Filed 8/28/20 Cal. Dept. of Industrial Relations etc. v. Cal. Occupational Safety etc. CA1/2

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     IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FIRST APPELLATE DISTRICT

                                              DIVISION TWO


CALIFORNIA DEPARTMENT OF
INUSTRIAL RELATIONS,
DIVISION OF OCCUPATIONAL                                                A158500
SAFETY AND HEALTH,
          Petitioner and Respondent,                                    (Alameda County Super. Ct.
                                                                        No. HG18930741)
v.
CALIFORNIA OCCUPATIONAL
SAFETY AND HEALTH APPEALS
BOARD,
          Respondent,
BRAGG COMPANIES,
Real Party in Interest and Appellant.




          Real party in interest Bragg Companies, doing business under
the name of Bragg Crane Service (Bragg) appeals after the trial court
granted the petition for writ of mandate filed by petitioner and
respondent California Department of Industrial Relations, Division of
Occupational Safety and Health (Division), ordering respondent
California Occupational Safety and Health Appeals Board (Board) to
set aside a portion of its decision after reconsideration in


                                                           1
administrative proceedings against Bragg regarding workplace
violations that resulted in a crane accident.
      On appeal, Bragg contends the trial court incorrectly interpreted
the term “provided” in California Code of Regulations, title 8, section
49511 to mean that a swing lock or swing brake must not only be
provided by the employer, but must also be used by the employee when
necessary to prevent rotation during the operation of a hydraulic crane.
The Board concurs in Bragg’s argument that the court erred in its
interpretation of the meaning of the term “provided.” We agree with
Bragg and the Board, and conclude the court misconstrued the
meaning of the term “provided” in section 4951. We shall therefore
reverse the court’s judgment.
          FACTUAL AND PROCEDURAL BACKGROUND
      In June 2016, Bragg was providing crane services as a
subcontractor at a former ExxonMobil facility in Torrance, hoisting
dismantled pieces of a reactor and regenerator. On June 20, the
operator of a hydraulic crane picked up a 78,000-pound piece of
equipment (the load) off the ground, swung it to the rear, and started to
move the crane backwards. Although the crane was equipped with a
swing lock, the crane operator did not engage it during this pick and
carry operation. In addition, before walking the crane backwards,
employees retracted the outriggers, which help keep the load stable.
No taglines—restraints used to prevent a load from rotating while the

      1
       All further regulatory section references are to title 8 of the
California Code of Regulations unless otherwise indicated.
       Section 4951 provides: “Unless swing drive mechanism is of a
self-locking type, a swing lock or swing brake capable of preventing
rotation under normal working conditions shall be provided.”


                                     2
load is moving—were being used. As the crane moved backwards, the
load started to swing and hit a scaffold structure, and the crane tipped
over.
        On June 21, 2016, the Division opened an inspection, which
resulted in the issuance of two citations against Bragg. Citation 1,
Item 1 alleged a general violation of section 4951 for failure to engage
the crane’s swing lock while walking the crane with a suspended load.
Citation 1, Item 2 alleged a general violation of section 4992,
subdivision (b) for failure to use taglines to prevent rotation of the
suspended load while walking the crane. Citation 2 alleged a serious
violation of section 4994 for failure to leave the outriggers extended
while walking the crane with a suspended load.
        Bragg appealed the citations, and a hearing was held before the
Board. On January 25, 2018, an administrative law judge (ALJ)
affirmed all of the citations against Bragg.
        Bragg filed a petition for reconsideration with the Board, and on
November 2, 2018, the Board issued a decision after reconsideration in
which it upheld Citation 1, Item 2 and Citation 2. However, it vacated
Citation 1, Item 1 because it concluded Bragg had provided the crane
with a swing lock capable of preventing the load’s rotation under
normal working conditions, as required by section 4951.
        The Division filed a petition for writ of mandate in the trial court,
challenging the Board’s interpretation of the requirements of section
4951 and requesting reinstatement of Citation 1, Item 1. On
September 6, 2019, the court entered an order granting the Division’s
petition for writ of mandate and ordered the Board to set aside the
portion of its decision vacating Citation 1, Item 1.



