The Occupational Safety and Health Act of 1970 and regulations thereunder set forth comprehensive rules concerning health and safety. An entire section, 29 C.F.R. § 1926, is devoted to the construction industry, which unfortunately accounts for disproportionate numbers of workplace injuries and fatalities.

Readers of this column are aware that, in addition to all of its detailed safety rules, the Act contains a “General Duty Clause,” (¬ß 5(a)(1) of the Act) which covers areas that are not addressed by any specific standard. It states that the workplace must be free from recognized hazards that are likely to cause death or serious physical harm.

Many employers see the “General Duty Clause” as a bugbear, suspecting that it gives OSHA inspectors a blank check to issue a citation, where the employer has obeyed all known rules, but the inspector finds a condition that could, just possibly, place employees at risk.

As illustrated by a recent case from the OSH Review Commission, however, while at times the precise reach of the General Duty Clause is not entirely clear, it’s not a catch-all that OSHA inspectors can use, at their whim, to impose new regulations.

In Secretary v. Ruhlin Co., the employer was an Ohio construction management and heavy construction company. The project was the expansion of a four-lane highway in Akron. Part of the job required the replacement of a section of the shoulder, to create an additional lane of traffic. A work zone was marked off by 3′ high orange cones. An arrow board directed traffic to the left lane, and informed drivers that the speed limit was reduced from 50 to 30 MPH.

OSHA inspectors observed employees in the work zone who were not wearing high-visibility vests. Such vests were made available by Ruhlin to all employees working within the work zone, but only flaggers were required to wear them.

OSHA issued Ruhlin with a citation, alleging in the alternative that the failure to require the vests either constituted a violation of 29 C.F.R. § 1926.95(a) (the construction-industry standard for PPE, personal protective equipment) or was a violation of the General Duty Clause.

The administrative law judge found no violation under § 1926.95(a), but imposed a penalty on the employer for violating the General Duty Clause.

On review, the Commission upheld so much of the ALJ’s decision that held that high-visibility vests are not encompassed within PPE, but reversed the ALJ’s finding that failure to wear high-visibility vests violated the General Duty Clause.

The Commission’s decision in Ruhlin Co. is instructive, in that it lays out understandably how the Commission approaches cases that require it to interpret the regulations.

Three questions, the Commission found, were presented:

1.
Whether high-visibility vests are PPE within the scope of § 1926.95(a);
2.
Whether the alleged General Duty Clause violation was “pre-empted” by a more specific standard; and
3.
Whether Ruhlin had fair notice that it had to provide high-visibility vests to its employees in the highway construction work zone.

To answer the first inquiry (are the vests PPE?) the Commission asked, first, if ¬ß 1926.95(a), standing alone, unambiguously includes high-visibility vests as one type of “protective equipment.”

As, unquestionably, the language of the standard does not unambiguously define warning equipment as PPE, the Commission looked next to the standard’s legislative history. That, too, proved to be a dead end, as nothing in the legislative history clarifies whether the PPE standard was intended to include warning garments, as distinguished from equipment that acts as a barrier or shield.

Failing a clear answer from the language of the standard or its legislative history, the Commission found it necessary to decide the issue based on whether the interpretation advanced by the Secretary (that high-visibility vests are PPE) was “reasonable.”

In this context, determining “reasonableness” requires taking into account the consistency with which the interpretation has been applied, the adequacy of notice to regulated parties, and the quality of the Secretary’s elaboration of the pertinent policy considerations.

Applying these criteria, the Commission found the Secretary’s interpretation of the standard to define high-reflective vests to be unreasonable. PPE is required to guard against injury or impairment “through absorption, inhalation or physical contact.” Equipment identified as PPE (e.g., safety-toe footwear, helmets, eye and face protection, respiratory protection, etc.) generally acts as a “barrier” or “shield.” Where OSHA requires the use of warning garments, the latter are specifically identified as such in the applicable standard (as those requiring marine terminal employees, cargo-handling personnel, or flaggers in the construction industry to wear warning garments). Where a term is specifically used in one regulation but omitted in another, the Commission reasoned, it should not be found by implication.

The Commission held also that, by neither specifying warning garments as PPE when the standard was promulgated in 1993, or when the related standard for “Signs, Signals and Barricades” was amended in 2002, the Secretary both showed a lack of intent to treat warning garments as PPE, and failed to give fair notice to the regulated community.

