OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA
|In the Matter of the Appeal
|Docket Nos. 95-R6D2-1493
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 Tutor-Saliba-Perini (Employer), makes the following decision after reconsideration.
Between March 6 and 8, 1995, representatives of the Division of Occupational Safety and Health (the Division) conducted a planned inspection at a place of employment maintained by Employer at Metro Rail Red Line Station B-241, at the intersection of Vermont Avenue and Beverly Boulevard, in Los Angeles, California (the site).
On April 5, 1995, the Division issued to Employer the following citations, items and proposed penalties for alleged violations of the occupational safety and health standards and orders found in Title 8, California Code of Regulations:
Cit/Item Section Type Penalty
[flexible cord strain relief]
[belt and pulley drive guarding]
[excavation cave-in protection]
Employer filed timely appeals contesting the existence of all of the violations, the classification of the serious violation alleged in Citation No. 2, and the reasonableness of all of the proposed penalties.
After a hearing before an administrative law judge (ALJ) of the Board, a decision was issued on September 23, 1997, denying Employer's appeals.
On October 17, 1997, Employer petitioned the Board for reconsideration of the ALJs decision. On November 10, 1997, the Board granted Employers petition and stayed the ALJs decision pending reconsideration. The Division filed an answer on November 20, 1997.
The Appeals 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. The Appeals Board adopts the Summary of Evidence at pages two through ten of the ALJ's decision.
Docket No. 95-R6D2-1493
Citation No. 1, Item 1
Did Employer establish a logical time defense to the failure to provide fall protection required by section 1632(c)?
SUMMARY OF FACTS
Employer was the general contractor for the construction of an underground metro rail station at the site. On March 6, 1995, Division compliance officer Edward Squire and two other Division representatives initiated a programmed inspection of the site. In the course of the inspection, Squire observed and photographed two floor openings with ladders in them, through which an employee could fall approximately 6 to the surface below. Each floor opening was surrounded on one side by a fence and on the other three sides by standard guardrails but for a gap that was approximately 4 wide. An employee was installing plastic sheeting near one of the floor openings.
Normally there was no gap in the guardrails and they provided a continuous barrier of protection. For a few days before the inspection, it had been raining heavily at the site. Drains became clogged and water collected in areas of the excavation. The inspection started before noon on a Monday. Earlier that morning, between 6 and 10 a.m., Employer's project manager learned of the drainage problems and an employee was directed to enter the excavation to investigate. To accomplish that task, the guardrails were pulled aside enough to enable the employee to walk to the floor openings with a ladder and use it to enter and exit the excavation. The guardrails had not been returned to their original position by the time of the inspection.
Based on Squire's inspection, the Division issued Citation No. 1, Item 1 alleging a general violation of section 1632(c), which reads as follows:
Ladderway floor openings or platforms shall be guarded by standard railings with standard toeboards on all exposed sides, except at entrance to opening, with the passage through the railing either provided with a swinging gate or so offset that a person cannot walk directly into the opening.
FINDINGS AND REASONS
DECISION AFTER RECONSIDERATION
1. Employer Did Not Establish a Logical Time Defense to the Failure to Provide Fall Protection Required by Section 1632(c).
Brian Lee, Employer's project manager, testified that sometime between the start of work at the site on the morning of March 6, 1995 and the arrival of the Division inspection team, the guardrails were pulled aside to enable an employee to use the floor openings as ladderways. Work started approximately four hours before the inspection. His unrefuted testimony established that the openings were temporary ladderway openings. Section 1632(a) states that section 1632 applies "to temporary or emergency conditions where there is danger of employees or materials falling through floor . . . openings . . . ." Thus, the fall protection requirements of section 1632(c) applied to the temporary ladderway openings described in Citation No. 1, Item 1.
Compliance officer Squire's unrefuted testimony and photographs proved that the gaps in the guardrails created to access the floor openings were approximately 4 wide, that there were no swinging gates covering the gaps, and that an employee could walk through the gaps directly into the excavation. His unrefuted testimony also established that an employee was installing plastic sheeting close enough to one of the openings to be in danger of accidentally stepping through the guardrail gap and into the floor opening.
