United States v. 2006-10-03 | 04-74247 | R. Williams, Construction Company Voccupational, Safety &…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 R. WILLIAMS, Construction
Company,
Petitioner, No. 04-74247
v. OSHC No.
 03-0533OCCUPATIONAL SAFETY & HEALTH
REVIEW COMMISSION; ELAINE CHAO, OPINION
Secretary of Labor,
Respondents. 
On Petition for Review of an Order of the
Occupational Safety & Health Review Comm
Argued and Submitted
September 11, 2006—San Francisco, California
Filed October 3, 2006
Before: Betty B. Fletcher and Marsha S. Berzon,
Circuit Judges, and David G. Trager,* District Judge.
Opinion by Judge B. Fletcher
*The Honorable David G. Trager, Senior District Court Judge for the
Eastern District of New York, sitting by designation.
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COUNSEL
Robert D. Peterson, Rocklin, California, for the petitioner.
Joanna Hull (argued), Ann Rosenthal, Joseph M. Woodward,
and Howard M. Radzely, Washington, D.C., for the respon-
dent.
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OPINION
B. FLETCHER, Circuit Judge:
Petitioner R. Williams Construction Co. (“Williams” or
“the Company”) petitions for review of a final order of the
Federal Occupational Safety and Health Review Commission
(the “Commission”), affirming violations of the Occupational
Safety and Health Act (“OSHA”) in the wake of a trench col-
lapse and death of an employee at a construction site in Santa
Ynez, California. We deny the petition for review.
I
On September 19, 2002, a trench collapse at a sewer-
construction project at the Chumash Casino Project in Santa
Ynez, California, killed Adam Palomar, a Williams employee,
and seriously injured Jose Aguiniga, another Williams
employee. On the day of the collapse, the trench was ten to
twelve feet deep and between three and four feet wide at the
bottom. The trench was about thirteen feet wide at the top and
more than forty feet long. The sides of the trench rose verti-
cally from the bottom for approximately five feet, after which
they sloped backwards at about a forty-five degree angle. An
earthen slope at the west end of the trench provided the work-
ers’ only access to and egress from the bottom. Ground water
seeped into the soil continuously.
Williams used a number of submersible pumps to remove
the ground water that seeped into the trench. Although the
pumps could be pulled up and cleaned from the top of the
trench, it was the practice to do so from inside the trench.
Adam Palomar and Jose Aguiniga, two Williams employees,
were generally responsible for cleaning the pumps and did so
as needed throughout any given workday without receiving
specific instructions.
On the day before the accident, a hydraulic jack shoring
system, which supported the trench wall, had been removed.
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On the day of the accident, Palomar and Aguiniga entered the
unshored trench to clean the pumps, remaining there for about
fifteen minutes. As the two were exiting the trench, the north
wall collapsed, burying Aguiniga completely and Palomar
almost completely. Aguiniga died, and Palomar was severely
injured.
OSHA conducted an investigation and cited the Company
for safety violations. The first citation charged the Company
with failing to instruct its employees in the recognition and
avoidance of unsafe conditions and in the regulations applica-
ble to their work environment, as required by 29 C.F.R.
§ 1926.21(b)(2). The second citation charged the Company
with failing to ensure that no worker would have to travel
more than 25 feet to reach a safe point of egress, as required
by 29 C.F.R. § 1926.651(c)(2). The third citation charged the
Company with failing to ensure that a “competent person” —
i.e., one with specific training in soil analysis and protective
systems and capable of identifying dangerous conditions —
performed daily inspections of excavations for evidence of
hazardous conditions, as required by 29 C.F.R.
§§ 1926.651(k)(1). The fourth violation charged the Company
with failing to ensure that the walls of the excavation be either
sloped or supported, as required by 29 C.F.R.
§ 1926.652(a)(1).
The Secretary of Labor (the “Secretary”) designated the
first three violations “serious” in nature and proposed penal-
ties of $7,000 for each violation. The Secretary designated the
fourth violation “willful” in nature and proposed a $70,000
penalty, for a total penalty of $91,000.1
1Williams does not seek review of a fifth citation, which the ALJ
affirmed without penalty, for an “other-than-serious” violation of 29
C.F.R. § 1926.651(j)(1) for failing to adequately protect employees from
loose rock or soil that could fall from the excavation face.
