worked in excavation for more than 30 years. He was supervising a three-person crew on this project: one person operated the excavator; the second worked in the trench; and the third worked outside the trench. This particular crew had worked on a section of trench that had been flooded on the previous day when a trench box crushed a section of pipe. No one was working inside the trench at that time, and that portion had been repaired.

On Dec. 3, the foreman advised his crew that they would not use a trench box that day due to the prior day’s issue. They began excavating the trench, which ran parallel to the road on one side and to the sidewalk on the other. About 18 inches of rock was excavated from the lower layer while the middle layer was determined to be Type B soil. The top layer consisted of about a foot of asphalt on the wall closer to the roadway and six inches of concrete and wire mesh material closer to the sidewalk. One employee would use a ladder to descend into the trench. To prepare the base for a section of pipe, the excavator would then place that portion of pipe. The process would be repeated, and the ladder would be moved further down.

Two OSHA officers arrived at the site to observe the conditions, take photographs and measurements, along with employee statements. The trench was six feet wide and between 60 feet to 86 feet long. The trench depth was measured in three separate locations, and each was more than five feet (at 5’8” and 6’7”). The top of the ladder used to access and exit the bottom of the trench was 2’8” above the landing surface. The foreman at the site admitted that he knew that a trench over five feet in depth had either to be sloped back or protected with a trench box, but he had avoided its use to avoid the incident that occurred on the previous day. He also knew that the top of the ladder should extend three feet above the landing surface, and he had verified it at the beginning of work that day, but he did not continue checking as work progressed.

OSHA cited Abrams for two items.

Item 1 pertained to failure to properly protect workers from cave-ins during excavation, which specifically provides that adequate protective systems are required unless excavations are made entirely in stable rock or the excavation is less than five feet in depth—and an examination of the ground by a competent person provides that there is no indication for a potential cave-in. Here, employees were noted to have been working in a trench approximately 6’7” in depth, without shoring, a trench box or other adequate protective system.

Abrams was not successful arguing the depth of the trench was less than five feet by not including the bottom layer of solid rock and the top concrete/asphalt layer. The ALJ dismissed this argument given that the case law is clear that depth of a trench is measured from the base to the top, regardless of the various types of soil or other materials that it consists of. Moreover, the stability of the excavation is evaluated by the weakest material in the structure. Therefore, no exceptions applied, and an adequate protective system was needed and not provided.

Item 2 cited Abrams for failure to require a portable ladder extend at least three feet above the upper landing surface, exposing the employee to a fall hazard. Here, the top of the ladder extended by 2’8”, and it clearly did not comply with the requirements of the cited standard. Given that it was also clearly known by the foreman, the Secretary proved its case for this violation.

Abrams asserted an unpreventable employee misconduct defense as to both citation items and referred the ALJ to its extensive Safety Program. To prevail, on this defense, an employer must show that it “1) established work rules designed to prevent the violative conditions from occurring; (2) adequately communicated those rules to its employees; (3) took steps to discover violations of those rules; and, (4) effectively enforced the rules when violations were discovered.” The ALJ found that Abrams met the first two criteria. Abrams had established adequate work rules that in effect mirrored OSHA’s standards that were cited here, and they were effectively communicated to its employees.

Abram’s Safety Program included a 72-page employee safety manual available in English and Spanish, training, and Abrams employed area safety coordinators. Each employee was provided a copy of the manual during company orientation and received training. The manual is organized into 25 safety topics, including excavations, fall protection, stairways and ladders. The manual specifically set forth that no one should enter into an unprotected trench with a depth greater than five feet, unless protected by a trench box, or the sides of the trench are sloped back. Ladders must be set-up with side rails extending a minimum of 36 inches above the landing. Abrams also employs four safety coordinators who are dedicated to safety, training, auditing of worksites for safety compliance and investigating incidents. The foreman had received excavation training about four or five times during his tenure, as well as interactive training.

Meanwhile, Abrams conducts every Monday a 30-minute safety meeting for its staff at every active project where attendance is documented by the signing the Supervisor’s Safety Training Report attendance sheet. Moreover, each day a foreman has a five-to-10-minute meeting with the crew to go over the work plan and necessary safety measures.

However, Abrams failed to prove that it took steps to detect violations to its safety rules, and it did not ensure enforcement and consistent discipline. According to its policies, Abrams’ safety coordinator was required to audit each project at least once per month. If any safety violations are found, the project’s superintendent would be notified so that violations are corrected immediately. Each month, the safety coordinators should report the results of their audits to their management team that would include safety issues and their remediation. However, no documentation of the audits or reports were submitted. The fact that no safety coordinator came to the project on the prior day, as a result of the crushed pipe flooding in the trench, suggested that the safety coordinators did not consistently respond to near misses.

According to Abrams, employees who failed to follow their work rules were disciplined either by verbal warning, suspension or termination depending on the nature and severity of the violations. Here, the only offered examples of such discipline were that the Abrams’ foreman and worker (in the trench) were suspended for a week without pay following the OSHA inspection. Such post-inspection discipline alone is not sufficient, and no further evidence was submitted of any discipline or enforcement action as a result of its discovery of violations at a worksite.

About the author: Costas Cyprus is an associate attorney practicing construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 and at [email protected]. The articles in this series do not constitute legal advice and are intended for general guidance only.