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. 20-0786 

PETRONGOLO CONTRACTORS, INC., 

Respondent. 

DECISION AND ORDER 

APPEARANCES: 

For the Complainant: 

Bertha M. Astorga, Esq. 

Trial Attorney 

U.S. Department of Labor 

Philadelphia, Pennsylvania 

For the Respondent: 

Michael Metz-Topodas, Esq. 

Cohen, Seglias, Pallas, Greenhall, and Furman, P.C. 

Philadelphia, Pennsylvania 

BEFORE: William S. Coleman 

Administrative Law Judge 

The Respondent, Petrongolo Contractors, Inc. (Petrongolo), is a corporation primarily 

engaged in the business of public utility contracting, much of which requires creating excavations. 

On January 27, 2020, Petrongolo excavated a trench in the street in the 4200 block of Adams 

Avenue in Philadelphia, Pennsylvania (Adams Site) to access a sewer owned by the Philadelphia 

Water Department (PWD). PWD had contracted with Petrongolo to reline the sewer for a length 

of about six city blocks in this vicinity. Petrongolo subcontracted with another company to do the 

actual relining work, but before the subcontractor did the relining, Petrongolo first had to remove 
the existing manhole to the sewer and replace it with a larger precast manhole so that the 

subcontractor to access the sewer to do the relining. In preparing the site for the subcontractor, 

Petrongolo removed the existing manhole and dug a trench in the spot where the existing manhole 

had been located. The resulting trench was about 10-feet deep from street level to the top of the 

sewer pipe (where the pipe had a large opening where the original manhole had connected to the 

pipe). The footprint of the trench at street level was about 10x6 feet. 

A cast iron gas main owned by Philadelphia Gas Works (PGW) ran parallel to the sewer, 

at a slightly higher elevation than the sewer and somewhat offset so that it was not directly above 

the sewer. PGW received a report on January 27, 2020, that caused it to be concerned that 

Petrongolo’s excavation had compromised the structural integrity of its gas main. A PGW 

employee went to the Adams Site and caused Petrongolo to stop work at the site in the early 

evening of January 27, 2020. 

PGW contacted the Occupational Safety and Health Administration (OSHA) and reported 

what it believed to be a hazardous excavation, and it sent to OSHA photographs that its employees 

had taken of the trench on both the evening of January 27 and on the morning of January 28. This 

information resulted in OSHA dispatching one of its Compliance Safety and Health Officers (CO) 

to the worksite on the morning on January 28, 2020, to investigate the report. The CO’s inspection 

and investigation resulted in OSHA issuing to Petrongolo two one-item Citations. 

Citation 1, Item 1 alleges a serious violation of 29 C.F.R. § 1926.652(c)(1) for “fail[ing] to 

obtain the soil type to determine the proper configuration when using timber shoring.” Citation 1 

proposed a penalty of $3,393. 

Citation 2, Item 1 alleges a repeat violation of 29 C.F.R. § 1926.652(a)(1) for “fail[ing] to 

ensure that each employee working inside an excavation of approximately twelve (12) feet deep 

2 
were protected by cave-in protection,” and stating further the alleged failure was “[n]oted on or 

about 28 JAN 2020.” Citation 2 proposed a penalty of $29,687. 

Petrongolo timely contested the Citations and proposed penalties and thereby brought the 

matter before the independent Occupational Safety and Health Review Commission (Commission) 

pursuant to section 10(c) of the Occupational Safety and Health Act (Act). 29 U.S.C. § 659(c). 

The Commission docketed the matter on May 19, 2020. The Secretary of Labor (Secretary) 

thereafter filed his formal complaint that re-alleged the allegations and proposed penalties set forth 

in the Citations. The Commission’s Chief Judge assigned the matter to the undersigned for hearing 

and decision. The hearing was conducted remotely via videoconferencing technology on March 

10–12 & 24, 2021. Post-hearing briefing was completed on June 25, 2021. 

The principal issues for decision are as follows: 

• Did the Secretary prove by a preponderance of the evidence that 

Petrongolo failed to obtain the soil type in determining the proper 

configuration of timber shoring that Petrongolo installed on January 28, 

2020? (Citation 1, Item 1; § 1926.652(c)(1)). 

Decision: No. 

• Did the Secretary prove by a preponderance of the evidence that 

Petrongolo employees were working in a trench that lacked an adequate 

protective system on January 28, 2020? (Citation 2, Item 1; 

§ 1926.652(a)(1)). 

Decision: Yes. 

• Did the Secretary prove by a preponderance of the evidence that 

Petrongolo had knowledge that its employees were working in a trench 

that lacked an adequate protective system on January 28? (Citation 2, 

Item 1; § 1926.652(a)(1)). 

Decision: Yes. 

• Did Petrongolo rebut the Secretary’s prima facie showing that the 

violation of § 1926.652(a)(1) was substantially similar to Petrongolo’s 

3 
prior violations of the same standard for purposes of classifying the 

violation as a repeat violation? (Citation 2, Item 1; § 1926.652(a)(1)). 

Decision: No. 

• What is the appropriate penalty for the repeat violation of 

§ 1926.652(a)(1)? 

Decision: A penalty of $22,000 is assessed. 

For the reasons set forth below, Citation 2, Item 1 is AFFIRMED as a REPEAT violation 

and a penalty of $22,000 is assessed. Citation 1, Item 1 is VACATED 

FINDINGS OF FACT 

Except where the following findings indicate that the evidence was insufficient to establish 

a certain fact or indicates the absence of evidence bearing on a matter of fact, the following facts 

were established by at least a preponderance of the evidence: 

1. Petrongolo is a corporation that engages in public utility construction mainly in the 

metropolitan area of Philadelphia, Pennsylvania. (T. 259-60). Much of Petrongolo’s construction 

activities involve sewer reconstruction and relining. (T. 259-60). Approximately 80% of 

Petrongolo’s work involves excavations. (T. 260). 

2. The president of Petrongolo is Mr. Ron Petrongolo. His son, Mr. Dan Petrongolo, is a 

vice president. 1 (T. 258-59, 493-94). Petrongolo employs other workers serving as foremen, 

operators, laborers, and truck drivers. (T. 517). 

3. Petrongolo is an employer and is engaged in a business affecting interstate commerce. 

(Joint Pre-Hr’g Statement ¶ IV(B)(2)). 

1 References herein to “Petrongolo” are references to the Respondent only. Messrs. Ron 

and Dan Petrongolo are referred to by full name only. 

4 
The Adams Site and Associated Trench Excavation 

4. The Philadelphia Water Department (PWD) contracted with Petrongolo for a water 

main and sewer project that included relining about six city blocks of PWD’s brick sewer in the 

vicinity of Adams Avenue in Philadelphia. (T. 523-24). The relining would be accomplished by 

injecting the existing sewer pipe with resin that would line the inner walls of the pipe, essentially 

creating a new resin pipe inside the existing brick pipe. (T. 525). The entire length of the existing 

sewer is not excavated to do the relining. Rather, the relining is done by accessing the sewer from 

a manhole opening. 

5. Petrongolo subcontracted with a company named North American Pipe (NA Pipe) to 

perform the actual task of relining. (T. 294-95, 299, 525-26, 562). But, because the existing 

manhole on the 4200 block of Adams Avenue was too narrow for NA Pipe to access the sewer to 

do its work, it was necessary for Petrongolo first to remove the existing manhole and the 

surrounding soil to create a trench excavation where Petrongolo would then install a wider precast 

reinforced concrete manhole, four feet in diameter, through which NA Pipe could then access the 

sewer. (Joint Pre-Hr’g Statement ¶ IV(A)(1); T. 153-54, 260-63, 284-85, 295-97, 524-27; Ex. C2 at 3; Ex. J-8 at 20 & 22). Petrongolo was the only contractor performing excavation work on 

this trench excavation. (Joint Pre-Hr’g Statement ¶ IV(A)(4); T. 88-90, 649-50). 

