BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

TUTOR-SALIBA CORPORATION (Tutor-Saliba-Perini and Buckley & Co.) .

San Francisco International Airport Road 16 - Gate A - Rotunda

San Francisco, CA 94128

                              Employer

 

 

Docket No.

99-R1D3-3388

 

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 Tutor-Saliba Corporation (Employer or Tutor-Saliba), makes the following decision after reconsideration.

JURISDICTION

From October 5, 1999 through December 8, 1999, the Division of Occupational Safety and Health (the Division) inspected a place of employment maintained by Employer at the new International Terminal under construction at the San Francisco International Airport (SFIA). The Division’s inspector observed employees of Employer working near uncovered holes in a concrete floor. The holes were 8½ inches long, 4 inches wide and 4 inches deep. Because employees were not protected by standard railings or covers against stepping into the holes, the Division issued to Employer on December 10, 1999, a citation alleging a general violation of section 1632(h) [guarding floor holes] of the occupational safety and health standards and orders found in Title 8 of the California Code of Regulations.1

Employer appealed the citation and Bref French, Administrative Law Judge (ALJ) of the Board, heard the appeal on August 22, 2000, and issued a decision on September 21, 2000, denying Employer's appeal.

On October 20, 2000, Employer petitioned the Board for review of the ALJ's decision. The Division answered the petition on November 27, 2000, and on November 29, 2000, the Board granted Employer's petition and stayed the ALJ's decision.

ISSUE

Did the ALJ err in finding that the 4-inch deep holes in the floor were "floor holes" subject to the section 1632(h) guarding requirement?

EVIDENCE

The testimony of the Division inspector and photographs he took proved there were numerous unguarded holes in the floor. The holes contained metal electrical boxes 8½ inches long, 4 inches wide and 4 inches deep. They were enclosed on three sides and had been installed with their open sides flush with the elevation of the top of the floor slab before the slab was poured. The inspector's testimony and photographs also proved that employees of Employer worked and left tools and their lunches within a few feet of the holes and, thus, were exposed to the hazard of walking into them.

Employer does not contest these facts in its petition but argues that the ALJ erred in finding that section 1632(h) applied to the holes.

Section 1632(h) reads as follows:

(h) Floor holes, into which persons can accidentally walk, shall be guarded by either a standard railing with standard toeboard on all exposed sides, or a floor hole cover of standard strength and construction that is secured against accidental displacement. While the cover is not in place, the floor hole shall be protected by standard railing.

The safety order is located within Article 19 [Floor, Roof and Wall Openings] of the Construction Safety Orders. It is entitled "Floor, Roof, and Wall Openings to Be Guarded" and its scope or applicability provision, section 1632(a), states that, "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." (Emphasis added.)

The emphasized words "falling through" are the cornerstone of Employer's argument that since neither employees nor materials can fall through the bottoms of the small and shallow electrical boxes, section 1632, and, particularly, subsection (h) does not apply to them. We disagree.

Section 1632(h) states that "Floor holes, into which persons can accidentally walk, shall be guarded…." A "Floor Hole" is defined in General Industry Safety Order section 3207(a) as, "Any opening in a floor or platform which is smaller than a floor opening." The same section defines a "Floor Opening" as, "An opening in any floor or platform, 12 inches or more in the least horizontal dimension."

An employee's body cannot fall through an opening that is less than 12 inches wide and section 1632(h) applies only to "floor holes", which, by definition, are less than 12 inches wide. From this hole size limitation, it is clear that the Standards Board intends for section 1632(h) to protect employees working around floor holes against injuries, e. g., twisted and broken ankles, that can be caused by accidentally walking or stepping into even shallow holes, not the graver danger of falling through the floor to a lower level of the building. The fact that neither section 1632(h) nor the section 3207(a) definition specifies that a "floor hole" must extend all the way through a floor or be of a certain depth is consistent with this intent.

In MCM Construction, Inc., Cal/OSHA App. 89-482, Decision After Reconsideration (Feb. 21, 1991) the Division cited the employer under section 1632(b) [guarding floor, roof and skylight openings] for not guarding floor openings. There was decking seven feet below some of the openings and the employer argued that section 1632(b) did not apply to those openings because a more general fall protection safety order, section 1670(a), does not require protection until an employee is exposed to a fall distance of greater than 7½ feet, and, by implication, that height limit extended to section 1632(b). The Board denied the appeal after responding to the employer's argument as follows:

The Board disagrees that a height requirement must be implied in section 1632(b). The very presence in these other sections of an explicit height requirement is convincing evidence of the fact that no such requirement should be read into Section 1632(b). Employer argues that a strict construction of Section 1632(b) would require guardrails or coverings for floor openings with falls of only one inch. That is not the present case. In addition, the facts of this case make a compelling argument that it is not the distance of the fall that necessarily poses the greatest danger from a floor opening. Rather, a severe injury may result from hitting the side of the opening or some protruding object in the opening, even if the fall is relatively short. (Id., at p. 5.)

Further, it is well settled that "the title of legislation may not be used to control or enlarge the positive provisions of …[a] statute." (City of Berkeley v. Cukierman (1993) 14 Cal.App.4th 1331, 1340, citing In re Bandmann (1958) 51 Cal.2d 388, 392 and People v. Nichols (1970) 3 Cal.3d 150, which was disapproved on other grounds in People v. Henderson (1977) 19 Cal.3d 86, 96) That "…the specific sections of a code take precedence over more general sections touching the same subject matter…." is another established principle of statutory construction. (58 Cal.Jur.3d, Statutes, § 109, pp. 488-489; Warne v. Harkness, (1963) 60 Cal.2d 579.) And, generally, the same rules of construction and interpretation that apply to statutes apply to regulations. (Cal. Drive-In Restaurant Assn. v Clark (1943) 22 Cal.2d 287; California State Restaurant Assn. v. Whitlow (1976) 58 Cal.App.3d 340.)

Under these principles, neither the title of section 1632 nor the general statement in section 1632(a) that, "[T]his section shall apply … where there is a danger of employees or materials falling through [a] floor … openings…." overrides the positive and specific provisions of section 1632(h). The appeal was properly denied.

DECISION AFTER RECONSIDERATION

For the above stated reasons, Employer's appeal from the general violation of section 1632(h) is denied. The ALJ’s decision is reinstated and affirmed. A civil penalty of $450 is assessed.

GERALD P. O'HARA, Member
JANET M. EAGAN, Deputy Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: March 26, 2002

1 Unless otherwise noted all section references are to Title 8 of the California Code of Regulations.