Southwestern Bell v. OSHRC

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-60814
_____________________

________________________

SOUTHWESTERN BELL TELEPHONE COMPANY,

Petitioner
v.

________________________

Elaine CHAO, Secretary of Labor,
United States Department of Labor, and
Occupational Safety and Health Review Commission,

Respondents

_________________________________________________________________

Appeal from the Occupational Safety and Health Review Commission
No. 98-1748
_________________________________________________________________
November 15, 2001

Before KING, Chief Judge, and DUHÉ and BENAVIDES, Circuit Judges.

PER CURIAM:*

In this safety regulation violation case, the defendant,

Southwestern Bell Telephone Company, appeals the orders of the

Occupational Safety and Health Review Commission finding three

*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
violations of regulations and assessing penalties. For the

following reasons, the orders are AFFIRMED.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1998, the Occupational Safety and Health Administration

(“OSHA”) inspected a Southwestern Bell Telephone Company

(“Southwestern Bell”) excavation work site in Texas, prompting

the Secretary of Labor (“Secretary”) to cite the company for

safety violations pursuant to three OSHA regulations: 29 C.F.R.

§§ 1926.651(k)(1), 1926.652(a)(1), and 1926.1053(b)(1) (1995),1

1
§ 1926.651(k)(1) reads as follows:

(1) Daily inspections of excavations, the adjacent
areas, and protective systems shall be made by a
competent person for evidence of a situation that could
result in possible cave-ins, indications of failure of
protective systems, hazardous atmospheres, or other
hazardous conditions. An inspection shall be conducted
by the competent person prior to the start of work and
as needed throughout the shift. Inspections shall also
be made after every rainstorm or other hazard
increasing occurrence. These inspections are only
required when employee exposure can be reasonably
anticipated.

§ 1926.652(a)(1) reads, in relevant part, as follows:

(1) Each employee in an excavation shall be protected
from cave-ins by an adequate protective system ...
except when .... (I) Excavations are made entirely in
stable rock; or (ii) Excavations are less than 5 feet
(1.52m)in depth and examination of the ground by a
competent person provides no indication of a potential
cave-in.

§ 1926.1053(b)(1) reads as follows:

(1) When portable ladders are used for access to an
upper landing surface, the ladder side rails shall

2
promulgated under the Occupational Safety and Health Act of 1970

(the “Act”), 29 U.S.C. §§ 651 et seq. (1994). The Secretary

issued his citation based on three types of violations: (1)

failure to adequately inspect the work site; (2) failure to

protect employees from cave-ins (shoring); and (3) failure to

extend a ladder sufficiently above the excavation surface. The

Secretary concluded that all three of these violations were

“serious” for the purposes of the Act, meaning the hazards they

produced could result in serious physical harm or death, and

proposed civil penalties totaling $ 4950 pursuant to 29 U.S.C. §

666(j).

Southwestern Bell contested the violations and penalties to

the Occupational Safety and Health Review Commission (the

“Commission”), which then conducted a Commission hearing. At

that hearing, an administrative law judge (“ALJ”) held that

Southwestern Bell did in fact violate the three safety

regulations. He reduced the ladder violation penalty, however,

and assessed fines totaling $ 4200. The Commission then

extend at least 3 feet (.9m) above the upper landing
surface to which the ladder is used to gain access; or,
when such an extension is not possible because of the
ladder’s length, then the ladder shall be secured at
its top to a rigid support that will not deflect, and a
grasping device, such as a grabrail, shall be provided
to assist employees in mounting and dismounting the
ladder. In no case shall the extension be such that
ladder deflection under a load would, by itself, cause
the ladder to slip off its support.

3
conducted an additional “directed” review of the shoring and

inspection violations and affirmed the ALJ’s findings and

penalties.2 Southwestern Bell now timely petitions this court

for review of the Commission’s final order and the $ 4200 in

penalties. This court has jurisdiction to review the final

orders of the Commission. See 29 U.S.C. § 660(a).

The following chain of events regarding the excavation and

its hazardous conditions are uncontested by the parties.

