inspection no. 316818749 campanella corporation 2216 … · oshab 600 (rev. 5/17) decision 3...

OSHAB 600 (Rev. 5/17) DECISION 1

BEFORE THESTATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTHAPPEALS BOARD

In the Matter of the Appeal of:

CAMPANELLA CORPORATION 2216 DUNN ROADHAYWARD, CA 94545

Employer

Inspection No.316818749

DECISION

Statement of the Case

Campanella Construction (Employer or Campanella) is a construction and land grading contractor. Beginning September 20, 2013, the Division of Occupational Safety and Health (the Division), through Senior Safety Engineer Michael Miller and Associate Safety Engineer Michael Boyle, conducted an accident investigation at a job site located at 1205 Club Drive in Vallejo, California (the site). On December 17, 2013, the Division cited Employer for failure to control an earth moving operation in such a manner as to ensure that the vehicle operator knew of the presence of a worker on foot in the area.

Employer filed a timely appeal of the citation, contesting the existence of the violation, the classification of the violation, and the reasonableness of the penalty. Employer further asserted a series of affirmative defenses.1 The citation was originally issued as a General violation, but was amended to a Serious, Accident-Related, violation pursuant to an order issued by a previously assigned Administrative Law Judge on August 31, 2015.

This matter was heard by Kerry Lewis, Administrative Law Judge (ALJ) for the California Occupational Safety and Health Appeals Board, in Oakland, California, on August 29 and 30, 2017, and February 6 and 7, 2018. John W. Ranucci, of Lombardi, Loper and Conant LLP, represented Employer. Staff Counsel Cynthia Perez represented the Division. The matter was submitted for decision on March 23, 2018.

1 Except as otherwise noted in this Decision, Employer did not present evidence in support of its affirmative defenses, and said defenses are therefore deemed waived. (California Erectors, Bay Area, Inc., Cal/OSHA App. 93-503 and 504, Decision After Reconsideration (July 31, 1998); Central Coast Pipeline Construction Co., Inc. Cal/OSHA App. 76-1342, Decision After Reconsideration (July 16, 1980).)


Issues

1. Was Campanella a citable employer?

2. Did Employer establish that it satisfied all five defenses set forth in section 336.11 to preclude liability as an “exposing employer”?

3. Did Employer fail to control earth moving operations in such a manner as to ensure that the vehicle operator knew of the presence of the grade setter on the ground?

4. Did Employer establish the Independent Employee Action Defense?

5. Did Employer establish that it should be relieved of liability because the vehicle operator’s actions were “unforeseeable”?

6. Did the Division establish a rebuttable presumption that the citation was properly classified as Serious?

7. Did Employer rebut the presumption that the violation was Serious by demonstrating that it did not know and could not, with the exercise of reasonable diligence, have known of the existence of the violation?

8. Did the Division establish that the citation was properly characterized as Accident-Related?

9. Is the proposed penalty reasonable?

Findings of Fact

1. KDW Construction, LLC (KDW) was the general contractor on a residential housing project located at 1205 Club Drive in Vallejo, California. KDW rented labor and equipment from Campanella and Harris Blade Rental (Harris Blade).

2. On September 20, 2013, three of Employer’s employees were working at the job site, and two Harris Blade employees were present. The employees were grading large “pads” for prefabricated homes.

3. Harris Blade employee Shawn Herrin (Herrin) was operating a piece of heavy equipment called a scraper. The scraper followed the path of another piece of


equipment called a blade, or grader, and collected accumulated soil that the blade had created.

4. Campanella employee Manuel Cruz (Cruz) was a grade setter working on the ground at the job site. Cruz was tasked with setting stakes in the ground to guide the equipment operators in their grading work.

5. Before work each day, KDW conducted a pre-task safety meeting to discuss various safety issues the workers might encounter throughout the day. One topic of discussion was “men on the ground.”

6. KDW and Campanella’s method for addressing the risk of “men on the ground” was to instruct the operators and ground workers to watch out for each other and make eye contact when equipment came in proximity of the ground workers.

7. In the early afternoon on September 20, 2013, as Herrin was following an elliptical path on a large pad, the rear left wheel of the tractor on his scraper struck and killed Cruz, who had been working on the ground just along the outer edge of the elliptical path.

8. Despite the fact that Herrin had passed Cruz several times on his path, Herrin was not aware of Cruz’s presence on his left as he made a right turn.