6. NA Pipe did not perform any excavation work at the Adams Site and would not begin 

the work of relining the sewer until after Petrongolo had completed preparations for it to begin 

work. (T. 564). Petrongolo had also subcontracted with a paving subcontractor and a plumber 

subcontractor, but neither of them performed excavation work. (T. 562, 564). 

Events on January 27, 2020 

7. On January 27, 2020, Petrongolo created a trench excavation at the location of the 

existing manhole down to the existing sewer by removing the existing manhole and the soil around 

5 
it. The upper portion of the sewer pipe had an opening where the original manhole had connected 

to the pipe and where the new manhole would connect. (T. 260, 524-25). The trench was about 

10-feet deep from street level to the top of the sewer pipe. The trench’s footprint at street level 

was about 10x6 feet. The walls of the trench were vertical or near vertical. (Joint Pre-Hr’g 

Statement ¶ IV(A)(1) & (2); T. 153-54, 182-83, 230-33, 260-63, 284-85, 523-24, Ex. J-8 at 29 & 

30). (The trench and the area in its immediate vicinity in the 4200 block of Adams Avenue are 

accurately depicted in photographs in Exhibits C-1, C-2, and J-8.) 

8. Ron Petrongolo was present at the Adams Site for the duration of Petrongolo’s work 

activity on January 27, 2020, serving as foreman of the Petrongolo crew. (Joint Pre-Hr’g Statement 

¶ IV(A)(3); T. 260-61, 273-74). 

9. Petrongolo had its backhoe at the Adams Site, and Ron Petrongolo operated it to 

remove the existing manhole and create the trench excavation. (T. 44, 52-53, 262-64, 296-97, 328, 

336-38; Ex. C-2 p.3). 

10. The excavation exposed a segment of a cast iron gas main owned by PGW that ran 

parallel to the sewer at a depth slightly above and to the side of it. (T. 40-41, 44, 90-91, 121-22, 

603-06; Ex. C-2 pp. 1 & 2). The exposed segment of the gas main had no soil underneath it to 

provide support. (T. 40-41, 91, 130-32, 604-05; Ex. C-2, pp. 1 & 2). This potentially could have 

led to the gas main fracturing and leaking gas. (T. 40-41, 603-06, 633-34). 

11. Sometime after Petrongolo started digging the trench, PGW received a report that its 

gas main may have become exposed and its structural integrity compromised by the excavation 

activity. (T. 40-41, 90, 603-06). PGW dispatched Mr. Anthony Pereira, who was a Distribution 

Maintenance Supervisor for PGW, to investigate and inspect the condition of the gas main. He 

arrived at the Adams Site about 6:00 p.m. and remained on site until about 12:30 a.m. (T. 40-41, 

6 
43, 56). While there, he took photos of the trench and the Adams Site that are included in Exhibit 

C-2 and that accurately depict the condition of the trench at the time he took the photos. (T. 46-

53; Ex. C-2). 

12. Around 8:30 p.m. on January 27, another PGW employee, Mr. Brian Eckroade, who 

is an Area Supervisor in PGW’s Maintenance Department, also arrived at the Adams Site, and he 

remained at the site until about 11:30 p.m. (T. 82, 90, 92). Messrs. Pereira and Eckroade discussed 

having PGW workers returning to the vicinity of the Adams Site the next day to oversee a “cut 

and cap” on the gas main because of continued concerns that the excavation activity could cause 

the gas main to fracture and leak gas. (T. 91-92). A cut and cap operation would have the effect 

of bypassing the exposed gas main in the trench. This would be done by cutting and then capping 

the gas main at two places on opposite sides of the excavation to divert the flow of gas around the 

segment of the gas main that was exposed in the trench. (T. 91-92). 

13. Pereira asked either Ron Petrongolo directly or through an official of PWD for 

Petrongolo to stop work that evening. Petrongolo complied. Ron Petrongolo used Petrongolo’s 

backhoe to cover the unprotected trench excavation with steel plates, and the Petrongolo crew 

departed the Adams Site sometime later that night. (T. 43, 45-46, 286, 329-31, 336-38; Ex. J-8, p. 

20). 

Events on January 28, 2020 

14. On the morning of January 28, 2020, Ron Petrongolo led a crew of four other 

Petrongolo workers that returned to the Adams Site to continue work. (Joint Pre-Hr’g Statement 

¶ IV(A)(2); T. 299-301). The other four workers were Luis Ortiz, Cesar Rosario, Luis Morales, 

and Dan Rosario. (Ex. C-3). 

15. Mr. Eckroade of PGW returned to the Adams Site around 7:00 a.m., and another 

PGW official, Mr. Steve Westergon, who was a Distribution Maintenance Supervisor, arrived 

7 
about the same time, both to oversee PGW’s cut and cap operation. (T. 96-98, 118-19, 121). There 

is no direct evidence of the precise locations along the gas main where PGW performed its cut and 

cap operation, but Petrongolo’s Daily Report for January 28, which Ron Petrongolo prepared, 

suggests that it was done at both ends of the 4200 block of Adams Avenue, with one cut being 

done where Adams Avenue intersects Church Street, and the other cut being done where Adams 

Avenue intersects Ruan Avenue, with both cuts requiring that PGW create excavations. (Ex. R-25; 

Ex. J-8 at 1 and 9 [Bates 189]; T. 158). The linear distance between these two intersections is 

about 320 feet. 2 

16. Ron Petrongolo used Petrongolo’s backhoe to remove the steel plates that he had put 

over the unprotected trench the night before. Around 7:30 a.m. or 8:00 a.m., as both Eckroade and 

Westergon moved between the two cut and cap locations and passed by Petrongolo’s trench, they 

observed two workers in the unprotected trench standing on wood boards that had been arrayed 

side by side about six feet down inside the trench to create a work platform for them to stand on. 

(The number of wood boards constituting the work platform varies between four and six in the 

thirteen photos in Exhibit C-1, depending apparently on the progress of the work that was being 

done while the photos were being taken.) The workers were seen installing two 2x6 boards 

vertically against the walls of opposite sides of the trench and placing a metal jack-pipe in between 

the boards that appeared to serve as a cross-brace supporting the two vertical boards. The jack2 No evidence of the length of this segment of Adams Avenue was presented at the hearing. 

This finding respecting the distance between the two intersections is based on judicial notice of a 

Google map and satellite image of the area, the accuracy of which cannot reasonably be questioned 

for purposes of this case. See Pahls v. Thomas, 718 F.3d 1210, 1216 n.1 (10th Cir. 2013) (taking 

sua sponte judicial notice of a Google map and satellite image as a “‘source[ ] whose accuracy 

cannot reasonably be questioned’ for purposes of this case” under Fed. R. Evid. 201(b)(2)); accord 

U.S. v. Burroughs, 810 F.3d 833, 835 n.1 (D.C. Cir. 2016) (taking judicial notice of the same on 

motion of party). 