                                      3
      On October 1, 2019, Bragg filed a notice of appeal.
                              DISCUSSION
      The California Occupational Safety and Health Act of 1973 (Act)
was “enacted for the purpose of assuring safe and healthful working
conditions for all California working men and women by authorizing
the enforcement of effective standards . . . .” (Lab. Code, § 6300.) The
terms of the Act “ ‘are to be given a liberal interpretation for the
purpose of achieving a safe working environment.’ ” (Bendix Forest
Products Corp. v. Division of Occupational Safety & Health (1979) 25
Cal.3d 465, 470; accord, Carmona v. Division of Industrial Safety (1975)
13 Cal.3d 303, 313 (Carmona).)
      The Division “shoulders primary responsibility for administering
and enforcing the [Act.] It does this through investigating workplaces
and enforcing occupational safety and health standards. (Lab. Code,
§§ 6309, 6313, 6314.) Many of these standards, commonly referred to
as safety orders, are codified at title 8 of the California Code of
Regulations.” (Rick’s Electric, Inc. v. California Occupational Safety &
Health Appeals Board (2000) 80 Cal.App.4th 1023, 1026 (Rick’s
Electric).) The Board is an independent adjudicatory agency
responsible for, inter alia, resolving employers’ appeals from citations
issued by the Division for safety violations. (Rick’s Electric, at p. 1027;
Lab. Code, § 148.)
 I. Standard of Review and Rules of Regulatory Interpretation
      “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



                                     4
questions rests with the courts. [Citations.]” (Carmona, supra, 13
Cal.3d at p. 310; accord, Rick’s Electric, supra, 80 Cal.App.4th at
pp. 1033–1034 [“ ‘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’ ”].) “ ‘The Board is one of those agencies
whose expertise we must respect. [Citation.]’ [Citation.] However, ‘[a]n
administrative agency cannot alter or enlarge the legislation, and an
erroneous administrative construction does not govern the court’s
interpretation of the statute.’ [Citation.]” (Rick’s Electric, at p. 1034.)
      “In determining the issuing agency’s intent, we look first to the
language of the regulation itself. [Citations.] ‘ “If the language is clear
and unambiguous there is no need for construction, nor is it necessary
to resort to indicia of the intent of the [agency] . . . . [Citation.]” “But
the ‘plain meaning’ rule does not prohibit a court from determining
whether the literal meaning of a [regulation] comports with its
purpose. . . .” [Citation.] Furthermore, “ ‘where a word of common
usage has more than one meaning, the one which will best attain the
purposes of the [regulation] should be adopted, even though the
ordinary meaning of the word is thereby enlarged or restricted and
especially in order to avoid absurdity or to prevent injustice.’ ” ’
[Citations.] Moreover, ‘[w]e do not construe a regulation in isolation,
but instead read it with reference to the scheme of law of which it is a
part, so that the whole may be harmonized and retain effectiveness.’
[Citations.]” (Department of Industrial Relations v. Occupational
Safety & Health Appeals Board (2018) 26 Cal.App.5th 93, 101.)
Finally, “ ‘[w]hen attempting to ascertain the ordinary, usual meaning



