BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD


In the Matter of the Appeal of:

BOSTROM-BERGEN METAL PRODUCTS
3488 West Ashland
Fresno, CA 93722

                              Employer

 

Docket No.

00-R2D5-1012

 

DECISION AFTER

RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having taken the petition for reconsideration filed in the above entitled matter by Bostrom-Bergen Metal Products (Employer) under submission, makes the following decision after reconsideration.

JURISDICTION

Commencing on October 27, 1999, a representative of the Division of Occupational Safety and Health (Division) conducted an accident inspection at a place of employment maintained by Employer at 3488 West Ashland, Fresno, California (the site). On March 9, 2000, the Division issued a citation to Employer alleging a serious accident-related violation of section1 1632(b) [guarding skylight openings] with a proposed civil penalty of $4,500.

Employer filed a timely appeal contesting the existence of the violation, its classification, and the reasonableness of both the abatement requirements and the proposed penalty.

On January 19, 2001, a hearing was held before an administrative law judge (ALJ), in Fresno, California. Ron Mederios, Attorney, represented Employer. Mary Allen, Staff Counsel, represented the Division.

On March 16, 2001, the ALJ issued a decision denying Employer's appeal.

On April 20, 2001, Employer filed a petition for reconsideration. The Division filed an answer on May 24, 2001. The Board granted Employer’s petition and stayed the ALJ’s decision on June 1, 20012.

EVIDENCE

Employer was adding a large, 2-bay garage to the west side of its maintenance storage building. Along the edge of the original building where construction was underway, the old drainage gutter on the roof had been removed and a new one was to be installed.

On the morning of October 27, 1999, maintenance man Donald Powers (Powers) and supervisor Timothy Wisener (Wisener) went to the area. According to Wisener, their purpose was to determine "a safe way to put the gutter up." When asked if Powers was there to look for safety hazards, Wisener replied, "He was just assessing the job to see how to put the gutter in."

Using a ladder placed against the north side of the existing building, Powers climbed to the roof while Wisener steadied the ladder. Wisener then went to survey the ground to determine how best to handle drainage.

The roof was of corrugated metal, and flush with it were several skylights of translucent, corrugated fiberglass, 1/16 to 1/8 inch thick. One skylight was located 5 feet from the edge of the roof where the gutter was to be installed. It was not protected by a screen, a cover or by railings, and Powers was not wearing fall protection equipment. As he was checking the area, he stepped or fell on the skylight, it broke, and he plunged 17 to 18 feet to his death.

Albert Ordway (Ordway), Associate Safety Engineer for the Division, cited Employer for failing to properly guard a skylight opening. The inspector and Michael Donlan, an experienced industrial hygienist familiar with fiberglass, both testified that, over the years, it grows brittle from the sun's rays. Donlan testified that it would not take a 200-1b. load. He also explained that the fiberglass was not there to serve as a "cover" to protect employees but to emit light and keep rain out of the building. Ordway also testified that, in industry parlance, the terms "skylight" and "skylight opening" are synonymous.

Ordway classified the violation as “serious” because a fall in excess of 17 feet to concrete is likely to result in serious bodily harm or, as it did here, in death and because Powers' supervisor was aware that he was on the roof without protection. Moreover, Employer is a structural steel contractor and, according to Ordway, should have known of the hazards involved regarding this type of activity.

ISSUES

1. Was section 1632(b) applicable to Employer’s conduct?
2. Was it appropriate to determine Employer’s failure to comply with section 3212(e)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. The Violative Condition Pertained to an Existing Skylight, Employer’s Conduct was not Subject to Section 1632(b)

Employer maintains that the ALJ improperly interpreted and applied section 1632(b) to the facts of this case based upon the Division’s own “concession” that section 1632(b) was inapplicable made during a pre-hearing motion to amend the cited safety order to state a violation of section 3212(e)(2). Additionally, Employer argues that the coverage language limiting application of section 1632(b) to “temporary or emergency conditions” does not apply to the facts here where a worker fell through a previously installed (permanent) skylight.

a. The Board is not Bound by the Division’s Interpretation of Section 1632(b)

The Division made written statements in a pre-hearing motion to amend the subject citation to state a violation of section 3212(e)(1). In the motion, the Division asserted that section 3212(e)(1) applies to permanent skylights and is applicable to the facts of this case rather than section 1632(b) which applies to situations where an employer is constructing skylights. Employer maintains that the Board’s denial of the Division’s motion mandated resolution of the matter, i.e., the grant of Employer’s appeal, because the Division conceded that the cited section did not apply.