For these reasons, it is found that the Division proved the existence of a general violation of section 1632(c).
In Nicholson-Brown, Inc., the Appeals Board ruled that, "[t]he requirements of any safety order will not begin to apply until the necessary and logical time has arrived for an employer to make provisions to correct the violation and abate the hazard." Applying that rule, the Appeals Board granted the employer's appeal from a section 1621(a) citation [guardrails]. The Board found that it was not logical to require the employer to install railings around the perimeter of the floor until the floor had been decked out to the perimeter. Going out onto the exposed floor joists to install railings before the decking reached the perimeter posed a greater safety risk than would exist once the surface was solid. The Board also noted that employee exposure was minimized by allowing only one employee in the area to do the decking. The rule of this case is sometimes called the logical time defense.
More recently, in Roland Associates Construction, the Appeals Board upheld an ALJ's dismissal of a section 1621(a) citation on the ground that the logical time had not arrived to re-erect railings taken down to enable two employees to attach a staircase to the edge of an upper deck. The railings were down "for only the few hours necessary to construct and install the permanent staircase." The two employees installing the staircase were the only ones exposed to the hazard of falling. The ALJ found that it could have been more hazardous for the employees to attempt to install the staircase with the railings up than with them down.
This case is distinguishable from Roland Associates. In Roland, the railings were directly in the way of the work the employees were performing at the edge of the deck, only two employees who were working on the edge and conscious of the fall hazard were exposed, and the railings were re-erected immediately after the employees finished attaching the staircase.
In this case, access to the areas around the openings was not restricted to the employee using the temporary ladderways while the guardrails were missing. The railings were down much longer than the brief periods that it took the employee to enter and exit the excavation. The railings, or some other temporary barrier could have been in place at all other times. This protection could have been installed from the solid, ground level working surface without risk.
Also, the railings were removed between 6 a.m. and 10 a.m. so an employee could enter the excavation to check the condition of a drainpipe coming from an adjacent building, a task of short duration. That task had apparently been completed by the time Squire arrived. No employee used either ladder while Squire examined and photographed the openings.
Under these circumstances, Employer failed to prove that the logical time to re-erect the railings or provide other safety order-approved protection had not yet arrived when Squire inspected the openings. Accordingly, the Board finds that the logical time defense does not relieve Employer of responsibility for the general violation of section 1632(c) which was established by the Division.
Citation No. 1, Item 2
Were employees exposed to a flexible cord not protected by appropriate strain relief?
SUMMARY OF FACTS
Squire observed and photographed the point at which the flexible power supply cord of a temporary electrical spider box entered the box. A bushing, protruding from a hole in the side of the box, encircled the cord. The insulated cover was missing from the last fraction of an inch of the cord outside the bushing. Squire inferred that the uncovered segment of cord had been inside the spider box originally, but that employees dragging the box around by the cord and other wear and tear had pulled the bushing free of its mounting. This loosened the bushing's grip on the cord, allowing the slack inside the box to slip out. Once the bushing no longer gripped the cord tightly, any pull on the cord was transmitted directly to the joints or terminal screws to which the conductive wires of the cord connected inside the spider box.
The spider box power cord was connected to a power source at a panel box. Squire did not test the spider box or the supply circuit to see if it was energized. The spider box appeared to be in service because extension cords were plugged into it. Squire did not see any employee use the spider box or any power equipment supplied through it. He testified that he had verified that other power sources were supplying power to the underground location and that one of the other panels was the one providing power to the lighting system to the underground work going on at the station.
Enrique Chimal, a labor foreman for Employer, testified that he thought the spider box might have been transmitting power to a lighting or ventilation system.
FINDINGS AND REASONS
DECISION AFTER RECONSIDERATION
Employees Were Not Exposed to a Flexible Cord Not Protected by Appropriate Strain Relief.
The Division cited Employer under section 2500.10(a) which provides that:
Flexible cords shall be connected to devices and fittings so that strain relief is provided which will prevent pull from being directly transmitted to joints or terminal screws.
