BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

JSA ENGINEERING, INC.
323 Skyline Drive
Vista, CA 92084

 

                              Employer

 

Docket Nos .

00-R3D2-1367,
1369 and 1370

 

DECISION AFTER
RECONSIDERATION

 

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having taken the petition for reconsideration filed in the above-entitled matter by JSA Engineering, Inc. [Employer] under submission, makes the following decision after reconsideration.

JURISDICTION

Between January 11 and March 9, 2000, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident investigation at a place of employment maintained by Employer at 1668 San Miguel, Spring Valley, California (the site). On April 18, 2000, the Division issued to Employer a citation alleging a general violation of section1 1509(a) [Injury and Illness Prevention Program (IIPP)] with a proposed civil penalty of $110; and citations alleging serious violations of sections 1541(c)(2) [safe means of egress from trench] and 1541.1(a)(1) [excavation cave-in protective system] with proposed civil penalties of $2,025 and $12,600 respectively.

Employer filed timely appeals contesting the existence of all violations, the classification of the serious violations, and the reasonableness of all penalties and asserted the Independent Employee Action Defense.

On January 18, 2001, a motion was made by Benjamin C. Bunn on behalf of the family of the deceased employee, Gualberto “Bobby” Alfaro for Party status. The motion was granted that same day.

On January 24 and 25, and April 17 and 18, 2001, a hearing was held before Dennis M. Sullivan, Administrative Law Judge (ALJ), in San Diego, California. Thomas Finrow and Melody Kramer, Attorneys, represented Employer. David Pies, Staff Counsel, represented the Division. Benjamin Bunn represented the family of Mr. Alfaro.

On August 14, 2001, the ALJ issued a decision denying Employer's appeals.

On September 17, 2001, Employer filed a petition for reconsideration. The Division did not file an answer. The Board took Employer’s petition under submission on November 5, 2001.

BACKGROUND

Employer is an underground pipe-laying contractor which dug a trench for the purpose of removing old pipe and installing a new water line at the site. On January 11, 2000, a portion of the trench at the bottom of the hill collapsed which resulted in the death of Employer’s laborer, Gualberto “Bobby” Alfaro [Alfaro]. The trench exceeded five feet in depth, was not dug in solid rock and was not shored, sloped, or benched.

ISSUES

1. Did the ramp provide a safe means of egress from the trench within the meaning of section 1541(c)(2)?
2. Did the Division establish the violation of section 1541(c)(2) as serious?
3. Are the penalties for violations of sections 1541(c)(2) and 1541.1(a)(1) duplicative?
4. Did Employer establish the logical time defense to the violation of section 1541(c)(2)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Board has reviewed Employer’s petition for reconsideration, the ALJ’s decision, and the available record2 of the proceeding. We find that the evidence supports the findings of fact. We further find that the ALJ fully and fairly considered the evidence and arguments presented by the parties in deciding the issues. Accordingly, except as modified herein, we adopt and incorporate in this Decision After Reconsideration pages 1 through 14, and 21 through 24 of the ALJ’s decision. Citation 1 [§ 1509(a)] and Citation 4 [§ 1541.1(a)(1)] have been adequately addressed in the ALJ’s decision and we do not consider them here except as to the duplicative penalties regarding section 1541.1(a)(1) discussed below. We address below the claims raised by Employer related primarily to Citation 3 [§ 1541(c)(2)].

1. The Ramp did not Provide a Safe Means of Egress from the Trench Within the Meaning of Section 1541(c)(2).

Employer contends that it built a ramp and that it was not in violation of section 1541(c)(2) because there was a safe means of egress from the trench.

The ALJ determined that there was a violation of section 1541(c)(2) based upon the allegation stated in Citation 3 that Employer did not have a ladder in or a safe means of egress from the trench. Employer asserts that the ALJ’s decision “completely relies on the absence of a ladder in the trench to support [the] decision…” and further, that “[t]he Decision entirely disregards Mr. Wilson’s testimony that there was safe egress from the trench through the bottom of the trench.”

The ALJ made no finding regarding the ramp as a safe means of egress from the trench bottom. That lack of a finding is not fatal to the decision if the record has evidence to support findings required to support the decision. (Labor Code § 6609; Granite Construction Company, Cal/OSHA App. 78-191, Decision After Reconsideration (Apr. 26, 1984).)

A ramp is defined in section 1540(b) as an “[i]nclined walking or working surface that is used to gain access to one point from another, and is constructed from earth or from structural materials such as steel or wood.” As indicated by its terms, the purpose of the requirement is to allow a means of safe egress at times when employees are working in the trench.3

In this case we find evidentiary support to sustain the violation of section 1541(c)(2) for Employer’s failure to provide a safe means of egress from the trench.

