A Fifth Circuit panel affirmed a $35,000 fine imposed by the Occupational Safety and Health Administration fine against a Texas highway construction business. The split panel found that the business may be held liable for the willful acts of an employee. Under the facts of this case, the act in question is a project foreman’s intentional disregard for required job site safety measures.

The 2-1 panel upheld the Occupational Safety & Health Review Commission’s fine of Angel Brothers Enterprises Ltd. (“Angel Brothers”). The majority held that the review commission properly extended fault to Angel Brothers for its foreman’s disregard for instructions to use cave-in protection as a specific employee safety measure for employees finishing a job in a roadside trench in LaPorte, Texas.

Court documents revealed that the review commission, which decides challenges to OSHA-imposed penalties, fined Angel Brothers for not using either a trench box or “benching” the trench to prevent cave-ins. The company defended its actions by explaining that for the first two days, it used the “benching” method, which entails excavating the sides of the trench to form a series of steps, but that by the third day of the job, the trench was too close to a street for “benching” to be feasible.

The Angel Brothers’ safety manager allegedly told Foreman Salvador Vidal to use a trench box for workers. Instead, according to the allegations, Vidal sent one employee down into the trench with no protection, which was observed by an OSHA compliance officer who cited the company.

“Foreman Vidal cannot plead ignorance of the trench box requirement,” U.S. Circuit Judge Gregg J. Costa wrote for the majority. “Just a day before the citation was issued, a company safety manager instructed Vidal to install a trench box to ensure the crew’s safety. It is hard to find better evidence of willfulness than that.”

On appeal, the company did not challenge the finding that an OSHA violation occurred when Vidal sent a crew member to work in the trench without the necessary cave-in protection. Instead, Angel Brothers claimed that it has no liability for Vidal’s actions because such conduct cannot be imputed to the business enterprise.

U.S. Circuit Judge Edith H. Jones authored a dissenting opinion that focused on the company’s “history of exemplary compliance with safety regulations” as a reason for reversing the commission’s decision.

The review commission is required to consider the company’s affirmative defense that Vidal’s conduct was unpreventable employee misconduct for which the company may not be held liable. In turn, the company has the burden to prove that it has a history of effectively enforcing safety rules after discovering violations on its worksites.

Court documents show that, for five years, Angel Brothers performed more than 1,000 similar trench projects each year and only recorded the occurrence of two violations that resulted in employee discipline. Judge Jones said that the record contained “considerable evidence” of the company’s compliance with OSHA standards, but this information had little effect on the commission’s decision. “The commission admitted its decision on this factor was a close call,” she wrote. “I would say it was close to a deranged call.”

Judge Costa rebuffed Judge Jones, arguing that the commission could not conclude that “the lack of discipline means the company had a perfect safety record.” He cited testimony from Angel Brothers’ employees that referred to frequent job site safety violations as “contradicting” “” any finding that Angel Brothers had an impeccable safety record.

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