Division of Occupational Safety and Health of Indus. Com'n of Arizona v. Ball, Ball and Brosamer, Inc.

• Decision Date: 25 August 1992
• Docket Number: No. 1,CA-IC,1
• Parties: , 1992 O.S.H.D. (CCH) P 29,824 DIVISION OF OCCUPATIONAL SAFETY AND HEALTH OF the INDUSTRIAL COMMISSION of Arizona, Petitioner, v. BALL, BALL AND BROSAMER, INC., Respondent. 91-0154.
• Court: Arizona Court of Appeals

Page 174

837 P.2d 174

172 Ariz. 372, 1992 O.S.H.D. (CCH) P 29,824

DIVISION OF OCCUPATIONAL SAFETY AND HEALTH OF the INDUSTRIAL COMMISSION of Arizona, Petitioner, v. BALL, BALL AND BROSAMER, INC., Respondent.

No. 1 CA-IC 91-0154.

Court of Appeals of Arizona Division 1, Department A.

Aug. 25, 1992.

[172 Ariz. 373] Anita Valainis, Chief Counsel, Indus. Com'n of Arizona by Kent M. Struckmeyer, Asst. Chief Counsel, Phoenix, for petitioner Indus. Com'n.

Gallagher & Kennedy, P.A. by G. Starr Rounds, Phoenix, for respondent.

OPINION

GERBER, Judge.

This case results from the collapse of a wall which caused death and injuries to employees of respondent, Ball, Ball & Brosamer, Inc. Petitioner, the Division of Occupational Safety and Health of the Industrial Commission of Arizona, seeks special action review from the decision of the Occupational Safety and Health Review Board ("the board") which determined that respondent did not "willfully" violate 29 CFR § 1926.703(d)(1)(1988). ¹ Petitioner also challenges the board's reduction of the civil penalty from $7,000 to $5,000.

STANDARD OF REVIEW

Under Ariz.Rev.Stat.Ann. ("A.R.S.") section 23-423(I) (1983), we may affirm, modify or set aside the decision of the board in whole or in part. Markwood Enter., Ltd. v. Division of Occupational Safety & Health, 152 Ariz. 169, 170, 730 P.2d 878, 879 (App.1986). We review the board's findings of fact and conclusions of law based on its de novo review of the record. Id.; see A.R.S. § 23-423(F). We will affirm the board's findings of fact if they are supported by substantial evidence. A.R.S. § 23-423(I); McAfee-Guthrie, Inc., v. Division of Occupational Safety & Health, 128 Ariz. 508, 510, 627 P.2d 239, 241 (App.1981).

Arizona has adopted the Federal Occupational Safety and Health Standards, Code of Federal Regulations, Title 29, Part 1926, (including the regulation at issue here, 29 CFR 1926.703(d)(1)) commonly known as "OSHA." A.R.S. § 23-410; A.C.R.R. R4-13-601 (1991). This regulation governs all practices related to construction activity by private and public employers within Arizona. A.C.R.R. R4-13-601. Our duty is to consider this regulation in light of the facts of this accident.

FACTS AND PROCEDURAL HISTORY

These facts are taken from the board's findings. Respondent was employed by the Bureau of Reclamation to perform construction work on the Central Arizona Project in the vicinity of Waddell Dam near Lake Pleasant, Arizona. Respondent was constructing a pumping/generating station including a bypass structure with three rebar structures (lines 21, 22 and 23). Line 23 was 32 feet high and 70 feet long.

On the date of the accident, four experienced ironworkers were working on line 23: McKinley, Sambaluk, Brooks and Etsitty. Etsitty was the immediate supervisor of the men. Northern, also an employee of respondent, was the general foreman responsible for the crew's assignment. Etsitty and his crew reported to Northern. There was no immediate work for Etsitty and his crew because the carpenters were not finished with their work. Etsitty told Northern that he was taking his crew over to the bypass structure to "finish it off." Etsitty thought that Northern knew that he was going to work on line 23. Northern later stated he did not know that Etsitty and his crew were going to work on line 23 because, according to Northern, he was unaware that it required additional work.

Etsitty took his crew to the bypass area to work on line 23. According to Etsitty, line 23 was "slightly out of plumb." The workers attempted to straighten it out. They attached a "come-along," to straighten the wall. All four men were tied onto line 23 near its top. They noticed a sway in the wall which they first thought was normal. When the sway became more pronounced the men unhooked themselves and attempted to climb down. The wall fell to the east and injured all four men. Sambaluk later died from his injuries.

