he had actually considered stacking the 

shields. In addition, the record shows that he had extensive trenching experience—at the time of 

the inspection, Layfield had been engaged in excavation work for more than twenty-five years 

and had completed at least three trench safety courses, including one that specifically covered 

OSHA’s Subpart P excavation standards.

 We also agree with the Secretary that Layfield’s testimony establishes conscious 

disregard. According to Layfield: (1) he knew the trench was “probably not” in compliance with 

the cited standard; (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 power lines. Fluor Daniel, 295 F.3d at 1240; Kaspar 

Wire Works, 18 BNA OSHC at 2181. Layfield’s contemporaneous consideration of whether to 

stack the shields (a means of complying with the standard) shows that he knew the trench was 

not in compliance at the time of the violation.3

 JBC’s only rebuttal to Layfield’s testimony is its 

claim that there is no reference in time to when he reached his stated conclusions, and therefore 

his testimony cannot establish conscious disregard. JBC ignores, however, that in explaining 

 

3

 At the hearing, JBC argued that Layfield’s belief that complying with the cited standard would 

create a greater hazard is evidence that the violation was not willful. JBC, however, has never 

asserted the greater hazard defense and such evidence only shows that JBC was not plainly 

indifferent to employee safety—it does not change the fact that Layfield knew of the cited 

requirement and chose not to comply with it. 
5

why he decided not to stack the shields, Layfield’s testimony shows that he made that decision at 

the time the violation occurred—“I felt like it would bring more hazards to try to stack this box 

with the overhead utilities . . . .” (Emphasis added.)

In sum, the record establishes that JBC—through its supervisor, superintendent 

Layfield—had a heightened awareness of the cited requirement and consciously disregarded it. 

Thus, the Secretary has established that the violation was willful.

II. Good Faith Effort Defense 

In rejecting the violation’s willful characterization, the judge concluded that JBC “had 

reason to believe that the construction of the trench was acceptable.” As the Secretary argues on 

review, the judge’s conclusion actually rests on the good faith belief defense to willfulness, even 

though he never explicitly identified it as such in his decision. See Sec’y of Labor v. Williams 

Enters., Inc., 876 F.2d 186, 188-89 (D.C. Cir. 1989) (judge’s “failure to label his analysis with 

its correct name” does not “free him from the standards developed by the Commission for [his] 

line of reasoning”). The Commission, and many circuit courts, have long 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’y of Labor, 351 F.3d 1254, 1263 (D.C. Cir. 2003) (citations 

omitted).4

On review, JBC has expressly waived the good faith belief defense, claiming that it is not 

“assert[ing] a ‘good faith’ substitution of judgment defense.”

5

 The company does assert, 

however, that it “made good faith efforts to 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 the violative conditions.” A.E. Staley Mfg. Co., 19 BNA OSHC 1199, 1202 (No. 91-

 

4

 In contrast, the Eleventh Circuit (to which this case could be appealed based on the worksite’s 

location in Georgia) has held that an employer’s “good faith disregard of the regulations” or 

good faith “belief that its alternative program meets the objectives of OSHA’s regulations” is 

“irrelevant” to whether 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 Given JBC’s waiver of this defense, we do not address it. 
6

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 comply with the cited provision[].” See Calang Corp., 

14 BNA OSHC 1789, 1793 (No. 85-319, 1990). See also Lanzo Constr. Co., 20 BNA OSHC 

1641, 1648 (No. 97-1821, 2004) (“[A]n employer may defend against a showing of willfulness 

by producing evidence tending to show that it acted in good faith with respect to the 

requirements of the standard at issue.”) (emphasis added), aff’d, 150 F. App’x 983 (11th Cir. 

2005) (unpublished). 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) (citing MorrisonKnudsen Co., 16 BNA OSHC 1105, 1124 (No. 88-572, 1993)).

According to JBC, Layfield took numerous “actions” to comply with the standard, such 

as properly installing the trench shields in non-obstructed areas of the trench, considering 

whether to stack the trench shields in the cited areas, and consulting with three other safety 

representatives at the worksite.6 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 comply 

with the cited provision[]” in the deficient areas of the trench. As to the other actions, although 

JBC claims they were taken to render the workplace safe, we find they were in lieu of 

compliance; not an effort to comply. See Calang Corp., 14 BNA OSHC at 1793. Stated simply, 

the fact that JBC may have believed its “actions” regarding the deficient areas made the trench 

safe does not constitute a good faith effort to comply with the cited standard. 

