Director v. KIEWIT

• Decision Date: 08 January 2004
• Docket Number: No. 24226.,24226.
• Citation: 104 Haw. 22,84 P.3d 530
• Parties: In the Matter of DIRECTOR, DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, Complainant-Appellant, v. KIEWIT PACIFIC COMPANY, Respondent-Appellee.
• Court: Hawaii Court of Appeals

84 P.3d 530

104 Haw. 22

In the Matter of DIRECTOR, DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, Complainant-Appellant, v. KIEWIT PACIFIC COMPANY, Respondent-Appellee.

No. 24226.

Intermediate Court of Appeals of Hawai'i.

January 8, 2004.

Certiorari Denied February 18, 2004.

Frances E.H. Lum, Leo B. Young, Deputy Attorneys General, State of Hawai'i, on the briefs, for complainant-appellant.

Brian G.S. Choy, Keith M. Yonamine, (Gronau & Choy), on the briefs, for respondent-appellee.

BURNS, C.J., WATANABE and LIM, JJ.

Opinion of the Court by LIM, J.

In this secondary appeal, Complainant-Appellant Director of Labor and Industrial Relations (the Director) appeals the April 3, 2001 final judgment and the underlying February 26, 2001 decision and order of the circuit court of the first circuit.¹ The circuit court's judgment and order together affirmed the May 23, 2000 decision and order of the Labor and Industrial Relations Appeals Board (LIRAB). The LIRAB's decision and order, in turn, "reversed and vacated" the citation issued to Respondent-Appellee Kiewit Pacific Company (Kiewit) by the Director's Hawai'i Occupational Safety and Health Division (HIOSH) for violating 29 Code of Federal Regulations (C.F.R.) § 1926.501(b)(4)(ii) (2003).² Kiewit had failed to cover some shallow holes in the ground floor at its construction site.

We hold, contrary to Kiewit's position and the LIRAB's decision below, that 29 C.F.R. § 1926.501(b)(4)(ii) does indeed apply to shallow holes at ground level. Accordingly, we conclude the circuit court erred in affirming the LIRAB in this respect; hence, we vacate in part, affirm in part,³ and remand.

I. Background.

The underlying facts are undisputed. Kiewit was the general contractor building the Maui Marketplace shopping center in Kahului. On October 15 and 16, 1996, HIOSH conducted an inspection of Kiewit's job site. During the inspection, thirteen holes—each two feet square and approximately six to eight inches deep—were observed in a concrete slab on the ground floor of the project. Kiewit planned to place vertical beams in the holes to support the roof. The inspector was concerned:

When approaching work area where 15-20 masons were building shell walls, noted holes in concrete floor where vertical beams will be placed for roof support. The masons work on scaffold system and may or may not have to walk past holes (to/from scaffolds), but they had two ground crewmen (block cutter & mortar mixer) who walk around the area frequently. Also the Gradall fork truck drives around the area continuously to provide blocks for the masons. If it ran into one of these holes, a pallet of hollow-tile cmu block fall [sic] or be thrown potentially causing serious injuries.

Some of the holes had a piece of wood 4" × 4" placed inside the opening to reduce the hazard, but 8 of 13 had no protection at all.

On December 4, 1996, HIOSH cited Kiewit for a violation of 29 C.F.R. § 1926.501(b)(4)(ii), explaining that, "Each employee on a walking/working surface was not protected from tripping or stepping into holes; i.e., only 5 of 13 holes (2' × 2', approximately 6-8" deep) were provided with covers." HIOSH deemed the violation serious, and proposed a penalty of $1,125.00.

Kiewit contested this citation (among others issued during the inspection) to the LIRAB. In a pre-hearing conference, the parties identified issues to be decided by the LIRAB in connection with the citation:

1. The issues to be determined are:

1. Whether [Kiewit] violated 29 [C.F.R. § ] 1926.501(b)(4)(ii).

(a) If so, is the characterization of the violation as "serious" appropriate. If not, what is the appropriate characterization, if any.

(b) If so, is the imposition and amount of the proposed $1,125.00 penalty appropriate.

Kiewit argued that 29 C.F.R. § 1926.501(b)(4)(ii) "was intended to prevent falls from heights greater than six feet" and hence, was inapplicable to the ground-level holes. The Director argued just the opposite. After a December 9, 1998 hearing, the LIRAB sided with Kiewit and "reversed and vacated" the citation. In its May 23, 2000 decision and order, the LIRAB found, concluded and ordered, in pertinent part, as follows:

FINDINGS OF FACT

1. On October 15 and 16, 1996, [the Director] performed an occupational safety and health inspection of [Kiewit's] jobsite at the Maui Marketplace.

2. Following the inspection, [the Director], on December 4, 1996, issued three citations against [Kiewit] for various violations of the Hawaii Occupational Safety and Health Standards:

(a) Citation 1, Item 1 (uncovered holes):

Violation of 29 [C.F.R. § ] 1926.501(b)(4)(ii) for not keeping holes in the ground covered.

