BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

COUNTY OF LOS ANGELES
METROPOLITAN TRANSPORTATION AUTHORITY
One Gateway Plaza
Los Angeles, CA 90012

Docket No. 98-R6D2-539

 

               DECISION AFTER
               RECONSIDERATION

                                             Employer  

In this and three other Decisions After Reconsideration which we issue today, the Occupational Safety and Health Appeals Board (Board) reviews related safety regulations within the Construction Safety Orders and the General Industry Safety Orders found in Title 8 of the California Code of Regulations, to determine when an employer must provide handrails, stair rails, or both at a workplace.

These cases, which the Board decides today, turn on when a "handrail," "stair railing," "guardrail," "railing," and "stair rail" are required on stairways on construction work sites. The Board holds that when sections 1629(a)(2) and 3214 use the term "handrail," they are aimed at the hazard of tripping and falling down a stairway. The Board further holds that when sections 1626(e) and 3214 use the terms "stair railing," "guardrail," "railing," and "stair rail" they are aimed at the hazard of falling over the side of a stairway.

JURISDICTION

On December 16, 1997, a representative of the Division of Occupational Safety and Health (Division) conducted an inspection at a place of employment maintained by the County of Los Angeles, Metropolitan Transportation Authority (Employer) at 1013 North Vermont Avenue, Los Angeles, California. On January 23, 1998, the Division issued a citation to Employer alleging a serious violation of section 1626(e) [stair railings on open sides of stairs].

Employer filed a timely appeal. A hearing was held before an administrative law judge of the Board (ALJ). After the evidentiary hearing concluded, the ALJ notified the parties of the ALJ’s intention to amend the citation to allege a violation of either section 1629(a)(2) or section 3214, rather than section 1626(e). The ALJ gave each side the opportunity to submit briefs setting forth its position about the applicability of the safety orders and whether it would be prejudiced by such an amendment.

The ALJ’s decision, issued on June 10, 1999, amended the citation to allege a violation of section 1629(a)(2) and found that the Division had not established a violation of section 1626(e) but had established a violation of section 1629(a)(2). The decision further found that section 3214 did not apply and that the amendment did not prejudice Employer.

On July 8, 1999, the Board, on its own motion, ordered reconsideration of the ALJ decision. The Board’s order granting reconsideration stated that the Board would consider the issues of whether sections 1626(e), 1629(a)(2), or 3214 applied to the stairs at the site, and whether the ALJ’s post-hearing amendment that changed the section alleged to be violated to section 1629(a)(2) in lieu of section 1626(e) was prejudicial to either party.

On July 16, 1999, Employer filed a petition for reconsideration. The only issue raised by Employer’s petition for reconsideration, not included in the Board’s order granting reconsideration, was its contention that the ALJ’s finding that its employees were exposed to an unprotected stairway was not supported by the evidence. On September 2, 1999, the Board denied Employer’s petition because it was not timely filed, thereby foreclosing Board consideration of the issue of employee exposure.

On July 9, 1999, the Board noticed the matter for oral argument on the issues specified in the order of reconsideration. On July 16, 1999, Employer requested that the Board take additional evidence at the oral argument. On August 12, 1999, the Division filed a response to the order of reconsideration. Employer and the Division participated in oral argument and the taking of additional evidence on August 30, 1999.

The Board, acting pursuant to authority vested in it by the California Labor Code and having taken the above-entitled matter under reconsideration on its own motion, makes the following decision after reconsideration.

EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case, including any briefs submitted by the parties to the ALJ. In addition, the Board considered the arguments presented at the oral argument and the evidence presented at the August 30, 1999, evidentiary hearing before the Board.

The stairway was in an underground subway station on the Los Angeles Metro Rail Red Line system. The stairway was made of granite, was 67 inches wide and more than 60 feet in height. Looking up from the bottom, the stairway was bounded on the left by a concrete wall, separated from the stairway by a smooth sloped concrete surface 24 to 30 inches wide, inset with lights. Immediately to the right of the stairway was an escalator. On the day of the inspection, the escalator was partially completed, with a large frame, or truss, and exposed machinery. To the right of the escalator was another concrete wall, separated from the escalator by another smooth, sloped concrete surface inset with lights.

There was no opening on the side of the stairway to any level below. On the day of the inspection, there were no hand or stair rails either in the middle or on the sides of the stairs.

Handrails or stair rails had previously been installed on each side of the stairs, but a few days before the inspection, the rails had been removed in order to put the escalator truss in position.

