BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

MOUNTAIN CASCADE, INC.

P.O. Box 5050

Livermore, California 94550

                              Employer

 

 

Docket No.

98-R1D4-1129

 

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 matter by Mountain Cascade, Inc. [Employer] makes the following decision after reconsideration.

JURISDICTION

On November 4, 1997, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident investigation at a place of employment maintained by Employer at the corner of Cushing Parkway and Noble Drive, Fremont, California (the site). On March 17, 1998, the Division issued to Employer a citation alleging a serious violation of section1 1541.1(a)(1) [employee in excavation without adequate protective system], with a proposed civil penalty of $7,500.

Employer filed a timely appeal contesting the existence of the violation.

On September 1, 1998, a hearing was held before Manuel M. Melgoza, administrative law judge (ALJ), in Oakland, California. Robert D. Peterson, attorney, represented Employer. Christopher Grossgart, staff attorney, represented the Division.

On September 17, 1999, the ALJ issued a decision denying Employer's appeal but granting motions that reduced the proposed penalty to $2,250.

On October 22, 1999, Employer filed a petition for reconsideration. The Division filed an answer. The Board granted Employer’s petition on December 2, 1999.

EVIDENCE

Employer was excavating and installing a pipeline at the site on October 23, 1997. On that date, Employer’s foreman and competent person,2 Stephen Barba, ordered employee Adrian Valencia [Valencia] into the excavation to fix a
leak in a pump at the bottom of the excavation. While Valencia was making the pump repair, the west wall of the excavation collapsed. Valencia was hit from behind, knocked unconscious, and awoke on the way to the hospital.

Valencia was the only percipient witness to the accident who testified at the hearing. He testified that the excavation was about 10’ X 10’ and between seven and eight-feet deep. He said that Barba told him to go down into the excavation to stop a leak in a pump at the bottom of the excavation. He went to the pump and then called up to Barba for a screwdriver. He said that Barba threw one down to him. Valencia testified that he was on his knees two to three-feet away from the wall that collapsed and that there was no shoring, sloping or other cave-in protection on that wall. He further testified that there were two metal plates on the opposite wall.

The Division submitted into evidence Employer’s “Employee Accident Investigation Report” dated October 24, 1997 indicating Valencia was hit in the head by a piece of dirt while he was down in the excavation and was taken to Eden Hospital. The report listed Stephen Barba as a witness.

Thurman Johns [Johns], Division Compliance Engineer, testified that Roger Williamson, Employer’s Safety Director, identified Barba as Employer’s foreman and competent person for the excavation at the time of the accident. Johns further testified that Barba told him they had been working with the excavator machine in soil that transitioned from Type B to Type C and that he stopped the excavator because he was worried about the vibration. Johns said Barba told him he saw a large chunk of dirt break off the west wall and hit Valencia. Johns said Barba also told him they were using two steel plates as shoring on part of the excavation and mentioned no other form of cave-in protection.

Johns determined from his discussion with Barba that the steel plates were placed only on the south and east walls of the excavation. Johns also testified that the west wall could not have broken off and hit Valencia had shoring been in place. He issued a citation for a serious violation of section 1541.1(a)(1) for failure to protect an employee in an excavation from cave-in.

Employer called no witnesses.

ISSUES

1. Did the Division establish a violation of section 1541.1(a)(1)?
2. Was a serious violation of section 1541.1(a)(1) established?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. The Division Established a Violation of Section 1541.1(a)(1).

Section 1541.1(a)(1) provides:

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:
(A) Excavations are made entirely in stable rock; or
(B) Excavations are less than 5 feet in depth and examination of the ground by a competent person provides no indication of a potential cave-in.

Under this section, Employer is required in excavations five feet deep or greater which are not made entirely in stable rock to use cave-in protection consisting of benching or sloping, or shoring, shielding or other protective systems. It is undisputed that the excavation was seven feet deep and that it was not entirely in stable rock.

The Division has the burden of proving a violation, including the applicability of the safety order, by a preponderance of the evidence (See, e.g., Howard J. White, OSHAB 78-741, Decision After Reconsideration (June 16, 1983).) since Appeals Board hearings are civil in nature. (Lee Bolin & Associates, OSHAB 80-720, Decision After Reconsideration (July 29, 1981).) As part of its burden of proof, the Division must show that employees of the cited employer2 were exposed to the hazard addressed by the safety order. (Rudolph & Sletten, Inc., OSHAB 80-602, Decision After Reconsideration (Mar. 5, 1981).) “There must be some evidence that employees came within the zone of danger while performing work-related duties, pursuing personal activities during work, or employing normal means of ingress and egress to their work stations.” (Nicholson-Brown, Inc., OSHAB 77-024, Decision After Reconsideration (Dec. 20, 1979) pg 2.)

