Archive Notice - OSHA Archive

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                      Complainant, )          91-2645
           v.                      )          REGION IV
CONTRACTOR, INC.,                  )
                      Respondent.  )







The Complainant, Secretary of Labor Lynn Martin, and the Respondent, Brasfield and Gorrie General Contractor, Inc., have reached a full and complete settlement of the above-captioned matters presently pending before the Occupational Safety and Health Review Commission ("Commission"). Accordingly, the parties agree as follows:




(a) The Commission has jurisdiction of this matter pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., (hereinafter the "OSH Act" or the "Act").

(b) Respondent is a corporation organized under the laws of the state of Delaware with a principal place of business in Birmingham, Alabama. It has been, at all times material to this proceeding, engaged in the business of construction and excavation work. Respondent hereby acknowledges that it is an employer engaged in a business affecting commerce as defined by sections 3(3) and 3(5) of the Act, and has employees as defined in section 3(6) of the Act.

(c) As a result of an inspection initiated on March 12, 1991, at respondent's workplace in McDonough, Georgia, two Citations and Notifications of Penalty were issued to respondent on September 5, 1991, pursuant to sections 8 and 9 of the Act.

(d) Respondent disagreed with the citations and notifications of proposed penalties and filed a timely notice of contest. The contest was duly transmitted to the Commission.




(a) The Complainant agrees that the aforesaid Notifications of Penalty are hereby amended so that the penalties are as follows:

    CITATION NO.             ITEM NO.         PROPOSED PENALTY
         1                       1                   $2,000.00
         1                       2                   $2.000.00
         2                       1                  $21,000.00
         2                       2                  $21,000.00
         2                       3                  $21,000.00
         2                       4                  $21,000.00
         2                       5                  $21,000.00
         2                       6                  $21,000.00
         2                       7                  $21,000.00
         2                       8                  $21,000.00
         2                       9                  $21,000.00
         2                       10                 $21,000.00
         2                       11                 $17,500.00
         2                       12                 $17,500.00

(b) Respondent withdraws its notice of contest to all the aforesaid Citations and Notifications of Penalty as amended in section (a) above. Respondent shall submit payment of the total amended penalty of $249,000.00 within fourteen (14) days after this agreement is approved by the Administrative Law Judge herein.

(c) The parties agree that this stipulation and settlement agreement, including Appendix A, which is incorporated herein by reference, shall become a final order of the Commission. Included with herein is a draft order approving this stipulation and settlement ("Order"). The form and content of the draft Order, this agreement, and the Appendix have been negotiated by the parties. The parties hereby consent to entry of the draft order as the final order so that the litigation of these matters may be brought to an end.




Respondent agrees that it will:

(a) Implement the program provided in Appendix A, which is specifically incorporated herein by reference;

(b) Comply with the requirements of 29 C.F.R. 1926.650-1926.652 and the appendices in the future.

(c) Within 60 days of execution of this agreement, fill and maintain three full time Regional Safety Engineer positions which shall report to respondent's Safety Engineer. Respondent's Safety Engineer and its Regional Safety Engineers shall have oversight authority for safety at each of Respondent's worksites. Each Engineer shall be qualified by education, training and experience in the proper administration and implementation of corporate safety and health programs in the construction industry (including training in excavation safety). Respondent shall give each Engineer the authority, duty, and responsibility with regard to the worksites assigned to him/her to ensure compliance with respondent's safety and health program including compliance with the excavation safety program. In addition, respondent shall ensure that each Engineer has the authority to take the corrective measures necessary to bring about compliance with this agreement and with the Act. If respondent experiences significant changes in the number and/or size of its worksites such that it in good faith believes that it can reduce the number of Safety Engineers without reduction in the level of safety protection provided to its employees, it may document such changes and, at any time more than three years from the execution of this agreement, it may request OSHA's concurrence in the reduction of the required number of Safety Engineers. The reduced number shall be a number sufficient to ensure no diminution of safety enforcement from the level provided for in this agreement. OSHA will not unreasonably withhold its concurrence.




In accordance with Rules 7 and 100 of the Rules of Procedure of the Commission, Respondent shall give this settlement agreement to affected employees not represented by an authorized employee representative by posting it in a place where Citations herein were required to be posted.




It is understood and agreed by the parties that this Agreement constitutes a compromise of a disputed claim. Respondent hereby denies any and all allegations that it violated the Act. None of the foregoing agreements, statements, stipulations, and actions taken by respondent shall be taken as an admission by respondent of any violations of the Act. None of the foregoing agreements, statements, stipulations, and actions taken by respondent shall be used for any purpose, including as evidence in any proceeding in any court, agency, or forum, except for proceedings under the Occupational Safety and Health Act of 1970.




(a) The parties agree that, based on the foregoing representations and on the terms of the Appendix, the Order may be issued showing that Respondent has withdrawn its notice of contest and entering the citations as amended, the notifications of proposed penalty as amended, and the Appendix as a final order of the Commission.

