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

In the Matter of the Appeal of:

McGUIRE & HESTER
9009 Railroad Avenue
Oakland, CA 94603

                                         Employer

Docket Nos. 95-R1D3-3594
                      through 3596

 

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 McGuire & Hester (Employer) makes the following decision after reconsideration.

JURISDICTION

Between July 21 and September 15, 1995, a representative of the Division of Occupational Safety and Health (Division) conducted a complaint inspection at a place of employment maintained by Employer at 1300 BlackWillow Road, Menlo Park, California (the site). On September 15, 1995, the Division issued to Employer the following citations and proposed penalties for alleged violations of the occupational safety and health standards and orders found in Title 8, California Code of Regulations:

    Citation               Section              Classification               Penalty

        1                       341.1(f)(3)         Regulatory                       $500

                                      [notice of intent to excavate]

        2                       1541.1(c)(4)(A)  Serious                            $500

                                      [excavation protective system requirements]

        3                       1541.1(e)(1)(A)  Serious                           $500

                                      [excavation protective system installation]

Employer filed timely appeals contesting the existence and classification of the violations and the reasonableness of the proposed abatement requirements and penalties. At hearing, Employer’s appeals were amended to contest only the existence of all three violations and the classification of the two serious violations.

An administrative law judge (ALJ) of the Board heard the appeals on July 16, 1996, and issued a decision on September 13, 1996, denying Employer’s appeals from Citation Nos. 1 and 2 and granting Employer’s appeal from Citation No. 3.

On October 15, 1996, Employer petitioned the Board for reconsideration of the ALJ’s decision. The Board granted Employer’s petition on November 5, 1996, and stayed the ALJ’s decision pending a decision on the petition for reconsideration. On November 15, 1996, the Division filed an answer to Employer’s petition.

EVIDENCE

The Board has taken no new evidence and relies upon its independent review of the record, including the tape recording of the hearing and the exhibits in making this decision.

ISSUES

1. May an employer holding an annual excavation permit be cited for a regulatory violation of section 341.1(f)(3) for failing to notify the Division before starting work on an excavation project?

2. Was the east side of the excavation five feet or more in depth and therefore in violation of section 1541.1(c)(4)(A)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The issues Employer raises in its petition for reconsideration were fully litigated and argued at the hearing. The ALJ answered both issues in the affirmative. The ALJ upheld Citation No. 1, addressing Employer’s admitted failure to notify the Division before it started an excavation project. The ALJ also upheld Citation No. 2, addressing Employer’s failure to install in the excavation an employee protective system complying with one of the four options specified in section 1541.1(c)(4).

Based upon its review, the Board concludes that the ALJ accurately summarized the evidence, properly interpreted the applicable safety orders and precedents, and properly applied them to the facts established by the evidence. The Board concurs in the ALJ’s findings and reasons for the decision for the reasons set forth below.

1. An Employer Holding an Annual Excavation Permit May Be Cited for a Regulatory Violation of Section 341.1(f)(3) for Failing to Notify the Division before Starting Work on an Excavation Project.

Section 341.1(f)(3) provides:

    1. Annual Permits
    1. For those activities listed in subsections (f)(1)(A) and (f)(1)(B), annual permits shall be issued subject to the additional conditions that there is notice to the Division prior to the commencement of each work, and that the employer shall notify the District Office nearest the proposed work project prior to the commencement of any work activity. The notification shall be made by telegram, letter, or a telephone call, to be confirmed by a telegram or letter, indicating the location of the project and the date and time the work activity is to commence.

In deciding that Employer could be cited for a regulatory violation of section 341.1(f)(3) for failing to notify the Division before starting to excavate, the ALJ stated that, "the Board has permitted the section to be enforced by citation without noting any ambiguity or problem in its language." The statement is accurate insofar as it pertains to current section 341.1(f)(3), but section 341.1(f)(3) is just the latest version of a pre-excavation notice provision dating back, at least, to 1974. And, over the course of that history, the Board has decided a number of cases addressing the issue of whether the pre-excavation notice provision may be enforced by a citation alleging a violation of the regulatory provision.

Between 1975 and January 4, 1986, the applicable provision was section 341.1(i)(2) which read in its entirety as follows:

(2) Construction of excavations or trenches.

Only one permit shall be required covering a calendar year or part thereof. Such annual permits shall be issued on condition that the work is performed by the same employer and that prior to the commencement of each work, the employer notifies the appropriate district office by telegram, letter, or a telephone call to be confirmed by a telegram or letter, indicating the location and commencement of the activity.

In Mallory & Greenhalgh, the ALJ granted the employer's appeal from an alleged regulatory violation of section 341.1(i)(2) on the ground that "the Division failed to cite Employer under any regulation or safety order that imposes upon Employer the duty to inform the Division under its annual permit."

The Board ordered reconsideration of that ruling on its own motion and decided that section 341.1(i)(2) was a citable regulation. In doing so, the Board noted that "[t]he administrative law judge's finding that Section 341.1(i)(2) does not mandate specific action by an employer is based on the language of the provision which frames the notification requirement as a condition of an annual permit." The Board then found that "the fact that the notification requirement is framed as a condition of an annual permit as opposed to a direct mandate, e.g., by using the word 'shall', is not significant when the language is interpreted in light of the purpose and intent of Section 341.1(i)(2)." (Ibid., p.3.)