The ALJ found that Employer did not slope, shore, or use other cave-in protection on the west wall of the excavation. Barba admitted to Johns that only part of the excavation was shored. Johns testified that Barba indicated to him that steel plates were used to shore the south and east walls of the excavation; Barba mentioned no other forms of cave-in protection to Johns. According to Johns, Barba admitted that he saw the west wall fall and hit Valencia.

Employer argues that in order to prove a violation of section 1541.1(a)(1) the Division must establish that an employer’s protective system was not adequately designed in accordance with either subsection (b) or (c) of section 1541.1(a)(1). Employer’s argument is without merit. The essential element of this safety order requires protection from cave-ins. The Division presented a prima facie showing that there was no cave-in protection on the west wall. Employer did not rebut this showing. Where an element of an alleged violation must be proven and the employer does not present any evidence disproving that element, the Division need only present evidence sufficient to establish that it is more likely than not that the violation existed. (See Petrolite Corporation, OSHAB 93-2083, Decision After Reconsideration (Mar. 3, 1998).)

We find that the west wall of the excavation was not shored. We also find that Employer did not provide any other form of cave-in protection on the west wall. We find it unnecessary to decide the adequacy of shoring on the south and east walls because the lack of shoring or any other form of cave-in protection on the west wall constitutes inadequate cave-in protection for purposes of compliance with section 1541.1(b) or (c).

Valencia’s testimony placed him two to three feet from the unprotected seven-foot high wall of the excavation. Exposure is established whenever an employee comes within the zone of danger while performing work-related duties, pursuing personal activities during work, or employing normal means of ingress to and egress from a work station. Bethlehem Steel Corp., OSHAB 76-552, Decision After Reconsideration (May 21, 1981). Valencia was at a pump in need of repair and was ordered there by Barba.

We find that Valencia was working in the zone of danger below the unprotected seven-foot wall of the excavation. We find that the Division’s evidence was sufficient to establish that it was more likely than not that a violation existed.

2. A Serious Violation of Section 1541.1(a)(1) Was Established.

A violation is classified as serious if it is substantially probable that death or serious physical harm could result from an accident caused by the violation and the employer either knew of the violation or could have known of it with the exercise of reasonable diligence. [Labor Code §6432(a)].3

Employer does not contest the first element of the serious classification-substantial probability that death or serious physical harm could result from an accident cause by the violation. Therefore, since it was not raised in the petition for reconsideration we need not address the first element.

Employer argues that the second element of the serious classification has not been satisfied. Employer contends that any violation of section 1541.1(a)(1) could not have been properly classified as “serious” because Employer had no reason to know that Valencia would be exposed to an unprotected wall of an excavation.

To meet its burden of proving Employer knowledge the Division does not have to show that Employer was actually aware of an unsafe condition. Employers are accountable for the acts and knowledge of their foremen. (Greene and Hemly, Inc., OSHAB 76-435, Decision After Reconsideration (April 7, 1978).)

We find that Barba knew of the absence of shoring on the west wall because of his admission that the entire excavation was not shored and his statement to Johns that shoring was only on the south and east walls, not the west wall. We also find that Barba sent Valencia into the excavation and watched him repair the pump that was two to three feet from the unprotected west wall, within the zone of danger. Consequently, we hold that Employer knew, or could have known with the exercise of reasonable diligence, of the violation. Therefore, the Division established a serious violation of section 1541.1(a)(1).

DECISION AFTER RECONSIDERATION

The ALJ’s decision is affirmed. Employer’s appeal is denied. A serious violation of section 1541.1(a)(1) is established and a civil penalty of $2,250 is assessed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: August 29, 2001

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 Section 1504(a) defines “competent person” as “(o)ne who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.”
2 Effective 1/1/2000 Labor Code §6400 was amended to provide that citations may be issued only to the following categories of employers when the division has evidence that an employee was exposed to a hazard in violation of any requirement enforceable by the division: (1) the exposing employer, (2) the creating employer, (3) the controlling employer, (4) the correcting employer. Stats. 1999 ch.615 §4 (AB 1127).
3 Section 6432(a) was amended effective 1/1/2000; it became subsection (b) and placed the burden on the employer to demonstrate that it did not, and could not with the exercise of reasonable diligence know of the presence of the violation. (Stats.1999, c.615(A.B.1127), § 10.)