                                      5
of a word, courts appropriately refer to the dictionary definition of that
word.’ [Citations.]” (Heritage Residential Care, Inc. v. Division of
Labor Standards Enforcement (2011) 192 Cal.App.4th 75, 83, quoting
Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111,
1121–1122.)
              II. Meaning of “Provided” in Section 4951
      Again, section 4951, a safety order that applies to hydraulic
cranes and excavators, provides: “Unless swing drive mechanism is of
a self-locking type, a swing lock or swing brake capable of preventing
rotation under normal working conditions shall be provided.”
      The sole issue in this case is whether the term “provided” in
section 4951 should be interpreted to mean that a swing lock or swing
brake must be both provided and used to satisfy the regulation’s
mandate. The Board and the trial court differed in their
interpretations of section 4951.
      In its decision after reconsideration, the Board found in favor of
Bragg on this question, after first noting that there was no dispute that
“the crane at issue had a swing lock” and that the operator credibly
testified that “he did not engage it during the operation.” In rejecting
the Division’s argument that “the citation should be affirmed because
the swing lock was not engaged while the crane was working under
normal working conditions,” the Board found that section 4951 “does
not require engaging the swing lock or swing brake. An employer
complies with section 4951 so long as it provides its employees with a
crane or excavator equipped with a swing lock capable of preventing
rotation under normal working conditions. Such an interpretation is
consistent with the regulation’s plain text . . . . Therefore, [Bragg] did



                                     6
not violate section 4951 because the crane it provided to its employees
was equipped with a swing lock.” (Fn. omitted.)
      In its order granting the Division’s petition for writ of mandate,
the trial court ordered the Board to “reconsider its Decision After
Reconsideration in light of this court’s ruling that the term ‘provide’ in
section 4951 . . . infers that a swing lock and swing brake shall not only
be provided, but also used when necessary to prevent rotation. The
court also deemed Hughes Aircraft Company Space & Communications
Group [(Cal. O.S.H.A., Jan. 26, 1984, No. 78-R4D1-258) [decision after
reconsideration] 1984 WL 183091 (Hughes Aircraft)] the controlling
precedent the Board must follow in its interpretation of the term
‘provide’ in Section 4951 . . . .”
      Based on Board precedent, the plain meaning of the term
“provided,” and the scheme of law of which section 4951 is a part (see
Department of Industrial Relations v. Occupational Safety & Health
Appeals Board, supra, 26 Cal.App.5th at p. 101), we conclude the Board
correctly found that the word “provided” in section 4951 does not
require an employer to ensure that the provided swing lock is also used
during normal working conditions. Rather, as we shall explain, this
safety order is satisfied when an employer equips a hydraulic crane or
excavator with a swing lock that is fully functional and available for
use when needed in the normal course of work.
      Prior Board decisions support its interpretation of the term,
“provided” as used in section 4951. For example, in the 43-year-old
decision of R.E. Williams & Sons, Inc. (Cal. O.S.H.A. May 10, 1977,
No. 76-R4D4-1065) [decision after reconsideration] 1977 WL 26760
(R.E. Williams & Sons, Inc.) the Board upheld a citation based on a



                                     7
violation of former section 1637, subdivision (1) (now § 1637,
subd. (n)(1)), which provides: “A safe and unobstructed means of
access, such as a walkway, stair, or ladder shall be provided to all
scaffold platforms.” Although a ladder had been supplied to the job
site, it was located in the basement rather than set up to provide access
to the scaffold platform. The Board found that the safety order was
violated “when, as in this case, such ladder is not in place to provide
safe and unobstructed means of access. Safety equipment which is
merely brought to a job site does little to promote employee safety if
such equipment is not utilized for the purpose for which it is intended.”
(R.E. Williams & Sons, Inc., at p. *1.)
      In a much more recent decision, Stanislaus Food Products Co.
(Cal. O.S.H.A., Jan. 30, 2015, No. 13-R2D4-572) [decision after
reconsideration] 2015 WL 10058944 (Stanislaus Food Products Co.),
the Board relied on R.E. Williams & Sons, Inc. and other prior
decisions in construing the meaning of “provide” in another safety
order, section 3314, subd. (e), which provides in relevant part: “The
employer shall provide accident prevention signs, tags, padlocks, seals
or other similarly effective means which may be required for cleaning
. . . .” The citation alleged that the employer had failed to provide locks
and hardware, required for cleaning, to a sanitation crew leader.
(Stanislaus Food Products Co., at p. *2.)
      After discussing the prior decisions, the Board in Stanislaus Food
Products Co. concluded that they “establish the proper approach for
construing a safety order that requires an employer to ‘provide’ safety
equipment or supplies to employees. To comply, the employer must
make the required supplies and equipment available to employees at