Employer's argument is misplaced. The statutory scheme providing the authority of the Board establishes its preeminence in interpreting and applying the standards and regulations. (Limberg Construction, Cal/OSHA App. 78-433, Decision After Reconsideration (Feb. 21, 1980).) The Board is an independent adjudicatory agency responsible for resolving appeals from citations. (Rick's Electric, Inc. v. California Occupational Safety and Health Appeals Bd. (2000) 80 Cal.App.4th 1023, 1027.) Determining if and how the law applies to the facts of a case is one of the Appeals Board's principal statutory duties. (R.D. Engineering & Construction, Inc., Cal/OSHA App. 98-1938 (Aug. 29, 2001).) and necessarily includes the interpretation of the regulation at issue in a case properly pending before it.

The Appeals Board is not bound by an interpretation of a safety order proffered by the Division. (The Home Depot, U.S.A., Inc., Cal/OSHA App. 99-690, Decision After Reconsideration (Mar. 21, 2002); Lockheed Missiles & Space Co. Cal/OSHA App. 79-492, Decision After Reconsideration (April 14, 1982).) Since the Appeals Board is not bound by an interpretation of a safety order proffered by the Division, the ALJ was free to solicit relevant facts material to a determination of a violation of section 1632(b) as alleged in the citation. (Home Depot, supra.)

If, as here, the Division's initial legal interpretation of a regulatory provision is rejected resulting in a denial of the Division’s motion to amend, the ALJ must still proceed, as he did in this case, with an analysis of the facts in order to make findings and determine whether a violation of the cited regulation existed. 3

b. Section 1632(b) Provides for Protection From Employees or Material Falling Through Skylight Openings Under Construction and Does Not Apply to Existing Skylights

Employer argues that the ALJ ignored the express language of section 1632(a) that limits the scope of the safety order to “temporary or emergency conditions”. Section 1632(a) states:

This section shall apply to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways.

Employer was cited for violation of section 1632(b) which provides:

Floor, roof and skylight openings shall be guarded by a standard railing and toeboards or cover. Covering shall be capable of safely supporting the greater of the weight of a 200-pound person or twice the weight of the employees, equipment and materials that may be imposed on the cover at any one time. Covering shall be secured in place to prevent accidental removal or displacement, and shall bear a pressure sensitized, painted, or stenciled sign with legible letters not less than one inch high, stating: “Opening—Do Not Remove.” Markings of chalk or keel shall not be used. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

Specifically, Employer asserts that the “temporary or emergency conditions” which section 1632(a) covers refer to existing physical conditions through which employees or materials could fall. Since the condition in the present case involved a permanent skylight, Employer concludes that section 1632(b) was inapplicable.

Section 1632 is contained in Article 19 – Floor, Roof, and Wall Openings, of the Construction Safety Orders (CSOs).4 The purpose of section 1632(a), as reflected by the ordinary meaning given the language in the section, is to provide coverage under the section to address the hazard of employees or materials (which can fall onto employees) from falling through openings in floors, roofs, wall, or from stairways or runways arising from temporary or emergency conditions. Thus, subsections (b)-(m) of section 1632 provide specific guarding requirements for various openings which shall apply subject to temporary or emergency conditions as specified in subsection (a).

We believe that section 1632(b) is intended to cover skylight “openings” that are actually being worked on by employees during the process of construction. The language in section 1632(b) requiring 1) a standard railing on all exposed sides and toeboards, or 2) a covering which must support the greater of the weight of a 200-pound person or twice the weight of employees, equipment and materials that may be imposed on the cover at any one time along with a sign warning of the opening, contemplates situations where employees and/or equipment may be used to work on the skylight opening.

Employer asserts that a “skylight opening” is a temporary roof opening created during construction distinguishable from (permanent or post-construction) “skylights” which are addressed in section 3212 of the General Industry Orders (GISOs).5 According to Employer, the differing descriptive terms manifest a different treatment under the respective safety orders, i.e., skylight openings are subject to the CSOs and skylights are subject to the GISOs.

We agree with Employer that section 3212(e) supports the above interpretation of section 1632(b) as applicable to skylight openings during the construction process. Section 3212(e) is contained in Article 2 – Standard Specifications, of the GISOs and provides:

(1) Skylight screens shall be of such construction and mounting that they are capable of withstanding a load of at least 200 pounds applied perpendicularly at any one area on the screen. They shall also be of such construction and mounting that under ordinary loads or impacts, they will not deflect downward sufficiently to break the glass below them. The construction shall be of grillwork, with openings not more than 4 inches long or of slatwork with openings not more than 2 inches wide with length unrestricted, or of other material of equal strength and similar configuration. (Title 24, Part 2, Section 2-3402.)

(2) Where existing skylights are not guarded in accordance with subsection (e)(1), and where there is a need for any employee to approach within 6 feet of any skylight, employee(s) shall be provided with fall protection for the duration of the fall exposure by:
(A) The use of an approved safety belt and lanyard securely anchored to a solid structure, or
(B) Temporary covers capable of sustaining the weight of a 200-pound person installed over the skylight, or
(C) Temporary 42-inch railing enclosures, temporary warning lines, or cones installed/positioned no closer than 24 inches from the skylight curb.