ISSUES ON RECONSIDERATION

1. Which of the following safety orders, if any, applied to the stairs at Employer’s place of employment: Construction Safety Order section 1626(e), Construction Safety Order section 1629(a)(2), or General Industry Safety Order section 3214?

2. Was the post-hearing amendment of the citation alleging a violation of section 1629(a)(2), in lieu of section 1626(e) as cited by the Division, prejudicial to either party?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Division cited Employer for a violation of section 1626(e). Employer argued that section 1626(e) did not apply because the stairs did not have open sides, but either section 1629(a)(2), a construction safety order governing stairs at a construction site, or section 3214, a general safety order, might apply. The Division did not move to amend the citation but instead went forward with its case in chief alleging only a section 1626(e) violation. It presented evidence and argument aimed at establishing a violation only of section 1626(e).

At the close of the hearing, the ALJ advised the parties of the ALJ’s intention to amend the citation to allege either a violation of section 1629(a)(2) or section 3214 and invited the parties to submit briefs setting forth any prejudice the amendment would cause. Employer argued it was severely prejudiced because its defense to the section 1626(e) violation was based on a theory that the Division cited a safety order that did not apply to the facts. The Division argued that any or all of the sections, including section 1626(e), could appropriately be applied to the stairway.

The ALJ proceeded to amend the citation to allege a violation of section 1629(a)(2), found no violation of section 1626(e), but did find a violation of section 1629(a)(2).

On reconsideration, Employer is again contending it was prejudiced by the post-hearing amendment, especially since the ALJ found no violation of section 1626(e). The Division still argues that any and all of the safety orders apply. The Division argues that a violation could be found under the ALJ’s amendment but asserts that its failure to amend the citation to allege a violation of section 1629(a)(2) was a proper exercise of its prosecutorial discretion.

1. Construction Safety Order Section 1629(a)(2), Not Construction Safety Order Section 1626(e) Nor General Industry Safety Order Section 3214, Applied to the Stairs at Employer’s Place of Employment.

SAFETY ORDERS GOVERNING STAIRWAY HANDRAILS AND STAIR RAILS

The following safety orders apply to handrails and railings on stairways:

Construction Safety Order Section 1626(e):

Stairways, until permanently enclosed, shall be guarded on all open sides with stair railings. Open sides of stairway landings, porches, balconies, and similar locations shall be guarded with standard railings. (Emphasis added.)

Construction Safety Order Section 1629(a):

(1) In all buildings or structures 2 or more stories or 24 feet or more in height or depth, suitable permanent or temporary stairways shall be installed as required in Section 1629(b).

(2) . . . Stairways shall be at least 24 inches in width and shall be equipped with handrails, treads and landings. . . .

Exceptions: 1. Stairways 44 inches or less in width may have 1 handrail, except that stairways open on 1 or both sides shall have handrails provided on the open side or sides. (Emphasis added.)

General Industry Safety Order Section 3214(a):

Stairways shall have handrails or stair rails on each side, and every stairway required to be more than 88 inches in width shall be provided with not less than one intermediate stair rail for each 88 inches of required width.

NOTE: Intermediate stair railings may be of single rail construction.

Exceptions: (1) Stairways less than 44 inches in width may have one handrail or stair rail except that such stairways open on one or both sides shall have stair rails provided on the open side or sides.

(3) Stairways giving access to portable work stands less than 30 inches high.

(Emphasis added.)

These safety orders are not easily interpreted. As discussed more fully below, the difficulty arises from several weaknesses in the way the orders were drafted, including not using terms consistently rather than including arguably synonymous terms without clarifying whether different meanings are intended; not defining other critical terms; and not keeping related provisions together but spreading them out over different Articles, not just different sections, of the regulations. The difficulty of interpreting these sections is demonstrated by the varying interpretations advocated by the parties and applied by the ALJs in these cases. The difficulty is lessened by reference to section 1504, the definitions section for the Construction Safety Orders, and section 3207, the definitions section for the General Industry Safety Orders. Section 1504 contains the following definitions of the terms "handrail," "guardrail," and "railing":

Handrail. A rail used to provide employees with a handhold for support.

Guardrail. (See Railing)

Railing. A barrier consisting of a top rail and a midrail secured to uprights and erected along the exposed sides and ends of platforms. (Emphasis added.)

Thus, the Construction Safety Orders define "guardrail" and "railing" synonymously but do not define "open sides" or "exposed sides."

