When is an OSHA fine categorized as willful rather than serious? The question arose in the recent appeal of a construction case involving trenching.

Someone tipped off OSHA that employees were working in a trench without shoring or sloping that was more than five feet deep.

OSHA sent an inspector to the construction site in Meeker, CO. The inspector found one section of the trench where two employees were working was eight feet deep and, as reported, had no shoring or trenching.

OSHA issued a willful citation to Bolton Fencing and Construction on the grounds that:

• the competent person onsite exposed employees to a cave-in hazard by allowing them to work in a trench with vertical walls in excess of five feet in height without taking precautions to protect the employees inside, and
• employees were exposed to cave-in hazards while working in a trench with vertical walls in excess of five feet in height with no protective system in place.

Bolton was fined $49,000.

OSHA said the violation should be willful because, by ordering employees into the trench, the supervisor on duty ignored an obvious hazard, including Bolton’s own established safety procedures.

The company appealed to the Occupational Safety and Health Review Commission (OSHRC), and the case was heard by an administrative law judge (ALJ).

Because of a language barrier, the OSHA inspector had difficulty understanding the supervisor at the excavation. That caused confusion about some details regarding the case.

And despite completing training to become a “competent person” under OSHA regulations, the supervisor lacked experience.

The ALJ found that the supervisor, “despite his competent person training, was inexperienced, uninformed and confused about how to protect employees working in anything other than a basic trench or excavation.”

“The facts of this case do not establish that [the supervisor] possessed a state of mind that, if he were informed of the [OSHA] standard, he would not care.”

For that reason, the ALJ found OSHA had failed to establish by a preponderance of the evidence that the violations were willful. The judge reduced their severity to serious and cut the fine to $5,000.

What do you think about the ALJ’s decision? Let us know in the comment box below.

(Secretary of Labor v. Bolton Fencing and Construction, OSHRC Docket No. 11-0590, 8/7/12)

Tags: competent person, OSHRC, trenching, willful violation