Prior to the accident, employees of respondent had attached guy wires to the east side of the wall but not to the west side. The purpose of the guy wires was to provide opposite direction tension to ensure the stability of the wall. Northern gave four reasons why line 23 was not guyed bilaterally: (1) guy wires on the west side would interfere with the scheduled backfilling of cement; (2) respondent did not have the right size cable clamps to attach to the guy wires; (3) line 23 was sufficiently supported with internal rebar to withstand workers climbing on it; and (4) the rebar portion of line 23 was completed.

Although the board did not make this finding, the record reflects that safety inspectors from the Bureau of Reclamation were assigned to each construction project at the site. They had the authority to stop the construction if they noted an unsafe practice or condition. The inspectors viewed the site but did not complain about the bypass area where the accident occurred.

After the accident, petitioner cited respondent for a serious and a "willful" violation of the Occupational Safety and Health Act, 29 CFR § 1926.703(d)(1), ² and proposed a $10,000 penalty assessment. A.R.S. § 23-418(A) (1991). In response, respondent filed a Notice of Contest and request for a hearing before the Industrial Commission.

After the hearing, the Administrative Law Judge ("A.L.J.") determined that the use of guy wires was an acknowledged safety practice utilized by respondent and that failure to guy the west side of line 23 was "intentional." Petitioner argued at the hearing that the accident "could have been prevented" if the west side of line 23 was guyed to provide support to withstand loads such as the weight of the workers. The A.L.J. ruled that "the rebar structure referred to as line 23 was not adequately supported to prevent collapse while Mike Etsitty and his crew attempted to take the 'rack' out of it on October 19, 1989."

The A.L.J. concluded that respondent violated the regulation. He ruled that the violation merited a "serious" classification because the accident resulted in several injuries and one fatality. A.R.S. § 23-401.12 (1983). ³ The A.L.J. also concluded that the violation was technically "willful" because, in his view, respondent's failure to guy the west side of line 23 was intentional. A.R.S. § 23-418(A). ⁴ The A.L.J. reduced the proposed penalty to $7,000.

Respondent then filed a Request for Review to the board. The board found that petitioner met its burden of proof in establishing these elements of a serious violation:

(1) The existence of a condition or practice in a place of employment which violated a regulation.

(2) The condition produced a substantial probability that death or serious physical injury could occur.

(3) The employer had actual or constructive knowledge of the violation.

A.R.S. § 23-401.12.

The board ruled that the record supported a finding that all three elements of a serious violation were present. The board determined that the conduct of respondent violated the regulation because line 23 was not adequately supported "with regard to what the workers were doing on it at the time of the accident." The board found that the second element above was satisfied because the men were exposed to a hazardous condition resulting in death and injuries.

The board then concluded that respondent had "constructive knowledge" of the violation because Northern "could have discovered the violation with the exercise of reasonable diligence." A.R.S. § 23-401.12. The board imputed constructive knowledge to the employer because, in its view, if Northern had supervised his workers at the scene "the come-along method would not have been used, or the attempt to straighten out Line 23 may have been aborted altogether."

The board identified the following facts to support its finding of constructive knowledge. Northern did not discuss methodology or oversee his workers when Etsitty informed him that the crew was going to the bypass structure to "finish it off." Northern stated that he would not have used the same method the workers used to straighten line 23. Northern also stated that line 23 did not require straightening because the anticipated pouring of cement would straighten the wall or would enable realignment without untying the support rebar.

The board unanimously concluded that the evidence supported a finding of a "serious" violation because respondent did not provide adequate supervision of its employees to ensure adequate support of line 23. The board also unanimously determined that the violation was not "willful" because, in its view, respondent attempted to adequately support line 23 as constructed. The board found that the evidence did not establish "intentional disregard of" or "plain indifference to" the regulation under the definition of "willfulness" in National Steel & Shipbuilding Co. v. Occupational Safety & Health Review Comm'n, 607 F.2d 311, 314 (9th Cir.1979). The board reduced the penalty to $5,000.

Petitioner filed a timely OSHA special action in this court. We have jurisdiction pursuant to A.R.S. section 23-423.I.

DISCUSSION

Petitioner sets forth two arguments:

(1) Whether the board erred in its determination that the violation was not willful.

(2) Whether the board erred in its reduction of the civil penalty.

Before we address these arguments, we must first define the technical meaning of "willful." Arizona has not yet adopted a definition of "willful" within the meaning of A.R.S. section 23-418. When faced with a problem of statutory construction, we generally adopt the interpretation given by the agency charged with its application. Walter O. Boswell Memorial Hosp., Inc. v. Yavapai County, 148 Ariz. 385, 389, 714 P.2d 878, 882 (App.1986). The board adopted the definition of "willfulness" in National Steel & Shipbuilding Co. v. OSHRC, 607 F.2d 311 (9th Cir.1979). The parties accept this definition, as we do. National Steel defined a "willful" violation as one involving voluntary action...