BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

SIERRA NATIONAL CONSTRUCTION, INC.

2705 Sierra View Trail

Carmichael, CA 95608

                              Employer

 

 

Docket No.

98-R2D1-2447

 

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 Sierra National Construction, Inc. (Employer), makes the following decision after reconsideration.

JURISDICTION

On June 19, 1998, the Division of Occupational Safety and Health (the Division), through Compliance Engineer Joel Halverson (Halverson), conducted a complaint inspection at a place of employment maintained by Employer at 2119 15th St., Sacramento, California (the site). On July 9, 1998, the Division cited Employer for a repeat/serious violation of Section1 1541.1(a)(1) [failure to provide cave-in protection], with a proposed civil penalty of $3,500. Specifically, Employer was cited for failing to provide cave-in protection in an excavation where an employee had been working at a depth of more than 5 feet.

Employer filed a timely appeal contending that the safety order was not violated.

The matter was heard by Bref French, Administrative Law Judge (ALJ), in Sacramento, California, on June 24, 1999. Employer was represented by Bruce J. Janigian, Attorney at Law. The Division was represented by A. Margaret Cloudt, Staff Counsel. The ALJ issued a decision on July 29, 1999, finding that a repeat/serious violation of section 1541.1(a)(1) had been established but reducing the civil penalty from $3,500 to $2,750.

On September 2, 1999, Employer filed a petition for reconsideration. On October 1, 1999, the Board granted Employer’s petition. On October 7, 1999, the Division filed an answer.

EVIDENCE

Employer is a contractor who specializes in municipal water and sewer underground pipe work. On June 19, 1998, the date of the inspection, Employer was engaged in the task of replacing manholes and sewer lines at the site.

The following facts are not in dispute between the Division and Employer: 1) The excavation was approximately 8 feet square, with an approximate depth of 8 to 9 feet. 2) Midway down the south side of the excavation was a cast-iron pipe running east to west along the side of the wall. 3) A white protruding pipe ran diagonally from the east wall towards the south wall. 4) A step-like area on the upper portion of the north wall had been dug out. 5) There were two shores2 alongside the street next to the excavation. 6) Employer’s foreman, Kirk Johnson (Johnson) was in the excavation for approximately 5 to 10 minutes during the morning of the inspection to dig around a pipe located at the bottom of the north wall so that he could measure it.

The major point of contention is whether the excavation was supported by cave-in protection (specifically shoring) the morning of the inspection when Johnson entered it.

In an attempt to prove that the excavation was supplied with shoring Employer offered the testimony of Johnson who testified that on the morning of the inspection, Employer rented two “V588” double-speed shores to be used in the excavation. Also, Robert Nowlin (Nowlin) testified for Employer that he and another worker installed the shores on the day of the inspection.

The Division’s contention that the excavation was not properly shored revolved around Halverson’s testimony. Halverson concluded that shores were never used in the excavation due to the 4 reasons listed below:

1) Halverson determined that the cast-iron water line and diagonal white pipe, which covered the mid section of the south wall created obstructions that prevented the shores from being correctly installed because these pipes were protruding so that they were not flush with the south wall.

2) Even if the shoring, that was found on the street next to the excavation, was capable of extending out an additional 12 to 18 inches, which is typical for that type of shoring, the upper ram would not have had any surface to press against on the upper portion of the north wall where a step-like area of the excavation was dug out.

3) Halverson calculated the measurements of the shoring found on the street. He determined that these particular shores were only 5 feet in length and would not extend out to 8 feet so that they could properly apply pressure against the excavation walls.

4) Halverson did not see any visible marks on the walls. He testified that the excavation was in a sandy-clay3 soil that had a high moisture content and also contained raw sewage. Because of the soil type in the excavation, Halverson determined that if the shores’ side rails had been properly pressed against the walls they would have left smooth indentation marks in the walls of the excavation.

Nowlin testified that the configurations of the excavation were different in the morning than in the afternoon when Halverson inspected the site. Employer asserts that the obstructions created by the pipes in the south wall were not exposed in the morning. Nowlin testified that the excavation was “more uniform, more square” in the morning. Also, Johnson testified that when he was in the excavation for 5 to 10 minutes in the morning, he noticed that the excavation walls were sloughing4 (sand sifting down the sides of the walls).

ISSUES

1. Did the Division establish a violation of section 1541.1(a)(1)?
2. Does the burden of proof shift to Employer to show that the shoring was adequate as required by section 1541.1(b) or (c)?
3. Was Employer provided with adequate notice of the nature of the alleged violation?


FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

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

Section 1541.1(a) provides:

(a) Protection of employees in excavations.
(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:
(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.

Subsections 1541.1(b) and (c) both provide methods of protection from which employers are required to choose in order to protect employees against cave-ins.

It is uncontested by Employer that the depth of the excavation was greater than 5 feet. Employer also admits that Johnson was in the excavation during the morning of June 19, 1998 (the date of Halverson’s inspection) to measure a pipe along the bottom portion of the north wall.

The only issue we need to address is whether or not the excavation was supplied with shoring during the time Johnson was in the excavation.