9. Neither Cruz nor Herrin acted in a manner that intentionally violated safety procedures.

10. The penalty was calculated in accordance with the Division’s policies and procedures.

Analysis

1. Was Campanella a citable employer?

California Code of Regulations, title 8, section 336.10, is the multi-employer worksite regulation promulgated by the Director of the Department of Industrial Relations.2 (McCarthy Building Companies, Inc. (McCarthy), Cal/OSHA App. 11-1706, Decision After Reconsideration (January 11, 2016); Airco Mechanical, Inc., Cal/OSHA App. 99-3140, Decision After Reconsideration (Apr. 25, 2002).) Section 336.10 defines the categories of employers that

2 Unless otherwise specified, all references are to sections of California Code of Regulations, title 8.


may be cited when the Division has evidence of employee exposure to a hazard in violation of any requirement enforceable by the Division. (McCarthy, supra, Cal/OSHA App. 11-1706; see also, Lab. Code § 6400.) Employers that may be cited include (1) the employer whose employees were exposed to the hazard (the exposing employer); (2) the employer that actually created the hazard (the creating employer); (3) the employer who was responsible, by contract or through actual practice, for safety and health conditions on the worksite, which is the employer who had the authority for ensuring the hazardous condition is corrected (the controlling employer); and (4) the employer who has the responsibility for actually correcting the hazard (the correcting employer). (McCarthy, supra, Cal/OSHA App. 11-1706.) Controlling, correcting, and creating employers may be cited regardless of whether their own employees were exposed to the hazard. (Section 336.10; Lab. Code §6400, subd. (b).)

An employer’s statutory duty to furnish a safe and healthful place of employment is non-delegable. (Guardsmark, Cal/OSHA App. 10-2675, Denial of Petition for Reconsideration (Sept. 22, 2011); Labor Ready, Inc., Cal/OSHA App. 99-3350, Decision After Reconsideration (May 11, 2001).) Employers may not shift responsibility for safety at a multi-employer worksite to another employer. (See DeSilva Gates Construction, Cal/OSHA App. 01-2742, Decision After Reconsideration (Dec. 10, 2004).)

a. Exposing Employer

“Board precedent holds that an employer is liable for a safety violation if its employees are exposed to a hazard and an employer will be held liable for its employee’s exposure even if the hazard was actually created by a third party. [Citations omitted.]” (Airco Mechanical, Inc., supra, Cal/OSHA App. 99-3140.)

Cruz, Employer’s employee, was fatally injured at a multi-employer job site. Cruz was working on the ground when he was struck by the scraper driven by Harris Blade employee, Herrin. Employer argued that it did not create the hazard and could not control the Harris Blade employee’s actions, so it should not be liable for the cited safety violation. However, the multi-employer regulations and Appeals Board precedent provide that the exposing employer’s liability is premised on the status of the exposed employee, not creation of the hazard.

Accordingly, Campanella was citable as an exposing employer pursuant to section 336, subdivision (a).


b. Correcting employer3

The correcting employer must have actual responsibility for correcting the specific hazard in question. (Hearn Construction, Inc., Cal/OSHA App. 02-3533, Decision After Reconsideration (Sept. 19, 2008).)

The procedures pertaining to the operators and ground workers were established by KDW. Campanella did not have the authority to enter the job site or direct the workers to follow a different procedure. Indeed, even if Campanella had trained its employees in a different method of controlling operations, it appears unlikely that those procedures would have been implemented on KDW’s job site, given the fact that there were several different employers performing the earth moving operations. It was a Harris Blade employee driving Harris Blade equipment that was involved in the fatal accident at issue and there was no evidence that Employer could have required that the Harris Blade operator perform in a manner other than what he was doing.

As such, Campanella was not a correcting employer pursuant to section 336.10, subdivision (d). However, because Campanella was the exposing employer, the citation was properly issued pursuant to the multi-employer regulations.

2. Did Employer establish that it satisfied all five defenses set forth in section 336.11 to preclude liability as an “exposing employer”?

Section 336.11 provides that the Division shall evaluate a series of defenses prior to issuing a citation to an exposing employer:

If the Division concludes that all five defenses have been met, the citation shall not be issued. These defenses are:

(a) The employer did not create the hazard.

(b) The employer did not have the responsibility or the authority to have the hazard corrected.

(c) The employer did not have the ability to correct or remove the hazard.

3 Associate Safety Engineer Michael Boyle asserted that Campanella was cited as the exposing and correcting employer. Senior Safety Engineer Michael Miller testified that Campanella was cited only as the exposing employer. The Division did not make any legal argument in support of citing Campanella as the correcting employer, but the issue is analyzed here for purposes of ensuring a complete record.


(d) The employer can demonstrate that the creating, the controlling and/or the correcting employers, as appropriate, were specifically notified or were aware of the hazards to which his/her employees were exposed.

(e) The employer took appropriate feasible steps to protect his/her employees from the hazard, instructed them to recognize the hazard and, where necessary, informed them how to avoid the dangers associated with it. For the purposes of this section, where an extreme hazard is involved, appropriate feasible steps include removing the employer’s employees from the job, if there is no other way to protect them from the hazard.