                                     8
the point of employee use, and the supplies/equipment must be
available prior to the time of their use, so that employees may use them
when they are needed.” (Stanislaus Food Products Co., supra, 2015 WL
10058944, at p. *4.) The Board relied on this precedent to find that the
employer in that case “did not ‘provide’ to its crew leader Hernandez
locks that might be needed during the cleaning of conveyor belts. . . .
Although locks were available to Hernandez and to other crew leaders
in a supply room, they were not available to Hernandez (or other
employees) at the point of employee use, prior to the daily 90-minute
clean-up period.” (Id. at p. *5; accord, Milad & Sons Corp. (Cal.
O.S.H.A., Nov. 1, 2016, No. 1064349) [ALJ decision] 2016 WL 7637261,
pp. *2–*3 [evidence was sufficient to show that employer had violated
section 4530, subd. (a)(3), which required that main shutoff valves on
bakery ovens “shall be provided to permit turning off the fuel or steam
in case of an emergency,” because, “[a]s in R.E. Williams [& Sons, Inc.],
the safety equipment (the shutoff valve) was at the site but was not
promoting safety because it could not be utilized for the purpose for
which it was intended,” given that it was obstructed by a large table
and therefore inaccessible]; see also Keir Krane, Inc. (Cal. O.S.H.A.,
Dec. 30, 1992, No. 91-R2D4-863) [decision after reconsideration] 1992
WL 528567, pp. *2–*3 [decision cited by Board in this case, in which it
found that a safety order requiring that “[a]n effective, audible warning
and operating signal device shall be provided on the outside of a crane”
(§ 4936) was satisfied since crane was equipped with a working horn,
even though employee was unaware of horn button’s presence and a
second horn button did not work].)




                                     9
      These decisions establish that the Board has consistently
interpreted the term “provide” in safety orders like the present one to
mean that the employer must ensure that a required safety measure or
device is installed or in place, fully functional, and available for use by
employees when it is needed. (See, e.g., Shimmick Construction Co. &
Obayashi Corp. (Cal. O.S.H.A. Nov. 20, 2008, No. 06-R5D3-1136)
[decision after reconsideration] 2008 WL 5209689, p. *9 [“the Board has
held that when a safety order requires employers to provide a specific
safety measure or device, the device must perform its designed
function—a horn must work[,] a load indicator device must be
connected, etc.”]; compare Levy Premium Foodservice Limited
Partnership dba Levy Restaurants (Cal. O.S.H.A., Aug. 25, 2014,
No. 12-R1D5-2714) [decision after reconsideration] 2014 WL 11706517,
pp. *3–*5 [Board found that employer violated both section 3653,
subd. (a)—“Seat belt assemblies shall be provided and used on all
equipment where rollover equipment is installed”—and section 3650,
subd. (t)(33)—“When provided by the industrial truck manufacturer, an
operator restraint system such as a seat belt shall be used”—where
evidence showed that forklift operator was not wearing provided
seatbelt while operating forklift].)
      The Board’s decision in Hughes Aircraft, on which the Division
relies in this case and which the trial court found was “controlling
precedent” in its interpretation of the term “provided” in section 4951,
is not in conflict with the decisions just discussed. In that case, the
Board addressed whether the evidence was sufficient to establish that
the employer, a manufacturer of various products used in the space and
communications industry, had violated section 3303, which requires



