OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD

Summary of Mountain Cascade, Inc. - Decision After Reconsideration

Employer put shoring on the south and east walls of a 10 foot square, 7-8 foot deep excavation; but none on the north and west walls. An employee entered at the foreman's direction and part of the west wall fell striking him. A serious violation of section 1541.1(a)(1) was alleged for not having an employee protective system in the excavation meeting the safety order requirements. The Division did not present evidence to show that it had determined that the system in the excavation was not done in accordance with a registered engineer's plan, statistical data, etc. The Board holds that it is not necessary because there was no form of protection on the west wall and that establishes a prima facie case of a violation The violation was serious because the compliance officer's testimony regarding serious physical harm or death was not refuted and Employer knew or could have known of the violation through the foreman.

MOUNTAIN CASCADE, INC. 98-1129
August 29, 2001