Administrative law

On September 19, 2002, a Williams’s employee, Jose Aguiniga, was killed in a trench cave-in at Williams’s Santa Ynez work site. After being notified of the fatality, the Occupational Safety and Health Administration (OSHA) initiated an inspection. As a result of that inspection, Williams was issued citations alleging violations of the Act. By filing a timely notice of contest Williams brought this proceeding before the Occupational Safety and Health Review Commission (OSHRC). On January 28-29, 2004 a hearing was held in Santa Barbara, California (Case brief, No. 04-74247, 2006). Background

On the morning of September 19, 2002, a trench collapse at a sewer construction project at the Churnash Casino Project in Santa Ynez, California. A Williams’ employee, Jose Aguiniga, was killed and seriously injured another Williams’ employee, Adam Palomar. On the day of the collapse, the trench was ten to twelve feet deep and between three and four feet wide on the bottom. The workers only access to and egress from the bottom west end of the trench. Water seeped continuously into the trench soil. Aguiniga and Palomar were generally responsible for cleaning the pumps used for removing the water from the excavation.

The two men would enter the trench; one would pick up the pump and the other would clean the debris out of the bottom. The pumps could be pulled up and cleaned from the top of the trench; it was the practice to clean out the buckets, or wells, where the pumps sat. This could only be done from inside the trench. It was not uncommon for the pumps to be cleaned up to ten times a day. Palomar and Aguiniga worked in the trench for about 15 minutes; as they were on their way out, the trench collapsed, killing Aguiniga and severely injuring Palomar (Case brief, 2006). The functions of OSHA are:

The Occupational Safety and Health Act (OSH ACT) is the principal federal law requiring private sector employees to keep their workplaces free from hazards that threaten the safety and health of employees. Three new agencies were created when the OSH Act was enacted; the Occupational Safety and Health Administration (OSHA) – the Occupational Safety and Health Review Commission (OSHRC) – and the National Institute Occupational Safety and Health (NIOSH). OSHA has overall responsibility for administering and enforcing the OSH Act. The OSHRC is independent from OSHA and hears appeals of its enforcement actions.

(Walsh, 2010, p. 479, para. 2) What was the legal issue in this case? A case regarding the government agency rules and regulations verses the practices of a construction company. OSHA is a government regulated organization that was created to ensure the safety of employees while on the job. The regulations of OSHA have been put in place to eliminate and reduce the number of on-the-job injuries and/or deaths. The legal issue of this case is whether or not the court should hold Williams Construction Company responsible for specific violations of OSHA standard regulations.

R. Williams Construction Company was cited by OSHA with four safety violation: •The failure to instruct its employees in the recognition and avoidance of unsafe conditions and in the regulation applicable to their work environment •The failure to ensure that no worker would have to travel more than 25 feet to reach a safe point of egrees •The failure to ensure that a “competent person” – one with specific training in soil analysis and protective systems and capable of identifying dangerous conditions – performed daily inspections of excavations for evidence of hazardous

conditions •The failure to ensure that the walls of the excavation be either sloped or supported as required. The Secretary of Labor designated the first three violations “serious” in nature and proposed penalties of $7,000 for each violation. The fourth violation “willful” in nature and proposed a $70,000 penalty, for a total penalty of $91,000 (Walsh, 2010, p. 482). What the employer did or failed to do that violated the OSH Act? There are four violations the Williams Company failed to do in regards to the regulations set-fourth by OSHA.

The first violation – Williams failed to provide training to employees and their managers about how to recognize and avoid unsafe working conditions. For example: the safety manual behind the seat in the company truck, did not provide training for trenching hazards, and none of the supervisors were familiar with OSHA rules and/or regulations. The second violation consisted of Williams Construction providing only one safe means of egress at the east end of the 45-foot trench.

It did appear that at least one of the pumps was located more than 25 feet away from the ramp; this was the exact location of the pumps or the precise location of Palomar and Aguiniga vis-a-vis the ramp at the moment of the trench collapse. This violation was established when the employee had access to a dangerous area more than 25 feet from a means of egress. The third violation Williams Construction failed to designate a “competent person” with sufficient training and knowledge to identify and correct existing and predictable hazards.

