HR Management & Compliance

Contractor Cited for Violations Points to Toolbox Talks in Its Defense

What Happened

Gioioso Sons, Inc., constructs and installs water supply and sewer pipes. On July 10, 2009, while the company was performing trenching work to install water service lines at a Boston worksite, a compliance officer for the Occupational Safety and Health Administration (OSHA) arrived for an inspection.

The compliance officer saw a Gioioso employee climb out of an unprotected trench that was approximately 6 feet deep. From about 50 feet away, he also observed an employee climb out of a second trench. 

The compliance officer walked to the second trench, where he saw an employee standing next to the trench and a foreman in it, digging with a shovel. The trench was unprotected (i.e., there was no shoring or trench box to prevent a cave-in), and the trench rose over the foreman’s head. 

The compliance officer identified himself and ordered the foreman to exit the trench—which he did by climbing over a box containing an undetermined type of wiring, instead of using a ladder or other safe means of egress, as required by OSHA.

About 5 minutes later, the site superintendent arrived and told the compliance officer that he had not inspected the trench or measured it before any employees entered it. However, an equipment operator said that the site superintendent came by the trench 6 to 8 times per day and that, although the site superintendent had observed the foreman in the trench earlier the same day, he did not mention trench protection to anyone.

As a result of the inspection, the contractor was cited for a repeat violation of OSHA’s “cave-in provision” and issued “Serious Citations” for violations of the “ladder provision” and “inspection provision.” Gioioso contested the citations and the $33,700 in fines.

An administrative law judge (ALJ) determined that the foreman and the equipment operator were not reliable witnesses because they contradicted statements they had made to the compliance officer. The ALJ credited the compliance officer’s testimony instead.

Gioioso argued that it should not be held liable for the foreman’s decision to enter the unprotected trench because his conduct was the result of unpreventable employee misconduct (UEM). In making this argument, the company addressed all four factors that prove a UEM defense.

First, it presented a one-page document listing excavation procedures to show that it had established work rules to prevent the cited violations. However, the ALJ said that the rules apparently were not working, since a foreman and another employee were digging in an unprotected trench.

Second, the company showed that it had communicated its rules to employees. Its safety director testified that the company conducts toolbox talks at worksites and safety meetings in the office for foremen and supervisors, and that the foreman in question here had attended a June 4, 2009, safety meeting and a July 2, 2009, toolbox talk at which trenching safety was discussed. 

The ALJ noted that, despite the foreman’s attendance at training, he did not follow the company’s safety rules on July 10, 2009. The ALJ also faulted the company for not presenting documentation for other safety meetings and toolbox talks where trench safety had been discussed.

Third, the company argued that it took steps to discover noncompliance because the safety director and representatives of the company’s insurers conduct inspections of work sites. However, the ALJ said the company did not provide documentation of those visits, and the site superintendent did not do anything to correct the violations that he observed.

Fourth, the safety director testified that the foreman had been disciplined for being in the trench without protection and that other employees had been disciplined for safety violations or work had been stopped to correct safety issues. The company, however, did not present documentation of any disciplinary action it had taken in the previous 2 years, and it did not discipline the site superintendent for unprotected trenches on July 10, 2009, and for an earlier incident in April 2009.

The ALJ upheld the citations and fines, and Gioioso appealed to the Occupational Safety and Health Review Commission (OSHRC) and then the U.S. Court of Appeals for the 1st Circuit, which covers Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.

What the Court Said

The court denied Gioioso’s petition for review, saying there was substantial evidence to support the decisions by the ALJ and the OSHRC.

In addition, “an employer can be charged with constructive knowledge of a safety violation that supervisory employees know or should reasonably know about,” the court said, noting that it was reasonable to infer in this case that the site superintendent knew that the foreman was in an unprotected trench.

Gioioso Sons, Inc. v. Occupational Safety and Health Review Commission (No. 10-2418) (U.S. Court of Appeals, 1st Cir., 3/28/12)

In Brief

This case demonstrates that merely providing safety training is not enough to protect an employer from liability. Employers also have a responsibility to make sure employees are complying with safety procedures taught in training.

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