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Case Study: Practicing What You Preach

The construction company in this case study builds and installs water supply and sewer pipes. On July 10, 2009, while the company was performing trenching work to install water service lines at a Boston worksite, an OSHA compliance officer arrived for an inspection.

The compliance officer saw an employee climb out of an unprotected trench that was approximately 6 feet deep. From about 50 feet away, he also observed an employee climb out of a second trench.

The inspector walked to the second trench, where he saw an employee standing next to the trench and a supervisor digging in it with a shovel. The trench was unprotected – no shoring or trench box to prevent a cave-in – and the trench walls rose over the supervisor’s head.   

The compliance officer identified himself and ordered the supervisor out of the trench, which the supervisor did by climbing over a box containing some wiring  instead of using a ladder or other safe means of egress, as required by OSHA.

About 5 minutes later, the site superintendent arrived and told the compliance officer that he had not inspected the trench or measured it before any employees entered it. But an equipment operator told a different story. He said that the site superintendent came by the trench 6 to 8 times per day and that, although the site superintendent had observed the supervisor in the trench earlier the same day, he did not mention trench protection to anyone.

As a result of the inspection, the contractor was cited for a repeat violation of OSHA’s “cave-in provision” and issued serious citations for violations of the “ladder provision” and “inspection provision.”

The contractor contested the citations and the $33,700 in fines.

What OSHA Did

The contractor argued that it should not be held liable for the supervisor’s decision to enter the unprotected trench because his conduct was the result of unpreventable employee misconduct. In making this argument, the company addressed all four factors that prove that defense.

First, it presented a one-page document listing excavation procedures to show that it had established work rules to prevent the cited violations. But the ALJ said that the rules apparently were not working, since a supervisor and another employee were digging in an unprotected trench.

Second, the company showed that it had communicated its rules to employees. Its safety director testified that the company conducts toolbox talks at worksites and safety meetings in the office for foremen and supervisors, and that the supervisor in question here had attended a June 4, 2009, safety meeting and a July 2, 2009, toolbox talk at which trenching safety was discussed. But the ALJ noted that, despite the supervisor’s attendance at training, he did not follow the company’s safety rules. The ALJ also faulted the company for not presenting documentation for other safety meetings and toolbox talks where trench safety had been discussed.

Third, the company argued that it took steps to discover noncompliance, because the safety director and representatives of the company’s insurers conduct inspections of work sites. But once again, the ALJ was not impressed, saying that the company did not provide documentation of those visits, and the site superintendent did not do anything to correct the violations that he observed.

The safety director also testified that the supervisor had been disciplined for being in the trench without protection and that other employees had been disciplined for safety violations or work had been stopped to correct safety issues. The company, however, did not present documentation of any disciplinary action it had taken in the previous 2 years, and it did not discipline the site superintendent for unprotected trenches on July 10, 2009, and an earlier incident in April 2009.

The ALJ upheld the citations and fines, and the contractor appealed to the Occupational Safety and Health Review Commission (OSHRC) and then the U.S. Court of Appeals for the 1st Circuit.

What the Court Said

The court denied the contractor’s petition for review, saying there was substantial evidence to support the decisions by the ALJ and the OSHRC.

In addition, the court said that “an employer can be charged with constructive knowledge of a safety violation that supervisory employees know or should reasonably know about.” The court noted that it was reasonable to infer in this case that the site superintendent knew that the supervisor was in an unprotected trench.

This case demonstrates that merely providing safety training is not enough to protect an employer from liability. You also have a responsibility to make sure employees are complying with safety procedures taught in training.

A core element of demonstrating compliance is documentation of training as well as disciplinary actions taken when violations occur. “If it isn’t documented, it didn’t happen”, as far as the courts are concerned. Enforcement must be timely, uniform and consistent, regardless of the status of the employee.

Categories: Safety, Training

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