46 COR 40-8155 [¶22,942R]

Cal. Code Regs, tit. 8, § 1509(a) (2019) – Employer violated the safety order by failing to effectively implement its IIPP to protect an employee from the hazard of working in proximity to earthmoving equipment.

Cal. Code Regs, tit. 8, § 1592(e) (2019) – Employer violated the safety order by failing to control earthmoving operations so as to ensure that equipment or vehicle operators knew of the presence of workers on foot. The Division properly classified the violation as serious, accident-related.

Digest of COSHAB’s Denial of Petition for Reconsideration dated May 9, 2019, Inspection No. 1188395.

Ed Lowry, Chair.

Judith S. Freyman, Board Member.

SILICONSAGE CONSTRUCTION, INC. – X-Mod Graphic from Compline

Background. The Division cited Employer, a building contractor, for failing to establish, implement, and maintain an effective IIPP, and failure to control earthmoving operations in such a manner as to ensure that the vehicle operator knew of the presence of workers on foot in the area. Employer filed timely appeals of the citations.

The ALJ issued a decision dated February 7, 2019 [¶22,912] upholding the alleged violations and imposing civil penalties. Employer timely filed a petition for reconsideration.

Denial of petition for reconsideration. Employer’s petition asserted the decision was issued in excess of the ALJ’s powers, the evidence did not justify the findings of fact, and the findings of fact did not support the decision. (See Labor Code §6617.)

Employer was cited after one of its employees was seriously injured by being run over by an excavator being operated by Employer’s onsite supervisor. At the time of the accident, Employer was replacing soil or earth it had previously excavated to expose an underground water line for inspection in order to re-bury the pipe.

The ALJ held that Employer had not appointed an employee to act as a “spotter,” an individual charged with making sure employees stayed out of harm’s way when working on foot in the vicinity of hauling and earthmoving equipment. Employer argued the injured employee was the spotter, or “lookout.” At the time of the injury accident, this employee was assigned to shovel soil back into the excavation that had been dug. The supervisor stated he saw the employee behind him a few seconds before moving the excavator in reverse and either diverted his attention or lost sight of the employee and struck him with the excavator.

Hearsay analysis. Employer argued that during the inspection, the Division’s inspector used her phone to access a translation service to interview Spanish-speaking employees, and later testified regarding what was said. However, at least two of the employees she interviewed during the inspection testified at hearing: the supervisor at the worksite when the violations occurred; and Employer’s project manager. As such, any statements those individuals made were admissible admissions (See Board reg. §376.2.) Employer had ample opportunity to use their testimony to contradict or correct the inspector’s testimony about what was said in the field, the Board noted.

The Board next addressed whether Employer failed to implement its IIPP to protect the employee from the hazard of working in proximity to earthmoving equipment. Employer argued that it had a detailed IIPP that specifically addressed operating earthmoving equipment at a construction site. However, that argument did not address the alleged violation, which claimed three instances of a failure to implement the IIPP [Board’s emphasis]. The Division charged that Employer failed to: (1) ensure employees complied with Employer’s safe practices regarding working around moving equipment; (2) ensure communication between employees and supervisors regarding working around moving equipment; and (3) correct the hazard of the employee walking in close proximity to the moving equipment. The ALJ affirmed the violation on the basis of the third instance.

Employer’s IIPP recognized the hazard to workers on foot in proximity to operating earthmoving equipment. However, its supervisor failed to comply with the IIPP when he operated the excavator in reverse, even though he knew the other employee was close and he had lost sight of him. This was a failure to implement the IIPP (MCM Construction, Inc., Cal/OSHA App. 13-3851, DAR (Feb. 22, 2016) [Digest ¶ 22,564R]; see also National Distribution Center LP; Tri-State Staffing, Cal/OSHA App. 12-0391, DAR (Oct. 5, 2015) [Digest ¶ 22,521R]).

Employer’s supervisor, who was operating the excavator, moved the vehicle in reverse even though he had seen the other employee behind him a few seconds earlier, and even though that employee no longer was in view. As a result, the Appeals Board held the supervisor failed to implement the IIPP by continuing to operate the excavator in reverse even though a worker on foot was known to be near him and out of sight.