Southwestern Bell hired an excavator to dig a trench. The

trench, at completion, was more than five feet deep. Two non-

supervisory Southwestern Bell workers, Mr. Santana and Mr. Garza,

were to work in the trench. A supervisor, Ms. Beck, was at the

trench site initially but did not witness its final completion.

Upon completion of the trench, Santana called Beck to warn that

the trench was deeper than expected and that it would need

shoring or reinforcement, according to the excavator. Supervisor

Beck told the workers to keep working and did not return to look

at the trench. The trench was not shored at any time by

Southwestern Bell. During work in the trench, a ladder was

placed extending only 1.3 to 1.4 feet above the trench surface.

There is no evidence that any accidents befell Santana or Garza,

2
The ALJ’s findings as to the ladder violation and its
penalty were not reviewed additionally by the Commission but
became the final order of the Commission pursuant to 29 U.S.C. §
661(j).

4
the two employees exposed to the trench and ladder conditions

during the single-day excavation.

II. STANDARD OF REVIEW

We defer to the Commission’s findings of fact as

“conclusive” to the degree that there is “substantial evidence on

the record considered as a whole” to support those findings, even

where we could reach a different result de novo. 29 U.S.C. §

660(a). See also Kelly Springfield Tire Co., Inc. v. Donovan,

729 F.2d 317, 321 (5th Cir. 1984). We defer to the Commission’s

conclusions of law, including interpretation of any relevant

statutory provisions, to the degree that they are not “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law”. 5 U.S.C. § 706(2)(A) (1996). We review

the Commission’s interpretation of regulations promulgated under

the Act deferentially unless such interpretation is “unreasonable

or inconsistent with the regulation’s purpose”. RSR Corp. v.

Brock, 764 F.2d 355, 365 (5th Cir. 1985) (internal quotation and

citation omitted).

III. DISCUSSION

A. Competent Person to Inspect

To establish a prima facie case of regulatory violation, the

Secretary must prove that (1) the standard applies; (2) the

employer failed to comply; (3) employees had access to the

condition causing the violation; and (4) the employer had actual

5
or constructive knowledge of the violation. See, e.g., N.Y.

State Elec. & Gas Corp. v. Sec’y of Labor, 88 F.3d 98, 105 (2d

Cir. 1996). Southwestern Bell contends that it complied with the

inspection regulation, and thus committed no violation, because a

competent person inspected the excavation site. Inspection of an

excavation, under § 1926.651(k)(1), requires that a “competent

person” inspect the excavation site “prior to the start of work

and as needed throughout the shift, as well as after rainfall or

other hazard increasing event.” § 1926.651(k)(1). Another

regulation further defines a competent person as “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.” 29 C.F.R.

§ 1926.650 (1995). The Commission interpreted those regulations

together plainly to require that a competent person must have

sufficient authority to remedy violations. The Commission

further held that the two non-supervisory workers, Garza and

Santana, did not in fact have this authority. The Commission

reasoned that, although Santana and Garza “‘shared

responsibility’ for safety at the work site, they lacked the

requisite authority to abate hazards”, and thus were not

competent persons to inspect the specific trench site in the

instant case. Order of the Occupational Safety and Health Review

Commission (“Comm’n Order”), at 4-5 (Sept 27, 2000).

6
 In so doing, the Commission rejected Southwestern Bell’s

contention that evidence, including the testimony of a

Southwestern Bell regional manager that employees could decline

unsafe work individually, indicated that Santana and Garza had

sufficient authority to remedy exposure to work hazards. The ALJ

likewise considered and rejected evidence regarding Santana’s and

Garza’s exposure to a training video, which merely asserted that

it was designed to ensure that all Southwestern Bell employees

were “competent” on safety issues. The Commission took note of

the fact that one of the workers called his supervisor, Beck, to

report to her that an excavator indicated that the trench would

need shoring because it exceeded five feet. The Commission

further noted that when Beck then ordered the workers into the

trench nonetheless, the workers complied, despite the fact that

the trench was never shored. The Commission concluded that if

the workers had the requisite authority to abate hazards, they

would not have simply returned to work in the potentially unsafe

condition. The Commission then confirmed what Southwestern Bell

had already conceded, that as the workers’ supervisor, Beck did

in fact have such authority, and was thus competent to inspect.

