BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

MICHAEL PAUL COMPANY, INC.

1200 Case Grande

Petaluma, CA 95954

                              Employer

 

 

Docket No.

97-R1D5-3320

 

DECISION AFTER

RECONSIDERATION

 

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code, having order reconsideration on its own motion and also having granted the petition for reconsideration filed in the above entitled matter by Michael Paul Company, Inc. (Employer), makes the following decision after reconsideration.

JURISDICTION

Employer is a licensed general engineering contractor which performs underground sewer and water work, earth moving, grading, paving and drainage work, primarily on public works. On October 20, 1997, the Division of Occupational Safety and Health (Division) conducted a complaint inspection at a place of employment maintained by Employer at Trinidad Drive, Tiburon, California (the site).

On October 22, 1997, the Division issued to Employer a citation for a repeat/regulatory violation of section 341.1(f)(3) [notification of excavation work]1 and proposed a civil penalty of $875.

This matter came on regularly for hearing before James Wolpman, Administrative Law Judge (ALJ) for the California Occupational Safety and Health Appeals Board, in Santa Rosa, California. Thomas Smith, Vice President, represented Employer. Stephan Williams, Associate Compliance Engineer, represented the Division. Oral and documentary evidence was presented at the hearing and the mater was submitted. The ALJ issued a decision finding a violation and holding that all elements to satisfy a repeat classification were also established. On May 26, 1999 the Board ordered reconsideration on its own motion and on May 29, 1999, Employer filed a timely petition for reconsideration. The Division did not file an answer. The Board granted Employer's petition and consolidated the reconsiderations for one decision in an order dated July 14, 1999.


EVIDENCE

Employer holds an annual excavation permit and is alleged to have failed to notify the nearest District Office of the Division prior to commencement of work on an excavation project. The Division classified the violation as repeat because, within 3 years prior to the citation, Employer had received a similar citation, which it corrected and did not appeal.

In response to a complaint received by the Division, Associate Compliance Engineer Stephan Williams checked the permit files in the Santa Rosa District Office since that office has jurisdiction over Marin County. He located Employer’s Annual Permit, but found no notification of work to be performed at Trinidad Drive in Tiburon, California.

Williams went to the site to investigate and observed a 19' wet well excavation, cased all around with 9' sections of re-enforced concrete pipe set vertically inside the excavation. He spoke with Michael Paul, Sr., the owner of the Company, who indicated that while his employees entered the excavation to pour concrete at the bottom, they did so only after the casing had been installed. Although no employees were in the excavation at the time, Williams observed their tools at the bottom. When he asked whether the Division had been notified, Paul said he did not consider the wet well to be an excavation because it is not entered by employees until casing is installed, and that “There was probably no notification made, but that the office took care of that.”

Williams testified that he had issued a citation to Employer on January 8, 1996 for a violation of the same requirement. That violation had not been appealed, and Employer had notified the Division of its abatement. In support of that testimony, he provided copies of the citation and the declaration of its service, along with a copy of Employer’s “Signed Statement of Abatement” with his signed notation of its acceptance.

Thomas Smith testified that he has been employed by Employer for the past six years as its Vice President and Business Manager. As such, he is the one responsible for notifying the Division of anticipated excavation work. Smith was well aware that the work on Trinidad Avenue in Tiburon required notification to the Division.

Smith further testified that the owner of the Company, Michael Paul, Sr., oversees its operations and visits sites on a regular basis. However, Paul has no direct involvement in the notification process and each site has its own job superintendent.

In early September 1997, shortly after Employer’s bid for the job was accepted, Smith personally prepared and faxed to the Santa Rosa District Office an “Activity Notification Form”. That form describes the location and nature of the project in question and indicates the anticipated start date. The notification was not, however, followed up by mail, and he does not have a receipt for the FAX. He testified that he has a clear recollection of the circumstances, in part, because notifications are not submitted “that often.”

