OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD

Summary of Tutor-Saliba-Perini - Decision After Reconsideration

Employer left one end of a block long excavation which was lacking a section 1541.1(a)(1) protective system, uncovered so employees of another employer could enter. Employer had no employees scheduled to work in the excavation, but during the inspection footprints, tools and a ladder were found in the excavation, and Employer acknowledged that it had determined that its employees had entered it. The Division alleged a willful/serious violation of section 1541.1(a)(1). The Board holds that the evidence established a section 1541.1(a)(1) violation. The violation was properly classed as serious because if a cave-in occurred serious physical harm or death was substantially probable and the ladder, sticking up out of the excavation and readily visible from throughout the site, was enough to put Employer on constructive notice of the entry. The violation was not willful, pursuant to section 334(e). Employer knew of section 1541.1(a)(1) but the Division failed to prove Employer had actual knowledge its employees would work in the excavation. Thus, since employee exposure was required for there to be a violation, an intentional and knowing violation of the safety order was not proven. Because Employer had no actual knowledge of employee entry, the Division also failed to prove that Employer was aware of the unsafe or hazardous condition and made no reasonable effort to eliminate it.

TUTOR-SALIBA-PERINI 94-2279
August 20, 2001