Section 3207 provides the following definitions of guardrail and handrail, which refer to Title 24. Title 24 of the California Code of Regulations is California’s building code, which consists of a blanket adoption of the national Uniform Building Code, with amendments:

Guardrail. A vertical barrier erected along the open edges of a floor opening, wall opening, ramp, platform, runway, or other elevated area to prevent falls of persons. (Title 24, Part 2, Section 2-408.) (Emphasis added.)

Handrail. A device to be used as a handhold. (Title 24, Part 2, Section 2-3301(c).)

Stair Railing. A vertical barrier constructed along the open side or sides of stairways and as intermediate stair rails where required on wide stairways. (Title 24, Part 2, Section 2-3301(c).) (Emphasis added.)

While hardly a model of clarity, the regulations distinguish between handrails and stair railings in terms of addressing different hazards, i.e., the purposes for which they are required. Handrails are simply handholds to provide employees with support, in essence, to hold them upright while ascending or descending the stairs. Indeed, the specifications for handrails set forth in section 1626(a) reveal no requirement for a midrail or vertical barrier. In contrast, the provisions referring to stair rails, guardrails, and railings, while not identically worded, all are concerned with the risk presented by open or exposed sides, and require a midrail or vertical barrier to protect what logically must be the danger of falling over (or through) the open or exposed sides. Thus, the Board concludes that handrails address the hazard of falling or tripping down the stairs, but that stair railings (or stair rails, guardrails, and railings) which must contain a midrail, address the hazard of falling over or through an open or exposed side.

While a careful reading of these regulations supports these conclusions, the Board hastens to add that it is understandable why employers, the Division, ALJs, and others find them confusing and difficult. In significant part, the problem arises because an important maxim in legal drafting was not adhered to:

The most important single principle in legal drafting is consistency. Each time an idea is expressed in a legal document, it should be expressed the same way. Each time a different idea is expressed, it should be expressed differently. Where comparable ideas are similar in some respects but different in others, their expression should be correspondingly similar and different. (Dickenson, Legal Drafting, 1981, 1st ed.)

Any employer attempting to comply with these regulations may face confusion and uncertainty because the regulations do not use the same term when the same thing is meant. The use of other terms raises the possibility of different concepts being introduced when none was apparently intended.

The Board now proceeds to apply the definitional conclusions discussed above to determine whether Employer violated section 1626(e), 1629(a)(2), or 3214.

SECTION 1626(e) DOES NOT APPLY BECAUSE THERE WERE NO OPEN SIDES

Did this stairway have open sides? If it did not, section 1626(e), by its very terms, did not apply. The answer turns on what constitutes an open side, a term that is not explicitly defined in the regulations for the purposes of a stairway. The Board’s review of the Construction Safety Orders reveals no express definition of what constitutes an open side.

To resolve this issue, the Board is guided by several points. First, the Division acknowledged at the hearing before the ALJ that the hazard presented by the stairs was tripping or falling down on the stairs not falling over the side. This is the same finding made by the ALJ. The ALJ’s findings are entitled to deference unless opposed by evidence of considerable weight. There is no opposing evidence on this point. The Board finds that the ALJ was correct.

Second, expert testimony presented by Employer at the evidentiary hearing before the Board through two expert witnesses provides insight into this inquiry. The first expert was Ralph B. Sbragia, a member of Employer’s safety staff with 20 years of professional safety experience. Mr. Sbragia provided testimony and photographic evidence showing that handrails are handholds designed to prevent tripping and falling down stairways, and that stair rails are designed to prevent employees from falling over the side of a stairway.

Employer’s other expert witness Hank Krastman was a retired certified Los Angeles city building inspector. Mr. Krastman had a total of almost 30 years experience in construction, and has appeared as an expert witness in other litigation.

Krastman’s testimony made it clear that the distinctive purpose of a midrail is to prevent employees from passing beneath the toprail, and dropping a distance posing a danger of fall injuries. He testified that the General Industry Safety Orders incorporate the Uniform Building Code definition of an elevated location as one that is 30 or more inches above the surface that the employee would hit after falling over an open side.

Krastman’s understanding of the distinctive purpose of a midrail as preventing employees from falling beneath a toprail and dropping a considerable distance is consistent with the Construction Safety Orders’ use of the term midrail. Wherever midrails are required in the Construction Safety Orders, the hazard of falling between the top rail and the surface and dropping a considerable distance is present.

Because a midrail is required, and only a "stair railing" provides one, and a "handrail" does not, the Board concludes that when section 1626(e) requires "stair railings" on "open sides" of stairways, "open sides" are present only when the hazard of falling beneath the toprail and dropping a considerable distance exists.

This implies that under the Building Code and, by incorporation, under the General Industry Safety Orders, an open side is one where the side is without a barrier and the drop is 30 or more inches.

