The Occupational Safety and Health Review Commission on Thursday affirmed two serious violations, but reinstated one stemming from an inspection of gas line work – overturning an administrative law judge’s decision – and increased the fine from $5,500 to $9,000.

Dade City, Florida-based Florida Gas Contractors Inc. was contracted to install a gas line in 2014 in Tampa when a U.S. Occupational Safety and Health Administration inspection revealed problems with excavation work conducted beneath a sidewalk near a restaurant, as relayed in the ruling in Secretary of Labor v. Florida Gas Contractors Inc.

As documented by OSHRC, the crew first removed a portion of the sidewalk, leaving the concrete structure in place. Using shovels, the two workers, including the project foreman, began to dig along the east and west sides of the concrete structure to uncover the gas line below, digging on opposite sides. When their sections met underneath the concrete structure, both workers continued to dig, leaving the bottom of a portion of the concrete structure exposed without anything below to support it.

Upon reaching a depth of four feet, the workers installed a shoring system along two of the walls of one section of the excavation but did not install shoring on the other. After the shoring was installed, one worker noticed water beginning to collect at the bottom of his section, so they installed a “well point” pump system to remove it. Both continued to dig until the excavation was more than six feet deep, at which point they left the worksite to take a lunch break, according to documents.

During his inspection, which took place during the lunch break, the officer observed water in the excavation, cracking and separation along two of the walls in of one section of the excavation, and spoil piles on both sides of the excavation. The spoil pile on one side was located at the very edge of the excavation, according to documents.

Based upon the inspection, the Secretary of Labor issued citations for serious violations for failure to protect workers in an excavation from hazards associated with collapse or cave-in of the excavation, and proposed a total penalty of $14,700. Florida Gas contested.

The citations alleged that Florida Gas violated standards because its employees dug under a concrete structure adjacent to a sidewalk without providing any method of protection to prevent the structure from collapsing; that the company exposed its employees to a struck-by hazard from the spoil pile located at the edge of the excavation’s wall; and that cave-in protection systems were not present.

At a hearing later that year, an administrative law judge vacated one penalty after concluding that “the Secretary had failed to prove that it was possible for the concrete structure to collapse as a result of it being undermined” and affirmed the two others, assessing a fine of $5,500, according to review documents. Both parties requested a review.

For all three citation items, Florida Gas had argued an unpreventable employee misconduct defense – claiming seven prior disciplinary measures documented – and that the judge erred in rejecting its defense. To establish this defense, an employer must show that it established work rules designed to prevent the violative conditions from occurring, adequately communicated those rules to its employees, took steps to discover violations of those rules and effectively enforced the rules when violations were discovered.

But the involvement of a supervisor in the safety misconduct “is strong evidence that the employer’s safety program is lax,” the ruling stated, citing a previous case. The law judge found, and neither party disputed, that Florida Gas established the first three elements of the affirmative defense, but the law judge determined that the company failed to show its safety rules were effectively enforced when violations were discovered, according to the ruling.

The review commission also wrote that the seven documented instances of discipline for safety violations in the eight years preceding the inspection are outweighed by the company’s focus on the failure of the workers involved in the excavation “to follow its procedures for OSHA inspections rather than the safety violations” and the absence of documentary evidence.

The review commission went on to affirm the citation “in its entirety,” including a reinstatement of the first violation that addressed the location of the excavation: “we agree with the Secretary that the cited provision proscribes a certain condition — (the) undermining of a structure without a support system in place to protect against collapse – and provides no limitation on that proscription . . . that would indicate that undermining sidewalks [and appurtenant structures] without a support system is acceptable under some circumstances but not others.”

The review commission assessed a $9,000 penalty, writing “we find that the gravity of the violation was high as the parties stipulated that both employees were in the trench for at least two hours and no precautions against injury were implemented.” As to a reduction in the original $14,700 fine, the commission cited good faith: “the fact that the violation was promptly corrected during the inspection.”

Officials with Florida Gas could not immediately be reached for comment.