8 
pipe spanned the width of the trench about one foot above the wood boards the workers were 

standing on. A ladder was inside the trench which appears to have provided the workers the means 

of ingress and egress. The ladder appears also to be the same type of ladder in color and material 

as the ladder that Petrongolo had put in the same trench the night before as reflected in the photos 

in Exhibit C-2. Eckroade took thirteen photographs of the workers doing this work inside the 

unprotected excavation at around 7:30 a.m. to 8:00 a.m. on January 28. Those photographs 

accurately depict the condition of the trench when taken and were received in evidence at Exhibit 

C-1. The faces of the two workers inside the trench are not captured in any of the photographs. 

Some of the photographs show the lower arms or the lower legs of at least one other worker (or 

possibly two different workers) who was (or were) outside the trench. The two workers inside the 

trench depicted in the photographs are accurately depicted working inside an excavation that was 

deeper than five feet and that lacked an adequate protective system to protect them from a cavein. (Joint Pre-Hr’g Statement ¶¶ IV(A)(1)-(4); T. 97-106, 110, 112-13, 121-24, 143-44, 147-48, 

161, 163-64, 219-20, 227-28, 270-74, 279-80, 299-301, 313-22, 338, 561-64, 577-78, 649-52, 699-

701; Exs. C-1, C-3, R-25). 

17. Westergon was present when Eckroade took the photographs in Exhibit C-1. 

(T. 125). Westergon observed and heard Ron Petrongolo give oral instructions to the workers 

while the workers were inside the trench and when the trench lacked an adequate protective system 

to protect the workers from cave-ins. (T. 123-24, 138-41, 143-44). These workers were 

Petrongolo employees. There is no evidence that employees of any employer other than 

Petrongolo would have reason to enter the unprotected trench to begin installing timber shoring in 

the trench. 

9 
18. The workers in the unprotected trench were not PGW employees. The two PGW 

supervisors (Eckroade and Westergon) who observed the workers in the trench were familiar with 

excavation safety and recognized the unprotected trench was a hazard. They would not allow 

PGW employees to enter the unprotected trench. (T. 84-85, 99-100, 124, 146-47). One of the 

PGW supervisors (Westergon) admonished Ron Petrongolo that workers ought not enter the 

unprotected trench. (T. 123, 137). 

19. The workers in the unprotected trench were not employees of any of Petrongolo’s 

subcontractors (NA Pipe, or the plumbing or paving subcontractors) in that none of Petrongolo’s 

subcontractors did excavation work and none had reason to direct employees to enter the 

unprotected trench to begin to install timber shoring. (Joint Pre-Hr’g Statement ¶ IV(A)(4); T. 

562-64). 

20. Sometime after Eckroade took photos of the trench, Ron Petrongolo directed 

Petrongolo employees in completing the installation of timber shoring in the trench. The day 

before, Ron Petrongolo had assessed the trench’s soil type by performing a visual examination of 

the soil. (T. 268-70). He also performed a manual test by picking up a sample of the soil and 

rolling it around between his fingers. (T. 266). He found the soil type “inconsistent” and 

concluded it was probably not composed of a single type of soil. (T. 306-308, 341-43, 702). This 

led Ron Petrongolo reasonably to classify the soil as Type C, which is the least stable soil type. 

(T. 306-308, 341-43, 682-83, 702). 

21. Sometime after 8:00 a.m. (when Eckroade took the photographs at Exhibit C-1) and 

before noon, Petrongolo workers supervised by Ron Petrongolo completed installing timber 

shoring in the trench. (T. 265, 302, 697-700; Ex. J-8). There is no evidence that any workers were 

inside the unprotected trench while completing the installation of the timber shoring except for the 

10 
photographs received in evidence at Exhibit C-1. After the timber shoring was completely 

installed, it constituted an adequate protective system to protect workers from cave-ins. (T. 436-

37, 445). 

22. Petrongolo’s “Daily Report” that Ron Petrongolo prepared to record Petrongolo’s 

activity at the Adams Site on January 28, 2020, indicates that PGW completed its cut and cap 

operation at about 7:00 p.m. that day, after which PGW cleared Petrongolo to proceed with the 

sewer relining. (Ex. R. 25). 

OSHA’s Inspection and Citation 

23. In response to PGW’s report to OSHA of a hazardous excavation at the Adams Site, 

OSHA dispatched a Compliance Safety and Health Officer (CO) to the Adams Site to conduct an 

inspection. (Joint Pre-Hr’g Statement ¶ IV(A)(6); T. 154-57, 204-07; Ex. J-7). 

24. The CO arrived at the Adams Site on the morning on January 28, 2020, and by the 

time he arrived the Petrongolo crew had completed installing the timber shoring in the trench and 

had departed the Adams Site. 

3 (T. 158, 179-82, 242-50, 445-46; Ex. J-8 pp. 3-14, 16, 19, 21, 24-

25, 29-30). Sometime during his inspection, in late morning or early afternoon, Dan Petrongolo 

arrived at the Adams Site and met the CO. (T. 530). Ron Petrongolo returned to the site sometime 

after Dan arrived, and the CO spoke to both at the same time. (Joint Pre-Hr’g Statement 

¶ IV(A)(8); T. 158-59, 184, 274-75, 528-30). 

3 The CO testified that he arrived at the Adams Site in the morning, but there is no more 

precise evidence of the time he arrived. (T. 158). The CO took 30 photographs of the Adams Site, 

which were admitted in evidence as Exhibit J-8. (T. 178-79). Eight of the photographs have 

timestamps ranging from 12:19 p.m. to 12:25 p.m., but the other photographs have no timestamps. 

(Ex. J-8, pp. 1-8). In his testimony, the CO indicated that these timestamps may have been one 

hour off, but he did not indicate whether this discrepancy was one hour earlier or later. (T. 200). 

11 
DISCUSSION 

The Commission obtained jurisdiction under section 10(c) of the Act upon Petrongolo’s 

timely filing of a notice of contest. 29 U.S.C. § 659(c). Petrongolo has employees and is engaged 

in a business affecting commerce, and thus meets the Act’s definition of “employer.” 29 U.S.C. 

§ 652(5); (Finding of Fact ¶ 3). 

Both Citations allege violations of safety standards promulgated pursuant to section 6(b) 

of the Act. 29 U.S.C. § 655(b). To establish a violation of such a standard, the Secretary must 

prove by a preponderance of the evidence that: (1) the cited standard applies; (2) there was 

noncompliance with its terms; (3) employees had access to the violative condition; and (4) the 

cited employer had actual or constructive knowledge of the violative condition. Donahue Indus. 

Inc., 20 BNA OSHC 1346, 1348 (No. 99-0191, 2003). 

Alleged Insufficiency of Petrongolo’s Type C Soil Determination 

Serious Citation 1, Item 1 – Section 1926.652(c)(1) 

Citation 1, Item 1 alleges a violation of § 1926.652(c)(1), which provides in relevant part 

that “[d]esigns for timber shoring in trenches shall be determined in accordance with the conditions 

and requirements set forth in appendices A and C to this subpart.” 

Appendix A is titled “Soil Classification,” and its “scope” provision states: “This appendix 

describes a method of classifying soil and rock deposits based on site and environmental 

conditions, and on the structure and composition of the earth deposits. The appendix contains 

definitions, sets forth requirements, and describes acceptable visual and manual tests for use in 

classifying soils.” 

Appendix C is titled “Timber Shoring for Trenches” and its “scope” provision states in 

part: 

This appendix contains information that can be used [when] timber shoring is 

provided as a method of protection from cave-ins in trenches that do not exceed 20 

12 
feet ... in depth. This appendix must be used when design of timber shoring 

protective systems is to be performed in accordance with § 1926.652(c)(1). 

