Angel Brothers Enterprises, Ltd. v. Walsh, No. 20-60849 (5th Cir. 2021)Annotate this Case
An Angel Brothers construction crew was installing a drainage pipe alongside a road. For two days, the crew had adequate protection from cave-ins. On day three, the work was too close to the street to continue with “benching” the walls of the excavation. Angel’s safety manager told foreman Vidal to use a trench box, which is placed in the ditch and has walls that guard against cave-ins. Vidal did not follow those instructions. Vidal admitted that he allowed Fonseca to work without the trench box because Fonseca would only need to spend 10-15 minutes inside the excavation; installing the trench box would have blocked the adjoining intersection and taken more time. Vidal and another employee stood by while Fonseca worked in the trench.
An OSHA Compliance Officer happened to visit the worksite and issued a citation for violating the requirement that “[e]ach employee in an excavation shall be protected from cave-ins by an adequate protective system,” 29 C.F.R. 1926.652(a)(1). An ALJ assessed a $35,000 penalty. The Commission affirmed, reasoning that Vidal’s knowledge as a supervisor flowed to the company, that the company did not prove that it effectively enforced safety rules or disciplined employees for safety violations, and that the conduct was willful. The Fifth Circuit upheld the findings. Imputing the supervisor’s knowledge of the safety violation to the employer is appropriate in this situation under basic agency principles.