BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

THE HOME DEPOT

5600 Sunset Boulevard

Hollywood, CA 90028

                              Employer

 

 

Docket No.

98-R4D3-2236

 

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 The Home Depot [Employer] makes the following decision after reconsideration.

JURISDICTION

From March 22, 1998 through June 8, 1998, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident investigation at a place of employment maintained by Employer at 5600 Sunset Boulevard, Hollywood, California (the site). On June 8, 1998, the Division issued to Employer a citation alleging a serious violation of section1 3627(b) [mobile ladder stand], with a proposed civil penalty of $1,125.

Employer filed a timely appeal contesting all aspects of the alleged citation.

A hearing was held before Barbara E. Miller Administrative Law Judge (ALJ). Robert D. Peterson, attorney, represented Employer. Elliot Oseas, associate compliance engineer, represented the Division.

On December 3, 1999, the ALJ issued a decision denying Employer's appeal, but reducing the proposed civil penalty to $750.

On January 6, 2000, Employer filed a petition for reconsideration. The Division filed an answer. The Board granted Employer’s petition on February 22, 2000.

EVIDENCE

While conducting an accident investigation of another matter at the site, Division inspector Oseas observed an apparatus, which he described as a mobile ladder stand. He measured the apparatus and testified that it was 131 inches tall from the floor to the bottom of the platform at the top and it was 36-1/2 inches wide measured at the outside rear wheels, giving it a least base to height ratio of 3.5:1. He further testified that it had 13 steps, each with a 10 inch rise ascending at a 55 degree angle to a platform at the top which measured 24” X 24”. (See attached Appendix) Employer stipulated that its employees used this ladder stand as it was described. Oseas testified that the fall distance from the top of the ladder stand was approximately 11 feet to a concrete floor.

ISSUES

1. Is Employer’s cited apparatus a “mobile ladder stand”?
2. Does the height to width ratio limitation of section 3622(f)(1) apply to Employer’s cited apparatus?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. The Mobile Unit is a Ladder Stand.

Employer was cited for a violation of section 3627(b) [Mobile Ladder Stands] which provides in relevant part that “(t)he minimum base width shall conform to Section 3622(f) [Work Levels].” Section 3622(f)(1) describes the minimum base width in terms of its relationship to the height of the work level:

The maximum work level height shall not exceed 3 times the least base dimension below the platform. Where the basic mobile unit does not meet this requirement, outrigger frames shall be employed to achieve this least base dimension, or provisions shall be made to guy or brace the unit against tipping.

Employer asserts that a platform cannot be part of a mobile ladder stand. A ladder stand is defined in section 3621 as:

A mobile fixed size self-supporting ladder consisting of a wide flat tread ladder in the form of stairs. The assembly may include handrails but does not include a platform. [Emphasis added.]

We must look to principles of statutory construction in order to determine the regulations’ meaning.

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, 1517 citing Cal. Drive-in Restaurant Assn. v. Clark (1943) 22 Cal.2d 287, 292. Under the “plain meaning rule” words used in a statute should be given the meaning they bear in ordinary use and if the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of legislative intent. Lungren v. Deukmejian (Roberti) (1988) 45 Cal.3d 727, 735. But the “plain meaning rule” does not prohibit the adjudicatory body from determining whether the literal meaning of a statute comports with its purpose. The meaning may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387. Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. People v. Belton (1979) 23 Cal.3d 516, 526. Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245.

We find that the intent of section 3627(b) is to provide stability for ladder stands against tipping by directing that the minimum base width shall not exceed three times the smallest dimension of the ladder stand base below the platform as contained in section 3622(f)(1). Where this requirement is not met section 3622(f)(1) goes on to direct that other provisions against tipping be employed such as outriggers, guying or bracing.

We read the phrase “but does not include a platform” in light of the regulatory scheme and not in isolation. ( See, In re Catalano (1981) 29 Cal. 3d 1, 10-11.) A platform, such as the one on the ladder stand at issue here, is included in the regulatory scheme that provides protection to workers against the tipping of mobile work platforms, including ladder stands. In limiting the smallest, or least, base dimension to one-third of the height of the work platform, the Occupational Safety and Health Standards Board (Standards Board) has adopted a criterion to prevent tipping.

We believe that the Standards Board intended to distinguish ladder stand “design” from other types of mobile work platforms treated in Article 23. Section 3620 states:

This standard prescribes rules and requirements for the design, construction, and use of mobile work platforms (including ladder stands but not including aerial ladders) and rolling (mobile) scaffolds (towers). [See also § 3621. Definitions]

Employer’s interpretation, however, elevates the qualifying “proviso”2 in the definition to that of rendering mobile ladder stands with platforms uncovered by any requirement. This would defeat rather than further the protection for workers using such ladders. We find that Employer’s argument is too technical and would defeat the purposes behind the regulation.

We find the more reasonable interpretation is that a platform on top of a ladder does not exclude it from the scope of the mobile ladder stand requirements where the design and use for the apparatus is primarily that of a mobile ladder stand. If a statute is amenable to two alternative interpretations, we will adopt the one that leads to the more reasonable result. (See e.g., Metropolitan Water Dist. v. Adams (1948) 32 Cal.2d 620, 630-631.

This interpretation comports with Board precedent. We have previously determined that a platform on top of a ladder stand does not exclude it from the scope of the ladder stand regulations. Pacific Airmotive Corp., Inc., Cal/OSHA App. 79-247, Decision After Reconsideration (Sep. 28, 1981).

Based upon the foregoing and our decision in Pacific Airmotive, supra, we find that the Standards Board intended to regulate mobile ladders stands with wide flat treads in the form of stairs by covering them in the mobile ladder requirements of section 3627(b). We find that it so intended even if a platform has been incorporated into the design and the apparatus is otherwise used as a mobile ladder stand because it directed that ladder stands comport with the requirements of section 3622(f). Section 3622(f) provides for the ratio of height to “least base" dimension.

2. The Section 3622(f)(1) Height to Width Limitation Applies to Employer’s Mobile Ladder Stand.

Employer further asserts that section 3622(f)(1) “does not regulate mobile ladder stands, since the subsection deals only with platforms.” We disagree with Employer’s assertion. The cited section, 3627(b), directs that the base dimension [of mobile ladder stands] conform to section 3622(f). Section 3622(f)(1) is the only subsection of section 3622(f) that speaks to base dimension. Section 3622(f)(1), although it specifies that the height measurement be made from the point below the “platform,” does not deal only with platforms as Employer insists. Rather, that section speaks to “the basic mobile unit.” Included in the term basic mobile unit are those pieces of equipment incorporated within the scope of Article 23; namely, mobile work platforms (including ladder stand) and rolling (mobile) scaffolds (towers). [§ 3620.]

It would not be reasonable to render section 3622(f)(1) inapplicable to the ladder stand at issue here because the ladder stand regulation directs that ladder stands conform to the base dimensions prescribed by section 3622(f)(1). We hold that section 3622(f)(1) does regulate ladder stands because it is directed to do so by section 3627(b). To conclude otherwise, in the face of a clear directive, would not be reasonable.

Accordingly, we hold that Employer’s ladder stand in this case exceeded the allowable ratio of least base dimension to height as contained in section 3622(f)(1) and a violation of section 3627(b) is established.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision finding a serious violation of section 3627(b) and assessing a civil penalty of $750.

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

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: December 20, 2001

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 A proviso is an exception or limitation on the operation of a statute; as such it is to be strictly construed. Lungren v. Deukmejian, supra. (“provisos are qualifiers, not nullifiers”)