Citation 1, Item 1 alleges that Petrongolo violated § 1926.652(c)(1) by “fail[ing] to obtain 

the soil type to determine the proper configuration when using timber shoring.” 4 

The cited standard applies to the Adams Site trench excavation, and Petrongolo does not 

contend otherwise. See § 1926.650(a) (“This subpart applies to all open excavations made in the 

earth’s surface. Excavations are defined to include trenches”); § 1926.650(b) (defining the terms 

“trench” and “trench excavation” as “a narrow excavation (in relation to its length)” that is 

generally deeper than it is wide but is not wider than 15 feet). 

Appendix A establishes four soil classifications: Stable Rock, and Types A, B, and C soil. 

See 29 C.F.R. § 1926, Subpt. P, app. A ¶ (b). Type C is the least stable soil type. See App. A (b); 

see also (T. 306-07, 682-83). The use of design data in Appendix C is dependent on the soil 

classification that is determined according to the criteria set forth in Appendix A. See Appendix 

C, ¶ (b) (providing that “[i]n order to use the data presented in this appendix [C], the soil type or 

4

 The Secretary has argued that Petrongolo’s design of the timber shoring did not conform 

to the requirements of Appendix C. (Sec’y Br. 22-23). That issue will not be adjudicated because 

the scope of the alleged violation is limited to whether Petrongolo conformed with the 

requirements of Appendix A for classifying the soil type. The citation item does not allege a 

violation of Appendix C respecting the design of Petrongolo’s timber shoring system, and so the 

issue of whether Petrongolo’s design conformed with Appendix C is outside the scope of the 

pleadings. Moreover, that issue was not tried by consent of the parties such that a judge could sua 

sponte amend the pleadings post-hearing. Fossett, 7 BNA OSHC 1915 (No. 76–3944, 1979) 

(upholding Commission judge’s decision to amend a citation item sua sponte after the close of the 

hearing pursuant to the provisions set forth in current Fed. R. Civ. P. 15(b)(2)); McWilliams Forge 

Co., Inc., 11 BNA OSHC 2128, 2129-30 (No. 80-5868, 1984) (deciding that amendment under 

Fed. R. Civ. P. 15(b)(2) “is proper only if two findings can be made – that the parties tried an 

unpleaded issue and that they consented to do so”; and stating further that “[t]rial by consent may 

be found only when the parties knew, that is, squarely recognized, that they were trying an 

unpleaded issue”). In any event, even if the issue were deemed to have been within the scope of 

the pleadings or tried by consent, the evidence that Petrongolo’s design failed to meet the 

requirements of Appendix C was not preponderant. (See T. 435-36, 664-67). 

13 
types in which the excavation is made must first be determined using the soil classification method 

set forth in appendix A”). 

Appendix A requires a competent person to perform at least one visual and one manual test 

on the soil to determine the soil type. App. A ¶ (c)(2). The appendix sets forth a series of 

“[a]cceptable visual and manual tests” and provides also that a competent person may rely on other 

recognized methods of testing as well. Id. (“Such [visual and manual] analyses shall be conducted 

by a competent person using tests described in paragraph (d) below, or in other recognized methods 

of soil classification and testing such as those adopted by the America Society for Testing 

Materials, or the U.S. Department of Agriculture textural classification system.”). 

The preponderant evidence established that Ron Petrongolo, who is a registered 

professional engineer with years of experience in testing soil and performing excavations in the 

Philadelphia area, is a “competent person” as defined in § 1926.650(b). 5 (T. 289-93). The 

Secretary recognizes as much. (Sec’y Br. 6-7). Ron Petrongolo performed at least one manual 

and one visual test of the soil at the Adams Site in conformance with the requirements of Appendix 

A. (Findings of Fact ¶ 20). These tests and other relevant information available to him caused 

him reasonably to conclude that the timber shoring design for the trench’s timber shoring must be 

adequate for Type C soil. (T. 306-08, 341-43). 

Even if Ron Petrongolo had failed to conduct the visual and manual tests required by 

Appendix A, it would not have mattered, because his determination that the soil was Type C 

rendered any soil testing superfluous and thus not required. See OSHA Interpretation Letter, 

5 The definition is: “Competent person means one who is capable of identifying existing 

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

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

measures to eliminate them.” § 1926.650(b). 

14 
“Testing of type C soil is not necessary if employees are adequately protected,” (June 5, 1991) 

(stating that “soil testing would be superfluous and not required” if soil is classified as Type C and 

the protective system is adequate to protect against cave-ins in Type C soil); (see also T. 306-308, 

682-83). The Secretary makes no argument that this 1991 letter of interpretation, which is 

published on OSHA’s public website, does not accurately represent current OSHA policy 

respecting the need to test soil in the manners specified by Appendix A where that soil is regarded 

to be Type C soil. 

The Secretary did not establish that Petrongolo failed to comply with § 1926.652(c)(1) in 

the manner alleged in Citation 1, Item 1, and accordingly that citation item must be vacated. 

Alleged Failure to Provide Adequate Protective System 

Repeat Citation 2, Item 1 – Section 1926.652(a)(1) 

Citation 2, Item 1 alleges a violation of § 1926.652(a)(1), which provides in relevant part 

that “[e]ach 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 ... .” Citation 2, Item 1 

alleges that Petrongolo violated this section because it “failed to ensure that each employee 

working inside an excavation of approximately twelve (12) feet deep were protected by cave-in 

protection.” 

The cited standard applies to the trench excavation for the same reasons the excavations 

standard applied to Citation 1, Item 1. Petrongolo does not contend otherwise. 

Alleged Violation on January 27, 2020 

This decision adjudicates only whether Petrongolo employees were exposed to the 

violative condition on January 28, 2020, when the PGW officials observed and took photographs 

of workers in the unprotected excavation who appear to have begun installing timber shoring as 

depicted in the photographs in Exhibit C-1. 

15 
The Secretary argues that the evidence established employee exposure to an unprotected 

trench on the evening of January 27, 2020, as Mr. Pereira of PGW testified he had observed. This 

argument is not considered because the Citation identifies the next day, January 28, as the “on or 

about” date of the violation (not on or about January 27 and January 28). Moreover, the assistant 

area director of the OSHA area office that issued the citation testified that the citation item was 

not grounded upon any claimed worker exposure on January 27, 2020, but rather was based on the 

near conclusive photographs of worker exposure that were taken on the morning of January 28. 

(T. 418-24; Ex. C-1). The issue of whether the Petrongolo violated the cited standard on January 

27 will not be adjudicated because the scope of the alleged violation is limited to whether 

Petrongolo violated the cited standard on January 28, not January 27, and the unpleaded issue of 

whether a separate violation occurred on January 27 was not tried by consent. See McWilliams 

Forge Co., Inc., 11 BNA OSHC at 2129. 

The imprecise and somewhat unfocused evidence as to employee exposure on the evening 

of January 27 is further indicative that the parties did not try that issue by consent. While Mr. 