Squire's unrefuted testimony and his photograph of the flexible power cord, the bushing and the spider box proved that the bushing was not providing the power cord with the strain relief required by section 2500.10(a) at the time of the inspection.
To establish a violation, the Division also had to prove that an employee was exposed to the violative condition. The spider box's power cord was connected to a power source and extension cords leading to unverified destinations were connected to the spider box. This circumstantial evidence may have some tendency in reason to prove that the spider box and its power supply cord were energized.
But Squire did not test the power source, the cord or the spider box to determine if they were energized. Squire had verified that another panel or panels were providing power for work going on at the station at the time of the inspection. He did not see any employees utilizing power from the spider box or ascertain that any machinery or equipment was then operating on power from it. Any inference that the spider box had probably been energized after the bushing came out of its mounting hole is weak because Squire did not know when the bushing had broken out.
The Division's failure to provide this more certain and readily obtainable evidence concerning these critical issues essentially nullified the probative effect of the circumstantial evidence. The unverified circumstantial evidence that the spider box was probably energized is weakened by the verified evidence that another panel was actively providing power to work then going on below ground. The ALJs finding that the box was energized was therefore not supported by substantial and credible evidence. Accordingly, the Board finds that the Division failed to prove that the power cord was energized at any time after the bushing ceased to provide strain relief. It follows that the Division failed to prove that an employee was exposed to the alleged hazard and that no violation of section 2500.10(a) was established.
Citation No. 1, Item 3
1. Did the Division establish that the cited pulley wheels were not guarded as required by section 4070(a)?
2. Were employees exposed to an unguarded pulley drive?
SUMMARY OF FACTS
Squire observed and photographed an energized belt and pulley drive on a motor driven ventilation unit. The pulley wheels were located two to three inches above the plywood sheet covering the working surface on which the motor rested. They revolved on a horizontal axis.
Standard wooden guardrails surrounded the motor and the ventilation fan housing to which it was attached. After reviewing a photograph of the area around the motor, Squire acknowledged that the pulleys appeared to be slightly inside the guardrails, not beyond them as he originally testified. A "U"-shaped band of sheet metal, approximately three to four inches high, was bolted at the open ends of the "U" to the ventilation fan housing at ground level. It extended out and around the pulleys at a distance of two or three inches from them, leaving a space of that width through which the pulleys and nip points could be contacted by reaching a hand toward them at an angle slightly below horizontal.
Squire testified that, in his opinion, the sheet metal band was not a guard and provided no protection against accidental contact with the belt and pulley drive.
Brian Lee, Employer's project manager, testified that the metal band was a belt and pulley drive guard that conformed to the standard of industry practice. He also testified that the belt and pulley drive was behind the guardrails and that by the combined means, Employees were protected effectively against accidental contact.
FINDINGS AND REASONS
DECISION AFTER RECONSIDERATION
1. The Division Established That the Cited Pulley Wheels Were Not Guarded as Required by Section 4070(a).
Section 4070(a) requires employers to guard "[a]ll moving parts of belt and pulley drives located 7 feet or less above the floor or working level." Squire's unrefuted testimony and his photographs proved that there was an energized belt and pulley drive at the site approximately two to three inches above the ground or working level.
"Guarded" is defined in section 3941 to mean the following:
[S]hielded, fenced, enclosed or otherwise protected according to these orders, by means of suitable enclosure guards, covers or casing guards, trough or "U" guards, shield guards, standard railings or by the nature of the location where permitted in these orders, so as to remove the hazard of accidental contact.
The statement that moving machine parts may be guarded "by the nature of the location where permitted in these orders" (emphasis added) implies that moving parts may be "guarded by location" only if the safety order which requires the guarding specifically authorizes employers to protect employees by that means. Section 3941 defines "guarded by location" to mean that, "[t]he moving parts are so located by their remoteness from floor, platform, walkway, or other working level, or by their location with reference to frame, foundation or structure as to remove the likelihood of accidental contact." Section 4070(a) permits guarding of belt and pulley drives by location only if they are more than 7 feet above the floor or working level. Employer's project manager testified that the belt and pulley drives were guarded by "position," but that was a misnomer. The only protections against accidental contact with them were the railings and the sheet metal guard.
