BEFORE THE
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA

In the Matter of the Appeal of:

DELTA EXCAVATING, INC.
22353 Marsh Creek Road
Brentwood, CA 94513

                                      Employer

Docket No. 94-R1D5-2389

 

        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 ordered reconsideration on its own motion, makes the following decision after reconsideration.

JURISDICTION

On September 6 and 7, 1994, a representative of the Division of Occupational Safety and Health (the Division), conducted an inspection of two locations (sites) near State Route 12, Jamison Canyon, Napa, California, where Delta Excavating, Inc. (Employer) maintained a place of employment. On the latter date, the Division issued two citations, including Citation No. 2, which charged Employer with two instances of a serious violation of section 1541.1(a) [protection of employees in excavations] and proposed a civil penalty of $500.

Employer timely appealed on the sole ground that the alleged violation did not exist. After a hearing, an administrative law judge (ALJ) of the Board issued a decision dated January 31, 1996, granting the appeal.

On February 29, 1996, the Board ordered reconsideration on its own motion and stayed the ALJ’s decision pending a decision after reconsideration. The Division and Employer both filed responses on April 4, 1996.

EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case, including the tape recording of the hearing and each exhibit admitted into evidence. The Board has taken no new evidence. The Board adopts and incorporates by this reference the "Summary of Evidence" set forth on pages 3 through 10 of the ALJ’s decision.

At the sites Employer was installing a 6-mile underground water pipeline, three sections of which involved 30-inch diameter pipe. The project spanned two counties, and work activity occurred at several places within the project area. The Division inspector cited conditions at two locations where there was work activity: Instance 1 at the "Tuttle Ranch Excavation" (9 feet deep) and Instance 2 at the "Valve Excavation" (16 feet deep). The sites were roughly 1/2 mile apart. Employer's main work activity was concentrated at a third location.

At the Tuttle Ranch Excavation, Employer used a benching system to provide employees with cave-in protection. At the Valve Excavation, Employer used an aluminum hydraulic shoring system.

Williams, the Division inspector, spoke to Employer's main foreman (Pester) about the Tuttle Ranch excavation. The two men later, at the Tuttle site, went over the benching and sloping requirements. Williams told the foreman that the way the slope was benched, the excavation did not comply with Title 8 occupational safety and health standards. Pester did not deny that the system was improperly benched at the time two of his workers were wrapping a pipe joint. Rather, his comments indicated the area had been re-dug (apparently unbeknownst to him) since he last examined the area. Employer, in closing argument, conceded that the Tuttle Ranch Excavation was improperly benched but asserted the violation should not be classified serious.

At the Valve Excavation, the Division determined that, vertically, there was an insufficient number of shoring jacks (two), as well as too much space from the top of the upper jack to the trench surface and from the bottom of the excavation to the lower jack. Williams' determination that the number and vertical spacing of the jacks violated the safety order was based on his determination that Appendix D to the safety orders applied, having first determined that Employer did not use the shoring manufacturer's tabulated data.

The record shows that, vertically, Employer's system consisted of two shoring jacks plus a four-foot deep concrete bed supporting 1-inch steel plates. The shoring jacks were expanded to press against the 8-foot by 20-foot steel plates, which in turn pressed against the excavation walls. Employer's construction manager opined that the combination of steel plates supported by the concrete bed at the base of the excavation was equivalent to a third "strut" or jack. There is no question that, if Appendix D of the safety order were applicable, Employer's design system would not be in compliance regardless of whether the concrete base were counted as a third jack, since the upper spacing would nevertheless be deficient.

When Williams spotted the alleged violative condition, he asked the men in the excavation (one of them a foreman named Scheer) if they "felt safe" having only two vertical shoring jacks. The foreman said he believed the protective system was "all right" and had been working fine for the duration of the project. Williams later told Pester that there were insufficient shores in the excavation. Pester's only response was that he would make sure there was a sufficient number of shores there. Williams testified that he made no determination that Pester had been aware there were insufficient jacks in the excavation. He also testified that without knowing the particular brand of shores and the rated load of the cylinders, one could not determine the strength of the shoring units. Williams did not attempt to determine the brand name of the shoring equipment used at the site.