Mallory & Greenhalgh, supra, was followed by the Board in three cases raising the same issue: R. Baker, Inc., Oltmans Construction Company, and Granite Construction Company.

When Mallory & Greenhalgh was decided by the Board under section 341.1(i)(2), the argument advanced here by Employer, that the pre-excavation notice provision is solely a condition subsequent to the holding of an annual permit, was stronger than it is now, when applied to the changed language of current section 341.1(f)(3).

Former section 341.1(i)(2) stated only that annual permits were issued "on the condition . . . that prior to the commencement of each work, the employer notifies the appropriate district office . . . ." The word "shall", customarily used to impose a mandatory duty, was not used. In contrast, the first sentence of current section 341.1(f)(3) states that an annual permit is issued subject to the condition "that the employer shall notify the District Office nearest the proposed work project prior to the commencement of any work activity." Additionally, as the ALJ points out in the decision, the second sentence states that, "[t]he notification shall be made by telegram, letter, or a telephone call . . . ." (Emphasis added.)

The Board therefore affirms the ALJ’s decision that notification of each individual project was required to be made by section 341.1(f)(3).

 

    1. The East Side of the Excavation Was Five Feet or More in Depth, and Therefore in Violation of Section 1541.1(c)(4)(A).

Whether an employer must provide shoring turns in large part on whether its excavation is greater than five feet in depth. Section 1541.1(a)(1)(B) provides the following:

    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) except when:

(B) [The] excavations are less than 5 feet in depth . . . [if] examination of the ground by a competent person provides no indication of a potential cave-in."

To determine the depth of the excavation at its east side, the Division measured the vertical distance from the top of the soil covering a reinforced concrete beam (beam) embedded in the east side of the excavation to the bottom of the excavation and found it to be 6’ 5". Employer did not contest the accuracy of that measurement but argues that the depth of the east side of the excavation is the vertical distance between the underside of the beam and the bottom of the trench, a distance of 4’ 9". Were the excavation only 4’ 9" deep, it may have been excepted from the protective system requirements of section 1541.1(c)(4) by section 1541.1(a)(1)(B).

The excavation, approximately 9’ wide and 11’ long at the top, was dug in Type B soil. The north and south sides of the excavation were benched and the west side was sloped in accordance with Appendix B, Table B-1.2 of section 1541.1. Employer did not modify or restrain the east side of the excavation against the hazard of earth movement because it believed that the "good" soil, the beam, and one of the supporting piers provided adequate protection.

The beam was 2’ 2" wide and 1’ 2" tall. It rested on 21" diameter piers set at 10’ intervals and was the footing for a masonry wall approximately 2’ to 3’ from and parallel to the east side of the excavation. Approximately 4" to 6" of soil covered the beam on both sides of the wall.

Employer started digging the east side of the excavation in the soil several inches away from the beam, so the machine used to dig the excavation would not accidentally strike and damage the beam or the wall. Hence, as depicted in sketches made by Employer’s project manager, the face of the east wall of the excavation consisted entirely of earth.

The undisputed depth measurement of 6’ 5", upon which the Division relied, measured the vertical distance from the level of the soil at the top of the east wall to the level of the soil at the bottom of the excavation. The vertical distance between those elevations determines the depth of an excavation for purposes of section 1541.1(c)(4).

Neither pipes in an excavation nor other objects and structures near an excavation, the remaining walls of an underground vault, or a system of piers under an excavation change the depth of the excavation. The employer remains under a duty to comply with the cave-in protection requirements applicable to an excavation of the depth measured from grade to the true bottom.

Employer could have complied with section 1541.1(c) by designing a protective system using Appendices A, C and D [Option 1], Manufacturer's Tabulated Data [Option 2], or other tabulated data [Option 3]. However, these options are based on standardized criteria that do not take account of unusual site characteristics such as the beam and pier present in this case.

Hence, to utilize whatever earth restraining effect the beam and pier may have provided, Employer had to proceed under Option 4 by implementing a design that incorporated that restraining effect into the protective system approved by a registered professional engineer.

In W. M. Lyles Company, the Division decided that an alternate shoring/sloping system designed by a registered civil engineer was inadequate and cited the employer who followed the registered civil engineer’s design without making changes demanded by the Division.

The Board dismissed the citation on the ground that "[t]he Occupational Safety and Health Standards Board (Standards Board) has left the discretion of complying with or modifying the excavation safety orders to the RCE [registered civil engineer]." The same rationale that prevented the Division from usurping discretion delegated by the Standards Board to registered civil engineers in former section 1541(a)(6)(A) applies with equal force to what amounts to an attempt by Employer in this case to usurp discretion delegated to registered professional engineers.

It follows that Employer's acknowledged failure to comply with Option 4, or any of the other options by which it could have protected employees against the hazard of a cave-in of the east side of the excavation, established the section 1541.1(c)(4) violation found by the ALJ.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision issued in this matter on September 13, 1996. Accordingly, the decision is reinstated and Employer is denied the relief sought by its petition for reconsideration.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA – October 25, 1999