BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

TUTOR-SALIBA-PERINI

3500 Wilshire Boulevard

Los Angeles, California 90010

                              Employer

 

 

Docket No.

94-R5D2-2279 and 2280

 

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 granted the Petition for Reconsideration filed in the above-entitled proceeding by the Division of Occupational Safety and Health (Division) makes the following decision after reconsideration.

JURISDICTION

From August 9 through 24, 1994 representatives of the Division conducted a targeted industry inspection at a place of employment maintained by Tutor-Saliba-Perini (Employer) at the Metro Rail Red Line Station at 3500 Wilshire Boulevard, Los Angeles, California (the site). On August 31, 1994, the Division issued to Employer a citation alleging a serious violation of section1 1541(k)(1) [inspection of excavation by competent person] and a citation alleging a willful/serious violation of section 1541.1(a)(1) [excavation cave-in protection] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations. The Division proposed civil penalties totaling $52,125 for the alleged violations.

Employer filed timely appeals from the citations.

At a hearing before an administrative law judge (ALJ), Employer was represented by Robert D. Peterson, attorney, and the Division was represented by Katherine R. Wolff, attorney. The ALJ issued an amended decision on February 5, 1999, vacating the citation alleging a serious violation of section 1541(k)(1) and affirming the citation alleging a violation of section 1541.1(a)(1) but modifying the classification from willful/serious to general.

The Division filed a timely petition for reconsideration on February 24, 1999. Employer filed an answer on March 22, 1999. On March 25, 1999, the Board granted the Division’s petition.

EVIDENCE

Employer excavated a trench about one block long along Wilshire Boulevard. The photographic evidence shows the site is totally fenced with chain link fencing, which allowed an unobstructed view of the excavation. The excavation had been covered with steel plates or decking. On Saturday, August 20, 1994, the steel plates had been removed from a part of the west end of the excavation. The excavation was opened at its west end to allow the Los Angeles City Department of Water and Power (DWP) to connect to a 12-inch water line, built as part of the subway project. DWP was scheduled to inspect the excavation on Monday morning, August 22.

On the day of the Division’s inspection, three Division inspectors arrived at the site at approximately 8:30 a.m. During the inspection, they observed the opened part of the excavation. The excavation was six to seven feet deep and had vertical walls. Employer does not dispute that the shoring, which consisted only of plywood sheets on the two opposite walls of the excavation, was not adequate to comply with section 1541.1(a)(1). Only two of the plywood sheets were supported by any cross bracing to press the plywood sheets against the walls of the excavation.

A ladder from street level to the bottom of the excavation was in the excavation, and a shovel and an air hammer were in the bottom of the excavation. Footprints were visible in the vicinity of the tools.

The parties agreed that on the date of the inspection no competent person had evaluated the potential hazards that might have been present in the excavation.

The Division inspectors met Employer’s General Superintendent Joel Burch shortly after they arrived on the site. Burch accompanied them during the inspection when the opened excavation was found at about 10:30 a.m. Employer’s Safety Engineer Gilbert Williams, who had been below ground, joined Burch and the inspectors at the excavation at about 11 a.m. Burch and Williams were both competent persons, authorized by Employer to inspect excavations for potential hazards.

Burch testified in agreement with the Division inspectors, answering “yes” when the inspectors asked whether the employees who had been working in the excavation were employed by Employer. One inspector testified that he asked Burch to identify the employees who had been in the excavation and that Burch replied that he did not know who they were. Burch testified that his admission to the inspectors that Employer’s employees had been in the excavation was based solely on seeing the equipment, tools, and footprints in the excavation for the first time when the inspectors showed them to him. He drew the same inference as the inspectors that employees had been working in the excavation that morning. Burch testified that Employer’s work schedules showed none of its employees were scheduled to work in the excavation on August 20, the day of the Division inspection.

Burch testified that he had not seen the excavation that morning before he met with the inspectors. Burch testified that he had arrived at the site at 8:30 a.m., an hour and a half to two hours later than usual, and had spent the time between his arrival and meeting the inspectors in Employer’s office on the site. He testified that he had no knowledge that any employees had been or were expected to be in the excavation that morning.

Gilbert Williams, Employer’s Safety Engineer, testified that he had arrived at the site at about 6:30 a.m., about two hours before Burch. He spent almost all of the four hours between his arrival and the inspectors’ viewing of the opened excavation in the underground station and tunnel work areas. He had passed by the eastern end of the excavation before going underground, but had not seen any work going on there. No evidence contradicts Williams’ testimony that he had not seen that the excavation had been opened at its west end or that employees had entered the excavation before he met the inspectors with Burch.

Joe Cervantes, a foreman, was in charge of a crew of approximately four employees on the morning of August 20. Employer had no other employees on the site that morning.

