Weekly Toll OSHA trenchIt never stops.

Two workers, Juan Baez-Sanchez, 42, and Victoriano Garcia-Perez, 56, both Mexican immigrants, died in the collapse of a 12 foot deep trench outside of Jackson Hole, Wyoming last week.  The men, who worked for Mountain West Services, owned by developer Jamie Mackay, were working alone.  The trench may have collapsed hours before help was summoned by delivery person who noticed an abandoned excavator.  Some evidence indicates that the trench initially collapsed on Garcia-Perez and Baez-Sanchez was trying to rescue him when the trench continued to collapse on top of him.

Early last month, 27-year-old Fernando Romero Martinez was killed in a trench in Ashton, Idaho that collapsed on top of him while he was attempting to put pipe connections together. In mid-August, Anthony Smith was killed in a trench collapse outside of Philadelphia when a 15 foot deep trench caved in on top of him.  In late July, 33-year-old Abel Sauceda was killed in a 12 foot deep trench collapse at a construction site in Daly City, California. In June, Rosario “Chayo” Martínez was killed in a trench collapse in Granby, Colorado. And at the beginning of June, 20 year old Kyle Hancock was buried alive earlier in a 15-foot unprotected trench outside of Baltimore, Maryland.

What did all of these workers have in common? First, and most obvious, their deaths were preventable. Their employers were in violation of one of OSHA’s most important — and easiest to comply with — standards.  OSHA’s trenching and excavation standard requires trenches to be protected from collapse if they are more than 5 feet deep and the agency has extensive educational resources about the hazards facing workers in unprotected trenches. It’s unlikely they had been trained about the hazards of unshored trenches or their rights under the law. It’s unlikely they knew that a cubic yard of soil weighs as much as a small car, and it’s unlikely that they’d be rescued from a trench collapse alive.

The second thing almost all have in common was that they were all immigrant workers with the exception of Hancock.  Coincidence? I think not. Immigrant workers often get the most dangerous jobs and receive the least training.

I don’t know if any of them were undocumented. And it doesn’t really matter for enforcement purposes. OSHA requires employers to provide a safe workplace no matter what the immigration status of workers. The problem with workplace safety among undocumented immigrant workers is that they are generally afraid of calling OSHA or any government agency even when they are trained about the hazards and about their rights. Even documented immigrants may be afraid because they may have friends or family members who are undocumented. And that’s even assuming they have been trained the hazardous conditions they’re working in and understand their rights.

What Is OSHA Doing?

How do we stop these fatalities from happening? OSHA, as we have repeated endlessly, is a very small agency, unable to get to more than a small handful of American workplaces in any given year.  Small construction operations are particularly difficult for OSHA to locate, unless a worker files a complaint. An unlikely event.

To its credit, OSHA announced yesterday that it had re-launched its National Emphasis Program (NEP) on Trenching and Excavation Safety. Per a directive issued during the Obama administration, state plans are required to implement this NEP or policies that are at least as effective.  Baez-Sanchez, Garcia-Perez, Sauceda and Hancock were all killed in state plan states. (This takes the place of an emphasis program had been in operation since 1985.)

OSHA notes that

Trenching and excavation work exposes workers to extremely dangerous hazards. According to the Census of Fatal Occupational Injuries (CFOI) data, published by the Bureau of Labor Statistics (BLS), there were 130 fatalities recorded in trenching and excavation operations between 2011 and 2016. The private construction industry accounted for 80%, or 104, of those fatalities. An alarming 49% of those construction fatalities occurred between 2015 and 2016. In summary, of the 104 fatalities in this industry:
1. 40 (38%) were at industrial places and premises;
2. 39 (38%) were at private residences; and
3. 21 (20%) occurred at streets or highways.

The new program will start out with a 90-day compliance assistance campaign, providing educational materials to “excavation employers, permitting and other municipal organizations, industry associations, equipment rental organizations, water works supply companies and major/local plumbing companies.” The enforcement phase will follow. OSHA inspectors are instructed to launch an inspection”whenever they observe an open trench or an open excavation, regardless of whether or not a violation is readily observed.”

