A lack of fully documented safety training does not prove inadequate communication of safety rules, according to a July 28 Occupational Safety and Health Review Commission decision.
While the commission upheld a judge’s ruling justifying a citation against a company which claimed unforeseeable employee misconduct, the commission found the judge’s interpretation of inadequate communication was incorrect.
Didn’t want to aggravate motorists
On Dec. 8, 2015, Angel Brothers Enterprises, a construction contractor that digs 1,200 to 1,400 excavations on different projects every year, began work on the installation of a concrete drainage pipe next to a road in LaPorte, TX.
The first two days of the project, Angel benched the trench walls, but the company’s safety manager determined a trench box would be needed on the third day because a nearby intersection would interfere with further benching.
Angel’s onsite foreman, Salvador Vidal, was notified by the safety manager that he’d need to have a trench box ready to use when it was needed.
On the third day, an OSHA inspector arrived – before the safety manager showed up for his own inspection – and Vidal admitted he’d allowed an employee to work in the trench, “which was no longer benched and lacked the trench box,” according to the commission decision.
When the safety manager arrived, Vidal told him he didn’t use the box because the worker would only be in the trench for a short time, and he didn’t want to aggravate motorists by blocking the entrance to a nearby neighborhood as the box was maneuvered into place by an excavator.
Supervisor misconduct?
OSHA issued a willful violation under its trenching construction regulation, but Angel contested the citation, arguing the incident was the result of Vidal’s unforeseeable employee misconduct.
To prove such misconduct, an employer must show it had:
- a safety rule in place addressing the hazard
- effective training on that rule
- adequate supervision of employees for compliance with that rule, and
- effective enforcement of violations of the rule.
Supervisory misconduct requires “a further showing of unforeseeable conduct on the part of the supervisor,” according to a blog post by law firm Seyfarth Shaw.
No evidence of disciplinary action
The administrative law judge found there was evidence Angel didn’t effectively enforce its safety rules so upheld the citation since this countered the unforeseeable conduct claim.
She also determined Angel couldn’t prove adequate communication of the rule because its training was on-the-job, verbal, not fully documented and was contradicted by other testimony.
Toolbox talks, other verbal instruction counts
On review, the commission agreed Angel failed to prove unforeseeable employee misconduct but found there was more than enough evidence the company communicated its safety rules using:
- toolbox talks
- orientation training sessions
- competent person training, and
- Spanish-language instruction for Spanish-speaking employees.
This decision demonstrates training documentation doesn’t need to exist in written form for all safety training that takes place.
However, keep in mind Angel did have a written safety program to back up the verbal, on-the-job training.
