Worker Killed In Trench Collapse — Again. Why? And What Can Be Done?

Jordan Barab

Jordan Barab Former Deputy Assistant Secretary of Labor, OSHA

Anthony Smith was killed in a preventable trench collapse a on August 16 when a 15 foot deep trench caved in on top of him. OSHA, for those who don’t know, requires trenches more than 5 feet deep to be protected from cave ins. Smith was married with two children, 7 and 8 years old.

This is a story we write over and over and over again. Yet somehow, construction company owners and manager persist in believing that the laws of physics don’t apply to them. Happily, the laws of man (and woman) do apply to them. Not strongly enough. Personally, given the obvious hazard and clear laws, I believe that every trench collapse should earn a willful violation from OSHA with the maximum fines, followed by a criminal prosecution.

The other problem in this case is the all-too-common news article that accompanied the death. For example WPVI-TV Action News reported that:

“They say Smith was completing a plumbing job with two other men when something went horribly wrong. The men were working underground in a trench when dirt and concrete fell into their work area, trapping one of the workers.”

Something did indeed go “horribly wrong.” But what went horribly wrong was not the trench collapsing, but the fact that the men were sent down into the unshored trench in the first place. The actual collapse was the result of that “horribly wrong” action.

And the article ends with this statement: “So far, it is unclear what caused the concrete and dirt to collapse.”  All-too-similar to the final panel of a cartoon I created over ten years ago:

 

Meanwhile, a week before Smith’s death, the Idaho Statesman reports that Hard Rock Construction of Boise, Idaho, decided not to contest an OSHA citation related to the deaths of two men — Bert Smith Jr., 36, and Ernesto Saucedo-Zapata, 26 — in a 2016 trench collapse.

This was a case of a company rushing to finish a job before it was forced to pay a penalty for delays. The company’s contract with the Ada County Highway District (ACHD) called for the work to be finished by 5:00 pm. After that, ACHD could fine contractors “$500 for every hour they  worked past their approved timeframe, then $125 every 15 minutes after that.” It was that urgency that killed the two workers:

The company’s hands-off approach to worker safety and its rush to get the work done to avoid fines both played a role in the incident, according to a report by the U.S. Occupational Safety and Health Administration.

OSHA earlier proposed fining Hard Rock $77,319 for its “willful” failure to protect its employees. The company initially appealed OSHA’s results, but dropped the matter effective March 21. The reason why is unclear; Hard Rock’s lawyer did not respond to a message this week.

But this was probably the most troubling news about the tragedy. Around 1:30 in the afternoon, a Boise city inspector then arrived at the site to inspect the sewer:

The ACHD worker told OSHA “he informed the city inspector on his way off the job that the trench is deep — guessing 12 foot — and mentioned that they did not have protective measures in place; adding that he can’t enforce safety with contractors because he is not an OSHA inspector, and it is not policy for ACHD to turn in contractors.”

ACHD’s general counsel told the Statesman this week that the agency “has no responsibility when it encounters obvious OSHA violations. … Nothing prevents us from suggesting that the contractor fix the violation, but we can’t do anything to enforce it.”

And this wasn’t the first troubling encounter with Hard Rock.

“I’ve worked with [one of the Hard Rock employees] before, two to three weeks prior” on another sewer project, the city inspector told OSHA. The trench on that project was about seven feet deep, “and he didn’t use a shield in that one either, but I did see a six- to eight-foot step ladder on the job site.”

So, to sum up, we have a company that put workers in a well-recognized hazardous environment, a worker for the county that contracted with Hard Rock who was aware of the hazard, and a city inspector who was not only aware of the trench that killed the two workers, but had also witnessed the same company putting workers into a hazardous trench weeks earlier.

So what should have happened in this situation? First, while I haven’t seen this specific contract, most contacts that I have seen have clauses committing the contractor to comply with all state and federal laws. Hard Rock was clearly not doing that, giving the County the authority to terminate the contract or at least stop the work.  The city inspector was probably ensuring that the job was within spec. He wasn’t a safety inspector. Nevertheless, even if he didn’t have any authority to shut down the job, he certainly had the ability — knowing that hazardous nature of the job — to call OSHA. OSHA considers such calls “referrals” — and in this case, an imminent danger referral — which would have initiated a quick inspection. And probably saved the lives of two workers.

Someone once said “It takes a community to raise a child.” Unfortunately, OSHA — the tiny agency tasked with securing the safety of workers in the nation’s 8 million workplaces — can’t be everywhere all the time. It can’t even be most places any of the time. So it also takes a community to protect workers; to make sure employers follow the law and OSHA knows where its needed. And even if OSHA can’t be there, city inspectors, county officials — an even common citizens — have the ability to shut down hazardous sites or call OSHA.

And what is the role in these deaths of a contract that essentially encourages a company to cut corners on safety to avoid penalties if the project is delayed?

Meanwhile, the Statesman also reports that “federal records show the U.S. Attorney’s Office considered bringing criminal charges over the incident” and “The widow and three children of one of the men killed in the collapse are now suing the city of Boise, state agencies, Hard Rock and French Homes, the company that hired Hard Rock to dig the trenches as part of a residential construction project.”

Wishing you all success.

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Repostd from Confined Space

Posted In: Allied Approaches

Union Matters

Labor Wins

From the AFL-CIO

On Tuesday, the labor movement drove historic wins for pro-worker candidates like Governor-Elect Andy Beshear in Kentucky and new legislative majorities in Virginia. Not only did union members come out to vote in droves, 270 union member candidates were elected to public office last night and counting. This adds to the total of more than 900 union members elected up and down the ballot in last year’s midterms, a product of the Union Member Candidate Program launched by the AFL-CIO just two years ago. The share of union members who won in the 2018 midterms is two-thirds. The program will continue through 2020 and beyond, electing even more union members to public office. 

“Our efforts recruiting, training and supporting labor candidates have led to the passage of pro-worker legislation from coast to coast and everywhere in between,” AFL-CIO President Richard Trumka said.

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