The second citation at issue before the Board alleged Employer violated §1592(e), which states, “Hauling or earth moving operations shall be controlled in such a manner as to ensure that equipment or vehicle operators know of the presence of rootpickers, spotters, lab technicians, surveyors, or other workers on foot in the areas of their operations.”

The excavator, which weighed about 13,000 pounds, was equipped with a bucket and a scraper. The bucket was used to remove earth to expose an underground pipeline for inspection, and the scraper was used to push the previously excavated soils back into the trench. Thus, the excavator was moving earth at the time of the accident, and §1592(e) applied. However, Employer argued this work was not “hauling” because the excavated soil was placed close to the trench being formed, rather than transported some distance away, and that the excavator was not an item of earthmoving equipment.

“Earth moving” is not defined in the Construction Safety Orders. The Board noted that the ALJ correctly stated that when a term is undefined, it is given its ordinary meaning (Barnard Impreglio Healy JV, Cal/OSHA App. 317134021, DDAR (March 10, 2017) [Digest ¶ 22,675R]). The ALJ also correctly stated that because “earth” or soil was removed to expose the buried pipeline for inspection, earth was moved to do so, and then moved again to refill the trench. As a result, the work fell within the scope of §1592(e), which applies to “hauling or earth moving operations” [Board’s emphasis].

Moreover, §1592(e) requires that “operations be controlled … to ensure that equipment or vehicle operators know of the presence of … other workers on foot in the areas of their operations.” From the occurrence of the accident, it was apparent the supervisor did not know the other employee was behind the excavator. Additionally, the safety order applies to “vehicle operators.” Even if the excavator were deemed not to be earthmoving equipment, it was a self-propelled “vehicle” whose operator failed to know of the presence of a worker on foot near the vehicle, the Board stated.

Employer next contended that it had implemented many protective measures at the worksite to control the operations, as required by §1592(e), and that because the ALJ sustained the citation, a “strict liability” test had been applied. The Board rejected this argument. The Division established the elements of a violation of §1592(e), including that Employer was engaged in earthmoving operations and that it failed to control those operations in a manner that ensured that the excavator operator knew of the presence of a worker on foot directly behind the excavator when he drove it in reverse.

Classification. The serious classification of the violation was established by the evidence that the excavator weighed about 13,000 pounds, and that as a result of being run over by one of the excavator’s tracks, the employee was seriously injured. There is a “realistic possibility” that serious physical harm will result from being run over by a 13,000 pound vehicle, the Board stated. (See Labor Code §6432(a).)

Employer argued it rebutted the presumption of a serious violation. The Board noted that, in essence, this argument blamed the injured employee for the accident. Employer also asserted that constant supervision of employees was not required. While correct, the Board noted, this argument was irrelevant: the violation was the result of the supervisor continuing to drive the excavator in reverse even after he lost sight of his co-worker. His actions were attributable to Employer because he was the supervisor onsite as well as the operator of the excavator (MCM Construction, supra).

At hearing, Employer asserted the independent employee action defense (IEAD). Failure to prove any one element of the IEAD of defeats the defense (Mercury Service, Inc., Cal/OSHA App. 77-1133, DAR (Oct. 16, 1980) [Digest ¶ 14,137R]). The ALJ held that there was no evidence the injured employee knew he was acting in violation of Employer’s safety rules. The burden was on Employer to prove all five elements of the IEAD, but it offered no evidence regarding its fifth element. The ALJ correctly held that Employer did not establish the IEAD, the Appeals Board found.

Penalty. Employer asserted the Division did not provide sufficient evidence to support the $18,000 assessed penalty. However, the evidence showed the violation was serious and accident-related; thus, the only available reduction under the penalty assessment regulations (§336(d)(7)) was for size. Employer did not contend that it had fewer than 100 employees. Consequently, the ALJ properly assessed the $18,000 penalty.

The Board denied Employer’s petition for reconsideration and affirmed the penalties.