The Board of Supervisors on Wednesday held a hearing looking at city contracting practices following the death of a worker during construction on the Twin Peaks tunnel in August. (Courtesy SFMTA)

SFMTA says contractor in Muni tunnel death did not misrepresent safety record

Months after a steel beam fell and killed a worker during construction on a Muni tunnel, a transit official said Wednesday that the company involved did not misrepresent its history of workplace safety violations to The City.

The San Francisco Municipal Transit Agency has determined that Shimmick Construction correctly answered “no” last November when asked whether it had been cited for a serious and willful worker safety violation in the last decade.

Shimmick Construction answered the question under penalty of perjury in an application to work on the $40 million rehabilitation of the Twin Peaks Tunnel, where 51-year-old Patrick Ricketts died in an apparent accident in August.

SEE RELATED: Contractor in SF Muni tunnel death had record of safety violations

But a San Francisco Examiner review of U.S. Occupational Safety and Health Administration records previously showed the Oakland-based construction giant had in fact been cited for serious and willful violations — three times in 2011.

“The question asked and answered was simple,” said Suzanne Marria, retired special counsel for Cal/OSHA in Oakland. “I don’t see how this answer on the questionnaire could possibly have been true when it was submitted to The City.”

Marria called on the City Attorney’s Office to review the answer to determine whether there was a “material misrepresentation.”

A spokesperson for Shimmick Construction declined to comment.

The company was likely able to avoid disclosing the citations because of the drawn out process for appealing OSHA citations. Citations can be tied up for years, first at the OSHA Appeals Board and later in court.

Seven years after their inception, the three serious and willful citations against Shimmick Construction are still being litigated in Sacramento Superior Court. All the while, the citations appear on the OSHA website as “open” cases.

“They do not have serious and willful violations per OSHA’s website,” Siew-Chin Yeong, SFMTA director of capital programs and construction, said at a Board of Supervisors committee hearing Wednesday on the issue.

Supervisor Norman Yee called the hearing to examine the different procedures city agencies use to vet contractors for multi-million dollar construction projects after the Examiner reported Shimmick Construction had a long history of citations, including for the death of a forklift worker in 2016.

The SFMTA later admitted it had not independently checked the contractor’s safety record. Regardless, SFMTA Director Ed Reiskin said at the time it was not clear Shimmick Construction would have been disqualified from the project had the agency reviewed the safety record.

That’s in part why the SFMTA has been criticized for the questions it asks contractors about safety before awarding contracts. At the hearing, Supervisor Aaron Peskin suggested the SFMTA specifically inquire about pending cases.

“I understand you’re not guilty until you get convicted, but seeing as you’re trying to assess safety issues, it would be much more relevant to say list any and all instances and are they being investigated or appealed,” Peskin said.

In August, Mayor London Breed ordered the agency to review and revise its policies because of concerns “about the lack of background checks performed on major construction contractors.”

Yeong said at the hearing that SFMTA now plans to review the injuries and illnesses that contractors have reported to Cal/OSHA in the last three years before awarding a contract, among other changes.

The agency will also require contractors to have “not more than three OSHA violations for willful, serious, serious and willful, or repeat violations of OSHA regulations in the past five years,” according to Yeong.

Five such violations would be allowed for “large contractors.”

The SFMTA currently asks, “In the past ten years, has the Potential Bidder (or if a joint venture partnership, has any member of the partnership) been cited for any serious and willful safety violations by Cal/OSHA?”

After the hearing, Yee said he was concerned that the changes were not enough.

“I think they could go further,” Yee said.

The SFMTA, San Francisco Public Utilities Commission, Department of Public Works and other agencies are currently working on a uniform procedure for vetting contractor safety.

Yee called for an update on the procedures by April.

mbarba@sfexaminer.com

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