Whether the Division follows this pre-citation procedure or not, the Appeals Board is vested with the authority to resolve an appeal from the issued citation. (Airco Mechanical, Inc., supra, Cal/OSHA App. 99-3140.) An exposing employer cited for a violation of a safety order may assert section 336.11 as an affirmative defense in an appeal proceeding. (Id.)

“In the absence of Employer establishing the affirmative defense available under section 336.11, long held Board precedent holds that an employer is liable for a safety violation if its employees are exposed to a hazard and an employer will be held liable for its employee’s exposure even if the hazard was actually created by a third party.” (Airco Mechanical, Inc., supra, Cal/OSHA App. 99-3140.)

Employer demonstrated that it did not create the hazard, and had neither the authority nor the ability to correct the hazard. However, although KDW was aware of the hazard of workers on the ground around earth moving vehicles, that awareness did not extend to an appreciation of how its control methods did not sufficiently address the hazard. Additionally, there was no evidence that Employer appreciated the apparent lack of controls such that it took sufficient steps to protect its employees from the hazard (section 336.11, subd. (e)). The only evidence presented regarding the protection of employees working on the ground in the vicinity of earth moving vehicles was that Employer instructed the vehicle operators and ground workers to be aware of one another and make eye contact. As set forth below, this does not provide adequate protection and does not comply with section 1592, subdivision (e).

Accordingly, the defenses set forth in section 336.11 have not been established to shield Employer from its liability as an exposing employer.


3. Did Employer fail to control earth moving operations in such a manner as to ensure that the vehicle operator knew of the presence of the grade setter on the ground?

The Division cited Employer for a violation of section 1592, subdivision (e), which provides:

(e) 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.

In the citation, the Division alleges:

On or before September 20, 2013, the employer failed to ensure that the vehicle operator knew of the presence of a surveyor on the ground at 1205 Club Drive, Vallejo, CA.

In order to establish a violation of section 1592, subdivision (e), the Division needs to prove that an employer failed to implement control procedures to ensure a heavy equipment operator knew of the location of employees on foot in the vicinity of the equipment. (R & L Brosamer, Inc., Cal/OSHA App. 03-4832, Decision After Reconsideration (Oct. 5, 2011), citing Teichert Const. v. California Occupational Safety and Health Appeals Bd. (2006) 140 Cal.App.4th 883, 891-892.)

The meaning of this Safety Order has been analyzed by the Court of Appeal.

The safety order is designed to protect workers on foot and imposes an affirmative obligation upon an employer to control such operations. Hauling and earth moving operations inherently involve movement of equipment and vehicles in the defined area and the location of such vehicles changes within the area of operation. Only where control measures are used by the employer to ensure that operators know of workers on foot in their immediate vicinity will the safety order have the intended effect of protecting workers on foot from the hazards of hauling and earth moving equipment.

(Teichert Const. supra, at 891-892.)


The regulation requires that operations be controlled. The Appellate Court has held that control means “to exercise a directing, restraining, or governing influence over; to direct, to counteract, to regulate. (Citations omitted.)” (HB Parkco Construction, Inc., Cal/OSHA App. 07-1731, Decision After Reconsideration (Mar. 26, 2012), citing Teichert Const. supra, 140 Cal.App.4th 883.)

Several Appeals Board cases, with facts similar to the instant matter, have found employers in violation of section 1592, subdivision (e). (See R & L Brosamer, supra, Cal/OSHA App. 03-4832, Decision After Reconsideration (Oct. 5, 2011); HB Parkco Construction, Inc., supra, Cal/OSHA App. 07-1731; Teichert Construction, Cal/OSHA App. 98-2512, Decision After Reconsideration (Mar. 12, 2002).) In each of the three cases, the Appeals Board found that the employers’ procedures were inadequate because each employer simply informed the operators that workers could be on foot in their area and then left it up to the employees to look out for each other. In the three previous Appeals Board cases, the operators were performing earth moving duties while the workers on foot performed their activities around them. It has been determined to be a violation of section 1592, subdivision (e), to generally inform operators that people could be on foot in the vicinity of the equipment. (Teichert, supra, 140 Cal App. 4th at 889.)

“A system of making eye contact between on-foot workers and vehicle operators is, without more, insufficient to establish control and does not ensure that operators know the exact location of workers on foot.” (HB Parkco Construction, Inc., supra, Cal/OSHA App. 07-1731.) In HB Parkco, the Appeals Board found a violation of section 1592, subdivision (e), based on a procedure “for the operator and any on-foot workers to make eye contact and acknowledge each other through waving or other clear method, which was left to the employees to devise.” (Id.) The Appeals Board, in finding that the employer in HB Parkco had an ineffective system, stated, “This is equivalent to a general admonition to be safe, and it is insufficient to satisfy the control requirements of 1592(e).” (Id.; Pouk & Steinle, Cal/OSHA App. 03-1496, Decision After Reconsideration (Jun. 10, 2010).)