(b) Respondent also consents to the entry on an order under section 11(b) of the Act, 29 U.S.C. 660(b), in the United States Court of Appeals enforcing this agreement and the final Commission order arising from it.

(c) Each party agrees to bear its own fees, costs, and expenses (including attorney's fees) arising out of and incidental to any stage of this proceeding.

WHEREFORE, the parties agree that all matters before the Commission in Docket No. 91-2645 are hereby settled on this 14th day of December, 1992.

For the Secretary of Labor:                For Brasfield and Gorrie
                                           General Contractor, Inc.:

MARSHALL J. BREGER                         _________________________
Solicitor of Labor                         JAMES HARBISON
                                           Vice President
Regional Solicitor                         _________________________
                                           CHRIS MITCHELL
STEPHEN J. SIMKO, JR.                      Constangy, Brooks and Smith


By:  _____________________

Area Director
Occupational Safety
and Health Administration











Trenching and Excavation Safety Program


Respondent hereby agrees to implement the following program for trenching and excavation safety. This appendix applies to all Brasfield and Gorrie trenching and/or excavation work over 5 feet in depth and to all employees who are or may be at those worksites. The purpose of this Program is to assure that Respondent complies with 29 C.F.R. 650-652, and the success of the Program will be measured by whether Respondent achieves full compliance.


Elements of the Program


1. Consultant: Respondent has employed Bhate Engineering Corp. as a consultant to advise it on all aspects of the trenching and excavation safety program, including setting up programs for training employees and supervisors. To date this Consultant has assisted Respondent in providing competent person training for division managers, superintendents, engineers, foremen, operators and others in all divisions; providing assistance with regard to excavation slope design and shoring plans; providing advice with regard to soil classification; and reviewing questions on excavation design. Respondent will continue to utilize the services of this Consultant, as Respondent deems necessary, in implementing the provisions of this Program.

2. Safety Director: Respondent agrees to employ a Safety Director who will be responsible for developing and implementing standard procedures for assessing excavations and trenches under 29 C.F.R. 650-652 (as described below), developing a written training program for employees and supervisors, and for otherwise assisting Respondent in implementing this agreement. The Safety Director shall be qualified by education, training, and expertise in trenching, excavation, and construction work activities related to occupational safety and health.

The Atlanta-East OSHA Area Office in Tucker, Georgia, shall be notified of the name of the Safety Director.

3. Excavation safety program: Within 120 days of the date of execution of this agreement, Respondent shall develop and implement a written program for protection of employees exposed to hazards related to work in excavations and for overall compliance with the 29 C.F.R. 1926.650-652 and its appendices (the "OSHA excavation safety standard"). The program shall include at least the following:

(a) an explanation of the OSHA requirements regarding excavation safety as they apply to the Respondent's worksites, including a copy of the OSHA excavation safety standard;

(b) mandatory policies and procedures for instructing subcontractors to carry out the requirements of the Respondent's program and the requirements of the OSHA excavation standard;

(c) Compliance with the provisions of 29 C.F.R. 1926.652(a)(2) and 29 C.F.R.1926.652(i)(1).

(d) mandatory policies and procedures for competent persons to carry out the requirements of the OSHA excavation standard, including specific policies and procedures for:

(i) requiring the depth of the trench to be measured for purposes of 29 C.F.R. 1926.652(a)(1);

(ii) classification of the soil by a competent person unless the excavation is sloped at an angle not steeper than one and one-half vertical to one horizontal;

(iii) requiring that all required excavation protective equipment be maintained onsite whenever its need can reasonably be anticipated and that all such equipment be utilized when necessary;

(iv) using a written safety checklist. Respondent shall design and have the competent person use a written safety checklist for the assessment of each excavation under this agreement. The checklist shall report the results of any soil tests. The checklist shall be signed and dated by the competent person, and will include a statement that the requirements of the OSHA excavation standard have been met;

(v) inclusion on any written performance evaluation that may be used of safety and health compliance as a factor in evaluating or appraising performance of competent persons and others responsible for implementing safety and health programs;

(e) mandatory policies and procedures for competent persons to use the checklist to conduct daily inspections of the excavations covered by this Appendix and any adjacent areas and protective systems as required by 29 C.F.R. 1926.651(k)(1), and for the removal of employees from the hazardous area where there is evidence of a situation that could result in a possible cave-in, indications of a failure of protective systems, hazardous atmospheres, or other hazardous conditions; and

(f) Notification of the OSHA Area Office within 24 hours after a collapse of any trench five feet deep or deeper where employees were in the trench or nearby at the time of the collapse; Respondent's Safety Director will attempt to determine the cause(s) of all incidents which are reportable under this paragraph and to determine what, if any, future actions are necessary based on his findings; such determination will be made in writing based on all available information within fifteen days of the incident.