Although Employer did not specifically raise the adequacy of the ramp as a safe means of egress during the hearing there was sufficient testimony regarding the ramp for us to make a finding that “the ramp” does not constitute a safe means of egress. Keith Wilson operated an excavator, dug the trench, removed old pipe and laid new pipe at the site. Wilson testified that he ran the excavator backwards down the hill to dig the trench and that he had to make a road or ramp in order to get the excavator off the hill because it was steep. He used sandy fill dirt that was dumped at the bottom of the drop-off of the embankment to create a ramp or road “behind” the equipment. He said he dug down to the old pipe and put the dirt or spoil at another location. Wilson said that he saw Alfaro in the trench “just seconds” before it collapsed. He said that he observed the right side of the excavation starting to give way and yelled at Alfaro “because [he] knew he was in danger.” Wilson testified that Alfaro “tried to run up the hill and slipped and fell.”

Melvin Dunn, the Division’s inspector, testified at hearing that he took into consideration other methods of employee egress from the trench, particularly the possibility that at the time of the accident Alfaro “could have just run out the bottom.” He testified that “there was not a ramp that was designed for people to egress in and out of.” He testified that he considered such egress inadequate because of the loose excavation material that was not compacted as a ramp. We find that Dunn’s testimony is credible and that it establishes that “the ramp” did not constitute a safe means of egress.

Once the Division presents evidence which establishes that a safe means of egress did not exist, the burden of producing evidence shifts to Employer to establish that a safe means of egress did exist. [Evidence Code § 550] We find that Employer failed to produce sufficient evidence that the ramp was a safe means of egress from the trench that would satisfy the requirements of section 1541(c)(2). Employer’s witnesses did not testify that the ramp was intended for or used by employees as a means of egress. Instead, Wilson testified that the ramp was laid to provide a road behind the excavator for the purpose of getting it off the hill. The evidence regarding the material used in the construction of the ramp was that it was comprised of loose soil which was simply displaced fill deposited behind the excavator that lacked a walking or working surface.

No evidence was presented regarding any dimension or slope of the purported ramp or of the ease of egress with an excavator in the way such that egress can be considered safe. In addition, our review of the photographic evidence4 of the area where Employer asserts that Alfaro could have walked out of the bottom of the trench discloses loose, uncompacted soil.

We find that the evidence that was presented in this case that a safe means of egress existed is even less developed and persuasive than evidence which we held did not establish a safe means of egress in Granite Construction Company, supra. In that case, we held that cross braces of hydraulic shores do not provide an adequate means of exit from a trench four feet or more in depth; and further, a one-foot to one foot slope created by the partial backfilling of a trench four feet or more in depth does not provide an adequate means of exit from the trench where the back-fill has not been compacted and the soil is displaced under the weight of the employee causing him to slip back as he steps upon it. In this case, we find that the mere fact that there exists an inclined surface upon which one can conceivably walk or work does not constitute a safe means of egress contemplated by section 1541(c)(2).

2. The Division Failed to Establish the Violation of Section 1541(c)(2) as Serious.

Employer’s next contention is that the serious classification for violations of section 1541(c)(2) and section 1541.1(a)(1) was improper. We adopt the ALJ’s analysis for finding a serious violation of section 1541.1(a)(1) and will not further address that determination.

Regarding section 1541(c)(2), in justifying the serious classification, Dunn’s testimony focused upon the injuries that would result from a cave-in. The Division offered no testimony regarding the probability of serious injury or death if an accident should occur when an employee attempts to enter or exit the trench under normal working conditions. We hold that the public policy contemplated by section 1541(c)(2) is that a safe means of ingress and egress must exist during normal working conditions. This conclusion is bolstered by the fact that the safety order only requires a safe means of egress with no more than 25 feet of lateral travel for employees.

Our view of the evidence, which includes extensive photographic coverage of the accident site, gives us serious concerns about injuries to employees who might enter and exit this type of trench. This is particularly the case when, as here, the soil was unstable and the trench was 8 to 11 feet deep.5 Nevertheless, the Division offered no evidence regarding the nature of the injuries that might result from the lack of egress. While there was testimony that the soil in and about the trench was loose or unstable, such fact does not establish a substantial probability of serious injury or death as a result of failing to provide a safe means of egress. Even though the purpose of having a ladder or other safe means of egress from this trench, as required by section 1541(c)(2), might be to guard against serious injury or death as a result of climbing out of the trench, the point was not developed by the Division.

While we agree with the ALJ’s finding of a violation of section 1541(c)(2), there is insufficient evidence to establish that the failure of Employer to provide any safe means of egress under the facts of this case, would result in death or serious injury. Thus, we find that the Division failed to establish that the violation of section 1541(c)(2) was a serious violation within the meaning of Labor Code section 6432. Accordingly, we will reduce the classification of the violation of section 1541(c)(2) from serious to general. We calculate the penalty in accordance with the Director’s regulations as follows: the severity of this general violation is rated as high and therefore the gravity base penalty is $2,000 because of the maximum depth of the trench. Extent and likelihood are both high, adding an additional 25% each, for a total of $3,000. Using the penalty adjustment factors for good faith, size, and history as calculated by the Division on the penalty worksheet submitted into evidence, we reduce the penalty by 55% to $1,350. A 50% abatement credit results in a final penalty assessment of $675.