And Secretary of Labor Alexander Acosta has filmed a YouTube video providing information to workers on how to stay safe while working around trenches. The video accompanies a new QuickCard.

OSHA also announced its 2018 Harwood Grants earlier this week.  Trenching grants have been provided to Purdue University, Alaska Native Tribal Health Consortium and the State Building and Construction Trades Council of California and the Latino Worker Safety Center in Illinois.

OSHA should warn employers that “We will look for you, we will find you and we will jail you if you kill a worker in a trench.”

What Needs To Be Done?

Emphasis programs, public service announcements and worker training grants are the minimum that OSHA should be doing. What would I be doing if I was King of the World, or head of OSHA (instead of a blogger in the basement?

  1. Announce to the enforcement staff and the world (after clearing with DOL attorneys) that the burden is on the Regional Offices for trench fatalities investigations that are NOT willful violations. Personally, I think every single trenching fatality should result in a willful violation. There hazard is well known. There is no excuse. Legally, OSHA can’t quite do that, but they can force field personnel to justify any trench fatality case that is NOT willful. OSHA should pressure state plan states to do the same.
  2. Every willful trench case should be referred to the DOJ for criminal prosecution, and OSHA should work closely with DOJ, as well as local authorities to ensure that the employer is criminally prosecuted either at the Federal, state or local level. Congress should pass legislation strengthening OSHA’s ability to criminally prosecute employers whose willful violation of the law results in the death or serious injury or a worker.
  3. OSHA should work with Congress to provide the agency with additional funding to build a trenching task force that will focus on identifying as many small construction jobs as possible — using permitting system, satellite/GPS technologies, social media or any other means to find these sites before a worker is killed. Task force members should be trained to treat every fatality case as if it were a criminal investigation.
  4. States and municipalities should pass laws requiring anyone doing trenching must apply for a permit.  They should then require that the information could be shared with OSHA to create a target list for inspectors.
  5. OSHA should work with the American Public Works Association, the American Society of Civil Engineers, the Association of Construction Inspectors and every other organizations that represent construction inspectors, civil engineers or municipal governments to ensure that every public official or person with contract oversight responsibilities learns to recognize an unsafe trench and is educated and empowered to call OSHA.
  6. Alex Acosta and Loren Sweatt need to get tougher and make much better use of the bully pulpit.  Acosta’s video was nice — but it was too nice: “If you work around trenches and excavations, here are five things you should know to stay safe…..”  The information is good — trenches must have cave-in protection, never enter a trench that hasn’t been properly inspected, etc. — but It was more like a high school “Let’s be safe out there” message to workers, rather than a hard-hitting message that workers have a legal right to a safe workplace, a right to refuse imminently dangerous work and a sharp warning to employers that we will look for you, we will find you and we will jail you if you kill a worker in a trench.
  7. The Trump administration should stop trying to kill the Harwood program and double its size instead — focusing on working with groups who can successfully reach out to and train immigrant workers in high hazard industries.

“They look at us like we’re just Mexican people, we mean nothing to no one” — Isabel Baez

Back in Wyoming, the families of the deceased believe employer had cut corners that cost the their lives of their loved ones.

“They look at us like we’re just Mexican people, we mean nothing to no one,” said Isabel Baez, Baez-Sanchez’s sister-in-law. She’s upset with what feels like exploitation and said that Mexican workers are often assumed to not know legalities and not be able to sue if something goes wrong. They shouldn’t be seen as expendable, she said.

“That has to stop,” Baez said. “More people have to come forward.”

Juan Baez-Sanchez is “survived by a wife and two daughters, 9 and 14 years old. His family lives in Mexico, and he sent money to them regularly.” Both Baez and Garcia-Perez will be buried together. Baez’s sister says

“He died trying to save him,” she said. “He could have let his friend die and gone to call for help. He could have let that happen. But he wasn’t that kind of person. He would give the shirt off his back if he had to. He was that person.” She feels responsible for helping Garcia-Perez get to his final resting place. “They died together, we’re going to bury them together,” she said. “That means we have to raise double the money, but we can’t leave Victoriano. We won’t leave him out of the loop. We will help.”

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