EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD

Summary of Thompson Pacific Construction, Inc. – Decision after reconsideration

The employer appealed from a serious violation of section 3385(a) [jack-hammer concrete without adequate foot protection]. The employer argued that the ALJ’s findings were not supported by the evidence. The board found that the evidence was sufficient to establish that the employer’s employee was using a jackhammer which exposed his feet to crushing or penetrating injuries within the meaning of section 3385(a), and thus triggered the requirement for appropriate foot protection. The employer also contested the ALJ's denial of a motion to amend the appeal at the hearing based upon the employer’s failure to raise classification of the violation on its appeal form. The board affirmed the ALJ's denial of the motion since the employer failed to establish good cause for the untimely motion and because the division demonstrated that it would be prejudiced by the amendment.

The employer also appealed from a general violation of section 1541.1(a) [employees in excavation without cave-in protection] and a regulatory violation of section 341(a)(1) [no excavation permit for a 5’3” deep elevator base]. The board found that although the division inspector did not see anyone in the excavation, the record showed that the employer’s superintendent admitted that his two laborers dug the excavation by hand, and the presence of a ladder in the excavation further supported the finding. The board also held that under the safety order the depth is measured from the bottom of the excavation to the surface level. The board found that the evidence established violations of sections 1541.1(a) and 341(a).

Thompson Pacific Construction, Inc., 00-2593 (Word)
Thompson Pacific Construction, Inc., 00-2593 (Adobe Acrobat)

July 2, 2004