Throughout its review brief, JBC also repeatedly points to its general effort to comply 

with other excavation requirements (often in different areas of the trench) as an effort to comply 

 

6

 In its review brief, JBC points to statements made by the OSHA compliance officer—such as 

his “acknowledg[ment] that [JBC] had tried to address [the safety] issue by talking . . . with the 

rental company that provided the 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’s asserted efforts constitute a “good faith effort” is a “question of law, and therefore 

constitutes a legal determination about which the CO was incapable of testifying.” Spirit 

Aerosys., Inc., 25 BNA OSHC 1093, 1096 n.5 (No. 10-1697, 2014) (citing Advanced 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 any of the CO’s purported legal 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.”). 
7

with the cited requirement in the deficient areas. However, JBC never identifies specific 

measures it 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 safety personnel, were not attempts to comply with the 

standard in the cited areas—they merely explain why JBC believed its noncompliance was 

permissible. That belief is irrelevant, as JBC expressly waived the good faith belief defense on 

review. 

JBC further contends that the company’s compliance with the cited requirement in the 

non-obstructed areas of the trench, as well as with several of 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 areas for which compliance was easy or convenient. Lanzo Constr., 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 heightened awareness 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 that its compliance with some of the excavation standard’s other 

requirements shows that it “did not do nothing,” the company relies on Commission and circuit 

court cases addressing plain indifference, not conscious disregard. While such compliance might 

show JBC was not plainly indifferent to employee safety, it has no bearing on whether the 

company intentionally disregarded the requirement at issue here. See Aviation 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, JBC failed to pursue other options for complying with the cited standard, such as 

sloping the excavation walls, obtaining taller trench shields, or—if complying with the cited 

requirement was as “extremely difficult” as JBC now claims—using a registered professional 

engineer (RPE) to design a protective system, as permitted under the standard. See Calang 

Corp., 14 BNA OSHC at 1793 (requiring employer to show it attempted to comply with all

alternative means of compliance available under standard); 29 C.F.R. § 1926.652(b)(4) 
8

(sloping/benching designed by RPE), (c)(4) (support, shield, and other systems designed by 

RPE). 

Finally, JBC maintains that its “actions” were reasonable because other safety personnel 

at the worksite approved of the trench’s design. However, as explained above, these opinions 

merely relate to the reasonableness of JBC’s belief that the noncompliant aspect of the trench 

posed no hazard; they do not negate the company’s awareness of the standard’s requirement and 

failure to act accordingly. Put another way, even if JBC’s belief were somehow relevant 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]esponsibility under the Act . . . rests ultimately 

upon each employer . . . .”). Therefore, we find JBC’s alleged efforts were not objectively 

reasonable, and it has not established the good faith effort defense. 

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 included a 30 percent reduction 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 the ground adjacent to 

the trench. 
9

We agree that a reduction for size is appropriate because JBC has only 40 employees, but 

disagree with the judge’s gravity assessment. The company used trench shields in the cited areas 

of the trench, which we find significantly reduced both the likelihood and severity of potential 

injury. Thus, we find that the gravity of the violation is moderate. For purposes of determining 

an appropriate penalty, we also note that the company consulted with safety representatives from 

the marine base, and from the project’s construction manager and general manager. In light of 

these consultations, coupled with the use of the trench shields, we find that a penalty reduction 

for some good 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].”); Manganas Painting Co., Inc., 21 BNA OSHC 2043, 2055 (Nos. 95-0103, 

2007) (consolidated) (good faith can be mitigating factor in determining penalty for willful 

violation), rev’d in part on other grounds, 540 F.3d 519 (6th Cir. 2008). Accordingly, we assess 

a penalty of $27,500. 

ORDER 

We affirm Citation 2, Item 1 as 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
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 Judge Ken S. Welsch

DECISION AND ORDER

ON REMAND

On September 26, 2013, the Review Commission remanded to the Court its decision in this 

matter issued June 13, 2013, to consider the applicability of the Eleventh Circuit decision in 

ComTran Group, Inc. v. DOL, 722 F.3d 1304 (11th Cir. 2013) which was issued almost two weeks 

later. In the ComTran decision 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. 
2

The Review Commission in its Remand Order stated that “[B]ecause it is unclear if the 

issue of knowledge as presented in the case before us is affected by the court’s decision in 

ComTran, 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 the ComTran case should not affect the outcome of the decision in this 

case. 

In view of the parties’ stipulations, the Court concludes that the ComTran decision has no

applicability to the Court’s decision in Jim 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