I consider myself a fairly reasonable person.  True, I believe that any employer who kills one of his workers in an unprotected trench deserves jail time. But I’m always open to the (very unlikely) possibility that an employer wasn’t aware that OSHA requires trenches over 5 feet deep to be protected with a trench box or other shoring. Or maybe the employer had neglected to do training. Or his measuring tape was broken. There are potential factors that I’d take into account when considering how many years in jail an employer deserves.

But for this case, if I was king of the world, I would show no mercy.  If I had it my way, the owner of D Guerra Construction LLC would not spend one more day walking the earth as a free person.

Two Strikes and You’re Dead

Why? What happened?  According to an OSHA press release:

After escaping from a partial trench collapse hours earlier, two workers employed by an Austin contractor to install a residential wastewater line were not as fortunate later on Oct. 23, 2021.

Both were told to return to the unprotected 13-foot-deep trench to finish the job, and soon after, the trench collapsed again. This time, the collapse buried one worker causing fatal injuries and partially buried the second, who suffered serious injuries.

Did you get that?  These extremely lucky workers managed to escape the collapse of a 13 foot deep trench. 13 feet is over 2-1/2 times as deep as allowed by OSHA. A cubic meter of soil weighs as much as a car, so most workers don’t live to tell the tale when a trench collapses.

But instead of thanking his lucky stars that he hadn’t killed one or two of his employees, and then using the trench box (that was on the site) to make the trench safe, the owner of D Guerra Construction LLC ordered the workers back into the trench.  The trench collapsed, killing one of the workers. And to add insult to injury, the company failed to report the fatality to OSHA within 24 hours as required by law.

Being “on time and on budget” is more important than the lives of their employees.

The Right Way to Protect a Trench

Guerra obviously can’t claim that he had no idea a trench could collapse like that, because it had just collapsed. And looking at the gallery on the company’s website, you’ll find several photos of happy workers deep down in trenches that are protected by trench boxes.  The company boasts of being “On Time & On Budget,” but apparently being on time and on budget is more important than the lives of their employees.

OSHA cited the company for:

The agency proposed more than a $243,000 penalty: two willful violations, one for $93,234 for not inspecting the trench, and another for $130,524 for not protection the trench against cave ins. They also received two serious penalties for not training workers, and allowing them to work in a trench where water was present.

Jail Time?

Because OSHA issued a willful citation that was related to the fatality, the Occupational Safety and Health Act states that OSHA can pursue a criminal prosecution of the employer.  OSHA must refer the case to the Justice Department, and the Justice Department decides whether to pursue the case. The problem is that Justice often chooses not to prosecute cases under the OSHAct, because even if the case results in a conviction, it’s only a misdemeanor — often not worth the effort that a criminal case requires.

Local prosecutors can also seek criminal penalties. Last month, a Washington employer was sentenced to 45 days in jail for the death of one of his employees in a trench collapse.

Major jail time could send a strong message to employers across the country.

The good news about this tragedy is that it occurred in Travis County, Texas. Travis County has a progressive District Attorney, Jose Garza, a former US Department of Labor official and a former Executive Director of the Workers Defense Project, a Texas organization that advocates for workers. In this case, of course, 45 years would be more appropriate than 45 days. Major jail time could send a strong message to employers across the country.

Invisible Death

Another side-note. As Confined Space readers are aware, I religiously catalog in The Weekly Toll every worker I can find on the web that was killed in a workplace incident the week before. This fatality was not included because the news at the time reported that first responders had rescued three workers from a trench.   The subsequent death of one of the workers was apparently never reported.  And because the local media never followed up, I can’t even find the name of the worker killed in the trench.

For More Information….

The dangers of trenches — and how to prevent them from collapsing —  have been known for thousands of years. Not only has OSHA had trenching standards for decades, but even before OSHA — like somewhere about 2300 years before OSHA — Heroditus wrote about how the Phoenicians had figured out how to prevent trench collapses that were plaguing their army.

For anyone out there who still doesn’t know about trenches or can’t figure out how to get information, OSHA’s trenching and excavation webpage provides additional information on trenching hazards and solutions, including a safety video.  (Or you can do a Google search under “trench safety” which will conjure up about 10 million hits in half a second.)

In other words, there’s no excuse for claiming ignorance.


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