Pereira testified that he observed workers in the unprotected trench, he took no photographs of that 

violative conduct, although he did take photographs of the empty trench and PGW’s exposed gas 

main therein. (Ex. C-2; T. 44-45, 80). Mr. Pereira’s testimony did not squarely controvert Ron 

Petrongolo’s testimony that Petrongolo employees entered the trench on January 27 only when 

they were inside the precast concrete manhole that Ron Petrongolo had temporarily placed in the 

excavation on January 27. Rather, Pereira at least partially corroborated Ron Petrongolo’s 

account—Pereira testified that employees were in the trench at the same time the manhole was in 

the trench. (T. 44-45 & 79-80). With respect to the adequacy of the manhole to protect the workers 

from cave-ins, the Secretary presented no testimony respecting how or why that asserted method 

16 
was non-compliant. In his closing briefs, the Secretary makes no argument that the use of the 

manhole for providing cave-in protection in the manner that Ron Petrongolo claimed was noncompliant with the cited standard. (See Sec’y Reply Br. 2-3). The adequacy of the cave-in 

protection that the concrete manhole provided the workers in the trench on January 27 is similarly 

not adjudicated. 

Alleged Violation on January 28, 2020 

On January 28, 2020, the trench was well over five feet deep and thus constituted a hazard 

for so long as it was open and lacked an adequate protective system. See Flint Eng’g & Constr. 

Co., 15 BNA OSHC 2052, 2055 n.8 (No. 90-2873, 1992) (rejecting cited employer’s argument 

that an unprotected trench was not a hazard so long as employees were not in the trench, concluding 

instead that “[t]he open trench was the hazard”). Accordingly, the open trench was non-compliant 

with the cited standard on January 28, 2020, from the time that Ron Petrongolo removed the steel 

plates covering it to the time that the Petrongolo crew completed installation of the timber shoring 

that was in place by the time the CO arrived at the Adams Site later that morning. 

The photographs in Exhibit C-1 show two workers in the unprotected trench at the Adams 

Site that was at least ten feet deep. Those two workers were exposed to a cave-in hazard. Ford 

Dev. Corp., 15 BNA OSHC 2003, 2011 (No. 90-1505, 1992) (“The standard speaks of the depth 

of the trench, not of the position of employees in the trench”), aff’d, 16 F.3d 1219 (6th Cir. 1994); 

see also P. Gioioso & Sons, Inc. v. OSHRC, 115 F.3d 100, 109 (1st Cir. 1997) (“The safety standard 

is implicated by the depth of a particular trench, without regard to an individual worker’s precise 

position in it”). 

Petrongolo defends on the grounds (1) the Secretary did not prove that the workers in the 

unprotected trench were Petrongolo employees, and (2) that the Secretary did not prove that 

Petrongolo had knowledge that any workers (whether Petrongolo employees or the employees of 

17 
some other employer) had entered the unprotected trench. (Resp’t Br. 3, 21-25). As discussed 

below, the Secretary proved both (1) that the workers in the unprotected trench were Petrongolo 

employees, and (2) that Petrongolo had both actual and constructive knowledge that its employees 

were in the unprotected trench. It is therefore unnecessary to adjudicate the Secretary’s alternative 

theory of liability under the multi-employer worksite doctrine or Petrongolo’s counterargument 

that the Secretary did not prove it had knowledge that employees of other employers were in the 

unprotected trench. (Sec’y Br. 24-25; Sec’y Reply Br. 5). 

The parties have stipulated that Petrongolo was the only contractor performing excavation 

work on the inspected trench. (Joint Pre-Hr’g Statement ¶¶ IV(A)(4); T. 270, 561-64, 649-52). 

There is likewise no dispute that on the morning of January 28, Petrongolo employees installed all 

the timber shoring that had been completely installed sometime by the time the CO arrived that 

morning. (Joint Pre-Hr’g Statement ¶ IV(A)(2); T. 163-64; Exs. C-3, R-25). Ron Petrongolo was 

present at the Adams Site on the morning of January 28. He used Petrongolo’s backhoe to remove 

the steel plates that had covered the trench overnight. He supervised the Petrongolo crew in 

installing all the timber shoring that had been completely installed by the time the CO arrived later 

that morning. (Joint Pre-Hr’g Statement ¶ IV(A)(3); T. 158-59, 271-72, 299-301, 699-700). In 

their hearing testimony, neither Ron nor Dan Petrongolo could rule out the possibility that the 

workers depicted in the photographs in the unprotected trench may have been Petrongolo 

employees. (T. 313-23, 577-78; Ex. C-1). No other employers other than Petrongolo had cause 

to have their employees enter the unprotected trench on January 28 and begin to install timber 

shoring in the unprotected trench, as the workers depicted in the photographs in Exhibit C-1 appear 

to be doing. (Findings of Fact ¶¶ 17–19). 

18 
This circumstantial evidence is sufficient to prove to a reasonable certainty that the workers 

inside the unprotected trench were Petrongolo employees. This circumstantial case is bolstered by 

Westergon’s reliable and credible testimony that he observed and heard Ron Petrongolo giving 

oral instructions to workers who were inside the unprotected trench. (Findings of Fact ¶ 17). 

Westergon testified that he recognized Ron Petrongolo from having had prior contacts with 

him on other projects and that on the morning of January 28 he spoke to him face to face. (T. 123). 

Ron Petrongolo acknowledges that he spoke to PGW representatives while at the Adams Site. (T. 

282). And while Westergon did not expressly testify that he observed Ron Petrongolo directing 

the workers in the trench at a time when the trench was unprotected, that detail is reasonably 

implied from the context of his direct and cross examination, including his tone and demeanor in 

responding to those questions. (T. 123-24, 143-44). 

Petrongolo argues that during cross-examination Westergon equivocated away from the 

certainty he had expressed in his direct examination that the person he saw and heard directing 

workers in the unprotected trench was Ron Petrongolo. (Resp’t Br. 22). The undersigned finds 

Westergon’s testimony reasonably reliable and not significantly undermined by the somewhat 

unrelenting, albeit respectful, cross-examination regarding the reliability of his recognition of Ron 

Petrongolo. (T. 138-41). Moreover, it bears noting that the hearing witnesses were sequestered 

and that Westergon and Ron Petrongolo were never present in the videoconference hearing at the 

same time. Thus, neither Westergon nor Ron Petrongolo was afforded the opportunity to view the 

other’s video image for the purpose of confirming or denying whether they had a face-to-face 

encounter on January 28 as Westergon described them having. (T. 123, 137). (Petrongolo could 

have conceivably tested the reliability of Westergon’s testimony that on January 28 he recognized 

Ron Petrongolo based on prior contacts by requesting that Ron Petrongolo join the 

19 
videoconference hearing briefly during Westergon’s testimony for purpose identification only, but 

Petrongolo made no such request.) 

Other than Ron Petrongolo’s testimony that he never saw any workers inside the 

unprotected trench, Petrongolo has presented no probative evidence that the workers depicted in 

the photographs in Exhibit C-1 were not Petrongolo employees. Although Petrongolo identified 

the four other employees that were working at the Adams Site on January 28 (Ex. C-3), none were 

called to testify respecting whether they had entered the unprotected trench that day or to testify 

that they were not one of the two workers inside the trench depicted in Exhibit C-1. Cf. Well Sols., 

Inc., 17 BNA OSHC 1211, 1215 (No. 91-340, 1995) (determining that the Secretary’s prima facie 

case was sufficient to prove a violation where evidence that would have been in possession of the 

employer was not presented to rebut that prima facie case); Thomas Indus. Coatings, 21 BNA 

OSHC 2283, 2288 (No. 97-1073, 2007) (finding a violation where the employer failed to present 

evidence to rebut the most reasonable inference to be drawn from the evidence). 

