Lusardi Construction Co. v. California Occupational Safety & Health Appeals Bd.

• Decision Date: 05 December 1991
• Docket Number: No. C008399,C008399
• Citation: 2 Cal.Rptr.2d 297,1 Cal.App.4th 639
• Court: California Court of Appeals Court of Appeals
• Parties: , 1992 O.S.H.D. (CCH) P 29,560 LUSARDI CONSTRUCTION COMPANY, Plaintiff, Appellant, v. CALIFORNIA OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, Defendant, Appellant. DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, Real Party in Interest and Respondent.

Page 297

2 Cal.Rptr.2d 297

1 Cal.App.4th 639, 1992 O.S.H.D. (CCH) P 29,560

LUSARDI CONSTRUCTION COMPANY, Plaintiff, Appellant, v. CALIFORNIA OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, Defendant, Appellant DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, Real Party in Interest and Respondent.

No. C008399.

Court of Appeal, Third District, California.

Dec. 5, 1991.

[1 Cal.App.4th 642] Robert D. Peterson, for plaintiff, appellant Lusardi Const.

Patrick S. Berdge, for defendant, appellant Occupational Safety & Health Appeals Bd.

Michael D. Mason, for real party in interest and respondent Dept. of Indus. Relations.

MARLER, Associate Justice.

Lusardi Construction Company appeals from a judgment denying its petition for a writ of mandate to set aside the decision of the Occupational Safety and Health Appeals Board (the Board) affirming a citation for a serious violation of a safety order. The Board cross-appeals from the trial court's Memorandum and Order, seeking to overturn the trial court's interpretation of a safety order, section 1710 of Title 8 of the California Administrative Code (all further references to this code are under its new designation adopted by the Legislature to be effective January 1, 1988, i.e., the California Code of Regulations). We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are undisputed. On September 11, 1986, a carpenter working for Lusardi on a skeleton steel structure fell 24 feet to his death while setting wooden trusses (also called joists) on the second story. After setting a truss he had stood up to go get another truss, turned on a four-inch beam and fallen. He had not been wearing a safety belt. The Department of Industrial Relations, Division of Occupational Safety and Health investigated the accident, issued a citation to Lusardi for a serious violation of California Code of Regulations, Title 8, section 1670, for working at a height of 15 feet without a safety belt, and imposed a $700 fine.

Lusardi contested the citation and the fine. It argued that section 1670 did not apply; instead, the applicable safety order was section 1710 of Title 8 of [1 Cal.App.4th 643] the California Code of Regulations, which set forth the tie-off requirements for skeleton steel structures, and the controlling provision was subdivision (g)(3)(A) of section 1710, which permitted traveling on skeleton steel structures without a safety belt up to a height of 30 feet. Lusardi petitioned for reconsideration. The Board denied the petition. It reasoned that section 1710 applied only to ironworkers. Further, even if section 1710 did apply, it could not be said a worker was traveling while performing work, so the traveling exception of subdivision (g)(3)(A) did not apply.

Lusardi then petitioned the Superior Court in Sacramento for a Writ of Mandamus to overturn the decision. The court denied the writ. It found section 1710 did apply as the more specific safety order, but that the traveling exception did not. The court further found the recitation of section 1670 rather than section 1710 in the citation did not prejudice Lusardi.

Lusardi appealed; the Board also appealed, contesting the trial court's finding that section 1710 applied.

DISCUSSION

Our function on appeal is the same as that of the trial court in ruling on the petition for the writ. We must determine whether based on the entire record the Board's decision is supported by substantial evidence and whether it is reasonable. (Lab.Code, § 6629; Davey Tree Surgery Co. v. Occupational Safety & Health Appeals Bd. (1985) 167 Cal.App.3d 1232, 1240, 213 Cal.Rptr. 806.) Where the decision involves the interpretation and application of existing regulations, we must determine whether the administrative agency applied the proper legal standard. (Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 310, 118 Cal.Rptr. 473, 530 P.2d 161.) Since the interpretation of a regulation is a question of law, while the administrative agency's interpretation is entitled to great weight, the ultimate resolution of the legal question rests with the courts. (Ibid.)

I

Lusardi was cited with a serious violation of section 1670, subdivision (a). At that time the safety order read in part: "Approved safety belts and lifelines shall be worn by those employees whose work exposes them to falling in excess of 15 feet from the perimeter of a structure or through shaftways and openings not otherwise adequately protected under the foregoing provisions of the Article." Lusardi contends there was no violation of a safety order because the activity of the fatally injured employee was controlled by the tie-off requirements of section 1710 and specifically the traveling exception of section 1710, subdivision (g)(3)(A).