ISSUES

1. Was a violation of section 1541(k)(1) established?
2. Was the violation of section 1541.1(a)(1) properly classified as serious?
3. Was the violation of section 1541.1(a)(1) properly classified as willful?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The ALJ’s finding that the evidence established that employees had been in the excavation recently enough to establish exposure to the excavation was not challenged by Employer.2 The finding is therefore final, and not subject to question before the Board or any reviewing court. (Labor Code section 6618; Davey Tree Surgery Co. v. Occupational Safety and Health Appeals Bd. (1985) 167 Cal.App.3d 1232, 1243; Kaiser Foundation Hospitals v. Occupational Safety and Health Appeals Bd. (1984) 155 Cal.App.3d 282, 286.)

1. A Violation of Section 1541(k)(1) Was Established.

Section 1541(k)(1) provides:

Daily inspections of excavations, the adjacent areas, and protective systems shall be made by a competent person for evidence of a situation that could result in possible cave-ins, indications of failure of protective systems, hazardous atmospheres, or other hazardous conditions. An inspection shall be conducted by the competent person prior to the start of work and as needed throughout the shift. Inspections shall also be made after every rain storm or other hazard increasing occurrence. These inspections are only required when employee exposure can be reasonably anticipated

Section 1541(k)(1) requires that a competent person inspect excavations when the employer can reasonably anticipate that employees will be exposed to a potential hazard by working in an excavation. It is undisputed that no competent person inspected the opened excavation before the employees entered the excavation that morning. Although the ALJ found that no violation had been established because the Division failed to prove that Employer had any reasonable basis on the morning of August 20 to anticipate that its employees would be working in the inadequately shored excavation, this finding is not supported by the evidence.

While the evidence is insufficient to establish that Employer should have reasonably anticipated that its employees would be exposed to the excavation prior to the employees actually accessing the excavation, once the steel plate covering was removed and a ladder placed into the excavation, the reasonable anticipation was that Employer’s employees would be entering the excavation and therefore be exposed. There was a duty to conduct a competent person inspection at that time. Employer should have become aware of the need for a competent person inspection when the protective cover was removed and the ladder was placed in the excavation. As shown in the photographic evidence, the open excavation was in plain view.

Section 1541(k)(1) imposes the duty to conduct a competent person inspection whenever exposure can reasonably be anticipated on the basis of the knowledge of potential employee exposure that is available to an employer. Once the excavation cover was removed and a ladder placed into the excavation, the fact that no work was scheduled to be done in the excavation that morning failed to excuse Employer from conducting a competent person inspection.

We find that the evidence establishes a violation of section 1541(k)(1).

2. The Violation of Section 1541.1(a)(1) Was Properly Classified as Serious.

The ALJ found that the Division established a violation of section 1541.1(a)(1),3 but that it failed to establish that the violation was properly classified as serious. At the time of the violation, Labor Code section 6432(a)4 provided:

As used in this part, a “serious violation” shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from . . . a condition which exists . . . in the place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

At the time of the violation, the serious classification required the establishment of two elements: (1) assuming an accident occurred, the result more probably than not would be death or serious physical harm and (2) the employer knew, or with the exercise of reasonable diligence could have known, of the presence of the violative condition.

The first element, that the unprotected excavation would more probably than not cause death or serious physical harm in the event of an accident, is not disputed.

The ALJ found that a violation of section 1541(k)(1) was not established because the facts did not establish that Employer should have had reasonable anticipation that its employees would be in the excavation the morning of August 20. We disagree with any conclusion that Employer did not know, and could not have known, with the exercise of reasonable diligence, that a violative condition existed on that date.

The part of the excavation where the violative condition was observed was open because the steel plates had been removed. The photographic evidence shows that the block-long trench was fenced with chain link fencing that made it possible to view its full length. The plates had been opened and would have been in plain view. The ladder projecting from the excavation above the street was also in plain view. The unshored condition of the excavation was also in plain view of anyone who approached the opened part of the excavation. We have held that violative conditions that are in plain view are conditions that an employer should discover with the exercise of reasonable diligence. (Fibreboard Box & Millwork Corp., OSHAB 90-492, DAR (June 21, 1991).)

Once the ladder was placed into the opened excavation, Employer should have had knowledge of the existence of the unprotected excavation, with the exercise of reasonable diligence. Because there were three supervisors in charge of four employees on the site on the morning of August 20, the inadequate shoring of the excavation could have been discovered with the exercise of reasonable diligence.

We find that the violation of section 1541.1(a)(1) was properly classified as serious.

3. The Violation of Section 1541.1(a)(1) Was Not Properly Classified as Willful.

Our decisions have firmly established that a violation can only be classified as willful if the employer did know of the presence of the violation or of the danger that the violative condition presented for employees. Establishment of a serious violation does not necessarily establish a willful violation. In contrast, a violation can be found to be serious even if the employer did not know of the violative condition, as long as that employer could have known of the presence of the violative condition by the exercise of reasonable diligence. We find in this case that the violation is properly classified as serious because, even though Employer did not know of the violative condition, Employer could, with reasonable diligence, have become aware that employees were in the excavation. However, because Employer did not actually know that it was violating a safety order or that a dangerous condition existed on the site, the violation cannot be classified as willful.

