BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

PINNACLE BUILDERS, INC.

110 Railroad Avenue, Suite A

Suisun City, CA 94585

                              Employer

 

 

Docket No.

Docket Nos. 97-R2D2-2963

and 98-R1D5-2434

 

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 granted the petition for reconsideration filed in the above entitled matter by Pinnacle Builders, Inc. (Employer), makes the following decision after reconsideration.

JURISDICTION

On August 28, 1997, the Division of Occupational Safety and Health (the Division) conducted an investigation of a fall taken by an employee of Employer while nailing plywood sheeting to the roof frame of a house under construction in San Ramon, California. On October 10, 1997, as a result of the inspection, the Division issued to Employer Citation No. 1 alleging a serious violation of section 1670(a)1 [personal fall protection] of the occupational safety and health standards and orders found in Title 8 of the California Code of Regulations. A $2,340 civil penalty was proposed. Employer's timely appeal from the existence of the violation was assigned Docket No. 97-R2D2-2963.

On July 3, 1998, the Division conducted a regional plan inspection at a house under construction at a second site in Novato, California. The Division inspector observed a Pinnacle employee nailing plywood sheeting over open trusses. Thus, on July 7, 1998, the Division issued to Employer a citation [Citation No. 2; Docket No. 98-R1D5-2434] alleging a repeat2/serious violation of section 1670(a) and proposing a $3,500 civil penalty.3 Within the time allowed, Employer filed an appeal contesting the existence and classification of the violation, the reasonableness of both the abatement requirement and the civil penalty, and raising additional defenses.

The two cases were consolidated for hearing before an Administrative Law Judge (ALJ) of the Board. The ALJ issued a decision on March 3, 1999, denying Employer's appeals from both citations.

Employer filed a petition for reconsideration on April 6, 1999 and the Division answered the petition on May 3, 1999. On May 19, 1999, the Board granted Employer's petition and stayed the ALJ's decision until the reconsideration was decided.

EVIDENCE

Employer is a contractor who engages in the business of nailing down sheets of plywood over the open roof trusses of houses. The parties stipulated to the following facts with respect to both violations:

1. An employee (or employees) of Pinnacle Builders, Inc. were engaged in sheeting a roof: that is, securing sheeting material--composition and/or plywood sheets--to roof trusses;
2. The employee(s) engaged in the sheeting operation was a carpenter;
3. No fall protection was being utilized by the employee(s) so engaged;
4. The fall distance from the edge of the roof being sheeted to the ground level was over 7½ feet and less than 20 feet;
5. The slope of the roof being sheeted was 4:12.

Compliance Officer Stephan Williams conducted the July 3, 1998, inspection in Novato. He testified that the employee he observed was not applying any of the roofing materials described in section 1723(a)4, that Employer's management did not inform him that the employee was performing a roofing operation, and that the site subcontractor's list indicated that Employer was the "rough carpentry" subcontractor and that Old Country Roofing was the roofing subcontractor. The fall distance from where the employee was working to the ground was 19' 10" and he had no fall protection.

Division District Manager Gerald Lombardo, with 13½ years of experience as a compliance officer, testified that roof sheeting stabilizes the frame of a building.

Carla Fritz, the Division compliance officer who conducted the San Ramon accident investigation on August 28, 1997, testified that Employer's foreman told her that Employer had contracted to perform roof sheeting at that site, that he was the foreman of the "sheeting crew", and that the injured employee was doing sheeting work when he fell. The fall distance from the edge of the roof to the ground was more than 7½ feet and less than 20 feet. The employee was not utilizing any form of fall protection.

No one else testified at the hearing.