(g) Within 150 days after the date of the execution of this agreement, Respondent shall send a letter to the OSHA Area Office indicating which, if any, of the above requirements have not been met. For any requirements that have not been met, Respondent will provide a detailed explanation of all actions taken to meet the requirement and the reasons why the requirement could not be met. 4. Excavation safety training program:

(a) Development of the Program

(i) within 120 days of execution of this agreement, Respondent, with the assistance of its Safety Director, will develop and implement a formal, written training program. The program shall include specific training for the competent persons in the respondent's excavation safety program set forth above. Copies of the training program shall be sent to the OSHA Area Office Atlanta - East in and to the Office of Field Programs (OFP) in Washington upon completion.

(b) Training Components. Training of competent persons, supervisors, estimators and others: Respondent shall ensure that all employees whose work includes or may include work as a competent person within the meaning of 29 C.F.R. 1926.650(b) and supervisors, estimators and others whose work may involve planning, cost estimating, design, or supervision of trenching or excavation operations shall receive additional training of at least eight hours in duration (with time for questions and answers). This training shall include, at a minimum, the hazards that may be faced during entry, the means of recognizing hazards, the consequences of exposure to hazards, and the means of protecting against hazards. The training shall also emphasize the methods of design of protective systems, procedures for conducting initial inspections, soil assessment methods, methods for checking for the presence of fissures, methods of assessing the capacity of the system to resist loads, methods of assessing the stability of adjoining structures, methods for conducting daily inspections and inspections based on changing circumstances, instruction in the completion of forms and reports required by this agreement, and any additional training necessary to carry out their responsibilities under this agreement.

Training for all employees described above shall be conducted within 120 days of execution of the agreement, and repeated thereafter on an annual basis. Respondent shall not permit any employee to act as a competent person within the meaning of 29 C.F.R. 1926.650(b) prior to completion of the training. Following development of the training program, newly hired or promoted supervisors shall receive the training specified in this section prior to assuming any responsibility for trench or excavation safety on any jobsite.

(c) Competent persons will be used to train employees whose work will require them to enter trenches. Such employees will be given approximately one hour of training by a competent person before being allowed to enter a trench. This training will include information regarding Respondent's Program, recognition and avoidance of unsafe trenching conditions, and the standards applicable to their trenching work.

(d) Quarterly training on the excavation safety program shall be conducted as part of regular safety meetings for all employees for so long as a project is in the excavation phase.

(e) At the conclusion of a training session, Respondent shall require those present to sign a sheet that will indicate the date of the session and the job titles of those present.

(f) Respondent's Safety Director shall have the responsibility for monitoring all aspects of this program, including reviewing copies of all checklists, sign-in sheets, and other documents that may be generated as part of the program; by July 1, 1993 and at least annually thereafter, the Safety Director will review activities implementing this Appendix and Respondent's Program, and will make any necessary recommendations to management, which will take such corrective action as is necessary to assure compliance with the trenching and excavation standards.

5. Notification to OSHA: Respondent shall provide to OSHA upon request a list of all proposed worksites where work that is covered or may be covered by the OSHA excavation standard is planned or underway.

6. Lines of authority: Respondent shall develop lines of authority for assigning responsibility within the organization for carrying out the excavation safety program, the training program, and all other aspects of this agreement. The system shall assure that the corporate and regional Safety Engineers have adequate authority over the worksites to carry out the terms of the agreement.

7. Nondiscrimination: No employee shall be discriminated against because he or she reasonably believes an excavation represents a threat to safety.

8. Reports: Semiannual written reports for the term of this agreement shall be submitted to the OSHA Atlanta - East Area Office and to the Occupational Safety and Health Administration's Office of Field Programs in Washington, D.C. A copy shall also be provided upon request to employees. The reports shall describe the activities undertaken to carry out the terms of this Agreement during the covered period, including, but not limited to, a copy of the excavation safety program, any changes made to the program, copies of checklists used as part of the program, the names of employees who have completed training, copies of any incident reports, and a description of corrective actions taken due to the incidents.

9. Term: The term of this agreement will be three years from the date of execution. It may be terminated at any time thereafter by either party within thirty (30) days written notice to the other party.





                      Complainant, )          91-2645
           v.                      )         REGION IV
CONTRACTORS, INC.,                 )
                      Respondent.  )          O R D E R





The Commission has jurisdiction over the subject matter of the case and over the parties by virtue of the filing of a timely notice of contest.

The Stipulation and Settlement Agreement between the parties filed on December 7, 1992, has been considered. No objection to the settlement has been filed.

The settlement is approved under 5 U.S.C. 554(c)(1) and Commission Rule 100, 29 C.F.R. 2200.100. The terms of the Stipulation and Settlement Agreement including Appendix "A" attached thereto are incorporated, in their entirety, by reference in this order.

                                (Paul L. Brady)
                               PAUL L. BRADY
                               Judge, OSHRC

           (December 14)
DATED:     ________________, 1992
           Atlanta, GA