Labor Code sections 6319(d) and 6429(a) provide for classifying violations as willful, but do not define the characteristics of the willful classification. The implementing regulation, section 334(e), provides the definition of the willful classification as follows:

Willful Violation--is a violation where evidence shows that the employer committed an intentional and knowing, as contrasted with inadvertent, violation, and the employer is conscious of the fact that what he is doing constitutes a violation of a safety law; or, even though the employer was not consciously violating a safety law, he was aware that an unsafe or hazardous condition existed and made no reasonable effort to eliminate the condition.

The first test of the willful classification stated in section 334(e) is the knowing violation of a safety law; the second is awareness of a dangerous condition and taking no reasonable steps to eliminate it.

In Rick’s Electric, Inc. v. California Occupational Safety and Health Appeals Bd. (2000) 80 Cal.App.4th 1023, the Third District Court of Appeals held that we applied a proper standard in Rick’s Electric, Inc., OSHAB 95-136, DAR (Sept. 24, 1997) to determine whether a violation should be classified as willful. In Rick’s Electric, we held that to establish the willful classification under either test, the Division must show that the employer is aware of the safety law that it is violating or of the dangerous condition that its employees will be exposed to, and that it proceeds with the work knowing it is in violation of a safety law or without taking reasonable steps to eliminate the dangerous condition.

Considering the violation in this case under the first test stated in section 334(e), regarding whether or not there is a knowing violation of a safety law, the willful classification is not established. The first definition of willful conduct in section 334(e) requires the Division to prove that the employer is not only aware of the requirements of the safety law but that it is proceeding with its work knowing that the work is in violation of those requirements.

The Division argues that Employer was aware of the requirements of section 1541.1(a)(1) because Division inspectors had reviewed them with Burch on August 10, when the Division issued an order prohibiting use after Employer removed the plates covering another part of the same excavation.

However, the Division’s evidence fails to establish Burch and Williams’ awareness that work in the open excavation had gone forward before the excavation had been brought into compliance with the protection requirements of section 1541.1(a)(1).

While we have found the violation can be classified as serious based on knowledge imputed to Employer and that Employer had available to it a reasonable basis to anticipate employee exposure, the willful classification requires that the employer actually be aware of the violation or the dangerous condition. Our finding that the serious classification is based solely on imputed or constructive knowledge implies the lack, not the presence, of actual awareness.

The Division argues that Burch’s admission that the employees who had been working in the excavation were Employer’s employees establishes Employer awareness that it had gone forward with work in the unprotected excavation in violation of section 1541.1(a)(1). However, we find that Burch’s admission did not establish any prior knowledge that Employer’s employees had gone forward with work in the excavation. The Division did not prove that a supervisor had actual knowledge that Employer’s employees would be working in the unprotected excavation. Because there is no evidence that any supervisor knew that the employees were working in the unprotected excavation as required by section 1541.1(a)(1) the first test of a willful classification stated in section 334(e) was not established.

We further find that the evidence fails to establish that the violation should be classified as willful under the second test in section 334(e), that Employer was aware of a dangerous condition and took no reasonable steps to eliminate it. While the unprotected excavation was a dangerous condition the evidence does not establish that Employer was conscious that employees were exposed to the unprotected excavation. The duty to take reasonable steps to remove the dangerous condition does not begin until the employer becomes aware of the exposure to the dangerous condition. (Rick’s Electric, supra; National Cement Co., OSHAB 91-310, DAR (Mar. 10, 1993).) The violation cannot be classified as willful under the second test in section 334(e).

We find that the ALJ correctly concluded that the violation of section 1541.1(a)(1) should not be classified as willful.


DECISION AFTER RECONSIDERATION

Docket No. 94-R5D2-2279

The ALJ's decision is reversed. A serious violation of section 1541(k)(1) is established, and a civil penalty of $ 2,1255 is assessed.

Docket No. 94-R5D2-2280

The ALJ’s decision is affirmed in part and reversed in part. A serious violation of section 1541.1(a)(1) is established. A civil penalty of $2,1255 is assessed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: August 20, 2001


1 Unless otherwise indicated, all section references are to Title 8, California Code of Regulations. Board decisions after reconsideration will be referred to by the abbreviation “DAR.”

2 Employer’s answer to the petition for reconsideration contends that the ALJ’s finding that its employees were exposed to the unprotected excavation should be set aside. The Board cannot consider this contention because it was not raised in a request for reconsideration filed within the time allowed by Labor Code section 6614(a).

3 Section 1541.1(a)(1) provides in relevant part:
(a) Protection of employees in excavations.
(1) Each employee in an excavation shall be protected from cave-ins by an adequate protective system designed in accordance with Section 1541.1(b) or (c) . . ..

4 The knowledge element of Labor Code section 6432(a) was amended effective January 1, 2000 into Labor Code section 6432(b) to provide: “ . . . a serious violation shall not be deemed to exist if the employer can demonstrate that it did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.”

5 The appropriate penalty for a serious violation in this case is found to be $2,125, which is the same penalty as that assessed for Citation No. 1.