The Division argues that the configuration of the excavation and the size of the shores that were lying on the street lead to the conclusion that the excavation was never shored. Specifically, the cast-iron water line on the south wall and the diagonal angle of a white pipe caused an obstruction preventing the shores from being correctly installed because the shores’ side rails could not appropriately press against the pipes protruding from the wall. Moreover, the shores, although capable of extending another 12 to 18 inches, would not be of sufficient length for the upper ram of the shore to press against the “side area” of the main excavation because a step-like area had been dug out. The Division further argues that the presence of this dug out portion on the upper north wall makes it unlikely that the shores had an adequate surface to apply pressure against the north and south sides of the excavation. Lastly, the Division argues the lack of indentation marks on the “sandy-clay” sides of the excavation is a sign that the shores had not been installed because the side rails typically leave markings.

Employer asserts that sloughing caused the appearance of the excavation in the afternoon, when Halverson made his inspection, to be different than in the morning when shoring was installed. Employer contends the sloughing that occurred after the shoring was removed in the morning had the effect of changing the configuration of the excavation, exposing the cast-iron and white pipes and destroying indentation marks caused by the shoring.

If Employer’s contention that the cast-iron and white pipes along the south wall were not visible at the time shoring was in place in the morning because sloughing caused these pipes to be exposed was correct, a logical inference would be that large portions of the excavation walls sloughed to the bottom of the excavation. Some sloughing may account for the indentations of the shores being erased from the sides of the excavation walls. However, extensive sloughing would have been required to expose the pipes along the south wall and the dug out portion on the upper north wall of the excavation. Evidence of this would be an accumulation of sand at the bottom of the excavation.

After a review of the record, including photos of the excavation, we do not find any evidence that the walls sloughed to the extent Employer asserts. For instance, a photograph shows a shovel (used by Johnson when he was inside the excavation) leaning against the wall at the bottom of the excavation that suggests it was not affected by the sloughing of the south wall. Had there been sloughing extensive enough for the pipes to be exposed, the shovel would be somewhat covered or moved, not in its upright position. There is no evidence that it was manipulated by the sand flowing to the bottom of the excavation. Another photo shows Johnson’s footprint clearly imprinted in the wet soil. This contradicts Employer’s argument that sloughing changed the configuration of the excavation because had there been extensive sloughing, sand from the sides of the walls would have accumulated on the bottom and covered the footprint.

Sloughing does not account for the upper portion of the north wall that had been dug out. This dug out portion prevented shoring from being correctly installed because it would not allow proper placement of the shores to apply pressure against the walls. Again, Employer does not refute this evidence. Moreover, Employer did not provide evidence that the dug out portion of the north wall was the product of sloughing.

The only evidence offered by Employer is Nowlin’s testimony that the walls were “more uniform, more square,” and a receipt showing that shores had been rented that morning. Without additional evidence by Employer we simply cannot make a determination that the sloughing was extensive enough to support Employer’s argument.

We hold that the Division established that Employer violated section 1541.1(a)(1) because Employer failed to provide shoring or other protection against cave-ins.

2. The Board Will Not Decide if the Burden of Proof Shifts to Employer to Prove that the Shoring was Adequate as Required by Section 1541.1(b) or (c).

Employer argues that the ALJ incorrectly shifted the burden of proof from the Division to Employer requiring Employer to prove that the shoring provided was adequate to protect the excavation from a cave-in as required by section 1541.1(b) or (c). The ALJ found, and we concur, after an extensive review of the facts as noted in our discussion above, that no shoring had been installed on the date of inspection. Having found that no shoring had been installed, we need not address Employer’s argument as to who has the burden to prove the adequacy of the shoring.

The facts of this case do not necessitate that we make a determination on this issue.

3. Employer was Provided with Notice of the Nature of the Alleged Violation.

Employer argues that the citation failed to give adequate notice of the alleged violation.

The citation reads as follows:

1541.1(a)(1) - It was found during the inspection that an employee had been working in an excavation at a depth of 8’-11” without any protection from the hazard of cave-ins, by any of the means outlined within this section. (one side of excavation had caved in). [Emphasis added]

Employer’s notice argument is based on due process principles because Employer asserts that it was not given an opportunity to present evidence at the hearing regarding the adequacy of the shoring.

The citation issued to Employer adequately provides notice. The citation notifies Employer that it is being specifically cited for failing to provide “any” protection. A citation satisfies due process if the language in the description of the violation is sufficiently certain to reasonably enable Employer to prepare a defense. (John J. Lessman & Son, Inc., OSHAB 79-1330, DAR (Jan. 9, 1985).)

Employer was notified in the citation that it failed to provide protection “by any of the means outlined within this section.” This phrase means that Employer failed to provide protection as required by either subsection (b) or (c). Failing to provide protection “by any of the means outlined within this section,” encompasses failing to provide any form of protection including shoring. Employer and the Division both addressed the issue of whether or not shoring was installed on the date of inspection and we have found after an exhaustive analysis of the facts that no shoring was installed on that date.

For these reasons, we hold that Employer was given adequate notice to prepare a defense.

DECISION AFTER RECONSIDERATION

A repeat/serious violation of section 1541.1(a)(1) is established and a civil penalty of $2,750 is assessed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON July 12, 2001


1 Unless otherwise specified, all references are to sections of Title 8, California Code of Regulations. The Board’s decisions after reconsideration are abbreviated “DAR.”
2 A “shore” as defined by the regulations is a supporting member that resists a compressive force imposed by a load. Title 8, California Code of Regulations, section 1504
3 “Sandy” means consisting of, abounding in, or containing sand. “Clay” means earth; especially when moist. Webster’s 3rd New International Dictionary, pages 2011 and 419 respectively (1981).
4 “Sloughing” means “to crumble away.” Webster’s 3rd International Dictionary, page 2146 (1981).