BEFORE THE
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA

In the Matter of the Appeal of:

YELLOW FREIGHT SYSTEM, INC.
10990 Roe Avenue
Overland Park, KS 66207

                                Employer

Docket Nos. 94-R4D2-2565
                 Consolidated with
                    95-R1D3-4592

DECISION AFTER RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petitions for reconsideration filed by both Yellow Freight System, Inc. (Employer) and the Division of Occupational Safety and Health (Division) in the above-entitled matter, makes the following decision after reconsideration. The Board today announces in this case and three others its view of the jurisdiction of Cal OSHA in relation to that of other federal and state agencies.

JURISDICTION

On August 16, 1994, the Division conducted an inspection at a place of employment maintained by Yellow Freight System, Inc. at 12250 Clark Avenue, Santa Fe Springs, California. On September 14, 1994, the Division issued to Employer Citation No. 1 alleging a general violation of section 3664(a)(22), which mandates employers to post and enforce a safety rule requiring that trucks and trailers be securely blocked or otherwise restrained and their brakes set while they are being loaded and unloaded. The proposed civil penalty for the alleged violation was $450.

Employer filed a timely appeal from the citation alleging that the safety order had not been violated; that Board jurisdiction is preempted by the Federal Motor Carrier Safety Act [FMCSA] and its implementing regulations; that the settlement of an earlier case operates as a bar to the instant proceeding; that the Board should defer to a decision reached under the grievance and arbitration provisions of the collective bargaining agreement covering affected employees; that the inspection warrant which led to the citation was improperly obtained; and that the Board should sanction the Division for its conduct in obtaining the warrant and for its failure to comply with Employer’s legitimate discovery request. Employer also alleged that the classification was incorrect and that the abatement requirements and the proposed penalty were unreasonable.

After a hearing on the appeal and the filing of post hearing briefs, an administrative law judge (ALJ) of the Board issued a decision on October 5, 1995, finding no federal or state preemption, declining to defer to the grievance and arbitration proceedings of the collective bargaining agreement, upholding the inspection warrant, determining that the prior settlement was no bar to the present proceeding, upholding limited sanctions for the failure of the Division to provide full discovery, and granting Employer’s appeal on the merits.

Both Employer and the Division petitioned the Board for reconsideration. On December 5, 1995, the Board ordered that both petitions be granted. Thereafter, both parties filed answers to the respective petitions, and Employer filed a supplemental petition, followed by two requests to take official notice of additional legal authorities.

On March 27, 1998, the Board directed that the matter be set for oral argument. At the invitation of the Board, Employer filed a supplemental brief in support of its petition addressing the implications for this case of the decision of the Court of Appeals for the Second Appellate District in Southern California Gas Company v. Occupational Safety and Health Appeals Board (October 7, 1997) 58 Cal.App.4th 200, review denied, January 28, 1998. On June 8, 1998, the Board heard oral argument from the parties.

On September 21, 1998, the Board issued an Order to Consolidate Item with Existing Appeal for Docket No. 95-R1D3-2492 (Citation No. 1, item 7, general violation of § 3664(a)(22)) for the purpose of issuing one decision regarding Employer’s alleged violations of section 3664(a)(22).

ISSUES

1. Is Cal OSHA preempted from exercising its jurisdiction to ensure that trucks and trailers subject to the Federal Motor Carrier Safety Act are properly restrained while parked at California loading docks?

2. Is any other state or federal agency vested with health and safety jurisdiction over the place of employment involved in this case; if so, is that agency actively exercising its jurisdiction?

3. Does the order of the Board approving a stipulation dismissing a previous alleged violation of section 3664(a)(22) bar the current proceeding?

4. Should the Board defer to the decision of a grievance panel that the chocking of the trailers was not required by the collective bargaining agreement covering Employer’s operations?

5. Did Employer violate section 3664(a)(22) by failing to securely block or restrain the trailers parked at the loading docks of its Santa Fe Springs Terminal?

6. Should additional sanctions be awarded against the Division for failing to disclose the names and addresses of witnesses?

7. Should sanctions be awarded against the Division for its conduct in obtaining the inspection warrant?

FINDINGS AND REASONS

FOR

DECISION AFTER RECONSIDERATION

In making this decision, the Board relies upon its independent review of the entire record in this case, including the transcripts of both the hearing and the oral argument before the Board. No new evidence has been taken. The Board adopts and incorporates by this reference the summary of evidence set forth on pages 2 through 4 of the ALJ’s decision.

JURISDICTIONAL ISSUES

1. Is Cal OSHA preempted from exercising its jurisdiction to ensure that trucks and trailers subject to the Federal Motor Carrier Safety Act are properly restrained while parked at California loading docks?

I

This case presents one instance of a recurring issue in the delicate and complex relationship of the States to the national government under our federal system. On the one hand, Article VI of the U.S. Constitution provides that the laws of the United States enacted pursuant to the powers granted Congress in the Constitution shall be "the supreme law of the Land . . . any thing in the Constitution or laws of any state to the contrary notwithstanding."