EXCEPTION: When the work is of short duration and limited exposure such as measuring, roof inspection, electrical/mechanical equipment inspection, etc., and the time involved in rigging and installing the safety devices required in subsections (e)(2)(A) through (e)(2)(C) equal or exceed the performance of the designated tasks of measuring, roof inspection, electrical/mechanical equipment inspection, etc.; these provisions may be temporarily suspended provided that adequate risk control is recognized and maintained.
(Italics added for emphasis)

The language used by the Standards Board in section 3212(e) renders the section applicable to the guarding of existing skylights under the GISOs.6 We note, however, that the requirements under sections 1632(b) and 3212(e) are not the same and we must conclude that the Standards Board intended that different guarding requirements shall apply to skylight construction and work at or around existing skylights.

In arguing for support of the applicability of section 1632(b), the Division argues that the more specific standard in the CSOs must control over the general requirements in the GISOs (§§ 1632(a)-(b), 3202(a); see Footnotes 3 & 4, supra) Under these general coverage provisions for the respective safety orders, section 3212(e) applies generally to all employment, including construction activities, unless it is inconsistent with a CSO or other more specific safety order. We have long recognized that the fact that one safety order may be more specific or more particular to a given set of facts than another is immaterial; only when an actual conflict between them exists will the more specific safety order control over the general. (Pacific Gas and Electric Company, Cal/OSHA App. 82-1102, Decision After Reconsideration (Dec. 24, 1986)

The Division points out that we have previously found section 1632(e) (amended in 1996 to current 1632(b)) applicable to previously installed skylights. (The Environmental Group, Cal/OSHA App. 96-1633, Decision After Reconsideration (June 7, 2000) [employee fell through existing unguarded “skylight opening” during process of removing contaminated materials from office building].) We do not read Environmental Group for the dispositive holding that the Division offers and note that the issue of the applicability of section 1632(e) was never disputed by the employer and thus coverage of the section was not discussed in that case.

In this case, we find that the two standards under the respective sections of the CSOs and GISOs apply to different conditions and contain different guarding requirements and we do not find them to be inconsistent such that section 1632(b) must control with respect to a falling hazard related to existing skylights on a construction site or during a construction activity. Thus, an employer on a construction site or who is otherwise performing an activity within coverage of the CSOs can be cited for violation of section 3212(e) for failing to guard an existing skylight.

We believe the above interpretation furthers the intent of the Standards Board which provides special guarding for work on skylight openings during construction differently than guarding for employees who otherwise work on or near an existing skylight.7 Also, our interpretation clarifies the existing obligations of employers regarding their responsibilities with respect to skylight openings under section 1632(b) and existing skylights under section 3212(e).

In this case, there was no dispute that the addition of a 2-bay garage to a side of Employer’s maintenance storage building was construction work within the meaning of section 1502. The deceased employee was on the roof of the maintenance building to survey the area to determine how to best raise rain gutters for reinstallation along the roof edge which had been removed for construction of the addition. The employee fell through an existing skylight located 5 feet from the roof edge.

Under the facts of this case and our interpretations of sections 1632(b) and 3212(e), we find that section 3212(e) was the applicable section to be cited by the Division.8

2. The Language in the Citation Failed to Notify Employer that it was in Violation of Section 3212(e) and Therefore Must be Dismissed

As we have determined above, the two subject orders do not conflict and each applies to different conditions (with different requirements) that guard against the hazard of falling through a skylight during skylight construction (§1632(b)) or through an existing skylight at any worksite covered under the GISOs (§3212(e)). As long as an employer is informed of the substance of the violation by a citation that is sufficiently clear to give him fair notice and enable him to prepare a defense, he cannot complain of technical errors. (R.W. Taylor Co., Inc., Cal/OSHA App. 77-359, Decision After Reconsideration (Jan. 9, 1980).)9

In this case, although it was clear that the citation was based upon a fall through an existing unguarded skylight, the necessary elements to establish a violation and the available defenses under the respective safety orders are sufficiently distinct such that Employer would be unduly prejudiced by a finding of a violation of section 3212(e). Notably, Employer did not present evidence that it complied with either the specific requirements of section 3212(e), or the regulatory exception to the requirements provided in the section.

Also, Employer was effectively precluded from defending the citation based upon section 3212(e). Following the denial of the Division’s prehearing motion to amend the citation to state a violation of section 3212(e), a violation of that section was removed from consideration by the prehearing ALJ’s decision.10 Thus, Employer reasonably did not prepare to defend against the violation of section 3212(e), including presentation of any facts to establish the exception to those requirements, at the hearing (which commenced 10 days following the denial of the motion to amend).

