Skyline Homes v. Occupational Safety & Health Appeals Bd.

Decision Date19 June 1981
Citation174 Cal.Rptr. 665,120 Cal.App.3d 663
Parties, 1981 O.S.H.D. (CCH) P 25,495 SKYLINE HOMES, INC., a California Corporation doing business as Buddy Mobile Homes, Plaintiff and Appellant, v. The OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, DEPARTMENT OF INDUSTRIAL RELATIONS, State of California, Defendant and Respondent, DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF INDUSTRIAL SAFETY, State of California, Real Party in Interest and Respondent. 3 Civ. 18717.
CourtCalifornia Court of Appeals Court of Appeals

Reid, Babbage & Coil and David G. Moore, Riverside, and Ingoglia, Marskey & Kearney and Philip P. Marskey, Sacramento, for plaintiff and appellant.

Robert A. Heron, Chief Counsel, Elise Manders and Keith Yamanaka, Sacramento, for defendant and respondent.

Michael D. Mason, Acting Chief Counsel, and Paul Freud Wotman, Staff Counsel, San Francisco, for real party in interest and respondent.

REYNOSO, Associate Justice.

Plaintiff argues that the manufacture of mobile homes is governed by the state's construction safety orders and not the general industry safety orders. We hold that in the construction of mobile homes in an assembly plant, as later described, the construction safety orders are inapplicable; accordingly, such a manufacturing operation is appropriately covered by the safety orders which apply to general industries. We affirm the trial court's denial of the petition for a writ of mandate.

Skyline Homes, Inc., a California corporation doing business as Buddy Mobile Homes, petitioned the Superior Court of Sacramento County for a writ of administrative mandate against the California Occupational Safety and Health Appeals Board, naming the Department of Industrial Relations and the Division of Industrial Safety as real parties in interest. Plaintiff sought relief from a penalty imposed upon it by the division and upheld by the appeals board in an administrative proceeding. The penalty was imposed for failure to provide safety devices for employees installing roofing materials on mobile homes at a height of approximately 12 feet.

I

On September 13, 1977, division compliance safety engineer Donald R. Cunningham visited plaintiff's plant after learning of an industrial accident. As the result of this visit a citation was issued charging 14 violations of safety rules. One alleged violation concerned the failure to provide guardrails for employees in the roof sheeting area and in the mezzanine and storage area. Plaintiff contested only the alleged violation for the failure to provide guardrails at the roof sheeting area.

The matter came on for hearing before an administrative law judge. At the hearing Cunningham testified that on his visit to the plant he observed three workers installing a sheet metal roof at a height of 12 feet without any safety device to prevent falls. Plaintiff did not deny that this situation existed, and in fact admitted that it was so.

Plaintiff's division manager testified regarding the manufacturing process used by plaintiff. As his testimony confirms, we deal with a manufacturing assembly plant. Plaintiff uses an assembly line process consisting of 15 work stations. The units move on a small trolley with an angle iron track. Separately constructed walls are hoisted and nailed to a previously built floor. The roof is then hoisted and nailed to the walls. At the work station where the roof is hoisted to the unit plaintiff has movable scaffolding with guardrails which is hoisted to surround the unit. That station is in compliance with department regulations.

The roofing process consists of setting the roof, electrical wiring, installing plywood sheeting and felt or tar papering, shingling and installation of roof jacks. Plaintiff has two roofing stations with protective scaffolding; however, often a portion of the roofing work is performed between the two stations where there are no protective devices. Thus, after the roof is hoisted and secured the unit is moved to a position without scaffolding where the plywood sheeting and felt or tar paper portion of the work is done. After that is completed the unit is moved to another area with protective scaffolding where the shingling is performed and the roof jacks installed.