KDW and Campanella each had a policy and practice of instructing the employees to watch out for one another, as evidenced by each of the witnesses testifying at the hearing. Prior to beginning work on the afternoon of the accident, the workers discussed where Cruz would be working, although the testimony of the workers suggests that Cruz could move from his location at any time. There was no evidence presented that either employer implemented any other procedures to control the operations to ensure that vehicle operators knew of workers on the ground.


Louis Frigard (Frigard), the Harris Blade equipment operator who was operating the blade in conjunction with Herrin’s scraper on the day of the accident, testified that Cruz was able to move anywhere, so Frigard made sure that he made eye contact with Cruz if he was going to be working in Cruz’s vicinity. When asked if he had any recollection of specific communication he had with Cruz regarding the equipment entering the area where Cruz would be working, Frigard responded:

Not so much but if he was in my area or I was going to be near him I would make eye contact or see that he knows what I’m doing, my pattern or whatever it may be. You know, I wouldn’t just come into his work area and he’d probably make eye contact if he was going to come into my work area too.

When asked if he took special precautions to know where Cruz was working, Frigard responded:

Well, it was a tight area so you would want to give each other their own little work area and try and be polite when you’re going into that area and letting them know that you’re going to start working that area, you know. You got to -- you got to shuffle around and work together.

Kenneth “Buck” Neu (Neu), KDW Operations Manager, testified that it is KDW’s training and practice to require equipment operators to be aware of people on the ground and the ground workers are trained to maintain eye contact with the equipment operators. Neu did not testify about any other methods of controlling earth moving operations to ensure that the equipment operators were aware of the workers on foot.

Richard Ritter (Ritter), a Campanella Equipment Operator, testified that operators were instructed to know where the men on the ground were located. When asked during the hearing for more specifics about how the operators knew where the ground workers were located, Ritter responded that, “It’s your responsibility to know where the people are. If you don’t, you don’t move.”

Daniel Lebron, Campanella’s Safety Coordinator, testified that he completed a Pre-Task Analysis Form for the Mare Island project at issue, which identified “ground crew” as an anticipated hazard and the safe working practice he prescribed was for “[o]perators to watch for ground crew.” (Exhibit 30.)

The overwhelming evidence from each of the employee witnesses was that the only method for equipment operators to know of the presence of ground workers was for the employees themselves to be aware of one another through eye contact. If, in fact, this control


method was sufficient, Cruz and Herrin violated the procedures immediately prior to the accident, as neither employee made eye contact with the other. Nonetheless, Employer asserted that its method of training its employees to acknowledge each other’s presence through eye contact is sufficient control and should absolve it of liability.

Alternatively, Employer argued that there should be no violation because the vehicle operator, Herrin, was actually aware of Cruz’s presence. Employer asserted that Herrin must have known of Cruz’s presence because Cruz was working in the same location for five to ten minutes and Herrin had traveled the same path at least one time prior to the accident.4 There was no apparent external obstacle that would prevent Herrin from seeing Cruz on the approximately 300-foot straightaway Herrin had traveled before making the right turn that resulted in Cruz being struck by a left rear tractor wheel. As such, Employer argued that there should be no violation of section 1592, subdivision (e). However, the Appeals Board has previously found a violation of the safety order despite assertions that the operator knew of the ground worker’s location:

Whether the operator actually knew Castro’s specific location immediately prior to the accident is not a material fact under the specific terms of the safety order. Whether the operator was actually aware of the presence of Castro in the pit does not resolve the question of whether Employer controlled earthmoving procedures in such a manner as to ensure equipment operators know of the presence of root pickers in the area.

(R & L Brosamer, supra, Cal/OSHA App. 03-4832.)

In R & L Brosamer, the Appeals Board found evidence that the ground worker was crushed by earth moving equipment and held that “[s]uch evidence also provides circumstantial evidence that the operator was unaware of [the ground worker’s] location in the cut area. This evidence tends to confirm that Employer had no method of ensuring the operator knew of the location of [ground workers]. But, the operator’s actual knowledge, or lack thereof, does not satisfy the requirement that Employer devise a reliable method of informing the operator of the [ground worker’s] exact location.” (R & L Brosamer, supra, Cal/OSHA App. 03-4832.)

Employer did not assert that Herrin intentionally struck Cruz. There was no evidence that any investigations resulted in a finding of intentional malfeasance. Certainly, if a police investigation, or Employer’s own investigation, determined that Herrin had intentionally struck Cruz, Employer would have presented such evidence to rebut the Division’s assertions and

4 None of the witnesses, including Herrin, was able to definitively recall how many times around the elliptical path Herrin had traveled before the accident occurred.


inferences that Herrin was not aware of Cruz’s presence. No such evidence was presented. (See R & L Brosamer, supra, Cal/OSHA App. 03-4832.)

