After NBC Bay Area’s Investigative Unit revealed a troubled safety record for the Oakland contractor whose worker was killed in the Twin Peaks Tunnel retrofit project, a San Francisco supervisor is calling for a formal hearing over apparent gaps in the city’s contractor vetting process.
“Right now, there’s a lot of red flags,” said Jen Low, chief of staff to Supervisor Norman Yee, about how the city missed the ten-year history of Shimmick, whose signal technician Patrick Ricketts was killed when a steel beam fell on him Friday.
“We would like to have more confidence in our current procurement process to make sure we are vetting all contractors and their history of worker safety violations.”
NBC Bay Area first reported Tuesday that Shimmick had been cited nearly 50 times by the state worker safety agency over the last decade. Shimmick has repeatedly declined to comment about any worker safety violation cases.
NBC Bay Area’s review found the company and its joint venture partner, Obayashi, was cited for two serious and willful violations that were lodged after a back hoe operator twice struck an exposed gas line in Yorba Linda back in 2011. The willful conduct was alleged because the second strike occurred while the first was under Cal/OSHA investigation.
The companies challenged the willful conduct finding and, while not definitive, state records suggest it may have been vacated by the appeals board in 2015.
A separate serious and willful violation lodged in 2011 on the same project, however, was upheld in 2015 by a Cal/OSHA appeals board.
The citation alleges Shimmick/Obayashi bypassed an engineer’s plan to shore up the walls of a trench to prevent a cave-in. Shimmick challenged the Cal/OSHA appeals board’s ruling in Superior Court in Sacramento, saying the panel’s denial of its rehearing request was an abuse of power.
That court challenge was still pending back in November when the Metropolitan Transportation Agency asked Shimmick’s representatives if the company had been cited for a serious and willful worker safety violation within the past ten years.
Shimmick checked “no” on the bidding questionnaire, enabling the firm to qualify for the city project.
Legal experts say worker safety citation cases are not actually considered legally resolved until all appeals have been exhausted – apparently enabling Shimmick to declare the company had not been cited.
Garrett Brown, who worked for Cal/OSHA for 20 years, says the city has to stop contractors from using this loophole.
“They’re claiming they've never been convicted because the entire appeals process has not reached the end, which takes years and years," Brown said. "Their lawyers tell them they can claim during this appeals process they were never cited, even though in common sense knowledge they were cited by Cal/OSHA. They’ve been cited by Cal/OSHA and are appealing the citations."
Brown says it’s time to change the wording on the questionnaire.
“Ask the bidders, ‘Have you been issued a citation by Cal/OSHA?’ In this case, they’ve been issued citations more than 50 times,” he said.
Supervisor Yee’s chief of staff says the supervisor is concerned about the “gray area” in the law, given it appears the city simply relied on the contractor’s word without doing any independent vetting of safety records.
“We want to look into whether or not there is legal gray area that allows contractors to claim they do not have workplace and safety violations when in fact they do,” Jen Low, Yee’s chief of staff, said in an interview.
“It could be a loophole that we need to expose to make sure we are getting the right answers in the questionnaire.”
While he would not answer questions, Paul Rose, spokesman for the city transportation agency, issued a statement Wednesday, saying: “We relied upon the contractor to accurately disclose information about their operations as part of the prequalification questionnaire, in accordance with the contract procurement process.”