On the other hand, "[t]he Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." (Texas v. White (1869) 74 U.S. (7 Wall.) 700, 725.) As one commentator put it, "It is clear . . . that the Constitution . . . presuppose[s] the existence of the states as entities independent of the national government" with their own separate and legitimate interests. (Tribe, American Constitutional Law (2nd Ed., 1988) § 5-20, p. 379.) That presupposition lies just below the surface of many constitutional provisions and becomes explicit in the language of the Tenth Amendment, which "expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States’ integrity or their ability to function effectively in a federal system." (Fry v. United States (1975) 421 U.S. 542, 547, fn. 7; Alden v. Maine (June 23, 1999) 119 S.Ct. 2240, 2245-2246 [67 U.S.L.W. 4601.] Thus, federal laws and regulations which treat the States in a manner inconsistent with their constitutionally recognized independent status are subject to challenge, not because they violate any specific constitutional provision or transgress the explicit boundaries of any specific grant of authority, but because they ignore the guarantees of the Tenth Amendment and impinge upon the structural "assumptions" and "tacit postulates" of the Constitution as a whole. (Nevada v. Hall (1979) 440 U.S. 410, 433 (Rehnquist, J., joined by Burger, C.J., dissenting).)

In this case, the dichotomy inherent in the federal system manifests itself in the respective state and national interests in the safety of interstate motor carrier transport. On the one hand, Congress, acting under the power vested in it by the Commerce Clause (U.S. Const., art. I, § 8, cl. 3), enacted the Federal Motor Carrier Safety Act "to promote the safe operation of commercial motor vehicles; to minimize dangers to the health of operators of commercial motor vehicles and other employees whose employment directly affects motor carrier safety; and to ensure increased compliance with traffic laws and with the commercial motor vehicle safety and health regulations and standards . . . ." (49 U.S.C. § 31131(a).) The Department of Transportation [DOT], under the authority of that Act, has promulgated regulations addressing the installation and use of appropriate truck and trailer braking and restraint systems.

On the other hand, California declared and described its distinct state interest when it enacted the Occupational Safety and Health Act of 1973 [the Act] ". . . for the purpose of assuring safe and healthful working conditions for all California working men and women by authorizing the enforcement of effective standards, assisting and encouraging employers to maintain safe and healthful working conditions, and by providing for research, information, education, training, and enforcement in the field of occupational safety and health" (Lab. Code, § 6300.) (Emphasis supplied.) Thereafter, the California Occupational Safety and Health Standards Board acted to implement that interest by promulgating a regulation which requires all trucks and trailers operated in the State, including those involved in interstate commerce, to be adequately restrained from movement while parked at California loading docks.

II

We begin our inquiry with a review of the constitutional principles governing questions of federal preemption.

Responsibility for ordering the separate—sometimes convergent, sometimes divergent—interests of the States, as expressed by their legislatures, and the national government, as expressed by Congress, ultimately falls to the United States Supreme Court. In response, the Supreme Court developed the doctrine of federal preemption and, over the years, has elaborated and interpreted it to take into consideration the ever changing and ever more complex societal relationships in a modern industrial democracy. In so doing, however, it has acknowledged the obligation under the Tenth Amendment and the structural assumptions and tacit postulates of the Constitution to afford due deference to legitimate state interests in resolving the question of whether a specific state law may stand when federal law also purports to apply.

Preemption analysis begins only after there is a preliminary determination that Congress is acting within the powers allotted it in the Constitution. (Louisiana Public Service Commission v. F.C.C. (1986) 476 U.S. 355, 374.) Once that is established, the inquiry becomes whether the federal statute at issue reaches the conduct in question. In making that determination, sensitivity to state interests manifests itself in the so-called Clear Statement Rule: A federal law will not be held to extend to all the activities Congress in theory could control unless the statutory language or legislative history constitute a clear statement that Congress intended to exercise its commerce power in full. (Employees v. Department of Public Health and Welfare of Missouri (1973) 411 U.S. 279, 285.)

In those instances where Congress has exercised its authority to reach the conduct in question, traditional preemption analysis begins and the ultimate question is one of intent: Did Congress intend to oust the States of jurisdiction over that conduct? (English v. General Electric Co. (1990) 496 U.S. 72, 78-79; Shaw v. Delta Air Lines, Inc. (1983) 463 U.S. 85, 95.)

That intent can be express or implied. (Jones v. Rath Packing Co. (1977) 430 U.S. 519, 525; Fidelity Fed. Sav. & Loan v. de la Cuesta (1982) 458 U.S. 141, 152-153.) Where the statute contains a clear and explicit statement of the extent to which state regulation is prohibited, "the court’s task is an easy one." (English v. General Electric Co., supra.) The Supremacy Clause controls and the analysis ceases. (See Shaw v. Delta Air Lines, Inc., supra, at p. 95.) That cessation has an important corollary. In Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 517, the Court held that "Congress’ enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted." Therefore, once a court "identif[ies] the domain expressly pre-empted," an inference may be drawn that conduct beyond its borders is open to state regulation without the necessity of exploring the possibility of implied preemption. (Id.; See Freightliner Corp. v. Myrick (1995) 514 U.S. 280, 288.)(Emphasis supplied.)

In the absence of a clear and express statement of intent, preemption may be implied if state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." (Hines v. Davidowitz (1941) 312 U.S. 52, 67; Felder v. Casey (1988) 487 U.S. 131, 138; Perez v. Campbell (1971) 402 U.S. 637, 649.)