After a detailed examination of prior interpretations of the standard, the Commission determined that the interpretation being urged in the case before it was not one that had been consistently applied, and it chided the Secretary for attempting to impose a requirement under the guise of an interpretation, in order to avoid statutory rulemaking procedures to amend the standard.

Having affirmed the ALJ’s vacatur of the ¬ß 1926.95(a) item, the Commission next examined, and rejected, the employer’s argument that the General Duty Clause was “pre-empted” by a specific regulation, 29 C.F.R. ¬ß 1925.200(g)(2) (which incorporated by reference ¬ß 6D.02 of the Manual on Uniform Traffic Control Devices).

This issue will not be explored in depth here, but you should be reminded that the General Duty Clause will not be applied where the matter at issue is addressed in a specific OSHA standard. The Commission in Ruhlin Co. held that pre-emption was not established, because the provision claimed to be incorporated by reference did not contain “mandatory language” (i.e., the word, “shall”) and was therefore only “advisory” — not enough for pre-emption.

The final issue (and the one that best illustrates the Commission’s usual approach, which is to apply the General Duty Clause fairly) was whether Ruhlin had fair notice that it would be obligated, under ¬ß 5(a)(1), to provide high-visibility vests to employees other than flaggers.

The Commission noted that the MUTCD provision, cited by the Secretary as establishing an industry practice, merely states that workers in proximity to trafficked roadways “should wear bright, highly-visible clothing.” The Secretary’s Field Inspection Reference Manual, the Commission noted, is express that “Section 5(a)(1) shall not be used to enforce ‚Äòshould’ standards.” Under the circumstances, the Commission concluded, Ruhlin could not have been sufficiently apprised that it had to require use of high-visibility vests by employees other than flaggers. The ALJ’s finding of a violation of ¬ß 5(a)(1) was reversed, and the citation vacated in its entirety.

The lessons to be drawn from the Ruhlin Co. case are, I believe, the following.

First, despite imperfections as affect every system of laws and rules devised by mortals, on the whole OSHA deserves solid grades for both effectiveness and fairness. The “General Duty Clause” isn’t a license for OSHA inspectors to slam you when frustrated that they can’t identify anything you’ve really done wrong. Citations under the General Duty Clause will be vacated, where the employer has insufficient notice, or where the hazard identified is not one recognized in the industry.

At the risk of sounding like I’m drumming up business for the brotherhood, as a further lesson from Ruhlin Co. I’ll remind you that all “serious,” “repeat,” and “willful” citations are never trifling matters, and require the attention of experienced legal counsel. The reversal in Ruhlin Co. was won by good lawyering, and even where a skilled attorney may be unable to get the citation vacated or withdrawn, he or she can often help to negotiate a reduction in the seriousness level of the citation, and/or a reduction of the penalty.

Keep in mind, also, that in addressing any OSHA citation, there is more at stake than a (usually) modest monetary penalty, at least if you plan to be in construction for any length of time. OSHA citations can have repercussions that far exceed the penalties for the violations alleged. Handling a citation correctly can impact whether the agency regards you as a safety-conscious employer or not — to say nothing of your labor relations, business reputation, insurance costs, eligibility for public contracts, and more.

A further lesson from this month’s OSHRC case is this. As an employer, at times it will occur to you that there are things you can do to enhance employee safety, that go above and beyond what OSHA requires. Sometimes, the line may be a difficult one for you to draw — typically, where it appears that the direct or indirect costs of carrying out the enhancement may be significant, and the reduction of the risk to your workforce may be but very slight.

However, while often there are gray areas, and the line may be difficult to draw between enhanced safety and economic cost, where the line can be easily drawn, why not draw it in favor of protecting your workforce?

The outcome in Ruhlin Co. was, of course, that the employer was spared a monetary penalty for not extending to all workers on its highway jobsite a safety requirement (wearing a high-visibility vest) that does apply to flaggers.

The better lesson, however, is not to dismiss the use of vests as unnecessary, but to consider that they are within a class of optional safety measures that are relatively inexpensive, do not reduce productivity, and are unlikely to meet with much resistance by employees. The construction workforce is, generally, a young demographic within the adult population, and many construction workers are of an age in which they still believe themselves to be immortal.

