OSHA penalty for Texas contractor’s failure to use trench box affirmed

A construction contractor must pay the $35,000 penalty it was assessed for failing to ensure its workers used a trench box during excavation work, the Occupational Safety and Health Review Commission ruled Tuesday.

In Secretary of Labor v. Angel Brothers Enterprises Ltd., the commission rejected the contractor’s argument that an employee acted of his own accord by working in an unsecured trench and violated its workplace safety policies.

Baytown, Texas-based Angel Brothers carries out around 1,400 excavations each year. In December 2015, the company began work on a drainage pipe installation in LaPorte, Texas. The company’s field safety manager told the project foreman that a trench box would need to be used.

The following day, a U.S. Occupational Safety and Health Administration inspector documented that a worker was in the excavated area without the protection of a trench box. The foreman said he did not use it because the worker was only in the trench for a short period and he did not want to block the entrance to the nearby neighborhood by installing it.

The inspector cited Angel Brothers for a willful violation and a penalty of $70,000, but a hearing judge lowered the penalty to $35,000. The company appealed, arguing that it was unaware of the condition and that the lack of a trench box was due to unpreventable employee misconduct.

Although Angel Brothers proved that it adequately communicated the need for the safety measure, the commission held that the contractor failed to produce evidence to support its assertions that it effectively enforces excavation safety rules when it discovers violations. The company, which employs about 1,000 people, has a discipline policy but only two instances of documented discipline for employees — both of which occurred after an OSHA inspection revealed a violation. [let’s attribute this. The commission said?]

The commission also held that the foreman’s actions reflected a willful state of mind and that he consciously decided not to use a trench box, thereby violating OSHA excavation rules. The commission, therefore, affirmed the willful violation and the $35,000 penalty.