The Court has recognized two distinct situations where the achievement of congressional purposes or objectives may be frustrated by state law. The first, often referred to as "field preemption," occurs when "the scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it" or when an Act of Congress "touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." (Rice v. Santa Fe Elevator Corp., (1947) 331 U.S. 218, 230.) Labor management relations is an example of field preemption. (San Diego Building Trades Council v. Garmon (1959) 359 U.S. 236, 242.)

The second situation, often referred to as "conflict preemption," occurs where an "act of Congress, fairly interpreted, is in actual conflict with the law of the state," (Savage v. Jones (1912) 225 U.S. 501, 533; McDermott v. Wisconsin (1913) 228 U.S. 115, 132.), or where "compliance with both federal and state regulations is a physical impossibility." (Florida Lime & Avocado Growers, Inc. v. Paul (1963) 373 U.S. 132, 142-143; Gade v. National Solid Wastes Management Assn. (1992) 505 U.S. 88, 98.) The conflict or impossibility can extend to an entire statute or be as narrow as a single statutory provision or regulation. In either case, once established, the conflicting state statute or provision must yield to its federal counterpart.

Proper interpretation and application of the preemption doctrine requires due respect for the distinct and legitimate interests of the States under the Tenth Amendment, as well as the structural assumptions and tacit postulates of the Constitution. First, preemption analysis begins with the presumption that "Congress did not intend to displace state law." (Maryland v. Louisiana (1981) 451 U.S. 725, 746.) The burden of overcoming that presumption rests with the party asserting preemption, (Silkwood v. Kerr-McGee Corp. (1984) 464 U.S. 238, 255), and any ambiguity is to be resolved in favor of the States and against preemption. (Tribe, op. cit., p. 479.)

Second, the strength of the presumption is enhanced to the extent that the asserted state interest is strong, traditional, and local in character: "Safety measures carry a strong presumption of validity when challenged in court," (Bibb v. Navajo Freight Lines (1959) 359 U.S. 520, 524); "We have long presumed that Congress does not cavalierly pre-empt state-law causes of action . . . particularly . . . those in which Congress has legislated in a field which the States have traditionally occupied." (Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 485); "Because [health and safety] are primarily and historically matters of local concern, States traditionally have had great latitude under their police powers to legislate." (Id. at 475.) (Internal quotation marks omitted.) See also: CSX Transportation, Inc. v. Easterwood (1993) 507 U.S. 658, 664 ["A court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find pre-emption."]; Hillsborough County, Florida v. Automated Medical Laboratories, Inc. (1985) 471 U.S. 707, 719; New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. (1995) 514 U.S. 645, 664-665; California Div. of Labor Standards Enforcement v. Dillingham Construction, N.A., Inc. (1997) 519 U.S. 316, 325, 334; cf. Cooley v. Board of Wardens of the Port of Philadelphia (1851) 53 U.S. 299.

Third, where federal regulations, rather than statutes, are at issue, the Supreme Court "is more reluctant to infer pre-emption from the comprehensiveness of regulations than from the comprehensiveness of statutes." (Hillsborough County, Florida v. Automated Medical Laboratories, Inc. supra, at p. 717.) Furthermore, it will accord considerable deference to a pronouncement—or the absence of a pronouncement—by the affected federal agency of the preemptive reach of its regulations. (Id. at 718; California Coastal Commission v. Granite Rock Co. (1987) 480 U.S. 572, 582-583.)

Finally, in analyzing the state interest involved, the Court will defer to the State’s own determination of the meaning and purpose of the questioned statute or regulation. (Aero Mayflower Transit Co. v. Bd. of Railroad Commissioners (1947) 332 U.S. 495, 499-500 [Court’s long-standing policy of adhering to State’s interpretation of its statutes]; Pacific Gas & Electric Co v. State Energy Resources Conservation & Development Commission (1983) 461 U.S. 190, 216 [Court accepts State’s characterization of its purpose in enacting statute].)

It is evident from these precepts that a legitimate state interest should yield to a countervailing federal interest only where no other solution is possible. Preemption is a last resort, to be invoked only in the face of clear and irreconcilable differences between competing interests. Given the Tenth Amendment and the structural assumptions and tacit postulates of the Constitution to afford due deference to legitimate state interests, the primary goal is the reconciliation of state and federal interests. (Merrill Lynch, Pierce, Fenner & Smith v. Ware (1973) 414 U.S. 117, 127; Silver v. New York Stock Exchange (1963) 373 U.S. 341, 357.)

With that goal in mind, we turn to the Federal Motor Carrier Safety Act [FMCSA] and the California Occupational Safety and Health Act and ask whether it is possible to reconcile federal regulations concerning the installation and utilization of truck and trailer braking and restraint systems with a state regulation requiring trucks and trailers to be adequately restrained while parked at California loading docks.