ISSUE

Does section 1670(a) apply to employees who are nailing sheets of plywood over the open roof trusses of a house under construction?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Section 1670(a) read as follows:

"(a) Approved safety belts and lanyards shall be worn by those employees whose work exposes them to falling in excess of 7½ feet from the perimeter of a structure5, through shaftways and openings, sloped roof surfaces steeper than 7:12, or other sloped surfaces steeper than 40 degrees not otherwise adequately protected under the provisions of these Orders." 6

Section 1670(a) is within the Construction Safety Orders (CSOs) (Subpart 4., §§ 1500-1938) which apply to employment that "...exists in connection with the construction, alteration, painting, repairing, construction maintenance, renovation, removal, or wrecking of any fixed structure or its parts...." (§ 1502(a).) Nailing plywood sheeting to the roof trusses of a house is, indisputably, construction work; that was not contested in this proceeding.

The stipulated facts establish that employees without fall protection were exposed to the hazard of falling more than 7½ feet from the perimeter of the houses being sheeted. Hence, Employer violated section 1670(a) in both instances unless the section was pre-empted by a more specific, conflicting safety order.

Employer's petition is premised on the argument that Section 1670(a) did not apply because the employees were engaged in roofing operations, regulated by Article 30, "Roofing Operations and Equipment" (§§ 1723-1730 of the CSOs). Article 30 explains that fall protection is not required for an employee installing either a "Single-Unit (Monolithic) Roof Covering" or a "Multiple-Unit Roof Covering" on a roof that is sloped 4:12, (i.e., the roof rises 4" vertically for every 12" of horizontal distance between the edge and the ridge of the roof),7 unless the employee is exposed to the hazard of falling more than 20 feet. Thus, if the roofing safety orders applied, there were no violations because the fall distance was less than 20 feet in each instance. We conclude, however, for reasons discussed below, that the roofing safety orders did not apply.

First, we note that, "Generally, the same rules of construction and interpretation which apply to statutes govern the construction and interpretation of rules and regulations of administrative agencies." (Cal. Drive-in Restaurant Assn. v. Clark (1943) 22 Cal.2d 287, 292, citing Miller v. United States, 294 U.S. 435. It is well settled that if a legislative body's intended meaning of a statute is clearly and unambiguously stated, neither an administrative tribunal nor a court may, by "construction" or "interpretation", alter that meaning. (See Caminetti v. Pac. Mutual L. Ins. Co. (1943) 22 Cal.2d 344, 353-354; Martin v. State Personnel Bd. (1972) 26 Cal.App.3d 573, 583.)

Section 1723 delimits the "application" or scope of the roofing safety orders as follows:

(a) The Orders contained in this Article are intended to apply to employees engaged in the removal or application of:
(1) Single-unit (Monolithic) roof coverings which include built-up roofing of asphalt or coal-tar pitch or like materials, and flat-seam metal roofings or like materials, and
(2) Multiple-unit roof coverings which include asphalt shingles, asbestos-cement shingles, standing-seam metal panels, shingle metal roofing, wood shakes and shingles, clay tile, concrete tile, slate or like materials.

Plywood and composition board sheeting are not included among the roof covering materials identified in section 1723(a) (1) and (2), nor are they like those materials in terms of the construction functions or purposes that they serve. All of the identified roof covering materials have the purpose of "covering" the roof with a barrier against the entry of rain, moisture, etc.8 In contrast, it is common knowledge that ordinary plywood or composition board sheeting cannot protect the top of a house against the weather effectively unless coated or covered with some other material. Division witness Lombardo's unrefuted testimony established that one purpose of roof sheeting is to stabilize the frame of a house. Another purpose of sheeting, demonstrated by the facts of this case, is to provide a base or foundation upon which roof covering materials can be laid.

The hazards that are addressed specifically in the roofing safety orders provide further indicia of the Standards Board's intent to limit their applicability to the work with "roof covering materials" precisely described in section 1723. A high percentage of those orders pertain to the application of hot asphalt and coal tar pitch built-up roof coverings. (§ 1725 ["Handling of Buckets, Kettles and Tankers]; § 1726 ["Asphalt and Pitch Kettles"]; § 1727 ["Kettles Mounted and Used on Elevated Truck Beds"]; § 1728 ["Handling Coal Tar Pitch"]; and, § 1729 ["Hot Asphalt and Hot Pitch Buckets and Gallows-Type Frames"].) Other orders pertain to the hazard of backing or falling off a roof edge while walking backwards and pulling "a felt-laying machine or other equipment" or engaging in other roof covering application work.