Further, this knowledgeable person was to require performing daily inspections of excavations for evidence of hazardous conditions to determine if it was safe to work each location. There were no supervisors at Williams Construction that were familiar with the basis standards applicable to this work-site or otherwise “capable of identifying and correcting existing and predictable hazards in their surrounding. ” The fourth violation Williams Construction failed to protect their employees from cave-ins.

They had reasons to know that their employees would enter the trench on the day of the cave-in (Walsh, 2010). Why it was “unavailing for Williams to argue that employees must take greater care to avoid placing themselves in harm’s way? It is unavailing for the Williams Construction Company to argue that employees must take greater care to avoid placing themselves in harm’s way or that management can “expect an employee not (to) intentionally place himself in danger” (Walsh, 2010). This type of claim misconstrues the purpose of the OSHA safety policy.

Further, William Construction Company argument was not effective due to the fact that it is the responsibility of their supervision and/or owner of the construction company to provide training to any employee reassigned working on the site. The ALJ (OSHRC Administrative Law Judge) had conducted a two-day hearing, during which several Williams Construction Company employees provided testimony. Sergio Lopez and Rick Dzamba stated that they did not know that Palomar and Aguiniga were in the un-shored trench when the wall collapsed.

However, both Lopez and Dzamba had provided contrary statements to the general contractor immediately after the accident, that suggested they knew that the two men were there working in the un-shored trench. Based on these contradictions and their demeanor during the hearing, the ALJ determined that Lopez and Dzamba statements were not credible (Walsh, 2010). It is the responsibility of any construction company to ensure that all of their employees have a copy of the company safety manual and OSHA regulation provisions; as well as training sessions to make sure they are fully knowledgeable of these situations.

The Williams Construction Company demonstrated negligence when a supervisor testified that the safety manual was behind the seat of his truck and that he never referred to it to make sure they followed safety protocol. What role, if any, employee’ actions should have in determining liability under the OSH Act? The OSH Act protects most private sector employees, but not government employees (at least not directly). The OSH Act is aimed at eliminating, or at least lessening, safety and health hazards in the workplace (Walsh, 2010).

When determining whether the employee or the employer is at fault for violations that fall under the OSH Act is not an easy task. When a person work in an industry where there are incidents of accidents that could lead to death, it is important to protect oneself as professionally as possible. The employee should keep their training manual, documentation records of training session’s dates and time held and signatures of those in charged. Supervisors should be fully knowledgeable of OSH Act policies and provisions for training purposes and have documentations of session dated and signed.

They are the first to be looked upon for records if and when something should happen on the job, especially if there are liability issues to be assessed. If there is an investigation from OSHA or any government agencies, the records could provide a history of the parties involved and their knowledge of the safety policy violated. The safety conditions of the workplace should solely be the responsibility of the employer; however, it is the employee responsibility to follow the rules, the policies, the practices, and procedures implemented by the safety conditions of the organization.

Conclusion It was evident that the R. Williams Construction Company failed to provide any training of the hazardous conditions in the wake of a trench wall collapse; that caused the death of an employee, Jose Aguiniga, and seriously injured another employee, Adam Palomar. With the Williams Construction Company failure to instruct their employees in the proper measures and made no effort to ensure that employees not enter the trench on the day of the wall collapse; it was the AJL findings, and the reasonable inferences drawn from them, that easily satisfy the substantial-evidence standards.

Consequently, The AJL’s decision affirming the citations is affirmed. Petition for review was denied (Case brief, No. 04-74247. 2006). References Case brief No. 04-74247. (2006). United states court of appeals, ninth circuit. Retrieved from http://caselaw. findlaw. com Walsh, D. J. (2010). Employment law for human resource practice. (3rd ed. ). Mason, Oh 45040: Cengage Learing. DOI: www. cengage. com