See Comm’n Order, at 4-5.

It is true that the Commission has found a non-supervisory

worker to be of competent status. See, e.g., Sec’y of Labor v.

Rawson Contractors, Inc., No. 99-0018, 2000 WL 557314, at *6

(O.S.H.R.C. May 8, 2000) (finding hourly, non-management employee

7
competent to inspect excavation where employee had “twenty years

experience in trenching and excavation operations”). However,

the Commission also frequently disqualifies even supervisory

workers, such as foremen, from competent status because the

Commission will not take authority as a per se qualification to

inspect, but interprets that a “competent person” requires

something more in the way of special training as to the safety

requirements of the task at hand. See, e.g., Sec’y of Labor v.

Westar Mech., Inc., Nos. 97-0226, 97-0227, 2000 WL 1182858, at

*1, 6-7 (O.S.H.R.C. Aug. 14, 2000) (finding neither president and

owner, nor foreman of company, competent absent their “specific

training in”, or knowledge about, “soils analysis” and the “use

of protective systems”); Sec’y of Labor v. Bruschi Bros., Inc.,

No. 96-0681, 1997 WL 580798, at *5 (O.S.H.R.C. Sept. 17, 1997)

(denying “foreman” competent person status to test a fifteen-foot

trench). Considering the Commission’s past interpretations of

what comprises a competent person for the purpose of inspections,

the Commission’s determination here that a competent person

required authority to remedy hazards is not unreasonable. Nor

can that interpretation be said to be contrary to the Act’s

purpose of protecting workers from hazards at work sites.

Moreover, the Commission’s finding that neither Santana nor Garza

had the requisite authority to abate hazards, and therefore could

not conduct inspections as competent persons, is supported by

substantial evidence in the record as a whole.

8
 B. Inadequate Inspection

The Commission held that Beck did not in fact perform an

adequate inspection at the work site, and thus that the company

violated § 1926.651(k)(1). The Commission interpreted the

regulation by its plain meaning. That regulation requires daily

inspection of work sites “prior to the start of work and as

needed throughout the shift”, including after every “hazard

increasing occurrence”. § 1926.651(k)(1). The Commission

concluded from the regulation’s plain meaning that Beck should

have inspected the trench after completion and prior to the

workers entering it. See Comm’n Order, at 4-5. Such plain

meaning interpretation is not unreasonable, arbitrary, or

contrary to the safety purposes of the Act.

The Commission then found that, although Beck had been at

the trench site originally, she left the work site before the

trench was completed, and thus could not have inspected it

adequately to satisfy the plain requirement of § 1926.651(k)(1).

The Commission further noted that the call made by Santana to

Beck after she had left the work site, in which he relayed the

excavator’s warning regarding the need for shoring, indicated

that Beck knew the trench required an inspection upon completion

and that her presence at the trench at any prior point was

insufficient. These findings reflect and affirm those of the

ALJ. See Comm’n Order, at 4-5. The ALJ held that “Beck did not

9
see and, therefore, could not have inspected the finished trench

prior to the start of work. The violation is established.”

Order of Administrative Law Judge (“ALJ Order”), at 3 (Aug. 20,

1999).

Southwestern Bell contends that Beck’s attendance at the

site “inches” before the trench was completed, as well as Beck’s

observance of a pipe Beck felt provided adequate support under

the circumstances, constitutes sufficient inspection to satisfy §

1926.651(k)(1). The Commission disagreed based on its reasonable

plain interpretation of the regulation to require inspection

after completion of the trench. Substantial evidence in the

record indicates Beck failed to inspect the trench after

completion. Moreover, evidence indicates Beck ignored an

intervening alert that the trench was potentially hazardous

without shoring. The Commission’s decision that the inspection

violation occurred was based on substantial evidence.

