By: Geoffrey S. Pope Published: January 2020

UEM Defense Fails; Contractor Hit With Two "Repeat" Trench Violations

In the case of Secretary v. C. Construction Services, Inc. (name redacted) the employer was engaged one February day in digging a trench, and laying pipe parallel to, and about 15 feet distant from, a trafficked street in a little town on the New York—Québec border.

The trench, in what OSHA classifies as Type B soil, was about 3-4 feet wide, 30-40 feet long, and 6-7 feet deep.  The walls of the trench were vertical, and remnants of soil were sluffing from the wall of the excavated area into the trench.

Several pieces of equipment were in or near the trench, including one excavator being used to dig the trench, and another being used to backfill the trench.  The work being performed was the laying of an 8” water main in the bottom of the trench, covering it with two feet of sand, and using a vibratory compactor to tamp down the sand before backfill.  As “J.B.” (the laborer who was down in the trench) would later testify, the tasks were sufficiently exacting that the laborer could not look out for falling soil or other materials.

Spoils piles about 2’ high were located right next to the trench edge.  The trench was not benched or shored, and no trench shield was being used.  According to one of the OSHA compliance officers, in addition to the more obvious hazard presented by the spoils trials — that the material might fall or roll into the trench — the piles increase the load along the edge of the excavation, which can contribute to instability of the excavation, making a cave-in more likely.

The employer’s contest of the citation failed and, after trial, both citation items were affirmed as “Repeat” violations.

Vibration poses a risk to the stability of an unshored, unprotected trench, and in the C. Construction case under discussion, a vibratory compactor was in use inside the trench to compact the sand covering the water main, in addition to which there was additional vibration from the active roadway just 15’ distant from the trench.

The owner and namesake of the respondent company, whom I’ll call Mr. C., made the dubious choice — permitted under OSHA rules — to try the case pro se, without an attorney.  While it probably didn’t affect the outcome (the lack of merit in the respondent’s case being obvious) even a case of doubtful merit should be presented with some respect, and, as will be seen, a respondent’s strident assertion of arguments, based on arguments that run directly counter to well-established legal doctrines, is a waste of time, and accomplishes nothing, except to underscore the likely view of OSHA that you may be a “bad actor.”

In representing his company Mr. C., I believe, erred badly in trying to blame the violation on the laborer who was found at work in the unshored trench (and his union).  Owners, Mr. C. argued, cannot be onsite 24/7, and are thus “at the mercy of the quality of the employee provided by the union.”  This attempt was not only turned aside, but led to the rebuke that the OSH Act makes employers ultimately responsible to ensure that employees do not put themselves into any unsafe position, and that Mr. C.’s argument “contradicts [the Act’s] very purpose.”

In the course of the trial, Mr. C., during his cross-examination of J.B., got the latter to admit that he had not literally been forced “with a stick” into the trench, and that J.B. had an “OSHA 10” card, and thus the training to know better.  Mr. C. next proceeded to blunder into eliciting the following, cringeworthy testimony:

A.  . . . And yes, I am trained. But we also know how it works on jobsites. . . . I’ve seen it in my history.  People go down in the hole.  Well, no, I ain’t going to go down there.  You won’t give me a trench box to work in.  Two days later . . . you’re laid off.  I have kids to feed, bills to pay. . . . You guys sign my paycheck.  You tell me to get in the hole, I get in the hole.  I don’t get in the hole, I’ll probably be getting laid off within a day or two . . .

A.  [The foreman] was going to lay off [another employee] because he was going back to inspectors, and the word used was ratting out.  So he was going to get laid off.  That’s how it works . . . And then I don’t have a paycheck.  I cannot pay my bills.  I cannot feed my children. . . And you wonder, how do we live?  No health insurance . . .

(It’s unlawful under OSHA, of course, to order employees to violate standards, and to retaliate against employees for seeking to vindicate their rights.)

The respondent in C. Construction sought refuge in the “UEM” doctrine, unpreventable employee misconduct.  However, to treat violations as excusable, merely because the company announces a work rule against the prescribed conduct, would be to allow OSHA standards to be eviscerated “by winks and nods.”  The company could simply announce a rule forbidding work in unprotected trenches, routinely direct its workers to ignore the rule, and escape consequences, by cynically blaming the employees.

Such was the “defense” mounted by Mr. C., the respondent’s owner, at the trial.  In addition to blaming J.B. for working in the trench, Mr. C. declared that the element of employee knowledge of the violation was negated by the fact that he, individually, had not only not threatened employees, or encouraged any violations of OSHA standards, but that his company was entitled to rely upon “the training and expertise of the onsite staff to perform in accordance with “OSHA guidelines,” and not perform “illegal or unallowed actions.”

Such assertions are nonsense, of course, as establishing employee knowledge does not require the principal of the company to have had actual knowledge of the violation, knowledge on the part of any supervisory employee being sufficient.  In the C. Construction Services case, the judge credited J.B.’s testimony that his foreman, A.B., had directed him to get into the unshored trench at about 7:00 A.M., and directed him to get out only when OSHA inspectors arrived, about three hours later. It was only then, also, that the spoil piles were removed from the edge of the trench.  The foreman’s actual knowledge of these violations was attributed to the employer.

Furthermore, the Administrative Law Judges are resolute in swatting down claims of “unpreventable employee misconduct,” where the employer does not prove, in addition to having had a work rule (i) communication of the rule; (ii) diligent efforts to discover  violations of the rule; and (iii) proof that workers who violate safety rules have been disciplined for doing so.  If you can’t satisfy all of those requirements, you are well-advised to eschew wasting everyone’s time.

If you choose to put yourself (and the Secretary of Labor) to the trouble and expense of taking an OSHA citation contest to trial, you should, in nearly every case, be represented by an attorney with experience in OSHA matters.  If you have been cited for one or more “Repeat” violations, the desirability of being represented (and making only arguments finding support in the facts and the law) is all the more critical, as the penalties for “Repeat” violations can exceed $130,000 per item, as much as ten times the penalties for “Serious” violations.

Like wearing a hard hat, or having fall protection when working at an elevation, obeying the relatively straightforward trench safety standards needs to be a “no brainer.”  Avoiding having employees in an unshored trench, and keeping equipment and spoils well clear of the edge, are obvious, common-sense precautions.

In addition to the gruesomeness of death in a trench cave-in, trench violations are usually readily observable, and among the most-often cited by OSHA.  You need to be familiar with them, and to observe them conscientiously.

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