If, like me, you are old enough to know the facts about mortality, or if perchance you have seen a highway construction worker lose his legs, or his life, when struck by an oncoming vehicle, the fear of being seen as overly protective should not deter you from taking easy, inexpensive, and obvious measures to safeguard any young, heedless, or just plain dumb workers in your employ. The General Duty Clause is not a mandate to find and implement every precaution against every imaginable risk, but neither is it a bar against using your common sense to protect your workers, on whom your business depends.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

Man’s use of lead goes back thousands of years (the oldest known lead mine, in Turkey, dates from about 6500 B.C.). It’s a wonderfully versatile material — abundant, cheap, malleable, resistant to corrosion, has a low melting point, and holds pigments well.

Unfortunately, as became fully appreciated not many years ago, the ingestion of lead has serious adverse consequences to human health. The Romans’ use of lead in their aqueducts and domestic vessels is thought to have been a contributing cause to the fall of their empire. Lead was used in plumbing mains in New York City into the 20th century, and had a long career as an air pollutant, after tetraethyl lead was introduced as a gasoline additive in the early 1920s.

Major milestones have been achieved in reducing the general population’s exposure to lead, notably the ban on the use of lead-based paints in residential applications in the mid-1970s, and a phaseout of leaded gasoline, which was essentially complete by the mid-1990s.

However, 30 years after the ban on leaded paint in residences, more than 2% of America’s children have dangerously elevated blood lead levels (“BLL’s”) and lead remains a primary hazard to children, especially in the “Rust Belt,” from Massachusetts and New York west to Minnesota. While it’s widely known that children are most at risk from lead exposure, lead ingested early in life can remain in the body (chiefly in the bones) and cause symptoms many years later, often when an adult undergoes health stresses, such as pregnancy or illness.

In the construction industry, if all uses of lead-based paints were discontinued tomorrow, exposure would remain a substantial hazard for at least 25 to 50 years. Moreover, lead-based paints — resistant to wear and corrosion — continue in widespread use outdoors, and in particular on bridges and elevated roadways and in tunnels.

Construction practices that aim at reducing overall environmental pollution from (among other hazards) lead-based paints being removed from bridges and other metal structures, such as portable containment structures, have had the unintended consequence of exacerbating the dangers to workers.

For the first 20 years of the history of OSHA, the construction industry “enjoyed” a laxer standard in protecting employees from airborne lead — a standard permitting lead concentrations up to 200 micrograms per cubic meter, versus a general industry standard of 50 ?g/m3. In the late 1980s, a spate of lead poisonings on bridge, tunnel, and elevated-highway construction sites, and the discovery that many such sites had astronomic exposure levels, against which respirator use alone was woefully insufficient, led to a tightening of the construction standards in 1993.

Lead risks are greatest to workers who carry out tasks involving abrasive blasting, sanding, burning, cutting and welding. Spray-painting using lead-based paint, the manual removal (by scraping) of lead-based paint, and demolition also carry elevated risks. And, even where containment structures are employed, other trades working outside the containment structure may also be at risk.

While the use of respirators, protective clothing, and other Personal Protective Equipment (PPE) are important elements of protecting employees against lead exposure, these must not be your first line of defense.

While lead exposure is a stubborn, long-term problem in construction to which there is no simple, one-shot solution, current approaches emphasize xstress

OSHA requires you to train your employees concerning lead-related hazards.

Construction workers, it’s well known, too often think of themselves as being tougher than they are, which leads them to go down into unshored trenches, walk about on rooftops without fall protection, and otherwise place their lives and health in danger.

It’s probably not a bad idea, in instructing your workforce about the hazards of lead, to remind them that lead dust is all too easily borne away from the jobsite and into workers’ cars and homes on their clothing, and places family members (and above all young children) at risk of serious health problems.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

Recent articles have discussed fall hazards and unsafe practices in excavations and trenches, two leading causes of fatalities and OSHA citations at construction jobsites.

Another leading cause of death and injury on construction jobsites is “injuries caused by contact with objects and equipment,” or “struck-by” injuries.

Such injuries in construction, which per the Bureau of Labor Statistics numbered 82.5 lost-time injuries per 10,000 full-time workers in 2004, surpass injuries of the same class in mining (75.4) and manufacturing (56.6). They are among the “Focus Four” hazards of the Associated General Contractors of America.

Vehicles, masonry wall construction, and falling and flying objects are the most-commonly agents of “struck-by” injuries in construction.

Vehicle safety, the focus of this article, is an issue you need to stress repeatedly with your workforce, because (like descending into unsafe trenches, intending to work “only for a few minutes”) it’s an area in which many workers often fail to observe safe practices, sometimes with deadly consequences.