Even if the Construction Safety Orders do not incorporate the Uniform Building Code and with it its express definition of an elevated location and its implied definition of an open side, the 30-inch threshold does not seem unreasonable if applied to this construction site which, in any event, had a drop over the side no more than the height of a riser.

Accordingly, the Board holds that this stairway did not have any open sides, section 1626(e) did not apply, and a violation of section 1626(e) was not established.

SECTION 1629(a)(2) APPLIED BECAUSE THE STAIRWAY WAS AT LEAST 24 INCHES WIDE AND NO HANDRAILS WERE PROVIDED.

Section 1629(a)(2), which requires only "handrails," is limited to the hazard of tripping and falling on the steps of a stairway. Here, no handrails were provided but the stairway was at least 24 inches wide. Thus, section 1629(a)(2) applied, and Employer could have been cited by the Division for such a violation.

While this disposes of the 1629(a)(2) question for the purposes of this case, the following observation may be helpful to those attempting to comply with its requirements. The requirement in Exception 1 to section 1629(a)(2) that handrails be installed on the open side of a stairway does not mean that section 1629(a)(2) equates handrails with stair rails, although the use of the word "handrail" is anomalous and likely due to a drafting oversight in light of the Board’s conclusion that handrails are required to address the hazard of falling down stairs, while stair rails are required for the hazard of falling off open sides. The Board therefore construes Exception 1 merely to require that where only a single handrail is required because the stairway is 44 inches or less in width, the handrail shall be on the open side, i.e., the same open side that section 1626(e) independently requires that a stair rail be installed on. Thus, an employer whose construction site stairway has one or more open side(s) and provides only a handrail in reliance on section 1629(a)(2) will be in violation of section 1626(e). Such an employer must provide a stair rail on the open side(s) to emerge from the regulatory maze without violating either regulation. Installing only a stair rail on the open side(s) satisfies both regulations if the stair rail incorporates a handhold.

GENERAL INDUSTRY SAFETY ORDER SECTION 3214 DID NOT APPLY

Exception 1 to section 3214 specifically requires stair rails where there are open sides, while it allows a choice of stair rails or handrails for other situations. Thus, section 3214 is consistent with and supports the Board’s analysis that the purpose of stair railing is to protect against falling over (or through) an open side, while the purpose of a handrailing is to prevent tripping and falling down the stairs.

Section 3214 is a General Industry Safety Order, rather than a more specific Construction Safety Order. The alleged violation occurred at a construction project. Under the Board’s holding in C.L. Peck, a specific construction safety order takes precedence over a general industry safety order where there is any inconsistency between the specific construction order and the general industry order.

The Board, however, notes that two provisions in section 3214(a) strongly support its analysis of the distinction between handrails and stair rails. The Note to section 3214(a), addressing intermediate stair railings, required on stairs more than 88 inches wide, states they may be of single rail construction. There is no danger of falling over the side in the middle of an 88 inch wide stairway. The railing required is "single rail," i.e., a handhold for employees to prevent falling down a stairway. A midrail is not required because midrails are designed to prevent employees from falling over the open side of a stairway. Also, Exception 3 provides that railings are not required on stairways giving access to portable workstands less than 30 inches high. This is consistent with the Board’s holding that "open sides" do not exist unless the drop is for an appreciable distance such as the 30 inches referred to in section 3214(a), Exception (3).

This leads to the next issue: If the Division did not prove the violation as cited, and chose not to amend the citation to allege a different violation, was it appropriate for the ALJ to amend the citation to allege a violation of a safety order that applies?

    1. The Post-Hearing Amendment of the Citation Alleging a Violation of Section 1629(a)(2) Was Prejudicial to Employer.

As the Division argued both in its brief and in oral argument, the question here was not whether it cited Employer for the best of all possibly applicable safety orders but whether the Division proved a violation of the section it did cite, section 1626(e). The Board affirms the ALJ’s ruling that the Division did not establish a violation of section 1626(e).

Recognizing that employees were not protected by a handrail from the risk of tripping or falling while ascending or descending the stairs, and stating that "responsibility for employee safety is with the Appeals Board," the ALJ notified the parties after the close of the hearing that the citation would be amended to allege a violation of section 1629(a)(2)—a safety order that would have applied to the stairway at the time in question. The ALJ stated that the amendment was being made even though the Division failed to cite the correct safety order or to amend the citation because an employer should not be relieved of liability simply because of a pleading error. Finding that Employer knew the "gravamen of the violation related to the absence of railings on the stairway," the ALJ concluded that the amendment was proper. The Board disagrees.

