A U.S. appeals court upheld a citation and $35,000 fine against a construction contractor that argued a supervisor who decided not to use a trench box in an excavation was guilty of unforeseeable employee misconduct.
The appeals court found that “imputing the supervisor’s knowledge of the safety violation to the employer is appropriate in this situation under basic agency principles.”
Didn’t follow instructions
Angel Brothers Enterprises, a construction contractor that digs 1,200 to 1,400 excavations every year, claimed it was not liable for the violation since the supervisor’s actions went against what the company safety manager dictated.
The company began installing a concrete drainage pipe next to a road in LaPorte, TX, on Dec. 8, 2015.
On the first two days, Angel benched the trench walls, but the safety manager told foreman Salvador Vidal that a trench box would be needed on the third day because of the proximity of a nearby intersection.
An OSHA inspector arrived on the third day – before the safety manager showed up for his own inspection – and found an employee working in the trench without a trench box or benching.
Vidal admitted he allowed the employee to work in the trench without protection, claiming 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.
Misconduct claim rejected
OSHA issued a willful violation, which Angel contested, arguing the incident was the result of Vidal’s unforeseeable employee misconduct.
To prove misconduct, an employer must show it had safety rules addressing the hazard, training on the rule, adequate supervision of employees and effective enforcement, with supervisory misconduct also requiring a further showing of unforeseeable conduct, which an administrative law judge (ALJ) and the full Occupational Safety and Health Review Commission (OSHRC) said was lacking in this case.
Lack of enforcement
The ALJ and OSHRC found Angel lacked adequate enforcement of its rules, which also countered the unforeseeable conduct claim.
Ultimately, the appeals court agreed and upheld the citation and fine.