What you need to do to reduce vehicle hazards is straightforward, but effective only if done conscientiously and consistently.

Vehicles should be checked before each shift. OSHA-compliant seatbelts must be worn (except on equipment designed only for standup operation, or that has no rollover protection). Vehicles should never be driven in reverse, unless the operator has an unobstructed rear view, the vehicle has an audible reverse alarm, or another worker signals that it’s safe to proceed.

Vehicles must be driven only on roadways or grades that are safely constructed and maintained. Don’t allow employees to exceed their vehicles’ rated load or lift capacity, or to carry personnel unless there is a safe place for them to ride.

Bulldozer or scraper blades, end-loader buckets, dump bodies, etc. must be lowered or blocked when not in use, and controls left in neutral. All personnel must be in the clear before using dumping or lifting devices. Haulage vehicles that are loaded by cranes, power shovels, or loaders need a canopy or cab shield to protect the driver. Parking brakes should be set when vehicles and equipment are parked, and the wheels chocked if they are on an incline.

Equipment must be used with extreme care, if at all, near excavations, which should be clearly visible or marked to be conspicuous, and barricaded where practicable. When construction is taking place near public roadways, use traffic signs, barricades or flaggers. Workers must be highly visible in all levels of light. Red or orange vests are required, and warning clothing worn at night must be of reflective material.

It’s critical, too, to inspect and maintain vehicles and equipment with due regard to the punishment they take, and as prescribed in the manufacturers’ operation and maintenance manuals. It’s a sound idea, also, to incorporate some details concerning both the operation and maintenance of frequently-used equipment in your company’s written safety program.

For example, in Secretary of Labor v. Reynolds, Inc., the contractor was laying concrete pipe for a Cincinnati Water Works transmission main. A crew was working through the night under an overpass on Interstate 71. The excavator being used was a Caterpillar 325BL, equipped with a “Pin Grabber Plus” quick coupler. This device allows the operator to change work tools, such as difference size buckets, without leaving the excavator’s cab, and without assistance. Needless to say, the operator in changing tools needs to make certain that the coupler and work tool are securely engaged. After seating the coupler’s two hooks onto the corresponding pins on the bucket, moving the control switch to “lock,” and waiting a few seconds for the hydraulic-powered couple hooks to close around the bucket pins, the operator is supposed to carry out three steps to ascertain that the connection is secure.

First, according to the manufacturer, the operator should retract the bucket cylinder and shake the tool.

Then, he should visually check to ensure that the work tool is properly locked. This, however, is not so simple as it sounds. The overall design of the coupler makes it difficult for the operator to visibly check that the coupler is locked from the cab, and there are no safety indicators in the cab that tell the operator whether the coupler is properly locked.

Thus, in order to check the security of the connection visually, the operator must “curl in” the work tool by rolling the bucket completely around, lifting the stick up all the way, and pulling the stick in to permit the operator to see if the back pin is completely encircled.

A further step to verify that the coupler and work tool are locked is carried out by placing the work tool on the ground, applying pressure, and dragging the work tool backward.

Reynolds’ operator was using the smaller of the employer’s two excavators on the I-71 worksite, due to the low clearance beneath the underpass. The employer was necessarily aware of the potential danger from an unexpected detachment of work tools from quick couplers. A bucket weighing more than 1,500 lbs. is a hazard too obvious to overlook, the manufacturer’s manual was clear that serious injury or death might result if the quick coupler is not properly engaged, and a major construction industry trade group in Ohio had sponsored a seminar on problems with the couplers, following two fatalities in 1999. This particular hazard was also the subject of industry and government publications, including U.S. Department of Labor Safety and Health Information Bulletins in 2004-2005.

As Reynolds’ operator excavated trenches and switched work tools on the night in question, he was conscious both of the tight overhead clearance, and concerns expressed by the Ohio Department of Transportation about the scaring of the pavement. Because of these concerns, he elected not to drag the bucket, and did not perform the curl-in visual check. Instead, he limited himself to shaking the bucket in and out, trusting that that would suffice to tell him if the connection was secure.

About four hours into the work shift, the operator, after placing a pipe in the excavation, moved the stick with the quick coupler attachment about fifteen feet, to reattach the bucket which was sitting on the ground. He lowered the quick coupler onto the bucket, lifted the stick slightly after allowing time for the coupler to clamp down on the bucket pins, shook the bucket several times, and moved it toward the excavation. When the bucket reached the side of the excavation, it detached from the quick coupler, and rolled into the excavation. A pipelayer standing in the trench died as a result of being pinned by the bucket.