While the whole of the evidence may be susceptible of other inferences, those inferences 

are considerably less plausible than the reasonable inference that the workers depicted inside the 

trench in the photographs of Exhibit C-1 were Petrongolo employees, and on this record the 

undersigned finds no other inference to be reasonable. See R.D. Anderson Constr., 12 BNA 

OSHC 1665, 1666 (No. 81-1469, 1986) (a fact is established by a preponderance of the evidence 

where “the evidence taken as a whole shows that the fact sought to be proved is more probable 

than not”). 

As to the fourth element of the Secretary’s burden of proof, a preponderance of the 

evidence establishes that Petrongolo knew or with the exercise of reasonable diligence could have 

known of a violative condition or conduct. Calpine Corp., No. 11-1734, 2018 WL 1778958, at *5 

20 
(OSHRC Apr. 6, 2018), aff’d 774 F. App’x 879 (5th Cir. 2019) (unpublished); Kerns Bros. Tree 

Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). A supervisor’s knowledge of the violative 

condition or conduct is imputable to the employer. Calpine Corp., 2018 WL 1778958, at *5; 

Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1539 (No. 86-360, 1992) (consolidated). 

There is no dispute that Ron Petrongolo, as the foreman of the Petrongolo crew at the 

Adams Site, was a supervisor whose knowledge is imputable to Petrongolo. See Rawson 

Contractors, Inc., 20 BNA OSHC 1078, 1080 (No. 99-0018, 2003) (supervisory status of an 

employee is based on a consideration of the “indicia of authority that the employer has empowered 

a foreman or other employee to exercise on its behalf”). As previously found, the greater weight 

of the evidence is that Ron Petrongolo supervised and gave oral directions to the Petrongolo 

employees who were installing shoring in the unprotected trench. (Findings of Fact ¶ 17). Ron 

Petrongolo thus had actual knowledge of the employees’ violative conduct, and his knowledge is 

imputed to Petrongolo. Calpine Corp., 2018 WL 1778958, at *5; Tampa Shipyards, Inc., 15 BNA 

OSHC at 1539. 

Even if the Secretary had failed to prove Ron Petrongolo’s actual knowledge, the greater 

weight of the evidence also establishes that Ron Petrongolo could have discovered or prevented 

the employees’ violative conduct with the exercise of reasonable diligence, and thus he had 

constructive knowledge of the violative condition. See Mastec N. Am., Inc., No. 15-1574, 2021 

WL 2311875, at *6 n. 7 (OSHRC, Mar. 2, 2021) (commenting that in determining whether a 

supervisor had constructive knowledge of an employee’s violative conduct, “the question is 

whether [the] supervisor exercised reasonable diligence in monitoring” the employee’s work). 

Reasonable diligence can implicate “several factors, including an employer’s obligations to 

implement adequate work rules and training programs, adequately supervise employees, anticipate 

21 
hazards, and take measures to prevent violations from occurring.” S.J. Louis Constr. of Tex., 25 

BNA OSHC 1892, 1894 (No. 12-1045, 2016). 

Ron Petrongolo was the foreman and supervised the work Petrongolo was performing at 

the Adams Site on January 28, 2020. (Joint Pre-Hr’g Statement ¶ IV(A)(3)). He was in charge of 

running the worksite, he remained there the entire shift “for the most part,” and he directed the 

work during the excavation. (T. 261). He operated Petrongolo’s backhoe and removed the steel 

plates covering the trench on the morning of January 28, and he thus had actual knowledge that 

the unprotected trench was open and accessible to the Petrongolo employees who were present to 

begin to install the timber shoring. (Findings of Fact ¶ 16). And, while the evidence does not 

establish precisely establishes how long the workers were in the unprotected trench, the progress 

they had made in installing the timber shoring as depicted in the photographs of Exhibit C-1 

permits the reasonable inference that they were in the trench for more than a “brief or indeterminate 

duration.” See David Weekley Homes, 19 BNA 1116, 1119 (No. 96-0898, 2000). 

Even assuming Ron Petrongolo temporarily left the Adams Site after he had removed the 

steel plates that had been covering the trench, he had a heightened responsibility to keep the 

Petrongolo crew from entering the unprotected trench in his absence. There is no evidence that he 

took any affirmative steps to do so, such as admonishing the employees not to enter the unprotected 

trench or by re-covering the trench with the steel plates. His lack of reasonable diligence is even 

more apparent considering that before Messrs. Westergon and Eckroade of PGW observed the 

Petrongolo employees in the unprotected trench, Westergon made a point of warning Ron 

Petrongolo directly that the Petrongolo workers should not enter the unprotected trench. (T. 123, 

137). 

22 
A preponderance of the evidence establishes that in the exercise of reasonable diligence 

Ron Petrongolo could have prevented the violation from occurring. S.J. Louis Constr. of Tex., 25 

BNA OSHC at 1894; cf. KS Energy Servs. Inc., 22 BNA OSHC at 1267-68 (foreman’s presence 

at the worksite where hazardous conditions was in plain view was relevant to determining 

constructive knowledge). Ron Petrongolo’s constructive knowledge is imputed to Petrongolo. 

Calpine Corp., 2018 WL 1778958, at *5; Tampa Shipyards, Inc., 15 BNA OSHC at 1539. 

Repeat Classification for Citation 2, Item 1 

Section 17(a) of the Act, 29 U.S.C. § 666(a), allows for heightened penalties for “[a]ny 

employer who ... repeatedly violates the requirements of ... any standard ... promulgated pursuant 

to section 6 of this Act ... .” “A violation is properly classified as repeated under section 17(a) of 

the Act if, at the time of the alleged repeated violation, there was a Commission final order against 

the same employer for a substantially similar violation.” Jersey Steel Erectors, 16 BNA OSHC 

1162, 1167 (No. 90-1307, 1993), citing Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 

1979) (Potlatch). 6 The Secretary can make a prima facie showing of substantial similarity “by 

showing that both violations are of the same standard.” Id. This prima facie showing of substantial 

similarity may be rebutted “by evidence of the disparate conditions and hazards associated with 

these violations of the same standard.” Id. 

The Citation alleged Petrongolo’s violation of § 1926.652(a)(1) was a repeat violation 

based on the following: 

6 The employer or the Secretary may appeal a Commission final order to the federal court 

of appeals for the circuit in which the violation allegedly occurred or where the employer has its 

principal office, and the employer also may appeal to the District of Columbia Circuit. See 29 

U.S.C. §§ 660(a) and (b). Here, the violation occurred in Pennsylvania, in the Third Circuit, where 

Petrongolo’s office is also located. See Citation at 1 (listing Petrongolo’s business address in 

Philadelphia, Pennsylvania). The Third Circuit has adopted the Commission’s Potlatch test. Reich 

v. D.M. Sabia Co., 90 F.3d 854 (3d Cir. 1996). 

23 
Petrongolo Contractors, Inc. was previously cited for a violation of 

[§ 1926.652(a)(1)] which was contained in OSHA inspection number 1347967, 

citation number 2, item number 1 and was affirmed as a final order on April 

26th, 2019, with respect to a workplace located at Broad Street and Wharton 

Street, Philadelphia, Pennsylvania. 

Petrongolo Contractors, Inc. was previously cited for a violation of 

[§ 1926.652(a)(1)] which was contained in OSHA inspection number 

1347967, 7 citation number 2, item number 1 and was affirmed as a final order 

on November 1st, 2018, with respect to a workplace located at Broad Street and 

Ell[s]worth Street, Philadelphia, Pennsylvania. 

Petrongolo Contractors, Inc. was previously cited for a violation of 

[§ 1926.652(a)(1)] which was contained in OSHA inspection number 1323007, 

citation number 1 item number 2 and was affirmed as a final order on November 

1st, 2018, with respect to a workplace located at 20th and Poplar, Philadelphia, 

Pennsylvania. 