C. Prima Facie Knowledge of the Serious Violations; Southwestern
Bell’s Affirmative Defense of Employee Misconduct

Southwestern Bell contends that the Commission erred in (1)

finding that the Secretary had properly imputed knowledge of the

violations to Southwestern Bell as part of its prima facie case;

and (2) that the Commission erred in finding that Southwestern

Bell had not made out an affirmative defense of employee

misconduct. When there has been a violation of any specific OSHA

regulation, such as the three violations in the instant case,

10
such violation constitutes violation of the “special duty clause”

of the Act, 29 U.S.C. § 654(a)(2).3 In order to impart liability

to an employer for a violation of the special duty clause, the

Secretary must prove that an employer had knowledge of the

violation as part of its prima facie case. See, e.g., Trinity

Indus. v. Occupational Safety and Health Review Comm’n, 206 F.3d

539, 542 (5th Cir. 2000) (“Knowledge is a fundamental element of

the Secretary of Labor’s burden of proof for establishing a

violation of OSHA regulations.”). To prove the knowledge

element, “the Secretary must show that the employer knew of, or

with exercise of reasonable diligence could have known of the

non-complying condition.” Id. In order to determine whether

such knowledge exists, the Commission and courts of appeals have

looked to evidence of the employer’s “safety program”, as did the

Commission in this case. Such evidence is used to determine if

the employer’s reasonable diligence in communicating safety rules

and regulations and the importance of compliance to its

employees, as well as in diligently disciplining employees for

violations, forecloses imputation of knowledge of an individual

violation to the employer. See, e.g, Horne Plumbing & Heating

3
The special duty clause requires that “[e]ach employer
... shall comply with occupational safety and health standards
promulgated under this chapter.” 29 U.S.C. § 654(a)(2). This is
in contrast to the “general duty clause,” which requires that
every employer “shall furnish to each of his employees employment
and a place of employment which are free from recognized hazards
that are causing or are likely to cause death or serious physical
harm to [its] employees.” 29 U.S.C § 654(a)(1).

11
Co. v. Occupational Safety & Health Review Comm’n, 528 F.2d 564,

569-71 (5th Cir. 1976) (examining an employer’s safety program

and finding that the employer’s program was adequately diligent

to prevent imputation of knowledge of a violation to the

employer). Analysis of an employer’s safety program to determine

whether an employer had the requisite knowledge typically

includes examination of the following types of evidence: the

employer’s instruction of employees regarding safety regulations,

employer safety policies, and compliance procedures via its

dissemination of safety manuals and holding of training sessions;

the employer’s monitoring of safety rule compliance; and the

employer’s history of sanctioning of workers that fail to comply

with regulations and policies. See, e.g., Horne Plumbing, 528

F.2d at 569 (quoting Nat’l Realty & Constr. Co., Inc. v.

Occupational Safety & Health Review Comm’n, 489 F.2d 1257, 1266

(D.C. Cir. 1973)) (internal quotation omitted).

Southwestern Bell’s claim that the Commission improperly

shifted the burden to the employer regarding proof of adequacy of

its safety program as a means of relieving the employer from

liability derives from the fact that the Commission and courts of

appeals, including this one, have recognized an affirmative

defense of employee misconduct available to employers. See,

e.g., H.B. Zachry Co. v. Occupational Safety & Health Review

Comm’n, 638 F.2d 812, 818-19 (5th Cir. Unit A Mar. 1981)

(applying the affirmative defense and affirming Commission

12
finding that employer had failed to make it out). The employee

misconduct defense is typically established by an employer

bringing forth the same evidence regarding the adequacy of its

safety program, such as evidence of training sessions attended by

an employee, that is examined to determine whether the Secretary

has proven knowledge as part of its prima facie case.4 N.Y.

State Elec., 88 F.3d at 106-110 (“We note that under the

Commission’s precedent, ... the Secretary’s prima facie case and

the employer’s unpreventable conduct defense both involve an

identical issue: whether the employer had an adequate safety

policy.”). Southwestern Bell claims, therefore, that by

requiring it to come forth with evidence regarding the adequacy

of its safety program, the Commission erred by shifting the

burden to Southwestern Bell and requiring it to first prove its

affirmative defense where, instead, the Secretary should have

been required to bring forth the same types of safety program

evidence to establish, as part of the case in chief, that

Southwestern Bell had knowledge of violations due to a lack of

safety diligence. However, on appeal, in determining whether the

Commission erred in finding that the Secretary properly

4
Four elements the employer must show to establish the
employee misconduct defense have been recognized by the
Commission and courts of appeals, including that the employer:
(1) established a work rule to prevent the violative conduct; (2)
adequately communicated this rule to its employees; (3) took
steps to discover non-compliance; and (4) effectively enforced
safety rules when violations were discovered. E.g., N.Y. State
Elec., 88 F.3d at 106 (citations omitted).