III

In enacting the FMCSA, Congress contemplated that the States would play an active role in commercial vehicle safety regulation. One of the four legislative findings on which the FMCSA is premised is that "interested State governments can provide valuable assistance to the United States Government in ensuring that commercial motor vehicle operations are conducted safely and healthfully." (49 U.S.C. § 31131(b)(4).) The FMCSA goes on to require that the Secretary of Transportation, in formulating federal safety regulations, consider "State laws and regulations on commercial motor vehicle safety, to minimize their unnecessary preemption." (49 U.S.C. § 31136(c)(2)(B).) As an incentive to state involvement, the FMCSA also authorizes a system of federal grants for "the development or implementation of programs for improving motor vehicle safety and the enforcement of regulations, standards and orders of the United States Government on commercial motor vehicle safety and compatible State regulations, standards and orders." (49 U.S.C. §§ 31102 and 31103.) To effectuate those grants, the FMCSA permits the Secretary to delegate federal enforcement powers to the States. (49 U.S.C. § 31133(c).) And it includes a procedure under which state laws and regulations can be reviewed for compatibility with federal regulations. (49 U.S.C. § 31141.)

Even in situations¾ such as trailer length and vehicle width¾ where there is felt a need for uniformity, the FMCSA allows the States some leeway in formulating and enforcing compatible standards. (49 U.S.C. §§ 31111(b) and 31113(d).)

Finally, the FMCSA makes it clear that the Secretary has no authority "to prescribe traffic safety regulations or preempt State traffic regulations," (49 U.S.C. § 31147(a)), or to "prevent a State . . . from imposing more stringent standards for use in their own periodic roadside inspection programs . . . ." (49 U.S. C. § 31142(c)(A).)

Those provisions "unquestionably . . . demonstrate, not only that Congress did not intend to occupy completely the field of safety regulations for the operation . . . of commercial vehicles but also that it contemplated the continued application and enforcement of state rules or regulations which might not be inconsistent or ‘incompatible’ with federal regulations. In effect, Congress intended an accommodation with state regulation so long as that could be achieved without violating federal law or valid federal regulation." (Specialized Carriers & Rigging v. Commonwealth of Virginia (4th Cir. 1986) 795 F.2d 1152, 1155.)

Moreover, in Medtronic, Inc. v. Lohr, supra, the Supreme Court made it clear that a "federal agency to which Congress has delegated its authority to implement the provisions of [an] Act, . . . is uniquely qualified to determine whether a particular form of state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’" (Id. at p. 496.) Here, the Secretary of Transportation has adopted a regulation which provides:

"Except as otherwise specifically indicated, Subchapter B of this chapter is not intended to preclude States or subdivisions thereof from establishing or enforcing State or local laws relating to safety, the compliance with which would not prevent full compliance with these regulations by the person subject thereto." (49 C.F.R. section 390.9.)

Thus, the conclusion is inescapable that Congress, in enacting the FMCSA, intended that there be no "field preemption" whatsoever and no "conflict preemption" unless absolutely necessary.

IV

The "conflict preemption" issue to be resolved in this case is whether a State regulation requiring trailers to be adequately restrained from movement while parked at California loading docks can be reconciled with three federal regulations dealing with the installation and use of appropriate truck and trailer braking and restraint systems.

Because that issue can only be resolved by a careful examination of the origin, meaning, and impact of those regulations, we turn first to the federal regulations and then consider the California regulation.

  1. Federal Regulation
  2. Two of the three federal regulations specify the type of braking and restraint system which must be installed on commercial trucks and trailers. 49 C.F.R. section 393.41(a) provides:

    "Every commercial motor vehicle manufactured on and after March 7, 1990, except an agricultural commodity trailer, converter dolly, heavy hauler or pulpwood trailer, shall at all times be equipped with a parking brake system adequate to hold the vehicle or combination under any condition of loading as required by F[ederal]M[otor]V[ehicle]S[afety]S[tandard] 571.121. An agricultural commodity trailer, heavy hauler or pulpwood trailer shall carry sufficient chocking blocks to prevent movement when parked."

    A second regulation—Standard No. 121 (49 C.F.R. section 571.121)—spells out in considerable detail the performance requirements for braking systems on all vehicles utilizing air brakes, including commercial trucks and trailers. Compliance with the portion of the standard dealing with emergency brakes and parking brakes is most often achieved by the installation of "spring brakes."

    During normal driving with a spring brake system, powerful springs located in compression chambers on each tractor and trailer are held in tension by the air pressure generated by the braking system. If pressure is removed from a chamber, its spring expands to apply the full force of the brake. During parking, that is just what happens: The driver sets the brakes on the tractor and/or trailer by actuating the parking brake control in the cab. Doing so releases the pressure in the chambers, actuating the springs and locking the brakes. In emergency situations, the vehicle can be slowed or halted in a similar fashion. Moreover, any leak or interruption of air pressure necessarily reduces pressure in the compression chambers, releasing the springs and applying the brakes. If, for example, a driver uncouples his trailer without first setting the handbrake, its spring brakes will nevertheless be activated as air bleeds from its uncoupled air lines.

    Standard 121 does not actually mandate the installation of spring brakes. What it does is set forth stringent performance standards for parking and emergency braking systems which can best be met by their installation. Once spring brakes are installed and adequately maintained, there is no need for chocks or other restraints because the very risks contemplated by the federal standards will have been obviated.