ISSUE

Does a facsimile transmission of a required notification need to be followed by a confirming letter or telegram?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer was cited for a violation of section 341.1(f)(3) which requires that holders of annual excavation permits:

. . . notify the District Office nearest the proposed work project prior the commencement of any [excavation]. The notification shall be made by telegram, letter, or a telephone call, to be confirmed by a telegram or letter, indicating the location of the project and the date and time the work activity is to commence.

Words used in a statute or constitutional provision should be given the meaning they bear in ordinary use. If the language is clear and unambiguous there is no need for construction. (See Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735; Delaney v. Superior Court (Kopetman) (1990) 50 Cal.3d 785, 798, 800.) The same rules of construction and interpretation which apply to statutes govern the construction and interpretation of rules and regulations of administrative agencies. (Auchmoody v. 911 Emergency Services (1989) 214 Cal.App.3d 1510, 1516 citing, California Drive-in Restaurant Ass'n. v. Clark (1943) 22 Cal.2d 287, 292).

The Board must determine whether section 341.1(f)(3) allows the use of facsimile transmissions. Section 341.1(f)(3) allows notification to be given by telegram, letter or telephone. However, if a telephone is utilized then there must be a follow-up letter or telegram. The regulation, promulgated in 1974, does not mention facsimile transmission, a method more reliable than a telephone call in that it guarantees the accurate transmission of written information over telephone lines. We also note that most businesses today transact business using facsimile transmissions as opposed to telegraph.

The “plain meaning” rule does not prohibit the Board from determining whether the literal meaning of a regulation comports with its purpose or whether such a construction of one provision is consistent with other provisions of the regulation. The meaning of a regulation may not be determined from a single work or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. Literal construction should not prevail if it is contrary to the intent of the regulation. The intent prevails over the letter, and the letter will be so read as to conform to the spirit of the act. An interpretation that renders related provisions nugatory must be avoided; each sentence must be read not in isolation but in light of the statutory scheme. If a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed. (See Lungren v. Deukmejian supra.)

The fundamental rule of interpretation is to ascertain the intent of the agency issuing the regulation so as to effectuate the purpose of the law. T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 277.

In this instant, we find that the intent behind section 341.1(f)(3) is to provide verified notification to the Division so that excavation sites may be monitored for compliance with safety regulations.

The ALJ held in this case that that notification by facsimile transmission complied with section 341.1(f)(3) so long as it was followed up by letter or telegram. Thomas Smith testified that a facsimile transmission was sent. However, there was no independent verifiable proof that the fax was sent and we find that Employer did not comply with the law which requires follow up with a letter.

We find that an employer who notifies the Division by facsimile and who has proof of the notification complies with section 341.1(f)(3). Under the regulation proof may be established by follow-up letter or by telegram.

If we were the regulatory body we would amend the regulation to allow proof of service to be shown by proof of facsimile transmission. However, we have long noted that the Occupational Safety and Health Standards Board is the agency responsible for promulgating regulations and to the extent that they also are also charged with promulgating regulations the same principle applies to the Division.

Employer has submitted new evidence consisting of an “Activity Notification Form for Holders of Annual Permits” (Exhibit A) attached to its petition for reconsideration. Employer argues that this form excuses compliance with section 341.1(f)(3). This exhibit was not submitted or considered during the hearing. For that reason, we decline to consider any estoppel arguments at this point. Evidence not presented during hearings is deemed waived. (Labor Code §6617(d).2)

We find that the Division satisfied all elements of the violation and also satisfied all elements to establish that it was a repeat violation.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision finding a repeat/regulatory violation of section 341.1(f)(3) and assessing an $875 civil penalty.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: May 30, 2001

1 Unless otherwise specified, all references are to sections of Title 8, California Code of Regulations.
2 One of the grounds upon which a petition for reconsideration may be based is set forth in Labor Code section 6617(d) which reads in pertinent part as follows: "that the petitioner has discovered new evidence material to him, which he could not, with reasonable diligence, have discovered and produced at the hearing." Employer failed to present the Notification form at the hearing and therefore the Board cannot consider it in this case.