Additionally, the means of protection authorized by section 1724 are appropriate to work performed from roofs after the bare trusses have been covered, e.g., roof jack systems, catch platforms, scaffold platforms, and eave barriers. Roof jack systems prevent employees from sliding down the sloped surface of a roof but do not prevent employees from falling forward through the spaces between bare trusses.9 Catch and scaffold platforms and eave barriers are installed at the eaves, or lower edge of the roof and, thus, only protect employees working higher on a sloping roof with fall protection if the trusses are covered to prevent the employees from falling through the spaces between them before they can roll or slide down the slope to the protection at the roof edge.

In our view, by promulgating section 1723, the Standards Board carefully and unambiguously confined the applicability of the roofing safety orders to the work of removing and applying materials forming the outer covering of the roof that is directly exposed to the weather and designed to protect the house against it. We find no indication of a contrary intent in section 1723 or elsewhere in the orders, as described above.

Extending the roofing orders to employees engaged in the work of nailing sheeting to roof trusses would deprive them of the fall protection generally required by section 1670(a) for employees working where they are exposed to the hazard of falling 7½ to 20 feet. In addition to violating the rule against "interpreting" unambiguous regulations, extending the roofing orders' scope to the extent suggested by Employer is inconsistent with the California Occupational Safety and Health Act of 1973's purpose of "...assuring safe and healthful working conditions for all California working men and women...." (Labor Code § 6300) and the rule that safety orders are to be construed liberally to effectuate that purpose. (Carmona v. Division of Industrial Safety (1975) 13 C.3d 303; Bendix Forest Products Corp. v. Division of Occupational Safety and Health (1979) 25 C.3d 465.)
We conclude that, as alleged in the Division's citations, section 1670(a) applied to the roof sheeting work being done by the employees in both of the instances subject to this reconsideration.

DECISION AFTER RECONSIDERATION

Docket No. 97-R2D2-2963

Employer's appeal is denied. A serious violation of section 1670(a) is established and a $2,340 civil penalty is assessed.

Docket No. 98-R1D5-2434

Employer's appeal is denied. A repeat/serious violation of section 1670(a) is established and a $3,500 civil penalty is assessed.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON July 27, 2001


1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 The "repeat" allegation was based upon an unrelated section 1670(a) violation by Employer that occurred and became final within the three years preceding this violation. At the hearing, Employer stipulated that the repeat/serious classification was correct.
3 The Division also issued Citation No. 1 [Docket No. 98-R1D5-2433] that was resolved by order at the hearing and is not before the Board in this reconsideration proceeding.
4 Section 1723(a) lists the following materials: (1) Single-unit (Monolithic) roof coverings which include built-up roofing of asphalt or coal-tar pitch or like materials, and flat-seam metal roofing or like materials, and (2) Multiple-unit roof coverings which include asphalt shingles, asbestos-cement shingles, standing-seam metal panels, shingle metal roofing, wood shakes and shingles, clay tile, concrete tile, slate or like materials.
5 "The perimeter of a structure" includes the leading edge of decking and sheeting operations. (See Valley Steel Construction, OSHAB 78-1419, Decision After Reconsideration (Dec. 17, 1984).)
6 Section 1670(a) has since been amended without removing these proscriptive conditions.
7 See section 1730(b)(1) and section 1730(e)
8 This interpretation is consistent with definitions contained in the Fed-OSHA regulations. 29 CFR Part 1926.501 defines a "Roof", in pertinent part, as, "...the exterior surface on the top of a building." It also defines "Roofing Work" to mean "...the hoisting, storage, application, and removal of roofing materials and equipment, including related insulation, sheet metal, and vapor barrier work, but not including the construction of the roof deck."
9 See the "Roofer's Jack (Suggested) for Composition Shingles or Roll Roofing" (in CSO Plate C-19) showing a jack installed over shingles with roof sheeting or "decking" exposed above the jack and uppermost row of shingles.