Section 386 authorizes the Board (and its ALJs) to amend the issues on appeal or the Division action after a proceeding is submitted for decision in order to, among other things, address an issue litigated by the parties or amend the section number cited in the citation if the same set of facts apply to both the cited and proposed sections. Even so, such an amendment shall not be made if after being given notice of the intended amendment and the opportunity to show that the party will be prejudiced, such prejudice is shown. For the reasons discussed below, the Board believes the post-hearing amendment prejudiced Employer.

Undoubtedly, proper performance of the Board’s adjudicatory role makes substantial contributions to workplace safety and health, but the notion that "responsibility for employee safety is with the Appeals Board" is overly broad and too general to aid in determining whether a post-hearing amendment is prejudicial. While both the Division and the Board have important roles in ensuring employee safety and health in the workplace, those roles are decidedly different and must not be blurred. The Division’s responsibility is to cite and prosecute violations of the OSHA laws. The Board’s function is to hold an impartial hearing, take and review evidence, assess the credibility of the witnesses, and weigh the arguments presented to determine whether or not the Division established the alleged violations it decides to prosecute. Moreover, the Board’s responsibilities include upholding the due process rights of employers as well as the legitimate exercise of prosecutorial discretion by the Division.

The Division had the opportunity to move to amend the citation if it believed it should have cited a different section. When the Division did not do so, the ALJ in essence took on the role of the enforcement arm of the government so that a violation of another regulation would not go unaddressed. While the Board has no doubt whatsoever that the ALJ was motivated by the best of intentions—to protect the safety of employees in the workplace—a goal which the Board wholeheartedly shares—the issue is one of whether the amendment prejudiced Employer.

The Division’s inspector Mr. Burgess took the position that section 1629(a)(2) did not apply to the stairway but that section 1626(e) did. Even though the Division could have moved to amend the citation after reading Employer’s trial brief or following Mr. Burgess’ cross examination, the Division still chose to go forward with the citation alleging only a violation of section 1626(e). That was a legitimate exercise of prosecutorial discretion. It is up to the Division, not this Board, to choose which safety orders to cite.

Here Employer was prejudiced by amending the citation to allege a violation of a safety order that addressed a different hazard than that prosecuted by the Division. As explained above, sections 1626(e) and 1629(a)(2) are aimed at different hazards. Facts sufficient to establish a defense to an alleged violation of section 1629(a)(2) would not necessarily establish a defense to section 1626(e) because the requirements for handrails and stair rails are different.

Moreover, the amendment effectively turned what Employer offered as a shield—identifying what regulation could have been the basis for a proper citation—into a sword used against it. Penalizing the Employer for bringing this error to the ALJ and the Division’s attention, which formed the basis for the Employer’s defense, does not reinforce the ideals of intellectual honesty and candor, both of which are sometimes in short supply. Tribunals should not go out of their way to penalize such virtues. To do otherwise may have a chilling effect upon judges receiving sound legal analysis of the issues before them and upon employers mounting effective defenses to the alleged violations with which they are specifically charged. Also, penalizing such candor may make it easier for counsel to rationalize a lack of candor and intellectual honesty on their part as just part of being "zealous advocates."

In our system of justice, some wrongs go unpunished—a price most view as small compared to the price that would be paid by the entire society if the ideals of keeping each branch of government within its proper role, maintaining the reality and appearance of impartial tribunals, and fostering candor and honesty were subordinated to making sure that government pursues every wrong no matter what.

Accordingly, under the particular circumstances here, the post-hearing amendment was prejudicial to Employer. The ALJ’s amendment and finding of a violation of section 1629(a)(2) are set aside.

In summary, the Board affirms the finding of the ALJ that section 1626(e) does not apply to the stairs in question, and therefore the Division did not establish a violation of that safety order. While section 1629(a)(2) does apply to the stairway, the post-hearing amendment by the ALJ to correct the violation from section 1626(e) to section 1629(a)(2) prejudiced Employer. The Board, therefore, disallows the amendment of the citation and grants Employer’s appeal to the citation alleging a violation of section 1626(e).

DECISION AFTER RECONSIDERATION

The Decision of the ALJ dated June 10, 1999, is affirmed as to the finding that a violation of section 1626(e) was not established but is overturned as to the finding that an amendment of the citation was allowable and that a violation of section 1629(a)(2) was established. Employer’s appeal is granted.

JAMES P. GAZDECKI, Chairman BILL DUPLISSEA, Member

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - December 21, 1999