    It should also be noted that Standard 121 was promulgated by the Secretary of Transportation pursuant to the National Traffic and Motor Vehicle Safety Act (49 U.S.C. section 30101 et seq.), not the Federal Motor Carrier Safety Act (49 U.S.C. section 31101 et seq.). As such, it is subject to the stricter preemption standard found in section 103(d) of that Act:

    "When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. . . ." (49 U.S.C. section 30103(b).)

    Therefore, the latitude which States enjoy in determining the choice and design of braking systems and their components under section 393.41(a) does not extend to the performance standards by which such systems are judged.

    The third regulation—49 C.F.R. section 392.20—deals not with the equipment to be installed but with how it is to be operated. It provides:

    "No commercial motor vehicle shall be left unattended until the parking brake has been securely set and all reasonable precautions have been taken to prevent the movement of such commercial motor vehicle."

    Because section 392.20, unlike Standard 121, was issued under authority of the FMCSA, it is subject to the more relaxed "conflict preemption" standard described in Section III, above.

    On its face, section 392.20 appears to impose two requirements on a driver: (1) that he set the parking brake and (2) that he take reasonable precautions to prevent movement, but that is not the interpretation adopted by DOT. Because spring brakes meet the performance standards established by Standard 121, there is really no need for additional precautions. If the spring brakes are in good order, the "second" requirement of "taking all reasonable precautions . . . to prevent movement" is, in effect, satisfied once the hand brake is set.

    That does not mean, however, that that requirement is superfluous. Spring brakes are not required on agricultural commodity trailers, heavy haulers, or pulpwood trailers. Additional precautions must be therefore taken to prevent those vehicles from moving. And that is why section 393.41(a) requires that they "carry sufficient chocking blocks to prevent movement when parked." Then, too, should the brakes be out of adjustment or otherwise impaired, setting the parking brake would not be enough; additional "reasonable precautions [would be necessary] to prevent the movement of such . . . vehicle."

    B. State Regulation

    The California Regulation here at issue—Title 8, California Code of Regulations, section 3664(a)(22)—bears a distinct resemblance to federal regulation section 392.20:

    "(a) Every employer using industrial trucks or industrial tow tractors, shall post and enforce a set of operating rules including the appropriate rules listed below:

    ". . . .

    "(22) Vehicles shall not be driven in and out of highway trucks and trailers at loading docks until such trucks or trailers are securely blocked or restrained and the brakes set." (Italics and underscoring supplied.)

    That regulation, like its federal counterpart, appears to impose two requirements: (1) that the truck or trailer be securely blocked or restrained, and (2) that the brakes be set. The only discernible difference is that the blocking alternative is specifically mentioned in section 3664 but subsumed in section 392.20.

    The Division would reject the federal approach described above and construe the two regulations differently. According to the Division, it is not enough that the spring brakes be set; chocks or other restraints must also be utilized.

    The ALJ rejected that construction and adopted the federal approach. In doing so, he relied on the testimony of Employer’s safety officer and especially on that of the commercial enforcement officer for the California Highway Patrol that spring braking systems are highly effective in restraining parked trucks and trailers. Noting that section 3664(a) does not require enforcement of all the listed operating rules, but only those which are "appropriate," the ALJ concluded that the additional requirement that trailers be "securely blocked and restrained" was, under the circumstances, unnecessary and therefore inappropriate.

    We accept the interpretation of our ALJ. It recognizes the reality of the technological improvements that have occurred in the industry. It comports with the approach taken by the DOT in interpreting and enforcing its own regulations. And it ensures the full measure of employee safety without imposing unnecessary and onerous conditions on employers in the trucking industry.

    In reaching that conclusion, we do not mean to suggest that the advent of the spring brake has fully supplanted the need for chocks and other restraints. Where spring brakes have not been installed, either because the equipment is exempt or because a carrier has disregarded its obligation, chocks or other restraints are required. And the same would be true if the brakes are out of adjustment or the system is otherwise impaired.

    V

    Given the interpretation which we have adopted, the task of reconciling federal and state regulations is an easy one. There is no need to dwell on the presumption that Congress did not intend to displace state law; on California’s strong, traditional, and local interest in matters of safety; or on the need to construe federal regulations narrowly to avoid preemption. (See authorities cited, ante, pp. 6-9.)

    Section 3664(a)(22) describes the manner in which braking equipment is to be operated; it does not concern the design of braking systems or the performance standards by which those designs are judged. As such, it presents no conflict with the federal regulations found in 49 C.F.R. section 572.121 or 49 C.F.R. section 393.41(a).

    49 C.F.R. section 392.20 does concern the operation of braking equipment. But under the interpretation we have adopted, the requirements of section 3664(a)(22) are not just "compatible" with that regulation; they are identical to it. Since the FMCSA is premised on a finding that "interested State governments can provide valuable assistance to the United States Government in ensuring that commercial motor vehicle operations are conducted safely and healthfully" (49 U.S.C. § 31131(b)(4)) and since DOT—the federal agency uniquely qualified to determine whether state involvement is permissible—has promulgated a regulation permitting compatible state regulations (49 C.F.R. § 390.9), it is clear that the FMCSA does not preempt the Division from inspecting trucks and trailers to determine whether they are properly restrained while parked at California loading docks.

    VI

    There remain two other constitutional issues. The first is Employer’s argument that, apart from the Supremacy Clause, the enforcement of section 3664(a)(22) "creates an undue burden on interstate commerce." in contravention of Article I, section 8, clause 3 of the United States Constitution.