13
established Southwestern Bell’s knowledge of the safety

violations as part of its prima facie case, or in determining

whether Southwestern Bell failed to make out its affirmative

defense of employee misconduct, this court is faced with a single

inquiry. Because this court disposes of both issues by examining

the Commission’s factual finding that Southwestern Bell had an

inadequate safety program under the circumstances, see id., this

court must only determine whether that finding regarding the

inadequacy of the safety program is supported by substantial

evidence in the record as a whole.5

The Commission held that, under established Commission

precedent, it would not consider evidence establishing that

Southwestern Bell maintained a safety program adequate only in

“general” sufficient to find that Southwestern Bell lacked

imputed knowledge of the violations. Comm’n Order, at 6-7, n.4

(citing Sec’y of Labor v. Hamilton Fixture, No. 88-1720, 1993 WL

127949 (O.S.H.R.C. Apr. 20, 1993)). Rather, the Commission

determined that it was appropriate under the circumstances to

require that Southwestern Bell should have effectively

communicated and enforced the inspection and trenching safety

5
We note that while the ALJ considered safety program
evidence under an affirmative employee misconduct defense, the
Commission only addressed such evidence as dispositive of prima
facie imputed knowledge. Both found the employer’s safety
program, especially with respect to communication to Beck
specifically regarding trenching hazards, inadequate under the
circumstances. See ALJ Order, at 4; Comm’n Order, at 5-8.

14
rules specifically at issue in this case more diligently. See id.

This court has similarly interpreted that the level of adequacy

the Commission may require of a safety program to relieve an

employer of liability for a serious safety violation can include

the requirement that “all feasible steps were taken [by an

employer] to avoid the occurrence of the hazard”. H.B. Zachry,

638 F.2d at 818-20. This court has declined, therefore, in the

context of a claimed affirmative employee misconduct defense, to

relieve an employer of liability where a general safety program

exhibited deficiencies in communication regarding specific

violations at issue, or as to the employee who committed the

violation. Id. This court has only limited the level of

adequacy that might be required in a determination of whether the

adequacy of a safety program might permit a company to escape

liability by ruling that safety measures demanded must not be

unnecessarily burdensome or wholly infeasible. See Horne

Plumbing, 528 F.2d at 569-71 (finding requirement that sole

proprietor would need to personally supervise foremen at every

moment of an excavation infeasible, where the proprietor had an

extensive history of training foreman and of supplying shoring

material to excavations as a matter of course, but acknowledging

that “close supervision” can be warranted in some, albeit

relatively few, cases).

In assessing Southwestern Bell’s safety program, the

Commission noted testimony by the OSHA compliance officer that he

15
considered Southwestern Bell’s safety program “adequate” in

general. Comm’n Order, at 5. The Commission noted evidence that

one of the trench workers was given annual training regarding

excavation and trenching. It noted testimony that work site

supervisors were required to conduct “monthly safety meetings”

for non-supervisory employees and required to observe each worker

twice per month to evaluate performance. Id. at 5-6. The

Commission further noted evidence that a regional safety manager

visited the supervisors to review safety records to make sure

that the supervisors were complying “‘with the plan, conducting

their safety meetings, conducting their observations ’”, as well

as that the safety manager conducted “‘observations in the field

with the technicians’ (non-supervisory crew members such as

Santana and Garza).” Comm’n Order, at 6. The Commission then

found that, “[a]lthough [Southwestern Bell] had a safety program

and conducted site visits, there is no evidence that either the

program or the visits pertained to enforcing the competent

persons’ obligation to perform trench inspections.” Id. The

Commission further held that, under the circumstances,

Southwestern Bell had not taken “reasonable monitoring steps

regarding its site supervisor’s compliance with protective system

requirements” as to shoring. Id. at 9. The Commission thus held

that the employer had not engaged in sufficient safety diligence

to prevent the violations at issue. The Commission concluded

that knowledge could be imputed to the company and the company

16
should be held liable for the three serious violations. These

findings are based on substantial evidence in the record as a

whole.