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II
The ALJ conducted a two-day hearing, during which sev-
eral Williams employees provided testimony. Sergio Lopez
and Rick Dzamba stated that they did not know that Adam
Palomar and Jose Aguiniga were in the unshored trench when
the wall collapsed. However, both Lopez and Dzamba had
provided contrary statements to the general contractor imme-
diately after the accident, which suggested they knew that the
two men were working in the unshored trench. Based on these
contradictions and their demeanor during the hearing, the ALJ
determined that Lopez and Dzamba were not credible.
Joseph Goforth, an employee who started working for Wil-
liams four days before the trench collapse, testified that he
occasionally worked in the trench and received no training
when he started work. He was not told of any rules or shown
a safety manual. No one discussed safety the day of the trench
collapse. Goforth testified that he received instructions from
Dzamba.
Palomar testified that he worked for Williams for approxi-
mately nine months prior to the accident and had never
received any training in trench safety. He testified that there
was no safety meeting at the beginning of the workday on
September 19, 2002. He was never told not to enter the trench
and did not know who his supervisor was. He received all of
his work instructions from Sergio Lopez, who acted as trans-
lator because Palomar speaks only Spanish.
Lopez testified that Dzamba was his boss; Lopez knew not
to go into an unshored trench. Dzamba had read through the
OSHA manuals but had no formal training as a “competent
person.” He had no recollection of any particular conversation
warning employees not to enter the trench the day of the acci-
dent. Dzamba testified that John (J.P.) Williams was the
supervisor on the job site.
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John (J.P.) Williams testified that he was the supervisor at
the Santa Ynez worksite and was responsible for employee
safety at the site. He admitted that he never looked at the
company safety manual, which was located behind the seat of
his truck; he also had not been trained as an OSHA “compe-
tent person” or received any other safety training other than
on the job. He was unfamiliar with OSHA sloping and trench-
ing requirements and did not conduct any physical tests on the
soil in the trench.
J.P. Williams stated that the crew talked about safety “all
the time.” However, he could not say when and where any
specific rules — for instance, rules against entering the trench
when it was unshored — were discussed. Williams stated that
he and Dzamba were in charge of checking the trench the day
of the accident but could not remember what, if any, warnings
were provided to employees that day.
Owner Rodney Williams testified that both he and J.P. Wil-
liams were “competent” by virtue of their ability to recognize
a dangerous situation, though neither was trained as an OSHA
“competent person.” Rodney testified that the competent per-
son for a given day was “whoever is on the job site [and] pay-
ing attention to what’s going on.”
Based on the testimony at the hearing, the ALJ affirmed the
citations. However, the ALJ downgraded the one “willful”
violation to “serious,” reducing the penalty for that particular
violation from $70,000 to $7,000. The ALJ reduced the penal-
ties for each of the remaining violations from $7,000 to
$5,000, based on the fact that Williams is a small employer
with no history of prior injuries or OSHA violations. This
resulted in a total penalty of $22,000. The Commission denied
Williams’ request for discretionary review, and the Company
filed a timely petition for review.
III
We have jurisdiction under 29 U.S.C. § 660(a), and we
review the Commission’s findings for substantial evidence.
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Chao v. Symms Fruit Ranch, Inc., 242 F.3d 894, 897 (9th Cir.
2001); see also 29 U.S.C. § 660(a). We “must uphold the fact-
finder’s determinations if the record contains such relevant
evidence as reasonable minds might accept as adequate to
support a conclusion, even if it is possible to draw different
conclusions from the evidence.” Loomis Cabinet Co. v.
OSHRC, 20 F.3d 938, 941 (9th Cir. 1994). The ALJ’s find-
ings, based upon the witnesses’ testimony regarding Wil-
liams’ lack of attention to safety standards, is supported by
substantial evidence.
[1] Williams violated 29 C.F.R. § 1926.21(b)(2) for failing
to instruct each employee in the recognition and avoidance of
unsafe conditions and for failing to eliminate other hazards:
Williams provided no training in trenching hazards to at least
the two employees working in the trench; moreover, no Wil-
liams supervisor was familiar with OSHA regulations.