At the hearing, the Secretary submitted the following evidence regarding the prior 

violations: 

• Regarding the previous violation arising out of inspection 1347967, occurring on 

September 21, 2018, at Broad Street and Wharton Street (Broad-Wharton Citation): the 

Citation alleging a violation of § 1926.652(a)(1) and the Violation Worksheet for the 

Broad-Wharton Citation. (Exs. J-5, J-6). 

• Regarding the previous violation arising out of inspection 1326082, occurring on June 28, 

2018, at Broad Street and Ellsworth Street (Broad-Ellsworth Citation): the Citation 

alleging a violation of § 1926.652(a)(1), the Photo Mounting Worksheet for the BroadEllsworth Citation, the Violation Worksheet for the Broad-Ellsworth Citation, and an 

Informal Settlement Agreement for the Broad-Ellsworth Citation signed by Ron 

Petrongolo on October 25, 2018. (Exs. C-7, C-8, J-1, J-3). 

7

 The documentation received in evidence reflects the actual inspection number being 

1326082. (Ex. J-3). 

24 
• Regarding the previous violation arising out of inspection 1323007, occurring on June 15, 

2018, at 20th and Poplar Street (Poplar Citation): the Citation alleging a violation of 

§ 1926.652(a)(1), the Photo Mounting Worksheet for the Poplar Citation, the Violation 

Worksheet for the Poplar Citation, photos of employees in an unprotected excavation taken 

in connection with the Poplar Citation, and an Informal Settlement Agreement for the 

Poplar Citation signed by Ron Petrongolo on October 25, 2018. (Exs. C-4, C-5, C-6, J-2, 

J-4). 

Based on the evidence submitted for the Broad-Ellsworth and Poplar Citations, 8 the 

Secretary has established a prima facie case of substantial similarity for purposes of classifying 

Petrongolo’s violation of § 1926.652(a)(1) as a repeat violation. Jersey Steel Erectors, 16 BNA 

OSHC at 1167; Triumph Constr. Corp., 26 BNA OSHC 1331, 1346-47 (No. 15-0634, 2016) (ALJ) 

(determining that an informal settlement agreement constitutes a “Commission final order” for 

purposes of repeat classification), aff’d, 885 F.3d 95 (2d Cir. 2018). The burden therefore shifts 

to Petrongolo to rebut the Secretary’s showing. Lake Erie Constr. Co., 21 BNA OSHC 1285, 1289 

(No. 02-0520, 2005). In so doing, Petrongolo must show that the previous violations resulted in 

different hazards, not just distinguish the factual circumstances surrounding the instant violation 

and the previous ones. Amerisig Se., Inc., 17 BNA OSHC 1659, 1661 (No. 93-1429, 1996) (“[T]he 

principal factor in determining whether a violation is repeated is whether the two violations 

resulted in substantially similar hazards”), aff’d without published opinion, 117 F.3d 1433 (11th 

8 No evidence of a final order respecting the Broad-Wharton Citation was presented. In 

arguing that this Citation was disposed of by informal settlement, the Secretary cites only to vague, 

general testimony from OSHA’s assistant area director and Dan Petrongolo concerning settlement 

negotiations. (Sec’y Br. 29, citing T. 362, 574). This is insufficient to establish the existence of a 

“Commission final order” for the Broad-Wharton Citation, and so that Citation is not regarded to 

constitute a prior violation for purposes of classifying the current violation as repeated or for 

assessing the penalty. 

25 
Cir. 1997). Petrongolo has not rebutted the Secretary’s prima facie case for either the Poplar or 

the Broad-Ellsworth Citations. 

Poplar Citation 

For the Poplar Citation, Petrongolo points out that, as indicated in the Violation Worksheet 

for that Citation, there was no shoring installed for workers in a trench that was over five feet deep. 

(Resp’t Br. 27, citing Ex. J-2). Petrongolo asserts that this was because “Petrongolo did not 

anticipate needing to excavate further than five feet, so it did not bring shoring materials to the job 

site.” (Resp’t Br. 27). By contrast, Petrongolo goes on to argue, the shoring for the instant Citation 

was alleged to have been inadequate rather than non-existent. (Id. 28). 

This argument is rejected. The violation at the Adams Site involves the exposure of two 

Petrongolo employees who were inside an unprotected trench and beginning to install timber 

shoring. The Petrongolo employees at the Adams Site were exposed to a substantially similar, if 

not identical, hazard as the employee who was inside an unprotected excavation in connection with 

the Poplar Citation, as that employee is depicted in the photographs at Exhibits C-4 and C-5. 

Amerisig Se., Inc., 17 BNA OSHC at 1661; Lake Erie Constr. Co., Inc., 21 BNA OSHC at 1289 

(“We find that the record supports the judge’s finding that these violations were substantially 

similar because both involved the same standard and the same hazard, a fall of more than 20 feet 

to a road below”); see also T. 186-89 (describing the cave-in hazards associated with an 

unprotected trench five feet or more in depth). Indeed, Dan Petrongolo acknowledged that the 

possibility of severe injury or death is a hazard associated with any trench that lacks an adequate 

protective system in place. (Tr. 590-91). Cf. Par Elec. Contractors, Inc., 20 BNA OSHC 1624, 

1628 (No. 99-1520, 2004) (finding substantially similar hazards where foreman acknowledged the 

hazards were similar in nature). 

26 
Broad-Ellsworth Citation 

For many of the same reasons discussed in connection with the Poplar Citation, 

Petrongolo’s attempts to distinguish the Broad-Ellsworth Citation from the instant Citation also 

fail. Petrongolo again points to the fact that the Broad-Ellsworth Citation allegedly involved a 

trench with no cave-in protection, whereas this case involves the use of two types of cave-in 

protection at one time or another. (Resp’t Br. 29). This argument again fails for the reasons set 

forth above. 

Petrongolo also points to a photograph in the Violation Worksheet for the Broad-Ellsworth 

Citation which Petrongolo characterizes to be an employee working on a water main. (Resp’t Br. 

29, citing Ex. J-1; see also Ex. C-7). Petrongolo argues that, because “such utility work falls within 

the scope of work for much of Petrongolo’s business,” it is more likely that this photograph depicts 

an employee doing “authorized work in an excavation over 5-feet deep.” (Resp’t Br. 29). This 

argument is contrary to the facts found herein that Petrongolo employees were inside the 

unprotected trench on January 28, 2020, while receiving oral instructions from Ron Petrongolo, 

and thus performing work that Ron Petrongolo was explicitly authorizing that they do. In any 

event, this argument does not alter the incontrovertible fact that the employees at the Adams Site 

and the employee at the Broad-Ellsworth site were exposed to substantially similar cave-in 

hazards, which is the crux of the inquiry for purposes of repeat characterization. Lake Erie Constr. 

Co., 21 BNA OSHC at 1289. 

