Supervisor follows inspector’s instructions, but it boomerangs

by on August 30, 2012 · 0 Comment POSTED IN: Workplace Safety Network

“Bad news,” said OSHA CO Dale Throckmorton. “That soil test I took came back as Class B; I’m going to have to cite you for not providing cave-in protection.”

“What? – I didn’t even see you take a soil sample,” said Site Foreman Joe Sullivan. “I thought you didn’t need one. You were only concerned about the water in the trench. And when you told us to pump it out, we followed all your instructions to the letter.”

“I know you followed my instructions,” said Dale. “But after I returned to the office, my supervisor asked me why I hadn’t taken a soil sample. So I went back and got one from the spoils pile.”

“You mean the spoils pile that was rained on all day?” said Joe. “That’s not an accurate sample.”

“The spoils pile came from the trench,” said Dale. “It’s the same stuff. And the tests prove it wasn’t stable rock.”

“I had to change to our strongest excavator bucket to dig that trench,” said Joe. “That was some of the toughest rock we’ve dug through. Besides, that trench wasn’t five feet deep, so we didn’t need to add cave-in protection.”

“I’ve got some photos that suggest that it was,” said Dale. “We can gauge the depth from a ladder in the trench, and the height of the men in the trench.”

“But you didn’t measure the trench?” asked Joe.

“No,” said Dale. “But it was pretty obvious that sections of it were deeper than five feet. And the photos show that.”

‘Something not right’
Joe remembered the details of the inspection. A local fire inspector had concerns about the water in the trench, which was accumulating from rain.

The fire inspector called OSHA; the OSHA inspector came out and asked that the trench be pumped out. At the OSHA CO’s instructions, three men were sent into the trench to install the pumps.

“Something about this citation doesn’t seem right,” said Joe. “We did everything you asked. You didn’t intend to cite us when you left. Then suddenly you hit us with this?”

The company challenged the citation. Did the company get the citation vacated?

The Decision
Yes, the OSHA Review Commission agreed with the site foreman and vacated the citation. Reason: The OSHA CO himself asked three workers to enter the excavation to pump out the water.

The OSHA judge asked: Why would the OSHA CO give those instructions if he believed that the trench walls were unstable and that the trench was more than five feet deep?

“The most plausible explanation is that he believed the excavation was less than five feet deep and in a safe condition. This would also explain why he did not feel it necessary to take measurements of the excavation.”

“It was only after the (OSHA inspector) conferred with his supervisor and was told to return to the site and take a soil sample that he began to second-guess himself,” the judge concluded.

Furthermore, the CO’s photos of the trench were vague, the judge said. They didn’t prove the trench’s depth; citation dismissed.

Take home: Do those measurements and tests yourself. That way, if OSHA boomerangs on you and decides to cite you, even if you’ve followed their instructions, you have the documentation to show your compliance.

Cite: Sec’y of Labor v. Straight Ahead Construction.

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