The ensuing OSHA citations totaled 5 items, including a trenching violation (failure to provide cave-in protection); a violation of OSHA’S General Duty Clause for failing to properly connect the bucket to the coupler; failure to instruct workers and to include in written safety materials rules about working with quick couplers, and failing to regularly inspect the connection between the bucket and the coupler.

The “General Duty Clause” citation was vacated, essentially because the judge felt Reynolds was not chargeable with knowledge that its operator, with 22 years’ experience, was omitting the “curling in” procedure. The “insufficient safety rules” citation was also rejected, in part because the manufacturer’s instructions, the court felt, were themselves inadequate as to the means to ensure a proper connection.

As the chief thing the employer is striving to avoid is injuries to workers, not OSHA citations, even though Reynolds’ safety rules were not found to be in violation of OSHA, obviously the better procedure would have been to get input from both licensed professional engineers and operating engineers, using the manufacturer’s instructions only as a starting point, and amplifying instructions as may be inadequate and making clear which steps are indispensable. In Reynolds Inc., the employer’s written safety program did not discuss use of the coupler, although a decal on the coupler referred users to the manufacturer’s operation manual. Even the latter, however, failed to describe how to carry out the “curling-in” procedure, and did not stress the “dragging” procedure, which if used would have saved the pipelayer’s life.

Among the citation items that were upheld at trial were a “serious” violation for failure to adequately inspect the quick coupler, and a “repeat” violation, for failure to instruct employees on hazards associated with the use of quick coupler devices.

A post-accident inspection disclosed that the coupler was missing a spring that holds the coupler in the event of hydraulic failure. This missing part was not a factor in causing the accident, but Caterpillar’s manual directs users to inspect the coupler for missing parts, and evidence showed no maintenance at all on the quick coupler from its installation in February 2000 until after the accident in June 2004. For a major construction company (over 800 employees) to have no maintenance done for more than four years on an item of equipment of a type known in the industry to have failed causing some 18 fatalities over roughly a six-year period, and that takes a pounding in day-to-day use, was certainly a lapse in judgment.

The above basics of vehicle safety should be covered both in your company’s written safety program and in toolbox talks. And, even if your operating engineers are experienced and knowledgeable, it’s still a good idea to include in your safety materials information from the manufacturers of your most-used items of equipment, improved upon by a dialogue between a licensed engineer and your operators.

And, in inspecting and maintaining your equipment, your employees who perform these functions should have impressed upon them that it’s not enough that the equipment continues to run, it has to run safely.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

This month concludes last month’s “review lesson” using illustrative recent decisions of the OSH Review Commission.

A major theme of last month’s article was that the probability of future litigation with OSHA, and the need to preserve the credibility of both client and lawyer, implies the need to avoid trying to defend against OSHA violations by using “defenses” without substantial merit.

The same doctrine applies to factual assertions. For example, in the case of EMS Construction, the OSHA inspector saw two employees on a rooftop, taking sheet metal off a fork lift, placing it on locations around the roof, and at times approaching within a foot or two of the eave. The employees were not tied off, and no fall protection was in place.

When confronted at the job site, the employer’s foreman didn’t dispute the inspector’s observations, but insisted that there was no violation, because the employees did not come within six feet of the edge of the roof.

At the hearing, the employer’s foreman insisted that workers were required to be tied off 100% of the time; that he had seen the employees in question tied off earlier in the day, and that he had spent only 5-10 minutes in a forklift (from which he could not observe the employees in question) and therefore assumed that the employees remained tied off.

Citing multiple inconsistencies in the foreman’s testimony, the ALJ concluded by stating that it was “frankly unbelievable that employees who had been wearing harnesses and lanyards earlier in the day would shed them during the 5 to 10 minutes their foreman left the roof to use the forklift.” The foreman’s testimony was accordingly rejected.

The preciousness of credibility applies to testimony as well as to legal arguments. Because the immediate monetary stakes in OSHA hearings are seldom large, employers’ witnesses for OSHA hearings are seldom over-prepared, and some lawyers may find communicating with nervous, uneducated, or foreign-born employees to be time-consuming, awkward, and perhaps difficult owing to language issues.