Complainant characterized the violation as "serious[,"] and imposed a proposed penalty of $1,125.00.

....

Citation 1, Item 1

29 [C.F.R. § ] 1926.501(b)(4)(ii)—uncovered holes

3. At the inspection of [Kiewit's] work site, [the Director] observed holes in the ground that were 2 feet by 2 feet, and 6-8 inches deep.

4. The holes were located in the ground and not at a height or above any lower levels.

5. The holes were not covered.

6. 29 [C.F.R. § ] 1926.501(b)(4)(ii) is part of 29 [C.F.R.], Subpart M, entitled "Fall Protection." Subpart M sets forth the requirements and criteria for fall protection on construction sites.⁴

7. The heading for [29 C.F.R. § ] 1926.501 [ (2003) ] is entitled "Duty to have fall protection." Section 1926.501(b)(1-15) identifies fifteen work situations or conditions that are above ground and more than 6 feet above lower levels, for which fall protection is required or needed. "Holes" is listed under [§ ] 1926.501(b)(4).

....

CONCLUSIONS OF LAW

1. ....

We read 29 [C.F.R. §] 1926.501(b)(4)(ii) in context with [§] 1926.501(b)(4)(i) and [§] 1926.501(b)(4)(iii) and with [§] 1926.501 and Subpart M as a whole, and conclude that the hazard that subsection (b)(4)(ii) seeks to prevent applies only to holes that are at heights above lower levels. Accordingly, [Kiewit] was cited for a violation of a Standard that did not apply to the situation. Accordingly, we conclude that [Kiewit] did not violate 29 [C.F.R. § ] 1926.501(b)(4)(ii).

....

ORDER

Citation 1, Item 1 ... [is] reversed and vacated.....

(Footnote supplied.)

On June 21, 2000, the Director appealed the LIRAB's decision and order to the circuit court. The circuit court's February 26, 2001 decision and order affirmed the LIRAB's May 23, 2000 decision and order and read, in relevant part, as follows:

As to the issue regarding statutory interpretation of "fall protection" standards, the Court finds no error in [the LIRAB's] interpretation of 29 [C.F.R. §] 1926.501(b)(4)(ii) concluding that it applies only to holes that are at heights above lower levels, and that the standard did not apply to the factual situation for which [the Director] issued the violation (uncovered holes in the ground). The interpretation properly read the standards in pari materia, and such reading supports [the LIRAB's] interpretation. The specific language at issue is as follows: "Each employee on [a] walking/working surface shall be protected from tripping in or stepping into or through holes (including skylights) by covers." 29 [C.F.R. §] 1926.501(b)(4)(ii).

[The Director] argues [the LIRAB] ignored the definition of "walking/working surface[,"] defined at 29 [C.F.R. §] 1926.500(b) [(2003)], as follows: "Walking/working surface means any surface, whether horizontal or vertical on which an employee walks or works, including, but not limited to, floors, roofs, ramps, bridges, runways, form work and concrete reinforcing steel but not including ladders, vehicles, or trailers, on which employees must be located in order to perform their job duties." [The Director] emphasizes the word "floors" found in the walking/working definition. But that does not support [the Director's] argument. The same definitional section defines "Hole" as follows: "Hole means a gap or void 2 inches (5.1 cm) or more in its least dimension, in a floor, roof, or other walking/working surface." Later, the definition of "Lower levels" is set forth as follows: "Lower levels means those areas or surfaces to which an employee can fall. Such areas or surfaces include, but are not limited to, ground levels, floors, platforms, ramps, runways, excavations, pits, tanks, material, water, equipment, structures, or portions thereof." It is clear from this definition that "floors" are different from "ground levels[."] Indeed, the definitional section supports [the LIRAB's] interpretation that a hole as set forth in the standard at issue does not include a hole at ground level absent some condition making "ground level" a level from which an employee can fall. Rather, the standard covers a hole found in a floor where an employee can fall from that floor to ground level; that is, [the LIRAB] properly determined that the standard only applies to holes at heights above "lower levels" and thus was not applicable in this case.

For the above reasons, this Court affirms the Decision and Order of [the LIRAB] dated May 23, 2000.

The circuit court entered final judgment in favor of Kiewit on April 3, 2001. The Director now brings this secondary appeal of the circuit court's decision and order and final judgment, to us.

II. Standards of Review.

This court has outlined a general overview of the standard of review for a secondary appeal of an agency decision:

Appeal of a decision made by the circuit court upon its review of an agency's decision is a secondary appeal. The standard of review is one in which this court must determine whether the circuit court was right or wrong in its decision, applying the standards set forth in Hawai'i Revised Statutes (HRS) § 91-14(g) (1993) to the agency's decision. University of Hawai'i Professional Assembly v. Tomasu, 79 Hawai'i 154, 157, 900 P.2d 161, 164 (1995). Hence, the agency's findings of fact are reviewed under the clearly erroneous standard. Wailuku Sugar Co. v. Agsalud, 65

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