                                       10
that “wherever there is danger of injury from flying particles or
substances, adequate shields, screens, chip guards, or enclosures shall
be provided . . . . When it is not possible to provide such guards,
employees subject to such hazards shall be protected by the use of
personal protective equipment.” (Hughes Aircraft, supra, 1984 WL
183091, at p. *1.) During an inspection, the Division’s safety engineer
observed several employees working at milling machines and engine
lathes wearing goggles without side shields to protect from flying chips
and also saw chips flying 20 feet from one machine, as well as chips
near a workbench. He saw two screens, meant to guard employees
from the hazard of flying particles, on the premises, but they were not
installed between the machines. (Id. at pp. *1–*2.)
      In its decision, the Board stated: “Although Employer had
screens on its premises, they were not in use. Employer’s argument
that it ‘provided’ screens does not establish compliance with section
3303. It is implicit in the cited safety order requiring that an employer
provide safety devices, that the employer must see that the safety
devices are used by the employees. Employer has not shown that its
employees acted independently in not using the screens or goggles with
side shields.” The Board therefore found the evidence sufficient to
establish a violation of section 3303. (Hughes Aircraft, supra, 1984 WL
183091, at p. *2.)
      The Division maintains that in this case, the Board ignored its
own precedent when it interpreted the word “provided” differently than
it did in Hughes Aircraft, and that it “should have found that the
employer violated the regulation when the safety device [here, the
swing lock] was not engaged, like it did in Hughes Aircraft” with



                                    11
respect to the screens that were present on the premises but not being
used.
        We do not agree with the Division that the Board’s interpretation
of “provided” in the present case contradicts its 1984 decision in Hughes
Aircraft. There, the Board did use language—“the employer must see
that the safety devices are used by the employees”—that might at first
glance seem to support the Division’s interpretation of “provided” as
meaning provided and used. (Hughes Aircraft, supra, 1984 WL 183091,
at p. *2, italics added.) However, notwithstanding this cited language,
the Board’s interpretation of that term in Hughes Aircraft was in fact
consistent with the other Board decisions discussed above: the failure
to ensure that the screens were installed between the machines before
they were needed so that they would be capable of providing protection
from flying chips when the machines were in use meant that they were
not available for employees’ use, in violation of section 3303. (See
Hughes Aircraft, at p. *22; accord, Stanislaus Food Products Co., supra,
2015 WL 10058944, at p. *4 [to “provide” safety equipment, employer
must make such equipment “available to employees at the point of
employee use, and the supplies/equipment must be available prior to
the time of their use, so that employees may use them when they are
needed”].)
        The Division also relies on McCurdy Roofing (Cal. O.S.H.A., Nov.
25, 1977, No. 93-R1D3-3117) [decision after reconsideration] 1997 WL

        The violation was also based on evidence that the alternative
        2

permissible means of protecting employees under section 3303—“use of
personal protective equipment”—was not met since the goggles
employees were wearing did not have side shields to protect them from
the flying chips. (Hughes Aircraft, supra, 1984 WL 183091, at pp. *1–
*2.)


                                    12
736098 (McCurdy Roofing), in support of its interpretation of
“provided.” In that decision, the Board found that the employer
violated section 1520, which provides: “Hand protection shall be
required for employees whose work involves unusual and excessive
exposure to . . . burns . . . .” The Board found that, although the
employer had given the burned employee gloves, the employee was not
protected under the safety order unless the employer also required
their use. (McCurdy Roofing, at p. *2.) The Board explained that the
term “required” in section 1520 “more emphatically establishes a duty
to ensure that the equipment is used than the term ‘provided,’ which
the Board in Hughes [Aircraft] construed as establishing a duty to
ensure that safety devices were used, not just made available.”
(McCurdy Roofing, at p. *3.)
      The language in question in McCurdy Roofing—that the
regulation requires that the gloves be used, not just available by the
employer—is not, in context, contradictory to the other Board precedent
discussed or to the Board’s interpretation in this case. As is the case
generally with personal protective equipment, to be effective against
the harms described in the safety order at issue in McCurdy Roofing,
the gloves must always be worn by employees whose work excessively
exposes them to burns. McCurdy Roofing thus reflects the Board’s
determination, as already discussed, that when a safety order states
that certain equipment shall be “provided” (or, in the case of McCurdy
Roofing, “required”), such language means that, just as a ladder must
be set up to provide access to a scaffold platform (R.E. Williams &
Sons, Inc.), and locks that might be needed while cleaning conveyor
belts must be available at the point of employee use (Stanislaus Food