The guarding that was provided was not adequate to comply with the safety order. Section 3941 defines "accidental contact" as "[i]nadvertent physical contact with power transmission equipment, prime movers, machines or machine parts which could result from slipping, falling, sliding, tripping or any other unplanned action or movement."
The railing and sheet metal guard provided partial protection against accidental contact with the belt and pulley drive, but did not "remove the hazard of accidental contact." Outside of the railing in front of the motor the deck was uneven and scrap and debris were present. An employee could slip or trip there. And, if the employee tried to break the fall with his or her hand, the employees hand could enter the space between the metal guard and the belt and pulley drive and accidentally contact the drive. Thus, the drive was not sufficiently "guarded" to meet the requirements of section 4070(a).
2. The Division Failed to Establish Employees Were Exposed to an Unguarded Pulley Drive.
Standing alone, proof that equipment or machinery is not guarded in accordance with an applicable safety order does not establish the existence of a violation of the safety order. The Division must also prove that an employee was close enough to the violative condition to run the risk of being injured by it.
The Division offered no direct evidence proving that employees were close enough to the belt and pulley to make accidental contact with it. Squires Item 3 testimony contained no reference to employee exposure because he was not asked about it on either direct or cross-examination. There are no employees, tools or other indications of recent work in the photographs he took. When questioned about another of the appealed violations, Squire testified that employees told him they "went all over the site." That testimony was hearsay evidence not subject to an exception to the hearsay rule. Alone it could not support a finding of fact. Moreover, it is far too general to prove employee exposure to this specific hazard.
For the above stated reasons, the Board finds that the Division failed to prove that an employee was exposed to the inadequately guarded belt and pulley drive. Accordingly, the Board finds that the Division failed to prove the section 4070(a) violation alleged in Item 3.
Docket No. 95-R6D2-1494
Citation No. 2
Were employees exposed to unprotected surfaces presenting a cave-in hazard?
STATEMENT OF FACTS
It had been raining hard for three or four days before Squire and his team members initiated the inspection on Monday, March 6, 1995. Water had entered the partially excavated underground passenger station from a source in the north end. That morning, before Squire arrived, Enrique Chimal, a labor foreman and "competent person" for excavation safety purposes, and Rick Reyes, a laborer, entered the excavation to locate the source of the water and check the pumps Employer had placed there.
Squire was uncertain of the overall dimensions of the station excavation but testified that, as far as he could recall, 60 wide by 600 long would be a "fair description." He entered the excavation on March 6th by what appeared to be the only means available, a manufactured stairway Employer had installed near the center. While there, he observed footprints in the bottom of the middle of the excavation leading both to and from the north end. Since Employer had informed Squire that employees Chimal and Reyes were the only ones who had entered the north end of the excavation on foot, he concluded that the footprints were theirs.
Employer was digging an entrance to the station at the north end. Initially, Squire estimated its width as 15 to 16 but acknowledged on cross-examination that it could have been 20 to 24 wide. Squire estimated that the excavation was 8 to 10 deep in that area. The north face and the east and west walls were essentially vertical, as shown in photographs Squire took from inside the excavation on March 6, 1995. He reviewed the cave-in protection requirements of the excavation procedure approved for the site and determined that they had not been met in the north end.
Squire classified the soil as Type C because water was seeping from the walls. Without the recent rains the soil might have been Type B but that would not have affected the existence of the violation. There was no protective system in the north end sufficient for either type of soil.
Because Squire's inspection indicated that the cave-in protection in the north end of the excavation was inadequate and that Chimal and Reyes had been exposed to the hazard when they entered that area on March 6, 1995, the Division issued Citation No. 2, alleging a serious violation of section 1541.1(a)(1).
Squire testified that an employee trapped in the cave-in of an excavation 8 to 10 deep was more likely than not to be suffocated or suffer severe crushing injuries due to the weight of the soil. Employer knew that Chimal and Reyes entered the north end of the excavation without adequate cave-in protection. Hence, the Division classified the violation as serious and proposed a $1,500 civil penalty, calculated in accordance with the Director's penalty setting regulations.
