The Occupational Safety and Health Review Commission rejected construction company’s contention that its repeat safety citations should be vacated on the basis they were due to employee misconduct.

In Secretary of Labor v. Casale Construction Services Inc., an administrative law judge of the OSHRC upheld two citations carrying penalties of nearly $25,000 in a final decision of the commission published Tuesday.

On Feb. 23, 2017, a U.S. Occupational Safety and Health Administration compliance officer noted an open trench on a job site in Champlain, New York. The inspector observed a man employed by Wynantskill, New York-based Casale Construction Services Inc. working in a 6-foot-deep, vertical-walled trench that was not supported by a trench box. A spoil pile a few feet high was located right next to the trench and excavation devices and other vibrating equipment were also noted as being too close to the trench.

The investigator ultimately issued two repeat citations, one for failing to keep excavated or other materials or equipment at least two feet from the edge, carrying a fine of $10,140, and one for failing to protect employees from cave-ins by using an adequate protective system, carrying a fine of $12,676. The company had been cited for the same violations two years prior, which resulted in an informal settlement agreement between Casale Construction and OSHA.

The construction company appealed the citations, arguing that the unsafe practices were a result of unpreventable employee misconduct. The OSHRC judge, however, dismissed this argument and affirmed the citations and penalties.

Although the construction company argued that an employee who had been working in the trench was at fault for the violation, the employee testified that he had been ordered into the trench by the foreman and had been working there for approximately three hours, until he was ordered to vacate the trench when the OSHA inspector arrived on the jobsite.

The worker, who admitted that he had received OSHA training, said in court that he knew the trench did not meet OSHA standards but did as his foreman ordered because if “I don’t get in the hole … I’ll probably be getting laid off within a day or two.” The judge, observing the man’s demeanor while testifying, found the testimony “to be forthright and entirely credible” and found that the construction company failed to adequately its own foreman.

In its post-hearing brief, the construction company also argued that “Owners cannot be onsite monitoring the means and methods of construction personnel 24/7, which is why they look for local unions to provide trained and experience(d)] employees,” but the judge rejected this argument, holding that it contradicts the very purpose of the OSH Act.

The judge held that the employee who was in the trench had a “credible fear” of losing his job that was grounded in the company’s “long-term culture, as evident by a repeat citation, that did not prioritize worker safety.”