    While the Commerce Clause gives Congress paramount and broad power over interstate commerce, the United States Supreme Court has long recognized that that power is not exclusive and that the States may regulate matters of local concern, even though such regulation may have some impact on interstate commerce. (Cooley v. Board of Wardens of Port of Philadelphia (1851) 12 How 299, 13 L.Ed. 996; Cities Service Gas Co. v. Peerless Oil & Gas Co. (1950) 340 U.S. 179, 186.) As a general principle, the courts will uphold a state regulation that impinges on interstate commerce, (1) if the regulation is rationally related to a legitimate state interest, and (2) if the burden imposed on interstate commerce by the regulation is outweighed by the state interest. (Southern Pacific Co. v. Arizona (1945) 325 U.S. 761, 770-71; Cities Service Gas Co. v. Peerless Oil & Gas Co., supra, at pp. 186-187.)

    California, as we have seen (ante, pp. 4-5), has a legitimate and significant interest in the safety of employees who work in and around commercial motor vehicles. (Lab. Code § 6300, Bibb v. Navajo Freight Lines, supra; Raymond Motor Transportation, Inc. v. Rice (1978) 434 U.S. 429; Kenneth L. Poole, Inc., OSHAB 90-278, Decision After Reconsideration (Apr. 18, 1991); Red’s Express, OSHAB 81-1256, Decision After Reconsideration (March 7, 1985); and Nielsen Freight Lines, OSHAB 79-647, Decision After Reconsideration (Aug. 17, 1984).)

    As for the weighing—or "balancing"—portion of the test, the interpretation of section 3664(a)(22) which we have adopted creates no additional burden on interstate commerce. Vehicles with functional spring brakes need not be chocked; exempt vehicles and those with defective spring brakes must be chocked or otherwise restrained. (See 49 C.F.R. section 393.41(a) requiring exempt vehicles to carry chocking blocks and the "reasonable precautions" requirement of 49 C.F.R. section 392.20.)

    The other constitutional issue deserving comment arises out of Article III, section 3.5 of the California Constitution, which provides that "[a]n administrative agency . . . has no power: (a) To declare a statute unenforceable or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional; (b) To declare a statute unconstitutional." (Emphasis supplied.)

    In Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638, 669, the California Supreme Court pointed out that section 3.5 "places certain restrictions on administrative agencies relative to their refusal to enforce Statutes on constitutional grounds. It does not affect their enforcement of their own rules. . . ." (Emphasis by the Court.) (See also Dash v. Alcoholic Beverage Control Appeals Board (9th Cir. 1982) 683 F.2d 1229, 1234; Capitol Industries-EMI v. Bennett, (9th Cir. 1982) 681 F.2d 1107, 1117, fn. 28, cert. denied. 455 U.S. 943.) In Reese v. Kizer (1988) 46 Cal.3d 996, 1002, the Court explained that "[t]he purpose of the amendment was to prevent agencies from using their own interpretation of the Constitution or federal law to thwart the mandates of the Legislature." Here, the Board is carrying out the role assigned it by the Legislature to review and interpret a regulation promulgated by the Standards Board, not a statute enacted by the Legislature. In so doing, the Appeals Board is effectuating—not thwarting—its legislative mandate.

    2. Is any other state or federal agency vested with health and safety jurisdiction over the place of employment involved in this case; if so, is that agency actively exercising its jurisdiction?

    I. LEGISLATIVE PREEMPTION

    The preceding analysis of federal preemption does not exhaust the jurisdictional issues here presented. In enacting the Occupational Safety and Health Act of 1973 [the Act], the California legislature addressed the possibility that enforcement of the Act could create conflicts not only with federal agencies but with other state agencies as well. It dealt with the issue in section 6303(a) by defining a "Place of Employment" as:

    "[A]ny place, and the premises appurtenant thereto, where employment is carried on, except a place the health and safety jurisdiction over which is vested by law in, and actively exercised by, any state or federal agency other than the division [of Occupational Safety and Health]."

    The exception creates something which might be termed "legislative preemption." It flows not from the Supremacy Clause of the U.S. Constitution but from statutory limits imposed by the legislature. Because it extends to state as well as to federal agencies and because it differs in several respects from the doctrine of federal preemption, situations may arise where the Supremacy Clause presents no obstacle to Cal OSHA’s jurisdiction but section 6303(a) does. (See Southern California Gas Company v. OSHAB, supra, at p. 209, discussed in fn. 6, ante.) That being so, the section 6303(a) exception, along with the further exception found in section 6303.5 for situations involving concurrent federal and state jurisdiction, must be addressed.

    For section 6303(a) to come into play, two requirements must be met: (1) another state or federal agency must be vested with jurisdiction over the place of employment, and (2) that agency must be actively exercising its jurisdiction. In United Air Lines, Inc. v. Occupational Safety & Health Appeals Board, supra, the Court carefully examined the origin and history of each of those requirements and concluded, first of all, that:

    "[T]he exemption of section 6303, subdivision (a) does not come into play simply because there is another agency that has the power or discretion to enact some regulations affecting employee health or safety. Instead, the exemption applies only in much narrower circumstances, when the other agency in the picture—like the division itself—has been specifically mandated to regulate the working environment within its aegis for the protection of the employees’ health and safety." (Id. at 770.) (Emphasis by the Court.)