Moreover, the witness who is not an owner or executive may feel pressure to shave the truth, perceiving that any failure to protect the employer’s interests could place his job in jeopardy. And every lawyer who has tried more than a handful of cases has had the experience of even a supposedly well-prepared witness improvising unexpected and flatly-incredible tale while testifying under oath.

To say nothing of it being reprehensible and indeed a crime, false testimony at an OSHA hearing is a strategic mistake of the first order. Today’s hearing is but one of several, perhaps many, that your company may have to defend. Few employees are comfortable lying, and the ALJ makes his or her living by determining (in most cases correctly) which witnesses are truthful and which are not.

Be proactive, therefore, and before your employees even speak with your attorney to prepare to testify at the hearing, meet with each of them privately, acknowledge their loyalty, and assure them that you do not expect, or want, them to testify to anything but the truth. In your own testimony as a principal of the company, uphold the same standard. You do not want to be thought of as less than honest, and even if in a given case you were to get away with it (as where doubtful testimony must be accepted, for want of anything that contradicts it) in the smallish world of OSHA, it’s a good bet that, at a later date and if only indirectly, you’ll pay the price.

The sad case of John Carlo, Inc. illustrates this principle, and brings to mind also remarks I made some months back deploring the machismo of those who work in trenches, and cautioning against entering an unprotected trench, even for a few minutes’ work. In John Carlo, Inc., the employer was installing a PVC sewer line in a 14-1/2 foot deep trench along a roadway.

Throughout most of this endeavor, the work crew worked inside two stacked trench boxes, the bottom one 8 feet high, and the top one 6 feet high.

A decision had to be made, however, when the crew approached a place at which it had to place a 13′ long length of line approximately 12 feet below an existing flexible 2″ diameter gas line, which ran perpendicular to the sewer line.

The encounter with the gas line was not unexpected. Personnel of the employer had known for more than five months) that the gas line crossed the path of the sewer line at the location in question.

The project superintendent’s instructions to the foreman were to remove the top trench box, pull the lower box under the gas line, and have two men to go down in to the trench, and lay the single 13-foot section of sewer pipe.

Before these orders were given and carried out, the project super and the foreman discussed the practicability of sloping the trench, outside the confines of the trench box.

The foreman testified that the super said that the company had bid the job to be no wider than six feet. The employer, apparently, did not want to absorb the cost of select fill to replace dirt as would be removed if the trench were to be sloped where the sewer line had to be fit beneath the gas line.

So, the top trench box was removed, the bottom box was pulled into position, and two men were sent into the trench, with more than 6′ of unshored, unsloped earth overhead.

Within 30 minutes, a large clay ball dislodged, fell into the trench, and killed one of the two men working there.

A brief excerpt from the testimony will dispel any shock that the violation was adjudged to have been willful. Regarding his discussion with the project superintendent (who had 40 years’ experience working underground) as to how to proceed, the foreman testified:

Q. [Did the super] tell you that the trench walls would be vertical . . . without any attempt to slop them back?

A. No, sir. He told me once I pulled the stacker box, because I told him, I said, “You know that we’re not to be able to slope it.” He says, “Yes, I understand that. Y’all be careful.”

* * *

Q. Did you perform any sloping or any benching or anything like that when you installed or when you attempted to do the work in that vicinity?

A. No, sir.

* * *

Q. And at the time that our crew members entered this trench, did you understand that the trench was not in conformity with OSHA guidelines?

A. Yes, sir.

Q. And was it your understanding [the superintendent] was essentially telling you to dig this trench not in conformity with OSHA guidelines?

A. The way I took it, yes, sir, the way he explained it to me, because I asked [the super] about once I pulled the stacker box, about getting steel sheets out here to drive down beside this trenchbox, and he said [the employer] would not do that.

The foreman was insistent that the super told him that they could not slope the trench “because of the way they bid the job plus the existing utilities in the ground.” Again illustrating the futility of lying, the superintendent’s denials were rejected as inconsistent with the testimony of the foreman, the survivor of the two men who had been sent into the trench, and his own prior statement to OSHA.

The ALJ found a “Willful” violation, and imposed a $50,000.00 penalty. What may have befallen this employer in a lawsuit for wrongful death, I do not know.

However difficult it might be to believe for some, the toughest of tough guys is no match for several tons of collapsing dirt. Remember, too, that when you next take an OSHA citation to trial, that proceeding will probably be more about the future of your company (that is, about softening the impact of potential future citations) than about winning on the violation actually being tried. In addition to being the right and lawful way, taking the high road is also the advantageous way to litigate these matters.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.