It was Employer’s obligation under the safety order to ensure that the earth moving operations were controlled because it was Employer’s employees who were working on foot and thus exposed to the hazard addressed by the safety order. (HB Parkco Construction, Inc., supra, Cal/OSHA App. 07-1731; Benicia Foundry & Iron Works, Inc., Cal/OSHA App. 00-2976, Decision After Reconsideration (Apr. 24, 2003).) Employer failed to do so.

Accordingly, the Division established that Employer violated section 1592, subdivision (e).

4. Did Employer establish the Independent Employee Action Defense?

Employer asserted that it is not liable for the violations for which it was cited based on the Independent Employee Action Defense (IEAD).

In order to assert the affirmative defense of IEAD successfully, an employer must establish each of the following elements:

(1) The employee was experienced in the job being performed; (2) The employer has a well-devised safety program which includes training

employees in matters of safety respective to their particular job assignments;

(3) The employer effectively enforces the safety program; (4) The employer has a policy of sanctions against employees who violate the

safety program; and (5) The employee caused a safety infraction which he or she knew was contra

to the employer’s safety requirements.

(Fedex Freight, Inc., Cal/OSHA App. 14-0144, Decision After Reconsideration (Dec. 14, 2016); Mercury Service, Inc., Cal/OSHA App. 77-1133, Decision After Reconsideration (Oct. 16, 1980).)

In Macco Constructors, Inc. Cal/OSHA App. 83-147, Decision After Reconsideration (Oct. 2, 1987), the Board describes the purpose of the IEAD as follows:

The independent employee action defense is designed to relieve an employer from the consequences of willful or intentional violation of one of its safety rules by non-supervisory employees, when specified criteria are met.


A single missing element defeats the IEAD. (RNR Construction, supra¸ Cal/OSHA App. 1092600.) Employer’s assertions that its safety program was well-devised, enforced, and implemented are rendered moot by the fact that there is no evidence that either employee involved in the action had intentionally violated a safety provision. In Synergy Tree Trimming, Inc., Cal/OSHA App. 317253953, Decision After Reconsideration (May 15, 2017), the Appeals Board also found that the employer had not satisfied the fifth element of the IEAD because the employer was “unable to demonstrate that [the employee’s] actions were anything less than an unfortunate one-time error. Put another way, the Employer has not shown that [the employee’s] actions were intentional and knowing, as opposed to inadvertent, or that [the employee] was conscious of the fact that his actions constituted a violation of a safety regulation or rule at the time of the accident.”

As set forth above, Employer did not have any basis to argue that Herrin intentionally drove in a path that caused the scraper’s rear wheel to strike Cruz. It appears that Herrin’s actions were an unfortunate one-time error, similar to the finding in Synergy Tree Trimming, supra.

Because there was no evidence that either employee knowingly and intentionally violated a safety procedure, the IEAD does not relieve Employer of liability for the violation.

5. Did Employer establish that it should be relieved of liability because the vehicle operator’s actions were “unforeseeable”?

The judicially-created affirmative defense that allows an employer to avoid liability for a violation based on an unforeseeable act by its employee was first established in Newbery Electric Corporation v. Occupational Safety and Health Appeals Board (1981) 123 Cal.App.3d 641. In order to successfully assert the Newbery defense, an employer must prove that none of the following four criteria exist:

(1) the employer knew or should have known of the potential danger to employees;(2) the employer failed to exercise supervision adequate to assure safety;(3) the employer failed to ensure employee compliance with its safety rules; and(4) the violation was foreseeable.

(Gaewhiler v. Occupational Safety and Health Appeals Board (1983) 141 Cal.App.3d 1041, 1045.)

“Calling [the vehicle operator’s] conduct things such as “unpredictable” and “unexpected” does nothing to rebut the fact that the accident occurred because [the vehicle operator] was not aware of [the ground worker’s] presence in [the vehicle operator’s] immediate


vicinity.” (Teichert Const. v. California Occupational Safety and Health Appeals Bd. (2006) 140 Cal.App.4th 883, 891-892.)

Employer argued that Herrin’s negligent actions were unforeseeable. Employer asserted that Herrin drove outside the path the equipment operators had traveled on previous laps around the pad. Additionally, Employer argued that Herrin looked over his right shoulder just before he struck Cruz, causing him to lose sight of Cruz at the last moment. These actions, according to Employer, were unforeseeable and should relieve Employer of liability for the cited violation.

An analysis of the four factors of the Newbery defense requires applying the negative to each factor because the defense requires that none of the four criteria exist. That is, (1) the employer did not know or should not have known of the potential danger, (2) the employer exercised adequate supervision, (3) the employer ensured employee compliance with safety rules, and (4) the violation was unforeseeable. In the instant matter, Employer did know, or should have known, of the potential danger of having men working on the ground in proximity to earth moving equipment without adequate controls.