                                    13
Products Co.), and screens must be installed between machines or
protective safety goggles must be worn where employees will be
working and chips will be flying (Hughes Aircraft), gloves must be worn
in the situation described in section 1520, so that they are available to
provide the protection needed while the employee is doing the job for
which the protection is required. Hence, the decision in McCurdy
Roofing does not contradict the Board’s decision in the present case.3
      Finally, the Board states that its “position does not mean [Bragg]
should not have used the swing lock or swing brake. But, it does mean
that the regulation the Division cited [Bragg] under is not concerned
with use of that device. Section 4951’s terms are satisfied so long as
the crane is equipped with the device, the device is functioning, and it
is available for use.”
      We are mindful of the importance of “liberally” interpreting
safety orders “ ‘for the purpose of achieving a safe work environment.’ ”
(Bendix Forest Products Corp. v. Division of Occupational Safety &
Health, supra, 25 Cal.3d at p. 470.) Nevertheless, it is essential that
employers be cited only under safety orders they have in fact violated.
Here, there may have been other regulations under which the Division
could have properly cited Bragg for its employee’s failure to engage the
swing lock during the travel portion of its pick and carry operation.
However, it failed to do so. (See Keir Krane, Inc., supra, 1992 WL
528567, at p. *3 [“Employer’s failure to instruct the crane operator
concerning the horn button change may have violated other safety

      3
       We note that a swing lock on a crane is also different from many
other safety measures in that it must always be installed, functional,
and available for use, but is meant to be engaged only when necessary
to avoid rotation of the load.


                                    14
orders (e.g., those requiring safety instruction for employees), but it is
not evidence that the horn itself was ineffective”]; PCC Rollmet, Inc.
(Cal. O.S.H.A., Aug. 15, 2017, No. 15-R3D1-3653) [decision after
reconsideration] 2017 WL 3613725, p. *3 [noting that while another
safety order might apply, Division had failed to demonstrate a violation
of safety order for which employer was cited and Board “decline[d] to
sua sponte engage in a post-submission amendment of the Division’s
citation”].)
      In conclusion, we concur in the Board’s finding that “section 4951
‘does not require engaging the swing lock or swing brake. An employer
complies with section 4951 so long as it provides its employees with a
crane or excavator equipped with a swing lock capable of preventing
rotation under normal working conditions.” This interpretation, which
is entitled to great weight, is consistent with the plain meaning of the
word “provided,” the scheme of law of which this regulation is a part, as
well as Board precedent interpreting the same term in comparable
safety orders. (See Department of Industrial Relations v. Occupational
Safety & Health Appeals Board, supra, 26 Cal.App.5th at p. 101;
Heritage Residential Care, Inc. v. Division of Labor Standards
Enforcement, supra, 192 Cal.App.4th at p. 83; Rick’s Electric, supra, 80
Cal.App.4th at pp. 1033–1034.) In this case, it is undisputed that a
swing lock was installed on the crane involved in the accident, that it
was fully functional, i.e., “capable of preventing rotation under normal
working conditions” (§ 4951), and that it was available for use by the
crane operator as needed. No violation of section 4951 was shown. We
will therefore reverse the trial court’s order granting the Division’s
petition for writ of mandate.



                                    15
                             DISPOSITION
      The judgment is reversed and the matter is remanded with
directions to the trial court to prepare a new judgment denying the
Division’s petition for writ of mandate, consistent with this opinion.
The Division shall pay the costs on appeal of Bragg and the Board.
(See Cal. Rules of Court, rule 8.278(a)(2).)




                                    16
                                         _________________________
                                         Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Stewart, J.




California Department of Industrial Relations, Division of Occupational
Safety and Health v. California Occupational Safety and Health
Appeals Board; Bragg Companies, RPI (A158500)




                                  17