Project manager Brian Lee identified a drawing of the underground station titled "Shoring Sections and Elevation", bearing the seal of registered professional engineer John S. James. Sections 17 through 20 of the drawing depict the elevation of the north end. It shows that the first level of shoring struts (Level A) was to be installed between the east and west walls at a depth of 11' 9" and span the entire width of the excavation, a distance of approximately 60.
The excavation had to be approximately 14' 9'' deep to install the Level A strut line and that depth had not yet been reached when the inspection occurred.
Lee identified one page of a FAX transmission John S. James sent him on March 1, 1995, regarding the excavation procedure for the station. It recommends a procedure for excavating below each of the four progressively deeper strut lines (A through D), as they are installed, enroute to the bottom of the station, approximately 75 below grade. The procedure was designed to meet Employer's requirement of 13'-0" of minimum vertical equipment clearance from the bottom of the struts for the large, track-type loader doing the excavating. Employer introduced a diagram and table depicting the loader and specifying its dimensions.
The recommended procedure is described as follows:
A 14'-6" wide bench shall be placed on each side of the station with the excavated surface not exceeding 3'-0" below the centerline of wales and struts. A center equipment trench may then be cut to a depth of 14'-6" below the centerline of wales and struts with side slopes of 1 : 2 (horizontal : vertical) up to the 14'-6" wide bench on each side. After wales and struts have been placed and preloaded, the excavation may proceed to the next level. Care must be taken to follow the excavation procedure on the approved shoring drawings.
Lee identified a memorandum John S. James sent him on February 23, 1995, addressing the subject of "Excavation for shotcrete lagging" at the station. The memo states that the purpose of using shotcrete lagging on the "Puente formation" soil of the station excavation walls is to provide "surface protection to maintain moisture and contain surface spalling."
The memo also states that "due to the cohesive shear strength of the Puente formation, the soft rock easily arches between [the] soldier piles" which "are in general, spaced at 7'-6" o.c. [on center] and 4'-0" o.c." in the 600'-long east and west walls of the rectangular main station excavation. The soldier piles "are placed in 36 and 42 inch round shafts," leaving gaps between the shafts of from 1'-0" to 4' 0", "so the possibility of surface spalling is limited."
The concluding paragraph of the memo states that, "[b]ased on the above, and observed performance of the Puente formation soil in the field, it is recommended that the soil be trimmed to a maximum height of seven (7) to ten (10) feet prior to placing shotcrete." Lee interpreted this as a statement by registered engineer James that the Puente formation soil was stable to a depth of 10.
Normally, the only employee in the north end of the excavation while the entrance was being dug was the loader operator. Even without the bucket and lift arms attached, the loader was 15'-2" long and 9'-6" wide. Moreover, the operator's seat was 9'-2" above the surface. This protected him against a cave-in in the 8' to 10' deep north end.
Lee introduced a copy of section 1541(k)(1) which provides, in part that a competent person shall inspect an excavation "after every rain storm or other hazard increasing occurrence . . . when employee exposure can be reasonably anticipated." To Lee's understanding, Chimal and Reyes entered the north end of the excavation shortly before the inspection began on March 6, 1995, to determine the effect that the heavy rains had had on pumps located there. In his opinion, no employee had been exposed to a cave-in hazard.
Enrique Chimal testified that he was trained and experienced in excavation safety and had instructed employees on that subject at safety meetings. He identified records of Employer safety meetings at which he had provided excavation safety instruction and records of relevant training he had received.
Chimal added that he and Reyes entered the north end of the excavation to determine the source of the water penetrating the station box and that he considered this to be a section 1541(k)(1) post-rain storm inspection. When they entered, they walked north along the centerline of the excavation, parallel to the east and west walls, which were approximately 30 away on either side. They approached to within approximately 5 of an area where the excavation wall was sloped at a 1:1 ratio and stayed far enough away from the walls in other areas to avoid exposure to the hazard of a cave-in. They found the source of the penetrating water and exited the excavation approximately 15 minutes after they entered.