Under the above-described circumstances, we find that the wrong safety order was cited since section 3212(e) was applicable to the conditions surrounding the events which were the subject of the Division’s inspection, and that Employer was not afforded a full opportunity to defend against an alleged violation of section 3212(e). Thus, the citation must be dismissed and the civil penalty assessed by the ALJ set aside.

DECISION AFTER RECONSIDERATION

The Board reverses the ALJ’s decision and grants Employer’s appeal. The citation for an alleged violation of section 1632(b) is dismissed and the previously assessed civil penalty is set aside.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: January 10, 2003

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 The docket number on the Order taking petition under submission inadvertently shows 00-R2D5-1021 rather than 00-R2D5-1012 which is correct.
3 There was no motion to withdraw the citation alleging a violation of section 1632(b) nor did Employer move to withdraw its appeal. Accordingly, the citation as originally issued was still subject to determination by the Board on the merits following a hearing.
4 The Construction Industry Safety Orders apply “...whenever employment exists in connection with the construction, alteration, painting, repairing, construction maintenance, renovation, removal, or wrecking of any fixed structure or its parts...” (§ 1502(a)) And, “[a]t construction projects, these Orders [CSOs] take precedence over any other general orders that are inconsistent with them, except for Tunnel Safety Orders or Compressed Air Safety Orders. (§ 1502(b))
5 The GISOs “establish minimum standards and apply to all employments and places of employment in California ...; provided, however, that when the Occupational Safety and Health Standards Board has adopted or adopts safety orders applying to certain industries, occupations, or employments exclusively, in which like conditions and hazards exist, those orders shall take precedence wherever they are inconsistent with the General Industry Safety Orders hereinafter set forth. (§ 3202(a))
6 In a non-construction case, we recently found under facts not very different from this case that an employer violated section 3212(e) when it sent employees to a roof to determine what repair work was to be performed and an employee fell through a nearby unguarded skylight located within 6 feet from the duct that the employees worked on. (Pictsweet Frozen Foods, Cal/OSHA App. 97-1896, Decision After Reconsideration (April 16, 2001).)
7 We disagree with the ALJ’s view of the term “skylight opening” as synonymous with “skylight” since both are openings in the roof with the immaterial distinction that the latter is simply covered with transparent or translucent material. Under section 1632(b), it is the opening that is the subject (which opening is in a floor, roof, or skylight) of the standard and must be given primary effect for any interpretation of the safety order. While a skylight may be ordinarily defined as an opening in a roof covered with translucent or transparent material, the ordinary meaning cannot be imposed to thwart the intent of the regulation. As discussed above, we find that it is quite clear that the Standards Board sought different standards to apply to “skylight openings” and “existing skylights.”
8 We recognize that the Division filed a prehearing motion to amend the citation to state a violation of section 3212(e) which was summarily denied. At the hearing, the Division essentially abandoned its prehearing motion position arguing that section 1632(b) was the applicable safety order. We note that, under current Board rules and practice, the denial of the Division’s motion was not immediately reviewable by the Board. We further note that the Appeals Board is not bound by the ALJ’s ruling on the motion to amend. Following its receipt of Employer’s petition for reconsideration, the Division did not seek to file a petition for reconsideration on the final ALJ decision on the grounds that the prehearing ALJ erroneously denied the Division’s motion to amend the citation to state a violation of section 3212(e) as the applicable safety order under the facts of this case.
9 Employer argues that its due process rights were violated because the ALJ determined that Employer violated section 3212(e) for which it was not cited. Employer misreads the ALJ’s decision. Section 3212(e) was discussed by the ALJ in the context of a Board-created defense which allows an Employer cited under the more general of two safety orders, if both apply to the facts, to defend on the grounds that the Division failed to cite the more particular safety order but only where the Employer has met the requirements of the more particular safety order. (See, New England Sheet Metal Works, Inc., Cal/OSHA App. 91-700, Decision After Reconsideration (Dec. 24, 1992)) In an apparent abundance of caution, the ALJ felt compelled to address the applicability of section 3212(e) as a defense based upon Employer’s adherence to that section in arguing the nonapplicability of section 1632(b) which the ALJ apparently viewed as an argument, by implication, for the applicability of section 3212(e). The ALJ found that under the described defense, Employer failed to meet the requirements of section 3212(e) since the evidence established that none of the guarding protections were provided by Employer, and thus, a violation of section 1632(b) was established by the Division.
10 The fact that the ALJ considered the Employer’s compliance with section 3212(e) as a defense to the violation of section 1632(b) (see footnote 8, infra), does not equate to a full opportunity afforded to Employer to defend against a charging violation of section 3212(e).