3. The Penalties for Violations of Sections 1541(c)(2) and 1541.1(a)(1) are not Duplicative.

Employer thirdly asserts the penalties for violations of sections 1541(c)(2) and 1541.1(a)(1) (Citations 3 and 4) are duplicative and argues that “[t]hese are multiple alleged violations concerning a single hazard—the hazard of cave-in.” As we have stated above, the hazard addressed by section 1541(c)(2) is injury resulting from entering and leaving a trench four feet or more in depth under normal circumstances which is different from section 1541(a)(1) that addresses the hazard of cave-ins of trench walls.

In San Francisco Newspaper Agency, Cal/OSHA App. 93-319, Decision After Reconsideration (Dec. 20, 1996), it was announced that: “[t]he Board … may set aside a violation if it is substantially identical or duplicative of another violation and is not needed to effectuate abatement.” In Color Specialists, Inc., Cal/OSHA App. 95-3883, Decision After Reconsideration (Jun. 30, 2000), the Board interpreted the San Francisco Newspaper Agency holding to mean “that where two or more citations are issued in relation to the same hazard, and are not identical, the civil penalties for those citations which relate to the same hazard may be set aside only if both violations will be abated by the same action.”

Here, the violations alleged in Citation 3 [§ 1541(c)(2)] and in Citation 4 [§ 1541.1(a)(1)] are incapable of abatement by the same action. Providing a safe means of egress from the trench will not protect against movement of the earth. Similarly, a protective system does not provide safe egress. Therefore, we reject Employer’s assertion that the penalties assessed for Citations 3 and 4 are duplicative and we find that these penalties, calculated in accordance with the Director’s regulations [§§ 333 et seq], are reasonable and, accordingly, are assessed.

4. Employer Failed to Establish the Logical Time Defense to the Violation of Section 1541(c)(2).

Employer finally contends that it is entitled to the “logical time” affirmative defense because Alfaro was not supposed to be in the trench when it collapsed. It argues that “(t)he Decision [of the ALJ] bases its reasoning for inapplicability of the ‘logical time’ defense to Citation No. 3 by an abstract, speculative chain of inferences, based on improper statements of Mr. Benoit and Mr. Acosta’s testimony.”

We note first in connection with this contention that the “logical time” defense is an affirmative defense where Employer bears the burden of proof. The logical time defense is a Board created rule which provides that “[t]he requirements of any safety order will not begin to apply until the necessary and logical time has arrived for an employer to make provisions to correct the violation and abate the hazard.” Nicholson-Brown, Inc., Cal/OSHA App.77-024, Decision After Reconsideration (Dec. 20, 1979) The ALJ properly framed the question here as whether Employer knew Alfaro had entered the trench or, by exercising reasonable diligence, could have known that he entered in time to provide a means of egress before the cave-in occurred. The answer rested on a credibility determination and we will not disturb a finding made by the ALJ based on credibility unless it is opposed by evidence of considerable weight. (Lamb v. Workmen’s Compensation Appeals Board, (1974) 11 Cal.3d 274, 280.)

Employer asserts that the ALJ made conclusions “[r]ather than taking a good look at Mr. Wilson’s credible testimony….” [Emphasis added] Employer’s assertion of credible testimony by Wilson does not meet the test of evidence of considerable weight in the face of the ALJ’s rejection. The ALJ’s findings, based on witness credibility, are entitled to great weight because he was present during the taking of testimony and was able to directly observe and gauge the demeanor of the witnesses and weigh their statements in light of their manner on the stand. (See Garza v. Workmen’s Compensation Appeals Board, (1970) 3 Cal.3d 312) Accordingly, we find Employer knew Alfaro had entered the trench and consequently it was required to provide a safe means of egress which it did not do. Therefore, we reject Employer’s contentions and find that the logical time defense was inapplicable to Citation 3.

DECISION AFTER RECONSIDERATION

As set forth in the decision of the ALJ and as discussed above, the Board makes the following Decision After Reconsideration:

1. A general violation of section 1509(a) is established and a civil penalty of $110 is assessed;
2. a general violation of section 1541(c)(2) is established and a civil penalty of $675 is assessed; and
3. a serious accident-related violation of section 1541.1(a)(1) is established and a civil penalty of $12,600 is assessed.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: December 3, 2002

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 The official record of Appeals Board hearings is made by means of an electronic device or a court reporter. [§ 376.7] At the request of one of the parties, a court reporter contemporaneously transcribed the hearing proceedings. As declared by the ALJ, the official record in this case consists of an electronic recording and the court reporter’s transcript of unavailable portions of the electronic recording tapes. [Vol. I, p.106]
3 To constitute “other safe means of egress,” the means of egress provided (a ramp, as asserted here) must be comparable to a stairway, ladder or surfaced ramp, the other terms used in section 1541(c)(2). (Granite Construction Co., supra.)
4 We particularly viewed Exhibit E which depicts the accident scene from a point uphill and we find that there is not an adequate ramp to serve as a safe means of egress out of the trench where Employer asserts it is. It does not appear to be a ramp but rather looks like a slope at the end of the trench.
5 We note that 8 to 11 feet is the usual height of interior building walls. Dunn estimated the width of the trench before the collapse to be 3 to 5 feet. This condition would subject any employee in the trench to being in a virtual chasm.