Southwestern Bell relies on two cases that it contends are

controlling to argue that it should not be liable. In those

cases, the Commission found a safety program adequate to allow an

employer to escape liability based on the program’s general

adequacy. See Sec’y of Labor v. Brand Scaffold Builders, No. 00-

1331, 2001 WL 118562, at *4-5 (O.S.H.R.C. Feb. 5, 2001) (finding

a safety program sufficiently adequate to relieve an employer of

liability based on the existence of safety manuals, training

sessions, monthly conferences, and on evidence that the employee

who violated the rule attended the training sessions); Sec’y of

Labor v. Field & Assocs., Inc., No. 99-1951 , 2001 WL 138962, at

*2-5 (O.S.H.R.C. Feb. 12, 2001) (finding an adequate safety

program based on rules communicated via written safety policies,

the existence of a video on fall protection, safety meetings, and

random safety inspections conducted by the employer). These two

cases establish, however, only that the Commission, in this case,

could have reasonably considered evidence of Southwestern Bell’s

general safety program and periodic monitoring efforts adequate

under the circumstances.

The Commission, however, disagreed. The Commission’s

interpretation that the adequacy of a safety program demanded

evidence of more effective monitoring of the rules in question

17
and their communication to Beck is not arbitrary or contrary to

the Act’s purpose to prevent violations. This is especially true

in light of this court’s holdings in H.B. Zachry and Horne

Plumbing, indicating that the Commission may find deficiencies in

a safety program specific to the violations, and that it may

require evidence of reasonably heightened monitoring as part of

its determination that the company could not escape liability for

its violations. The Commission did not ignore Southwestern

Bell’s evidence regarding its general safety meetings, training

sessions, or periodic site visits. The Commission chose to focus

instead on the need for more aggressive monitoring. Based on the

absence of such monitoring, along with the fact of Beck’s

violation of safety regulations, the Commission determined that

the record as a whole failed to indicate a safety program

adequately diligent in communicating and enforcing rules

regarding trench inspection and shoring, and thus that knowledge

should be imputed to the company and the company could not escape

liability. This decision is supported by substantial evidence in

the record as a whole. The Commission’s decision that

Southwestern Bell’s safety program was inadequate with respect to

ensuring proper trench inspection, shoring, and ladder placement

is likewise supported by substantial evidence in the record.

D. Serious Ladder Violation

18
 Southwestern Bell contends that the ladder violation, under

§ 1926.1053(b)(1), was not “serious”, but “de minimis” as a

matter of law, because it was unlikely to occur. Southwestern

Bell contends, therefore, that the Commission erred in assessing

a $ 600 penalty for that violation because no penalty should have

been assessed, as is customary for a de minimis violation. This

court defers to the Commission’s severity classifications to the

extent such classifications of violations are “supported by

substantial evidence in the record as a whole, even if the court

could reach a different result de novo.” Donovan v. Daniel

Constr. Co., 692 F.2d 818, 820 (5th Cir. 1982).

The Commission based its finding that the ladder violation

was serious on the fact that the result of any injury could

result in a broken bone, or maybe even death. The Commission

expressly characterized a broken bone as a “serious physical

harm”. ALJ Order, at 6. Courts of appeals, including this one,

have held that sufficient nexus to establish a serious violation

does not require establishing that actual physical harm occurred,

but only that serious physical harm could possibly result, even

when it is very unlikely that the injury actually would occur.

See, e.g., Turner Communications Corp. v. Occupational Safety &

Health Review Comm’n, 612 F.2d 941, 944-45 (5th Cir. 1980).

Thus, the seriousness of a violation does not turn on the

probability of the event itself, but the seriousness of the harm

that could result. See Bethlehem Steel Corp. v. Occupational

19
Safety & Health Review Comm’n, 607 F.2d 1069, 1073 (3d Cir.

1979); California Stevedore & Ballast Co. v. Occupational Safety

& Health Review Comm’n, 517 F.2d 986, 988 (9th Cir. 1975).