Williams argues that although Palomar testified that he did
not receive instructions regarding trench safety when he was
first employed by Williams, there was no evidence “that Mr.
Palomar had not received instructions on trench safety on
some [other] occasion during his employment with Petitioner
(nine months).” Williams seems to take the position that
unless the Secretary can prove the absence of a conversation
on trenching hazards, substantial evidence is lacking. But the
Secretary is not required to prove a negative; moreover, evi-
dence of broad neglect of safety is sufficient to support the
ALJ decision.2
2In its reply brief, Williams argues that the ALJ inappropriately consid-
ered Goforth’s lack of training as additional evidence supporting its find-
ing that the Company failed to instruct its employees in the recognition
and avoidance of unsafe conditions. However, the citation was not limited
to Palomar and Aguiniga, but applied to all Williams employees. The
Company never objected to questions regarding Goforth’s safety training
on the ground of unfair surprise, nor did it seek a continuance to prepare
itself to defend against such a claim.
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[2] Williams also violated 29 C.F.R. § 1926.651(c)(2) by
providing only one safe means of egress at the east end of the
45-foot trench. Although it appears that at least one of the
pumps was located more than 25 feet away from the ramp, the
exact location of the pumps, or the precise location of Palo-
mar and Aguiniga vis-à-vis the ramp at the moment of the
trench collapse, is immaterial.
[3] An employee working less than 25 feet from an exit
may find it necessary to venture further from the egress point
to satisfactorily complete a job. It is reasonably predictable
that such an employee, already within a “zone of danger,” will
become exposed to the danger itself. Thus, we hold that this
regulation applies regardless of whether the employees were
exposed to the actual danger at the time of the collapse. A
violation is established so long as employees have access to
a dangerous area more than 25 feet from a means of egress.
See Donovan v. Adams Steel Erection, Inc., 766 F.2d 804, 812
(3d Cir. 1985); see also Am. Wrecking Corp. v. Sec. of Labor,
364 F.3d 321, 327 (D.C. Cir. 2004) (noting that the existence
of a hazard, apart from employees’ actual exposure to falling
roof debris, could violate 29 C.F.R. § 1926.859(g)). See also
Occupational Safety and Health Standards—Excavations, 54
Fed. Reg. 45894, 45895 (Oct. 31, 1989) (describing the 25-
foot requirement as “that ladders or equivalent means of
egress be provided every 25 feet horizontally”); id. at 45918
(responding to employer’s comment that its employees do not
cross trenches at 25-foot intervals with the conclusion that
“OSHA has determined that a safe means of egress every 25
feet is necessary in trench excavations. . . .”).
[4] In addition, Williams violated 29 C.F.R.
§ 1926.651(k)(1) for failing to designate a “competent per-
son” with sufficient training and knowledge to identify and
correct existing and predictable hazards. No supervisor at the
Company was familiar with the basic standards applicable to
the worksite or otherwise “capable . . . of identifying and cor-
recting existing and predictable hazards in their surround-
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ings.” We disagree that the Company discharged its OSHA
duties merely by relying on the general work experience of
Dzamba and J.P. Williams or “common sense.”
[5] The Company also violated 29 C.F.R. § 1926.652(a)(1)
for failing to protect employees from cave-ins: Williams had
reason to know that its employees would enter the trench on
the day of the cave-in and had actual knowledge that two of
its employees entered the trench prior to the cave-in. It is
unavailing for Williams to argue that employees must take
greater care to avoid placing themselves in harm’s way or that
management can “expect an employee . . . not [to] intention-
ally place himself in danger.” Such a claim misconstrues the
purpose of the OSHA safety standards.
IV
[6] Williams failed to instruct its employees in proper
safety measures and made no effort to ensure that employees
not enter the trench on the day of the collapse. The ALJ find-
ings, and the reasonable inferences drawn from them, easily
satisfy the substantial-evidence standard. Consequently, the
ALJ’s decision affirming the citations is affirmed.
PETITION FOR REVIEW DENIED.
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