In sum, Employer has not met its burden of proof with regard to the unforeseeable employee act Newbery defense.

6. Did the Division establish a rebuttable presumption that the citation was properly classified as Serious?

Labor Code section 6432, subdivision (a), states:

(a) There shall be a rebuttable presumption that a “serious violation” exists in a place of employment if the division demonstrates that there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation. The actual hazard may consist of, among other things: […]

(2) The existence in the place of employment of one or more unsafe or unhealthful practices that have been adopted or are in use.

[…]

Labor Code section 6432, subdivision (e), provides that “serious physical harm,” means any injury or illness, specific or cumulative, occurring in the place of employment or in connection with any employment that results in, among other things, any serious degree of


permanent disfigurement or an impairment sufficient to cause a permanent and significant reduction in efficiency on or off the job. In the instant matter, the crushing injuries to Cruz resulted in his death.

The Appeals Board has defined the term “realistic possibility” to mean a prediction that is within the bounds of human reason, not pure speculation. (A. Teichert & Son, Inc. dba Teichert Aggregates, Cal/OSHA App. 11-1895, Decision After Reconsideration (Aug. 21, 2015), citing Janco Corporation, Cal/OSHA App. 99-565, Decision After Reconsideration (Sep. 27, 2001).) The hazard created by the failure to control earth moving operations to ensure that operators know of the presence of workers on the ground is that those workers on the ground may be struck by the equipment or vehicles. Not only was there a realistic possibility of serious physical harm or death as a result of the hazard, but it was an actuality in the instant matter.

Accordingly, the Division established a rebuttable presumption that the citation was properly classified as Serious.

7. Did Employer rebut the presumption that the violation was Serious by demonstrating that it did not know and could not, with the exercise of reasonable diligence, have known of the existence of the violation?

Labor Code section 6432, subdivision (c), provides that an employer may rebut the presumption that a serious violation exists by demonstrating that the employer did not know and could not, with the exercise of reasonable diligence, have known of the presence of the violation. In order to satisfactorily rebut the presumption, the employer must demonstrate both:

(1) The employer took all the steps a reasonable and responsible employer in like circumstances should be expected to take, before the violation occurred, to anticipate and prevent the violation, taking into consideration the severity of the harm that could be expected to occur and the likelihood of that harm occurring in connection with the work activity during which the violation occurred. Factors relevant to this determination include, but are not limited to, those listed in subdivision (b)5[; and]

(2) The employer took effective action to eliminate employee exposure to the hazard created by the violation as soon as the violation was discovered.

5 Labor Code section 6432, subdivision (b), provides that the following factors may be taken into account: (A) Training for employees and supervisors relevant to preventing employee exposure to the hazard or to similar hazards; (B) Procedures for discovering, controlling access to, and correcting the hazard or similar hazards; (C) Supervision of employees exposed or potentially exposed to the hazard; and (D) Procedures for communicating to employees about the employer’s health and safety rules and programs.


Employer did not make sure that there were adequate controls in place to ensure that vehicle operators were aware of the presence of ground workers at all times. A review of the KDW pre-task safety meeting logs or an interview with the employees present at the job site would have revealed to Employer that the only controls in place were that the operators were to “keep an eye out” for ground workers. Further, because this was the same procedure that Employer had implemented, it is unlikely that it would have found KDW’s controls to be lacking. This represents a misunderstanding and misapplication of the safety order, which does not constitute an exercise of reasonable diligence.6

Accordingly, Employer has failed to rebut the presumption that the citation was properly classified as Serious.

8. Did the Division establish that the citation was properly characterized as Accident-Related?

In order for a citation to be characterized as accident-related, there must be a showing by the Division of a “causal nexus between the violation and the serious injury.” (RNR Construction, Cal/OSHA App. 1092600, Denial of Petition for Reconsideration (May 26, 2017).) The violation need not be the only cause of the accident, but the Division must make a “showing [that] the violation more likely than not was a cause of the injury.” (Id., citing MCM Construction, Inc., Cal/OSHA App. 13-3851, Decision After Reconsideration (Feb. 22, 2016).)

Where the Division presents evidence which, if believed, is of such a nature as to support a finding if unchallenged, then the burden of producing evidence shifts to Employer to present convincing evidence to avoid an adverse finding as to Employer. (Paramount Scaffold, Inc., Cal/OSHA App. 01-4564, Decision After Reconsideration (Oct. 7, 2004).)

The failure to control earth moving operations in such a manner as to ensure that vehicle operators knew of the presence of ground workers resulted in Cruz being struck by the scraper, which resulted in Cruz’s death. Employer did not produce any persuasive evidence that the fatal injury to Cruz was caused by anything other than the violation of the safety order. Therefore, the Division has established that the violation was the cause of the injury.

