EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD

Summary of Tutor-Saliba-Perini - Decision After Reconsideration

Employer failed to install auxiliary ventilation in underground rooms or chambers at 2 Los Angeles Metro stations under construction where it had employees working. The Division representative found near-zero airflow in both areas with a testing device. The Employer's representative obtained a similar reading at one station. The Board holds that the opening in the roof of one area does not disqualify it as "underground." The opening did not provide the auxiliary ventilation necessary to provide the 200 cubic feet of fresh air per minute required by section 8437(a). The near-zero airflow readings proved that. Employer contends that the test results are invalid because they did not follow the industry's "best practices" for measuring airflow; tests were not taken at enough different places and elevations to determine accurately and reliably the fresh airflow. Employer's contention was rejected. The readings were sufficient to prove by a preponderance of the evidence presented that the airflow was deficient. (Concrete Pipe and Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, (1993) 508 U. S. 602, cited for the definition of "preponderance of the evidence." Two general violations of section 8437 were upheld.

TUTOR-SALIBA-PERINI 98-068
July 9, 2001