ISSUES

1. Does the record support the ALJ's finding that the Division failed to establish a serious violation of section 1541.1(a) at the Valve Excavation?

2. Did the Division establish a serious violation of section 1541.1(a) at the Tuttle Ranch Excavation?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. The Record Supports the ALJ's Finding that the Division Failed to Establish a Serious Violation of Section 1541.1(a) at the Valve Excavation.

The evidence supports the ALJ's ultimate conclusion that the Division did not carry its burden of proof regarding the Valve Excavation for the following reasons. The Division has the burden of proving a violation by a preponderance of the evidence. (Howard J. White, Inc., OSHAB 78-741, Decision After Reconsideration (June 16, 1983).)

Section 1541.1(c) requires employers to chose one of four options to protect employees against excavation cave-ins if a support or shield system is used. If the employer chooses a hydraulic support (shoring) system, the safety order states the employer may: (1) use a design set forth in Appendices A, C, or D (Appendix D provides the set of requirements for aluminum hydraulic shoring, the kind used at the Valve Excavation); (2) construct the system following the shoring manufacturer's tabulated data; (3) use designs using "other tabulated data;" or (4) use a design provided by a registered professional engineer. The Division must determine from the employer which of the options the employer chose, and show that it did not comply with the requirements of that choice, or any of the other options. Options (2) through (4) are not stated as exceptions to option (1). The burden therefore is not on Employer to establish that it followed one of them if it did not comply with option (1) (Appendix D in this case), but on the Division to show that Employer did not select options (2), (3), or (4), and install the shoring in accordance with that choice.

The Division inspector concluded that Employer, at the Valve Excavation, did not comply with the options permitting the use of tabulated data. The sole bases of this conclusion were his assumptions that because he did not see tabulated data on the site on the inspection date and no one there told him otherwise, Employer could not have used any tabulated data when it constructed the shoring system 4-6 weeks earlier. Having inferred that Employer did not use tabulated data, he determined Employer was required to follow the specifications in Appendix D. Appendix D commands, among other things, that the uppermost shoring jack be placed no more than 18 inches from the surface. This one was 3-1/2 feet away.

The absence of tabulated data on the site on the date of the inspection is insufficient to support the conclusion that it was not used. The inspector did not ask Employer’s representative when the shoring system was installed, which option it had used when the system was constructed, or whether tabulated data was available at the site or elsewhere. Employer's unrefuted evidence shows the Valve Excavation shoring system was installed and completed 4-6 weeks before the inspection. Under sections 1541.1(c)(2)(C) and 1541.1(c)(3)(C), employers are not required to keep a copy of the shoring system's tabulated data at the site after the system is completed. The absence of a legal compulsion to have tabulated data at the site after the shoring was installed would reasonably explain why the data was not displayed in the open and why no one at the site would take affirmative steps to show it to the inspector on the day of the inspection, unless the inspector requested it. Nevertheless, Employer's witness testified that Employer invariably receives the tabulated data when the shores are unloaded from the delivery trucks. In addition, the foremen customarily kept binders with copies of tabulated data (from the various manufacturers) in their pickup trucks. Employer's representatives gave no indication that the Valve Excavation protective system was deficient. Rather, foreman Scheer differed with Williams over whether the protective system was safe and adequate. In light of this, and the inspector not having discussed tabulated data with Employer representatives, his assumption that Employer could not have used tabulated data when it constructed the system was unwarranted.

One cannot therefore conclude that the only way to demonstrate compliance with the safety order was to follow Appendix D. Section 1541.1(c) provides four options for shoring of the kind used by Employer. The inspector failed to determine which of the four options Employer chose or that it followed none of the four. The Board agrees that on this record, the Division did not carry its burden of proving that Employer failed to use one of four acceptable options to provide cave-in protection at the Valve Excavation.