Accordingly, the citation was properly characterized as Accident-Related.

6 Employers in California have an obligation to understand applicable safety orders. (McKee Electric Company, Cal/OSHA App. 81-0001, Decision After Reconsideration (May 29, 1981).)


9. Is the proposed penalty reasonable?

Penalties calculated in accordance with the penalty-setting regulations set forth in sections 333 through 336 are presumptively reasonable and will not be reduced absent evidence that the amount of the proposed civil penalty was miscalculated, the regulations were improperly applied, or that the totality of the circumstances warrant a reduction. (Stockton Tri Industries, Inc., Cal/OSHA App. 02-4946, Decision After Reconsideration (Mar. 27, 2006).) Employer asserted that the penalty was not reasonable.

The Division presented testimony that its proposed penalty was calculated in accordance with the penalty-setting regulations. The Division submitted its Proposed Penalty Worksheet (Exhibit 2) and Michael Boyle testified regarding the basis for the calculations. Employer did not present any evidence that the Division’s calculations were incorrect or that the circumstances warranted a reduction.

Accordingly, the proposed penalty of $14,400 is found to be reasonable.

Conclusion

The evidence supports a finding that Employer was properly cited as an exposing employer who violated section 1592, subdivision (e), by failing to control earth moving operations in such a manner as to ensure that equipment or vehicle operators know of the presence. The violation was properly classified as Serious, Accident-Related. The proposed penalty is found to be reasonable.

ORDER

It is hereby ordered that Citation 1 is affirmed, and the penalty of $14,400 is sustained.

It is further ordered that the penalty indicated above and set forth in the attached Summary Table be assessed.

__________________________________Dated: Kerry Lewis

Administrative Law Judge

________________________Kerry Lewis03/29/2018


The attached decision was issued on the date indicated therein. If you are dissatisfied with the decision, you have thirty days from the date of service of the decision in which to petition for reconsideration. Your petition for reconsideration must fully comply with the requirements of Labor Code sections 6616, 6617, 6618 and 6619, and with California Code of Regulations, title 8, section 390.1. For further information, call: (916) 274-5751.

OSHAB 601 APPENDIX A Rev. 5/16Summary of Evidentiary Record and Certification of Recording

APPENDIX ASUMMARY OF EVIDENTIARY RECORD

Inspection No.: 316818749Employer: CAMPANELLA CORPORATION Dates of hearing: August 29, 2017, February 6 and 7, 2018

DIVISION’S EXHIBITS Exhibit Number Exhibit Description Status

1 Jurisdictional documents Admitted Into Evidence

2 Proposed Penalty Worksheet (C-10) Admitted Into Evidence

3 Transcript of Shawn Herrin from 2015 hearing Not Admitted into Evidence

4 Miller’s interview notes Admitted Into Evidence

5 Photo of job site Admitted Into Evidence

6 Photo of scraper Admitted Into Evidence

7 Photo of scraper tractor Admitted Into Evidence

8 Photo of other equipment at job site Admitted Into Evidence

9 Photo of compactor Admitted Into Evidence


11 Photo of scraper tractor Admitted Into Evidence

12 Photo of scraper bowl Admitted Into Evidence

13 Photo of scraper trailer Admitted Into Evidence

14 Photo of accident scene Admitted Into Evidence

15 Boyle’s inspection notes Admitted Into Evidence

16 Notes from Boyle interview with Herrin Admitted Into Evidence

17 Herrin Witness Statement Admitted Into Evidence

18 Zadrozny Witness Statement Admitted Into Evidence

19 Document Request Sheet Admitted Into Evidence

20 Photo of Earthwork Summary (accident location) Admitted Into Evidence



22 Photo of Miller with measuring tape at job site Admitted Into Evidence


24 Photo of stakes and ruler Admitted Into Evidence


26 Photo of front tire and access ladder on scraper Admitted Into Evidence

27 Photo of right side of scraper Admitted Into Evidence

28 Photo of left side of cab of scraper Admitted Into Evidence


30 Pre Task Analysis Form Admitted Into Evidence

31 Emergency Action Plan Admitted Into Evidence

32 Dispatch Form for Cruz Admitted Into Evidence

33 Employer Response to Document Request Admitted Into Evidence

34 Email b/t Employer and USA North Admitted Into Evidence

35 USA North Ticket Admitted Into Evidence

36 Employer’s Report of Injury (to Dept of WC) Admitted Into Evidence

37 Safety Meeting notes Admitted Into Evidence

38 Email response from Vallejo PD to Boyle re Police Report Admitted Into Evidence

39 Police Report Admitted Into Evidence

40 Email response from Coroner re Request for Report Admitted Into Evidence

41 Coroner’s Report Admitted Into Evidence

42 Employer’s IIPP Admitted Into Evidence

43 Non-Service Report (re Herrin subpoena) Admitted Into Evidence

44 Email corres re non-service of subpoena on Herrin Admitted Into Evidence

45 Email corres b/t counsel for parties re non-service of subpoena on Herrin

Admitted Into Evidence


EMPLOYER’S EXHIBITS

Exhibit Letter Exhibit Description StatusA Photo of view out front of scraper cab Admitted Into

