Bancker Const. Corp. v. Reich, No. 1547

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtPER CURIAM
Citation31 F.3d 32
Parties16 O.S.H. Cas. (BNA) 1761, 1994 O.S.H.D. (CCH) P 30,430 BANCKER CONSTRUCTION CORP., Petitioner, v. Robert REICH, Secretary of Labor, Occupational Safety and Health Review Commission, United States Department of Labor, Respondents. ocket 93-4268.
Docket NumberD,No. 1547
Decision Date20 May 1994

Page 32

31 F.3d 32
16 O.S.H. Cas. (BNA) 1761, 1994 O.S.H.D. (CCH)
P 30,430
BANCKER CONSTRUCTION CORP., Petitioner,
v.
Robert REICH, Secretary of Labor, Occupational Safety and
Health Review Commission, United States Department
of Labor, Respondents.
No. 1547, Docket 93-4268.
United States Court of Appeals,
Second Circuit.
Argued May 18, 1994.
Decided May 20, 1994.

Page 33

James M. McGahan, Great Neck, NY (Martin, Van De Walle, Guarino & Donohue, of counsel), for petitioner.

Jennifer U. Toth, Attorney, U.S. Dept. of Labor, Washington, DC (Thomas S. Williamson, Jr., Sol. of Labor, Joseph M. Woodward, Associate Sol. for Occupational Safety and Health, and Ann Rosenthal, Counsel for Appellate Litigation, U.S. Dept. of Labor, of counsel), for respondent.

Before: MESKILL, MINER and MAHONEY, Circuit Judges.

PER CURIAM:

Petitioner Bancker Construction Corporation petitions for review of an October 18, 1993 final order of the Occupational Safety and Health Review Commission ("Commission") affirming a citation against Bancker for failing properly to protect employees from cave-ins during installation of a trench support system, in serious violation of 29 C.F.R. Sec. 1926.652(e)(1)(ii), and imposing a $1000 penalty.

Bancker was engaged by New York Telephone to install an underground utility vault in Bethpage, New York. The vault was to be installed in a trench 11 feet wide, 32 feet long and 14 feet deep. Excavation began in August of 1991.

In order to protect workers during the construction of trenches, 29 C.F.R. Sec. 1929.652, promulgated by the Occupational Safety and Health Administration ("OSHA"), requires that employees working in trenches be protected by an adequate protection system such as a "sloping" or "benching" system, unless the excavation is made "entirely of stable rock" or is "less than 5 feet in depth and examination of the ground by a competent person provides no indication of a potential cave-in." Pursuant to 29 C.F.R. Sec. 1962.652(e)(1)(ii), "Support systems shall be installed and removed in a manner that protects employees from cave-ins, structural collapses, or from being struck by members of the support system."

Bancker stipulated that the trench in this case was excavated in Type C, or granular, soil. Bancker planned to utilize a shoring system to protect workers in the trench from cave-ins. In constructing the shoring system, Bancker planned to excavate a "pilot" cut or trench approximately 36 feet long, 18 feet wide and not more than five feet deep. The shoring system, consisting of a steel framework and wood sheeting, then was to be assembled in the pilot cut.

On August 5, 1991, after the pilot cut was made and while Bancker employees were installing the steel framework in the unprotected trench, an OSHA compliance officer arrived at the worksite to inspect the trench. The compliance officer took several photographs

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and measured the trench with a "trench stick" at seven different locations. These measurements indicated that the trench was more than five feet deep. On October 29, 1991, at a closing conference, the compliance officer notified Bancker that OSHA intended to issue a citation because Bancker had allowed workers to enter the unprotected trench. The citation was issued on November 25, 1991, after the vault had been sealed in the trench.

After a hearing, an Administrative Law Judge ("ALJ") for the Commission issued a decision on August 19, 1993 affirming the...

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9 practice notes
  • New York State Elec. & Gas Corp. v. Secretary of Labor, No. 604
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 3, 1996
    ...an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (1988); Bancker Const. Corp. v. Reich, 31 F.3d 32, 34 (2d Cir.1994) (per To implement the Act's legislative scheme, Congress imposed two duties on employers. First, an employer has a general duty to ......
  • EMPLOYMENT LAW VIOLATIONS
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • July 1, 2021
    ...of compliance” and that he “used alternative means of protection or [] such means were infeasible”); Bancker Constr. Corp. v. Reich, 31 F.3d 32, 34 (2d Cir. 1994) (stating employer must demonstrate “compliance was impossible or infeasible” and that it used alternative means, when available)......
  • Washington Cedar & Supply Co. v. State, No. 34009-7-II.
    • United States
    • Court of Appeals of Washington
    • March 20, 2007
    ...to present an infeasibility defense. To support its argument, Washington Cedar relied on a federal case, Bancker Constr. Corp. v. Reich, 31 F.3d 32 (2d Cir.1994). In interpreting our WISHA regulations in the absence of state decisions, we may look to the federal Occupational Safety and Heal......
  • McNulty & Co., Inc. v. Secretary of Labor, No. 00-1508.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 19, 2002
    ...defense to a charge of violating an OSHA standard that compliance was impossible or infeasible," Bancker Constr. Corp. v. Reich, 31 F.3d 32, 34 (2d Cir.1994), an employer mounting such a defense must show not only the infeasibility of compliance, but also that it either used alternativ......
  • Request a trial to view additional results
8 cases
  • New York State Elec. & Gas Corp. v. Secretary of Labor, No. 604
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 3, 1996
    ...an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (1988); Bancker Const. Corp. v. Reich, 31 F.3d 32, 34 (2d Cir.1994) (per To implement the Act's legislative scheme, Congress imposed two duties on employers. First, an employer has a general duty to ......
  • Washington Cedar & Supply Co. v. State, No. 34009-7-II.
    • United States
    • Court of Appeals of Washington
    • March 20, 2007
    ...to present an infeasibility defense. To support its argument, Washington Cedar relied on a federal case, Bancker Constr. Corp. v. Reich, 31 F.3d 32 (2d Cir.1994). In interpreting our WISHA regulations in the absence of state decisions, we may look to the federal Occupational Safety and Heal......
  • McNulty & Co., Inc. v. Secretary of Labor, No. 00-1508.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 19, 2002
    ...defense to a charge of violating an OSHA standard that compliance was impossible or infeasible," Bancker Constr. Corp. v. Reich, 31 F.3d 32, 34 (2d Cir.1994), an employer mounting such a defense must show not only the infeasibility of compliance, but also that it either used alternativ......
  • Harry C. Crooker v. Occupational Safety and Health, No. 07-2770.
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 11, 2008
    ...employer) undertook alternative steps to protect its workers (or that no such steps were available). See Bancker Constr. Corp. v. Reich, 31 F.3d 32, 34 (2d Cir.1994). And because infeasibility is an affirmative defense, the employer must shoulder the burden of proving each of these elements......
  • Request a trial to view additional results
1 books & journal articles
  • EMPLOYMENT LAW VIOLATIONS
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • July 1, 2021
    ...of compliance” and that he “used alternative means of protection or [] such means were infeasible”); Bancker Constr. Corp. v. Reich, 31 F.3d 32, 34 (2d Cir. 1994) (stating employer must demonstrate “compliance was impossible or infeasible” and that it used alternative means, when available)......

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