Moreover, in Turner this court considered and rejected a

petitioner’s contention that a violation was de minimis where an

ALJ found that a potential fall from a ladder could result in a

“serious injury”. Turner, 612 F.2d at 944-45. Consequently,

under Turner, the Commission was entitled to determine that a

serious violation had occurred if it found, based on substantial

evidence in the record, that a serious physical harm could

result.

In assessing the severity of the ladder violation, the

Commission considered the testimony of the compliance officer,

who indicated that the trench ladder extended only 1.3 to 1.4

feet above the ground, rather than the 3 feet required by §

1926.1053(b)(1). The Commission further noted that, although the

compliance officer testified he had observed that the workers had

no actual difficulties in exiting from the trench, he also

testified that in the event a trip occurred, it could “sprain an

ankle, damage a knee, or even break a leg.” ALJ Order, at 5.

The Commission then admonished Southwestern Bell’s contention

regarding the nature of the potential for injury, saying “This

judge does not agree that a broken bone is not ‘serious physical

harm’ as contemplated by the Act.” Id. at 6. The Commission was

reasonably entitled to consider the low probability of accident

20
irrelevant under Turner, Bethlehem Steel, and California

Stevedore. The Commission’s determination that a serious broken

bone could result was based on substantial evidence in the record

as a whole. Because Southwestern Bell does not claim that the

Commission abused its discretion in assessing the $ 600 penalty

for the ladder violation, but only claims that the Commission

wrongly classified the violation, a claim with which this court

disagrees, that penalty remains undisturbed.

E. $ 3600 in Penalties for the Shoring and Inspection Violations

Southwestern Bell contends that the $ 2250 and $ 1350 total

penalties assessed by the Commission for its shoring and

inspection violations, respectively, are excessive and should be

reduced. We review the Commission’s penalty assessments under 29

U.S.C § 666(j) for abuse of discretion. See Dan J. Sheehan Co.

v. Occupational Safety & Health Review Comm’n, 520 F.2d 1036,

1041 (5th Cir. 1975). Once the Commission properly determined

that all three violations were serious, it was mandatorily

required to assess some penalty of up to $ 7000 per violation but

granted discretion within that range. See id. at § 666(b). In

exercising its discretion as to the “appropriate[]” amount of

each penalty, the Commission is statutorily required to give “due

consideration” to four factors appearing within § 666(j),

including: (1) the “size of the business of the employer”; (2)

the “gravity of the violation”; (3) any “good faith of the

21
employer”; and (4) any “history of previous violations”. Id. at

§ 666(j). See also Reich v. Arcadian Corp., 110 F.3d 1192, 1199

(5th Cir. 1997). The four § 666(j) factors need not be weighted

equally by the Commission, and the gravity factor is generally

considered the most important element of the analysis. See,

e.g., J.A. Jones Constr. Co., No. 87-2059, 1993 WL 61950, at *15

(O.S.H.R.C. Feb. 19, 1993).

This and other courts of appeals have a long history of

according great deference to the Commission’s judgment as to the

appropriate penalty when, as here, the Commission gives

consideration to the statutory factors, and when the penalty

amounts fall within the statutory mandate. Such courts of

appeals have done so in a wide range of circumstances, including

instances where the penalties assessed are at or near the maximum

statutorily allowed and thus much higher than those assessed

here. See, e.g., Georgia Elec. Co. v. Marshall, 595 F.2d 309,

322 (5th Cir. 1979) (affirming $ 6500 penalty assessed for a

willful and serious violation regarding indifference to worker

safety, and a $ 650 fine for a serious crane operation

violation); Shaw Constr., Inc. v. Occupational Safety & Health

Review Comm’n, 534 F.2d 1183, 1185 (5th Cir. 1976) (affirming $

300 penalty assessed for trenching violation deemed serious);

Union Tank Car Co., Inc. v. Occupational Safety & Health Admin.,

192 F.3d 701, 707 (7th Cir. 1999) (affirming penalty of $ 1500

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for employer’s failure to use body harnesses, which created fall

hazards); Bush & Burchett, Inc. v. Reich, 117 F.3d 932, 935-36,

939-40 (6th Cir. 1997) (affirming penalties totaling $ 337,200

for 25 serious violations, 10 willful violations, and 2 other

violations, including fall protection and improper lifting of

workers to work stations); Long Mfr. Co., N. C., Inc. v.

