He Who Digs A Pit
- posted: Dec. 02, 2021
One of my favorite Proverbs is “He who digs a pit will fall in it.” Yesterday, the Fifth Circuit Court of Appeals addressed the instance of when the pit may fall on he who digs it, and how that can become a willful OSHA violation.
Angel Brothers dug a trench to install a drainage pipe in La Porte, Texas. As the trench neared the street on the third day of work, Angel Brothers’ safety manager told the foreman that the crew would need to start using a trench box to guard against cave-ins.
The next day, without a trench box, the foreman allowed a worker to briefly enter the trench to work for ten to fifteen minutes. No trench box was used because that would have taken a lot of time and blocked the adjoining intersection. The good news is that the trench did not cave in. That is how these stories usually go.
The bad news, at least for Angel Brothers, was that an OSHA inspector arrived on site at the exact moment the worker was in the trench. Angel Brothers was cited for violating the OSHA standard requiring employees in an excavation to be protected from cave-ins by an adequate protection system. With a willful finding, the penalty was $35,000.
Angel Brothers unsuccessfully contested the Citation by arguing that when a supervisor is the one who commits the safety violation, the supervisor’s own knowledge of the violation cannot be imputed to the employer. This is called the Yates exception, and it has legal precedent -- if it applies. The foreman’s knowledge of the safety violation could not be imputed to the employer since it was the foreman who authorized the unsafe entry into the trench.
Angel Brothers also unsuccessfully contested the Citation on the grounds that it had a safety program that effectively enforced safety rules and disciplined employees for safety violations.
Angel Brothers’ contested Citation was affirmed first by an Administrative Law Judge and then by the Occupational Safety & Health Review Commission. Angel Brothers then appealed to the Fifth Circuit.
The Fifth Circuit found that the employee who committed the safety violation was not the foreman, but the employee who entered the trench without adequate cave-in protection. The Yates exception did not apply. Consequently, the foreman’s knowledge that to do so was a safety violation could be imputed to the employer.
The Fifth Circuit also upheld the Commission’s finding that Angel Brothers failed to demonstrate that it had effective enforcement of its safety program. One of the rules of its safety program was that if a worker sees an unsafe condition in a trench, he or she is to refuse to work and report the condition for immediate corrective action. The worker who entered the trench “faced no consequence for ignoring this directive.” The foreman, however, was disciplined.
The company performs more than 1,000 excavations annually, but had only two documented instances of disciplining employees for rules violations (one of which was the foreman). In fact, at least two prior trenching violations found during OSHA inspections resulted in no employee discipline. The dissenting opinion, by Circuit Judge Edith Jones (an excellent appellate judge), felt the company had effectively enforced the rules when violations had been discovered.
My Take: The court’s decision did not surprise me, but Judge Jones’ dissent did. Having worked extensively in this area, I was unpersuaded by Judge Jones’ dissenting argument. I would expect a true culture of enforcing the company’s safety rules to leave a documentary wake of employee disciplinary actions for violations of those rules, large and small. One follows the other. If a company has indeed developed a culture of enforcement, it should not be very hard to prove it.
I am an advocate for granting the industrial hygiene staff police-like power within an organization. I think they ought to be able to write “tickets” to fine departments which are noncompliant, with the collected fines being used by the safety staff to fund emergency maintenance projects as needed to address safety issues. I’d love to see a program like this. I am sure they are out there.
May you find joy in what you do and who you are with.