Despite the fact that protective scaffolding is available at the point where the roofing is begun and at the point where it is finished, the plywood sheeting and the application of the felt or tar paper is often performed between these two stations without any protective devices. The reason for this is the volume of production at which plaintiff builds mobile homes. Plaintiff produces four units per day, which leaves only an hour and forty minutes per station. That time is spent hoisting and nailing down the roof at the first station, and is completely used for shingling and installation of roof jacks at the next. To keep the unit at either station where protective scaffolding is available would delay the manufacturing process, so the unit is moved to a point between the two stations for a portion of the roofing work.

The testimony turned from detailing the manufacturing process to the required protection for the workers. When asked what prevented the installation of scaffolding the division manager explained: "Well, as I indicated, now, we have the four scaffolds and catwalks there right now, and our operation was put into operation with a considerable cost. Now, I don't think we're prohibited by anything other than economics, from putting another scaffold there. I don't think that the scaffold in itself interferes with our operation but we just have four right now."

John Best, a consulting engineer, who testified for plaintiff, outlined the types of protective devices which could be used. He described the scaffolding of the type now used as costly and having the potential for interfering somewhat with the production process. The burden of the testimony appears to be that it is the expense which persuaded the plaintiff not to install the required safety devices.

In light of the evidence plaintiff did not deny that it had not provided guardrails for certain employees working on the mobile home roofs, nor did it contend that it had provided any equivalent safety devices. Instead, plaintiff contended that it should not be required to provide guardrails or equivalent safety devices for those employees. The basis of this contention was plaintiff's belief that it should be subject to the department's construction safety rules, dealing with fixed structures, rather than the general industry safety rules.

The administrative law judge decided the matter contrary to plaintiff's contention and upheld the imposition of the penalty. Plaintiff was to be given a 60-day abatement period so that suitable guarding options could be explored. Plaintiff applied for reconsideration of the decision by the appeals board. The appeals board granted the petition for reconsideration and after reconsideration affirmed the decision of the administrative law judge. The board held that mobile home manufacturing is governed by the general industry safety orders and not by the construction safety orders. This proceeding in administrative mandate followed. 1

II
A. The Difference Between the General Industry Order and the Construction Safety Order

Plaintiff argues that the general industry safety orders are inapplicable to it and that the division and appeals board thus judged its operation under an erroneous standard. There is no argument that the evidence is insufficient to support the finding that it failed to comply with the general industry safety order set forth at title 8, California Administrative Code, section 3210, subdivision (a).

The applicable general industry safety order provides, "Guardrails shall be provided on all open sides of unenclosed roof openings, open and glazed sides of landings, balconies or porches, platforms, runways, ramps, or working levels more than 30 inches above the floor, ground or other working areas ... (Cal.Admin.Code, tit. 8, § 3210, subd. (a).) The construction safety orders relating to roofing hazards are more lenient, both in terms of the minimum height at which safety devices are required and in the types of devices which may be used. (See Cal.Admin.Code, tit. 8, § 1730.) Plaintiff contends that its employees applying the plywood and felt or tar paper to mobile home roofs should be considered engaged in roofing operations in the construction industry, for in that manner lesser safety precautions would be required.

The decision of the appeals board involved the interpretation and application of existing regulations. "In reviewing such an agency decision a court must determine whether the administrative agency applied the proper legal standard in evaluating the evidence before it. (Citation.) The interpretation of a regulation, like the interpretation of a statute, is, of course, a question of law (citations), and while an administrative agency's interpretation of its own regulation obviously deserves great weight (citations), the ultimate resolution of such legal questions rests with the courts. (Citations.)" (Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 310, 118 Cal.Rptr. 473, 530 P.2d 161.)

The regulations of the department are set forth in Title 8 of the California Administrative Code. There are a set of general industry safety orders which are applicable to all employments within the state over which the department has jurisdiction, except where specific industry safety orders govern. (Cal.Admin.Code, tit. 8 § 3202, subd. (a).) Where there are specific industry safety orders those orders control in any situation in which they are inconsistent with the general industry safety orders. (Ibid.)

The department has promulgated specific industry safety orders for the construction industry. (Cal.Admin.Code, tit. 8, §§ 1500 et seq.) Those orders provide that at construction...

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