Occupational Safety & Health Review Comm’n, 554 F.2d 903, 907,

909 (8th Cir. 1977) (affirming $ 5000 penalty for violation

regarding punch press safety, despite that one dissenting

commissioner felt the penalty was “grossly excessive”).

Apparently, no court of appeals, including this one, has ever

disturbed a penalty when, as in the instant case, the Commission

has given due consideration to the § 666(j) factors, and when the

penalty amount is within the statutorily proscribed limits.

In making its assessment affirming the ALJ’s penalties, the

Commission considered all four of the § 666(j) factors. As

Southwestern Bell acknowledges, the Commission first credited the

company with two factors in its favor, good faith and a lack of

prior violations. The Commission also fully noted in

Southwestern Bell’s favor that there was evidence in the record

that the “actual[]” danger of the violation was mitigated because

the excavation was of only one-day duration and because there was

testimony that, at the time, the “the ground was like ‘solid

cement’ due to lack of recent rain”. Comm’n Order, at 9. The

Commission’s assessment as a whole clearly indicates that the

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Commission considered that, despite the low actual danger of

injury, the potential danger rose to a significant level in that

the violation, if it in fact occurred, would result in “serious

injury or death”. Id. The Commission also made clear that it

considered this level of danger, albeit only potential, to be

“aggravated”, and thus increased, because the “the excavator had

warned a [Southwestern Bell] supervisor of the need for trench

protection.” Id. at 9-10. Then the Commission properly added

the weight of Southwestern Bell’s size as a “large employer” to

the overall penalty determination. Id. The Commission concluded

that the negative factors outweighed the positive factors

sufficiently so that, “[o]n balance”, it felt the ALJ’s penalty

assessments “were appropriate.” Id. at 10.

Southwestern Bell contends that four Commission decisions,

in which it assessed lower penalties for what the company

contends were violations of arguably heightened gravity, compel

this court to find an abuse of discretion and thus to reduce the

penalties. Those four cases merely establish, however, that the

Commission might have exercised its discretion reasonably to

assess lower penalties under the circumstances here. See Sec’y

of Labor v. Scafar Contracting, Inc., No. 97-0960, 1998 WL

597441, at *6 (O.S.H.R.C. Sept. 4, 1998) (assessing a $ 1500

penalty for a trenching violation that created “significant”

danger of trench collapse where the employer also had a negative

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violation history); Sec’y of Labor v. Brandenburg Indus. Servs.

Co., No. 96-1405, 1998 WL 168335, at *4 (O.S.H.R.C 1998)

(assessing a $ 1625 penalty for a trenching violation, and

including a 35% reduction for good faith and favorable prior

history); Sec’y of Labor v. Odyssey Capital Group, III, L.P., No.

98-1745, 1999 WL 1278190, at *4 (O.S.H.R.C. Dec. 30, 1999)

(assessing a $ 1500 penalty for a violation of extended duration

compounded by lack of good faith); Sec’y of Labor v. Manganas

Painting Co., Inc., Nos. 93-1612, 93-3362, 1996 WL 478959, at

*14-15 (O.S.H.R.C. Aug. 23, 1996) (assessing just a $1000

penalty, although the gravity was deemed “relatively high” and

employee exposure was low, and despite multiple prior

violations). That the Commission chose to exercise its

discretion differently, but still within permissible parameters,

does not establish an abuse of discretion. See, e.g., Odeco Oil

& Gas Co., Drilling Division v. Bonnette, 4 F.3d 401, 404 (5th

Cir. 1993).

The record shows that the Commission gave full consideration

to the four § 666(j) factors. The total $ 3600 penalty assessed

for Southwestern Bell’s two serious inspection and shoring

violations falls well below the $ 14,000 that the Commission was

entitled to assess. The Commission, therefore, did not abuse its

discretion in assessing the $ 3600 in total penalties for those

two violations.

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 IV. CONCLUSION

For the foregoing reasons, the Commission’s orders are

AFFIRMED.

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