Angel Bros. v. Walsh: Fifth Circuit Upholds OSHA Willful Violation Citation

Angel Brothers Enterprises, Ltd., a Texas construction company, was cited by the Occupational Safety and Health Administration (OSHA) after an employee was observed working in a trench without cave-in protection. The incident occurred during a road construction project in La Porte, Texas, where the company was installing a concrete drainage pipe. For the first two days of the project, the crew used a safe trenching method known as benching. On the third day, because the trench was close to a roadway, the company’s safety manager instructed the crew foreman, Salvador Vidal, to begin using a trench box to prevent cave-ins. Despite this directive, Vidal allowed an employee, Salvador Fonseca, to enter the unprotected trench to perform work.

An OSHA compliance officer visiting the worksite at that moment observed Fonseca inside the trench without proper protection. OSHA issued a citation for violating 29 C.F.R. § 1926.652(a)(1), which requires employers to protect each employee in an excavation from cave-ins by an adequate protective system.

Administrative Proceedings

Angel Brothers did not dispute that the employee’s work violated OSHA standards but contested whether the company itself could be held responsible. An administrative law judge (ALJ) upheld the citation, finding the violation willful and assessing a $35,000 penalty. The Occupational Safety and Health Review Commission affirmed the ALJ’s findings, holding that the foreman’s knowledge of the violation was attributable to the company.

The Commission concluded that Angel Brothers failed to establish the affirmative defense of unpreventable employee misconduct. While the company had written safety policies and held regular safety meetings, the Commission found insufficient evidence that it consistently enforced those rules through discipline or corrective measures. Records showed few documented disciplinary actions for safety violations despite multiple OSHA inspections revealing trenching infractions.

Appeal to the Fifth Circuit

Angel Brothers petitioned for review in the U.S. Court of Appeals for the Fifth Circuit, arguing that it should not be held vicariously liable for the supervisor’s violation. The company asserted that under W.G. Yates & Sons Construction Co. v. OSHA Review Commission (5th Cir. 2006), a supervisor’s knowledge of a violation should be imputed to the employer only when the supervisor’s own misconduct was foreseeable. Angel Brothers contended that Vidal’s authorization of a subordinate’s unsafe act was unforeseeable and therefore should not establish company liability.

The Fifth Circuit disagreed. It held that under established agency principles, a supervisor’s knowledge of a subordinate’s safety violation is imputed to the employer. The court explained that this rule ensures companies cannot avoid responsibility by delegating safety oversight to supervisors. The foreseeability exception recognized in Yates applied only when a supervisor personally committed the unsafe act, not when he permitted others to do so. Because the violation stemmed from a subordinate’s unprotected entry into the trench, and Vidal knowingly allowed it, Angel Brothers was properly charged with his knowledge.

Evaluation of Safety Enforcement

The Fifth Circuit also reviewed whether the company had proven unpreventable employee misconduct. To succeed on that defense, an employer must show that it (1) established rules designed to prevent the violation, (2) communicated those rules to employees, (3) took steps to discover violations, and (4) effectively enforced the rules when violations were found.

The court agreed with the Commission that Angel Brothers satisfied the first three elements but failed on the fourth. Testimony indicated that the company rarely disciplined employees for safety violations unless OSHA inspectors had already identified them. Over a five-year period involving thousands of excavation projects, Angel Brothers documented only two disciplinary actions—both occurring after OSHA investigations. The Commission found this record insufficient to demonstrate effective enforcement.

Because the company’s evidence did not compel a contrary conclusion, the court deferred to the Commission’s finding that Angel Brothers had not met its burden. The court also upheld the Commission’s determination that the violation was willful. It noted that the foreman had received direct instructions to use a trench box one day before the incident, yet deliberately chose to proceed without one.

Court’s Ruling

The Fifth Circuit denied Angel Brothers’ petition for review. It held that (1) the supervisor’s knowledge of a subordinate’s safety violation was properly imputed to the company, (2) the company failed to establish the defense of unpreventable employee misconduct, and (3) substantial evidence supported the finding of a willful violation. The $35,000 penalty therefore remained in place.

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