Subdivision (g) of section 1710 provides: "Working and Traveling on the Skeleton Steel of Multistory Buildings or Structures. [p] (1) Connecting. [p] When connecting beams at the periphery or interior of a building or structure where the fall distance is greater than 30 feet, employees shall be tied-off by approved safety belts and lifelines to either columns, pendant lines secured at the tops of columns, catenary lines, or other secure anchorage points. [p] (2) Work Other Than Connecting. [p] When performing any other work at a work point, employees shall be protected by approved safety belts and lifelines where the fall distance is greater than 15 feet. [p] (3) Traveling at Periphery or Interior of Building. [p] (A) When moving from work point to work point or releasing slings, employees shall be permitted to walk the top flange of a beam when the fall distance is 30 feet or less. [p] (B) When the fall distance is greater than 30 feet, employees: [p] 1. Shall coon or walk the bottom flange (inside flange or peripheral beams), or [p] 2. May walk the top flange if they are tied-off to catenary lines. [p] (4) Pendant lines, catenary lines and other lines used to secure workers shall be capable of supporting a minimum weight of 5400 pounds. [p] (5) If the procedure specified in (1) above is impractical, perimeter safety nets shall be installed at a distance of no more than 25 feet below the work surface and extend at least 8 feet beyond the perimeter of the building or structure. Nets shall meet the requirements set forth in accordance with Sections 1671 and 1672."

It is undisputed that Lusardi's employees were placing trusses at a height of 24 feet without safety belts or lifelines. Lusardi contends the employee who fell was traveling at the time he fell. He had just placed a truss and was returning to pick up another. Nothing in subdivision (g)(3)(A) prevents an employee from picking up material while moving from work point to work point. Since the employee was less than 30 feet above the ground, the activity at the time of the accident met the requirements of the safety order. Accordingly, Lusardi concludes there was no violation.

In making this argument Lusardi relies in part on an unpublished opinion of the Sacramento Superior Court, which it attaches as an exhibit to its opening brief. Such a case may not be cited as precedent under rule 977(a) of the California Rules of Court, and we decline to consider it.

The Board found the traveling exception did not apply. First, it found that section 1710 applied only to ironworkers and thus was inapplicable to the work of carpenters. Further, the Board found that even if section 1710 applied, the traveling exception did not because the employees setting trusses were not "traveling." The Board found that an employee does not "travel" while performing work even if some motion is required. An employee must be tied-off when performing any work at a height of 15 feet or more, with the specific exception set forth in section 1710, subdivision (g)(2) for those performing connecting work. The Board recognized that safety orders are to be liberally construed to promote safety. (Carmona v. Division of Industrial Safety, supra, 13 Cal.3d at p. 313, 118 Cal.Rptr. 473, 530 P.2d 161.) The Board's construction of the traveling exception met this goal. The Board rejected Lusardi's claim that work performed while moving on a beam falls within the traveling exception, noting that expanding the exception would involve increased exposure to hazards.

An agency's expertise with regard to a statute or regulation it is charged with enforcing entitles its interpretation of the statute or regulation to be given great weight unless it is clearly erroneous or unauthorized. (Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 111, 172 Cal.Rptr. 194, 624 P.2d 244; Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658, 668, 150 Cal.Rptr. 250, 586 P.2d 564; Jones v. California Interscholastic Federation (1988) 197 Cal.App.3d 751, 759, 243 Cal.Rptr. 271; Davey Tree Surgery Co. v. Occupational Safety & Health Appeals Bd., supra, 167 Cal.App.3d at p. 1243, 213 Cal.Rptr. 806.) The Board is one of those agencies whose expertise we must respect. (Davey Tree Surgery Co., supra, at p. 1244, 213 Cal.Rptr. 806.)

Giving deference to the Board's interpretation of "traveling" to promote safety, we cannot say such interpretation is clearly erroneous. Indeed, the Board's interpretation is more logical than that proposed by Lusardi. Lusardi's narrow interpretation would relax the tie-off requirements whenever a worker moved; as the Board noted that is when he needs the protection most. ¹ There is substantial evidence to support the finding of a violation of a safety order. ²

Furthermore, even if we accepted Lusardi's interpretation of "traveling," we would still find substantial evidence of a violation. Lusardi concedes its employees were "working" when they placed trusses at 24 feet without a safety belt. This activity establishes a clear violation of the safety order. Lusardi urges that the Board is limited to the activity...