FINDINGS AND REASONS
DECISION AFTER RECONSIDERATION
1. Employees Were Not Exposed to Unprotected Surfaces Presenting a Cave-in Hazard.
It was undisputed that employees Chimal and Reyes entered the excavation on the morning of March 6, 1995, walked along the south-north axis of the 60' wide excavation to the vicinity of the north end and remained in the excavation for approximately 15 minutes. It was also undisputed that Employer was then digging an entrance to the underground station at the north end that was somewhere between 15 and 24 wide and 8 to 10 deep. Compliance officer Squire's photographs show that the walls in the entrance portion of the excavation were essentially vertical and unrestrained against the possibility of caving in by a shoring, sloping or other protective system authorized by section 1541.1.
Employer argued that the excavation procedure designed by registered professional engineer John S. James required no protective system for employees in the north end entrance area until the depth exceeded 10. Employer contended that it was following James's design and, that by doing so, it was in compliance with the protective system option authorized by section 1541(c)(4)(A). The Board disagrees.
The shoring and elevation drawing approved by James shows that horizontal structural members termed "cap wales" rested just below the existing grade to support the street and whatever else was on the surface above the underground station. The FAX James sent Lee on March 1, 1995, directed Employer to bench and slope the walls of the excavation no more than 3 "below the centerline of wales and struts." (Emphasis added.)
The recommendation in James's February 23, 1995, memorandum that Employer trim excavation walls to a maximum height of 7' to 10' concerned the preparation of the walls for the application of shotcrete lagging. The memorandum did not purport to authorize Employer to expose employees to the hazard of working or walking in the excavation in proximity to 10' high soil walls without the benefit of an approved protective system.
Additionally, section 1541.1(a) requires employers to provide employees who enter an excavation more than 5 deep and who are exposed therein to the hazard of a cave-in with a protective system, unless the excavation is "made entirely in stable rock." In his "shotcrete lagging" memorandum, James describes the "Puente formation" material in which the station was being dug variously as "soft rock [that] easily arches between soldier piles" and as material that "is dense, well cemented and moist." Squire's photographs of the west face or wall of the north end entrance portion of the excavation shows some spalling or sloughing of the multi-layered wall material. Squire testified the water seeping from the walls, the appearance of the wall material, and the spalling led him to classify the material as Type C soil. This evidence proved that the excavation was not "made entirely in stable rock." Consequently, when it reached a depth of 5 and employees were required to enter and be exposed to the cave-in hazard present in an excavation of that depth, Employer was obligated to provide a protective system that complied with section 1541.1.
The next question to be addressed is whether Chimal and Reyes were near enough to the walls of the excavation to have been buried or struck by material entering the excavation due to a cave-in.
Had Chimal (or Reyes) entered the narrower 15 to 24 wide passenger entrance extension at the excavation's north end, he would have been exposed to a cave-in hazard. Chimal was the only percipient witness to the entry who testified. He acknowledged getting within 5 of an area of a wall that was sloped at a ratio of 1:1. Otherwise, Chimal maintained that he never departed from the approximate south/north centerline of the main excavation, approximately 30 from the east and west walls. Thus, according to Chimal, he was never close enough to the 8 to 10 high walls, where they were not sloped, shored or otherwise guarded, to have been buried or struck by material in the event of a cave-in. Squire's testimony that he observed footprints in the middle of the excavation appears to be consistent with Chimal's testimony. In Squire's photographs of the entrance extension of the excavation no footprints are visible in the soil of the bottom.
A preponderance of the evidence does not prove that Chimal or Reyes was exposed to a cave-in hazard while in the excavation. Accordingly, no violation of section 1541.1(a)(1) was established.
DECISION AFTER RECONSIDERATION
The ALJ's decision finding a general violation of section 1632(c) in Citation No. 1, Item 1 and assessing a civil penalty of $150 is reinstated and affirmed. The decision is set aside with respect to Citation No. 1, Items 2 and 3, and Citation No. 2. The Board grants Employer's appeals from those alleged violations and related civil penalties.
BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - June 30, 2000