    It then went on to hold that even though the Federal Aviation Administration had authority to issue some regulations concerning the safety of ground maintenance personnel, that authority was incidental to its congressional mandate "to promote safety of flight of civil aircraft in air commerce." (49 U.S.C. section 1421(a).) Because that mandate was primarily directed to assuring the safety of passengers, crew members and those on the ground who might be endangered by accidents from unsafe flying conditions, the Court determined that the FAA was not "vested by law" with "health and safety jurisdiction" over United’s ground and maintenance personnel. (Id. at 769, 771.)

    The Court then addressed the "active exercise" requirement. To meet that requirement, it held that an agency must "promulgate a comprehensive body of rules directly addressing the health and safety" of the affected workers and it must undertake "systematic enforcement of those safety measures." (Id. at 777.) The Court found that the FAA had done neither with respect to its ground maintenance personnel.

    Here, Employer has advanced two agencies as candidates to replace the Division in protecting the safety of the employees engaged in loading operations at its California terminals: the DOT and the California Highway Patrol (CHP). We consider each in turn.

    II. THE DEPARTMENT OF TRANSPORTATION

    The legislative mandate of the DOT under the Federal Motor Carrier Safety Act is stated in 49 U.S.C. section 31131(a):

    "(1) to promote the safe operation of commercial motor vehicles;

    "(2) to minimize dangers to the health of operators of commercial motor vehicles and other employees whose employment directly affects motor carrier safety; and

    "(3) to ensure increased compliance with traffic laws and with the commercial motor vehicle safety and health regulations and standards prescribed and orders issued under this chapter." (Italics supplied.)

    In Kenneth L. Poole, Inc., OSHAB 90-278, Decision After Reconsideration (Apr. 18, 1991), we held the above language broad enough to vest the DOT with jurisdiction over a motor vehicle operator who fell from a ladder attached to a trailer while picking up a load of waste wood at a lumber yard.

    Here, the employees at risk are the forklift drivers and the other employees in the immediate vicinity of the loading dock. They load and unload trucks and trailers, but they do not operate the equipment. Nor are they responsible for maintaining and repairing equipment that will be operated on public highways. As such, it is difficult to say that their "health directly affects motor carrier safety." Their relationship to "the safe operation of commercial motor vehicles" is more attenuated and indirect. Nor is there evidence to indicate that the motor vehicle operators themselves are at risk during forklift loading operations at Employer’s terminals.

    That DOT had adopted a "restraint" regulation is not enough to trigger preemption under section 6303(a), for that section does not afford preemptive status to federal regulations which are only incidental to the issuing agency’s legislative mandate. (United Air Lines, Inc. v. OSHAB, supra, at pp. 768-770.) Here, 49 C.F.R. section 392.20 is incidental to DOT’s obligation to promote the safe operation of commercial motor vehicles. Employer, therefore, has not carried its burden of demonstrating that the DOT is "specifically mandated to regulate the working environment" here at issue. (Id. at 770.)

    Moving to the second prong of the United Air Lines test, Employer acknowledges that DOT is not actively engaged in enforcing its rules and regulations in this State; rather, it has delegated whatever enforcement authority it does have to the CHP. (See 49 U.S.C. § 31133(c).) The effect of that delegation is discussed below; suffice it to say at this point that DOT is not itself engaged in the "systematic enforcement of . . . safety measures." (Id. at 777.)

    Finally, and even more definitively, Employer’s claim of exclusive federal jurisdiction was rejected when, subsequent to the United Air Lines decision, the voters of this State approved an initiative which added section 6303.5 to the Labor Code. That section provides:

    "Nothing in this division shall be construed to limit the jurisdiction of the state over any employment or place of employment by reason of the exercise of occupational safety and health jurisdiction by any federal agency if federal jurisdiction is being exercised under a federal law which expressly authorizes concurrent state jurisdiction over occupational safety or health issues." (Prop. 97, Approved by electors, Nov. 8, 1988.)

    Here, as we have seen, Congress has recognized concurrent state jurisdiction over the conduct here at issue (ante, pp. 8-9), and the Secretary of Labor has expressly authorized the States to establish and enforce standards, like section 3664(a)(22), which are compatible with DOT rules and regulations. (49 C.F.R. section 390.9.)

    We therefore conclude that nothing in California’s Occupational Safety and Health Act limits the power of the Division to inspect Employer’s California terminals for possible violations of safety and health regulations.

    Before taking up the jurisdiction of the CHP, one further argument raised by Employer deserves comment. It rests on the decision of the Federal Occupational Safety Review Commission in Mushroom Transportation Co., Inc., 1973 OSHD ¶ 16,881 (1973), holding that a federal OSHA regulation providing that "the brakes of highway trucks shall be set and wheel chocks placed under the rear wheels to prevent the trucks from rolling while they are boarded with powered industrial trucks" (29 C.F.R. section 1910.178(k)(1)) was preempted by the DOT regulation, discussed above, which requires that parking brakes be set and reasonable precautions taken when a commercial motor vehicle is left unattended. (49 C.F.R. section 392.20.)

