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The Occupational Safety and Health Review Commission on Wednesday affirmed two serious violations against a contractor that it said failed to provide trenching protections for workers at an excavation site in Austin, Texas, and did not have adequate protocols for discovering violations of its own safety rules.
After driving by one of J.D. Abrams L.P.’s work sites in 2019, an area director for the Occupational Safety and Health Administration sent two compliance officers to investigate “what appeared to be an employee working in an unprotected trench excavation,” according to Secretary of Labor v. J.D. Abrams LP.
OSHA issued a citation for two serious violations: one for an employee working in a trench excavation over five feet deep that was not protected from cave-in and another for a ladder that did not extend the minimum required three feet above the landing surface. The total proposed penalty for the alleged violations was $13,494.
The company appealed. Testimony revealed that the workers, who had been disciplined following the inspection, failed to use a trench box for protection because a trench box on the previous day had crushed a pipe, flooding an area. On the day of the OSHA inspection workers had been told to not use a trench box because of the mishap, according to documents.
The commission, in affirming the citations, said the company failed to prove it had not violated OSHA standards: “respondent does not dispute there was no support system, such as a trench box, in use and admits the walls of the trench were not sloped or benched…. Therefore, Respondent violated the standard’s requirement to use an adequate protective system.”
The commission further wrote that the “respondent’s claim there is no proof the ladder extended less than three feet above the surface is rejected. Therefore, the ladder did not comply with the requirements of the cited standard and the standard was violated.”
In both instances, J.D. Abrams asserted an “unpreventable employee misconduct defense,” of which the commission wrote that the company “failed to prove that it effectively took steps to detect violations of safety rules at its worksites.”
The commission, in ordering the full fine despite a request for reduction on “good faith because (the company) has a safety policy,” wrote that the safety policy was “incomplete.”