Finally, Petrongolo argues generally that “substantially similar” must “be construed 

sufficiently narrowly [so] that the citation for the first violation placed the employer on notice of 

27 
the need to take steps to prevent the second violation.” Resp’t Br. 26, 9 quoting Caterpillar, Inc. 

v. Herman, 154 F.3d 400, 403 (7th Cir. 1998) (“Caterpillar”); Resp’t Br. 30-31. Further citing to 

Caterpillar, Petrongolo argues that a repeat characterization is “only warranted where an employer 

fails to learn from experience.” Id., quoting Caterpillar, 154 F.3d at 402. The Seventh Circuit’s 

decision in Caterpillar is not controlling precedent in this matter, but even if it were, it would not 

alter the result here. In Caterpillar, the Commission found that the employer had failed to rebut 

the Secretary’s prima facie showing of similarity for violations under the same standard, and the 

court affirmed that finding. Caterpillar, 154 F.3d at 404. The language Petrongolo quotes merely 

recognizes, as the Commission has since Potlatch, that an employer can rebut a prima facie 

showing of substantial similarity for violations under the same standard by proffering sufficient 

“evidence of the disparate conditions and hazards associated with these violations of the same 

9 In support of this argument Petrongolo also cites to the Commission’s decision in 

Angelica Textile Servs., Inc., 27 BNA OSHC 1246 (No. 08-1774, 2018), vacated as moot, 803 F. 

App'x 542 (2d Cir. 2020) (unpublished). A vacated decision of the Commission has no 

precedential effect. Reich v. Contractors Welding, 996 F.2d 1409, 1413-14 (2d Cir. 1993) 

(analysis in a vacated Commission decision may not “retain any precedential effect” because the 

Commission lacks rulemaking authority and adjudicating cases based on a decision that could not 

be reviewed due to intervening mootness is unfair). 

Petrongolo also cites to the Fourth Circuit’s decision in George Hyman Constr. Co. v. 

OSHRC, 582 F.2d 834 (4th Cir. 1978). This decision predates the Commission’s Potlatch 

decision. However, the court did note that it had “deliberately avoided setting forth an all-inclusive 

and rigid definition of ‘repeatedly’ under the Act” and was “allowing the Commission flexibility 

in working out reasonable guidelines in enforcing the Act.” George Hyman Constr. Co., 582 F.2d 

at 841. In the more than forty years after the Commission decided Potlatch, the Fourth Circuit has 

not revisited the issue of what standard to apply to determine repeat classification, and there is no 

reason to conclude that the Fourth Circuit would now regard Potlatch not to provide “reasonable 

guidelines” for classifying a violation as repeated. 

28 
standard.” Potlach, 7 BNA OSHC at 1063. Petrongolo has simply failed to make that showing 

here. 10 

The Secretary’s evidence established a prima facie case that Citation 2, Item 1 was 

substantially similar to the violations in the Poplar and Broad-Ellsworth Citations. Petrongolo has 

not rebutted the Secretary’s showing, and accordingly Petrongolo’s violation of § 1926.652(a)(1) 

is properly classified as a repeat violation. 

Penalty 

Section 17(a) of the Act, 29 U.S.C. § 666(a), provides, in relevant part, that “[a]ny 

employer who ... repeatedly violates ... any standard ... promulgated pursuant to section 6 of this 

Act ... may be assessed a civil penalty” that is up to ten times the maximum penalty for a serious 

or other-than-serious violation. The maximum penalty for the repeat violation proven here is 

$134,937. 29 C.F.R. § 1903.15(d)(2) (2020). 

The Commission and its judges conduct de novo penalty determinations and have 

discretion to assess penalties based on the facts of each case and the applicable statutory criteria. 

Valdak Corp., 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) aff’d, 73 F.3d 1466 (8th Cir. 1996); 

Allied Structural Steel, 2 BNA OSHC 1457, 1458 (No. 1681, 1975). Section 17(j) of the Act, 29 

U.S.C. § 666(j), requires that in assessing penalties, the Commission give “due consideration” to 

four criteria: the size of the employer’s business, the gravity of the violation, the employer’s good 

10 Petrongolo also argues that defining the hazard addressed by § 1926.652(a)(1) simply as 

a “cave-in hazard,” as the Secretary does, “could describe virtually any violation of 29 C.F.R. 

§ 1926.652(a)(1), [which] would broaden the concept as to render ethereal any supposed ‘advance 

warning’ from prior citations.” (Resp’t Br. 31, quoting Mondo Constr. Co., 25 BNA OSHC 1285 

(No. 13-1332, 2014) (ALJ) (addressing how a predicate violation may provide a basis for a repeat 

classification for the violation of a different standard)). Unlike Mondo Construction, the two prior 

violations here were for violations of the same standard as the instant violation, which is 

specifically focused on protecting employees in excavations from cave-ins. § 1926.652(a)(1). 

29 
faith, and its prior history of violations. Specialists of the S., Inc., 14 BNA OSHC 1910, 1910 (No. 

89-2241, 1990). Gravity is the primary consideration among these four statutory criteria and is 

determined by “such matters as the number of employees exposed, the duration of the exposure, 

the precautions taken against injury, and the likelihood that any injury would result.” J.A. Jones 

Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). 

The Secretary proposes a penalty of $29,687 for the repeat violation. At the hearing, the 

OSHA assistant area director indicated that this proposed penalty was based on a determination 

that the gravity of the violation was high because the severity of any injury that could result from 

the violation was “higher” and the probability of an injury occurring was “greater.” (T. 393-94). 

The photographs at Exhibit C-1 indicate that soil on at least one wall of the trench was visibly 

unstable. (T. 104-05, 146-47). The undersigned concurs in that assessment of the statutory gravity 

factor, so that if the penalty were based solely on its gravity, the maximum penalty of $13,494 for 

a serious violation would be appropriate. 29 C.F.R. § 1903.15(d)(3) (2020); cf. Mossier Constr., 

Inc., 23 BNA OSHC 1044, 1047 (No. 08-0631, 2010) (“[R]egardless of the probability of a cavein, we find that the gravity of the violation remains moderate to high considering the serious 

consequences in the event a cave-in occurred”). 

The undersigned further concurs with the Secretary’s penalty calculation in reducing that 

figure by 60% to account for Petrongolo’s small size. (T. 394). The undersigned concurs further 

with the Secretary in providing no reduction for good faith in view of the violation being repeated 

based on two prior violations of the same standard occurring within 20 months of the violation 

proven here. The undersigned does not concur in increasing that figure by 10% to account for 

history of violations as the Secretary has proposed, because the substantial enhancement of the 

penalty for to account for its repeated nature sufficiently addresses that statutory factor. 

30 
The undersigned concurs in multiplying the resulting figure for a repeated violation based 

upon the two prior violations of the same standard occurring within 20 months of the instant 

violation. The Secretary’s proposed penalty was based on the assertion that there were three prior 

violations of the same standard, rather than two prior violations that the Secretary proved. 

Although there was no testimony on the point, the Secretary’s proposed penalty would presumably 

have been lower had the Secretary formulated it based on two, rather than three, prior violations 

of the same standard. For this reason, a penalty of $22,000 will be assessed for the repeat violation 

based upon Petrongolo’s two prior violations of the same standard, both occurring less than two 

years before the violation proven here. Cf. M.V.P. Piping Co., 24 BNA OSHC 1350, 1352 (No. 

12-1233, 2014) (“a high gravity violation of the cave-in protection standard typically warrants a 

substantial penalty”). 

ORDER 

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

accordance with Commission Rule 90(a)(1). 29 C.F.R. § 2200.90(a)(1). Based upon the foregoing 

findings of fact and conclusions of law, it is ORDERED that: 

1. Citation 1, Item 1, alleging a serious violation of 29 C.F.R. § 1926.652(c)(1), having 

not been proven, is VACATED. 

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

AFFIRMED as a REPEAT violation and a penalty of $22,000 is ASSESSED. 

/s/ William S. Coleman 

WILLIAM S. COLEMAN 

Administrative Law Judge 

Dated: September 28, 2021 

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