EvidenceB Photo of view out of front of scraper cab Admitted Into

EvidenceC Photo of door to scraper cab Admitted Into

EvidenceD Photo of scraper steering wheel Admitted Into

EvidenceE Photo of scraper steering wheel Admitted Into

EvidenceF Photo of view out rear window of scraper cab Admitted Into

EvidenceG Photo of view toward right from inside scraper cab Admitted Into

EvidenceH Photo of accident scene from inside scraper cab Admitted Into

EvidenceI Aerial photo of job/accident site Admitted Into

EvidenceJ Photo of job site Admitted Into

EvidenceK Printout of Section 336.11 Admitted Into

EvidenceL [Withdrawn] Not Admitted

into EvidenceM Photo of left rear wheel of scraper Admitted Into

EvidenceN Document Worksheet (re KDW Construction inspection) Admitted Into

EvidenceO DOSH Form 1A (re Harris Blade inspection) Admitted Into

EvidenceP KDW Pre Task Planning Activity Analysis Admitted Into

EvidenceQ Video of scraper Admitted Into

EvidenceR Photos of job/accident site Admitted Into

EvidenceS Photo of scraper tracks Admitted Into

EvidenceT Photo of job site Admitted Into

EvidenceU Drawing of job site/accident location by Frigard during hearing Admitted Into

EvidenceV Excerpt of Frigard transcript from 2015 hearing Marked for

Identification Only


Witnesses testifying at hearing:

Michael Miller Senior Safety EngineerMichael K. Boyle Associate Safety EngineerKenneth “Buck” Neu KDW Operations ManagerLouis Frigard Harris Blade Equipment OperatorRichard Ritter Campanella Equipment OperatorShawn Herrin Harris Blade Equipment OperatorDaniel Lebron Campanella Safety Coordinator


APPENDIX ACERTIFICATION OF HEARING RECORD

Inspection No.: 316818749Employer: CAMPANELLA CORPORATION

I, Kerry Lewis, the California Occupational Safety and Health Appeals Board Administrative Law Judge duly assigned to hear the above-entitled matter, hereby certify the proceedings therein were electronically recorded or recorded by a certified court reporter. If the proceedings were recorded electronically, the recording was periodically monitored during the hearing. Either the electronic recording or the recording made by a certified court reporter constitutes the official record of the proceedings, along with the documentary and other evidence presented and received into evidence during or after the hearing. To the best of my knowledge the recording equipment, if utilized, was functioning normally and exhibits listed in this Appendix are true and correct, and accurately represent the evidence received during or after the hearing.

Kerry Lewis DateAdministrative Law JudgeKerr Le is ate

03/29/2018

OSHAB 201 SUMMARY TABLE Rev. 02/18

SUMMARY TABLEOCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

In the Matter of the Appeal of: CAMPANELLA CORPORATION

Inspection No.316818749

Citation Issuance Date: 12/17/2013CITATION

ITEM SECTION

TYPE

CITATION/ITEM RESOLUTION

AFF IRMED

VACATED

PENALTY PROPOSED BY DOSH IN

CITATION

FINAL PENALTY

ASSESSED

1 1 1592 (e) S ALJ affirmed citation and penalty. A $14,400.00 $14,400.00 Sub-Total $14,400.00 $14,400.00

Total Amount Due* $14,400.00

*You may owe more than this amount if you did not appeal one or more citations or items containing penalties. Please call (415) 703-4291 if you have any questions.

Abbreviation Key:G=General R=Regulatory Er=EmployerS=Serious W=Willful Ee=Employee A/R=Accident RelatedRG=Repeat General RR=Repeat Regulatory RS=Repeat Serious

PENALTY PAYMENT INFORMATION

1. Please make your cashier’s check, money order, or company check payable to: Department of Industrial Relations

2. Write the Inspection No. on your payment

3. If sending via US Mail: If sending via Overnight Delivery:CAL-OSHA Penalties US Bank Wholesale LockboxPO Box 516547 c/o 516547 CAL-OSHA PenaltiesLos Angeles, CA 90051-0595 16420 Valley View Ave.

La Mirada, CA 90638-5821

Online Payments can also be made by logging on to http://www.dir.ca.gov/dosh/CalOSHA_PaymentOption.html

-DO NOT send payments to the California Occupational Safety and Health Appeals Board-

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