2. The Division Established a Serious Violation of Section 1541.1(a) at the Tuttle Ranch Excavation.

The record compels a different finding regarding the other alleged instance of a violation, however. While dismissing the citation, the ALJ did not articulate why the Division failed to prove a violation at the Tuttle Ranch Excavation.

Where an employer uses benching as its protective system, it must comply with section 1541.1(b) (Design of sloping and benching systems) and, as there incorporated by reference, sections 1541.1(b)(1), 1541.1(b)(2), 1541.1(b)(3), or 1541.1(b)(4). The Division inspector's unrefuted testimony, supported by the record, shows that Employer did not use the first option (1541.1(b)(1)) because it was evident that the walls were not sloped at 1 1/2 horizontal to 1 vertical, which that option requires. Employer did not use Options 3 and 4 (following a written design containing tabulated data [ 1541.1(b)(3)] or an engineer's written design [ 1541.1(b)(4)]). In response to Williams' statements to Employer about the benching deficiencies, Employer representatives acquiesced, doing nothing to question the inspector's assertion that the benching did not meet Title 8 occupational safety and health standards. The failure to deny William's claim (during the inspection) warrants an inference, in the absence of proof to the contrary at the hearing, that Employer used no acceptable alternate written design. (See Evidence Code 413 ["Failure to Explain or Deny Evidence"], 623 ["Conduct or statements leading another to believe a particular thing true"], and 1221 ["Words or conduct manifesting belief in truth of assertion"] and Petrolite Corporation, OSHAB 93-2083, Decision After Reconsideration (March 3, 1998), p.4) Indeed, Employer conceded during closing statements that the Tuttle Excavation was probably not properly benched.

Absent an acceptable alternate plan, Employer was bound to follow Option 2 (1541.1(b)(2)), which requires using Appendices A (soil classification) and B (Sloping and Benching) of the safety order. According to the Division inspector's unrefuted testimony, and the Appendices' illustrations, excavations involving the characteristics of the Tuttle Ranch Excavation (8-12 feet deep, with multiple benching and vertically-sided lower portions) must have at least a 3/4 to 1 slope even in the most cohesive (type A) soil. To comply with these specifications, and as the Division's inspector testified, the first horizontal bench at the top of the first vertical wall had to be one and one-half times the vertical distance, in this case 5 1/4 feet. Here, the horizontal distance was only 2 feet, which would not render the appropriate slope under even the best of soil types. The Board reached a similar finding in W.R. Forde Associates, OSHAB 95-1043, Decision After Reconsideration (March 24, 1997).

The evidence is therefore sufficient to establish a prima facie violation. Employer having offered no evidence at the hearing that it used another option listed in section 1541.1(b), it must therefore be concluded that the Division established the violation at the Tuttle Ranch Excavation.

Although Employer argued during closing statements that the Tuttle Ranch violation should not be classified as serious, Employer never properly raised classification as an issue on appeal. An issue not properly raised on appeal is deemed waived. (See 361.3 ("Issues on Appeal"); Western Paper Box Co., OSHAB 86-812, Denial of Petition for Reconsideration (Dec. 24,1986).); and California Erectors, Bay Area, Inc., OSHAB 93-503, Decision After Reconsideration (July 31, 1998).) By the close of the hearing, neither party moved to conform the pleadings to the proof adduced concerning the classification. Nor did the ALJ move to conform the pleadings to proof after the hearing. Accordingly, the Board finds that a serious violation of section 1541.1(a) exists regarding the Tuttle Ranch Excavation. The $500 penalty, also not raised as an issue on appeal, shall be assessed as proposed.

DECISION AFTER RECONSIDERATION

The ALJ decision dated January 31, 1996, is reversed in part and affirmed in part. A serious violation is found regarding the Tuttle Ranch Excavation only, and a civil penalty of $500 is assessed.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA – August 10, 1999