    Employer rhetorically asks, "If federal OSHA cannot enforce its own federal rule because of a conflict with the federal rule of DOT, how does California think it can do something even the federal OSHA agency cannot?" (Employer’s Supplemental Petition for Reconsideration, p. 10)

    The California Supreme Court answered that question 16 years ago in the United Air Lines case. There, the employer relied on the Review Commission’s decision in Northwest Airlines, Inc., 1980 OSHD ¶ 24,751 (1980), holding that federal OSHA (Fed OSHA) was preempted from regulating a working condition of a maintenance employee servicing an airplane when a safety provision relating to that working condition was included in an airline maintenance manual issued pursuant to FAA regulations.

    The Court explained that under the federal/state scheme established by section 667 of the Federal Occupational Safety and Health Act (29 U.S.C. section 667(a)-(h)):

    "California is preempted from regulating matters covered by Fed/OSHA standards unless the state has adopted a federally approved plan. The section does not, however, confer federal power on a state—like California—that has adopted such a plan; it merely removes federal preemption so that the state may exercise its own sovereign powers over occupational safety and health. (Citations omitted.) There is no indication in the language of the act that a state with an approved plan may not establish more stringent standards than those developed by Fed/OSHA (citation omitted) or grant to its own occupational safety and health agency more extensive jurisdiction than that enjoyed by Fed/OSHA. A state is required only to provide a program ‘at least as effective’ as Fed/OSHA’s. (Citation omitted.) Thus, contrary to United’s claim, the federal act does not limit the divisions jurisdiction to that exercised by Fed/OSHA." (Id. at 772-773.)

    In a footnote, the Court went on to point out that Fed OSHA reached the same conclusion in a 1978 program directive:

    ". . . [653(b)(1)] limitations are strictly binding only on the Federal program. Therefore, a state may choose to exercise greater jurisdiction under its own law than is allowed to Federal OSHA. Any maximum limitation on State jurisdiction would be determined under that State law and other Federal law and applicable court decisions. (Program Directive No. 77-5 (Oct. 30, 1978).)" (Id., fn. 10.)

    So much, then, for Employer’s rhetorical question.

    III. THE CALIFORNIA HIGHWAY PATROL

    The other candidate to replace the Division is the California Highway Patrol. Its candidacy rests on three separate grounds: (1) the authority delegated to it by DOT pursuant to 49 U.S.C. section 31133(c); (2) its status under Labor Code section 6303(a); and (3) the preemptive language found in section 34503 of the California Vehicle Code.

    A. Delegated Authority

    An agency cannot delegate power that it does not possess. DOT, as we have seen (ante, pp. 17-19), has not been specifically mandated to protect the safety of the fork lift drivers and other employees at risk during loading operations because they are not workers "whose employment directly affects" the safe operation of commercial motor vehicles. Since DOT lacks authority over that portion of the work environment, it has nothing to delegate to the CHP in that respect.

    Furthermore, to the extent that the CHP’s authority derives from a federal agency, it is exercising federal jurisdiction. As such, it, too, would be subject to Labor Code section 6303.5, which specifically sanctions the authority of the Division to act where federal law provides, as it does here, for concurrent state jurisdiction. (ante, pp. 17-19.)

  3. Legislative Authority and the Exercise of that Authority

Division 14.8 of the Vehicle Code, sections 34500 et seq., is devoted to motor carrier safety. Besides containing a number of substantive provisions, it provides for the promulgation of regulations. Those regulations are fairly extensive and are to be found in Title 13, California Code of Regulations, sections1200 et seq.

Section 34500 of the Vehicle Code provides that:

"The department [of the California Highway Patrol] shall regulate the safe operation of the following vehicles:

(a) Motortrucks of three or more axles which are more than 10,000 pounds gross vehicle weight rating.

(b) Truck tractors.    . . . .

(e) Trailers and semitrailers, pole or pipe dollies, auxiliary dollies, and logging dollies used in combination with vehicles listed in subdivion (a), (b), (c), or (d).

In three previous decisions—Kenneth L. Poole, Inc., supra; Red’s Express, supra; and Nielsen Freight Lines, supra—we addressed the question of whether Vehicle Code section 34500 and the sections which follow "vest" the CHP with health and safety jurisdiction in the manner described by the California Supreme Court in United Air Lines. In each case, we determined that the first part of the test established by the Court had not been met.

In the most recent case, Kenneth Poole Inc., we explained the test had not been met "because the California Highway Patrol (CHP) has not been specifically mandated to regulate trucks ‘for the protection of employees’ health and safety.’ (United Air Lines, supra, at p. 770.) Instead, the CHP is mandated to regulate only the safe ‘operation’ of the enumerated vehicles." (Id. at p. 5.) The benefits which accrue to employees as a result of the CHP’s intervention are only incidental to that general mandate.

Vehicle Code section 34501(a)(4) does provide that:

"The department [CHP] may inspect any vehicles in maintenance facilities or terminals . . . to assure compliance with this code and regulations adopted pursuant to this section."

The Vehicle Code then goes on, in section 34501.12, to detail the nature, scope and frequency of terminal inspections.

The manner of those inspections and the procedures followed indicate that their primary purpose is to ensure that vehicles leaving the terminals are safely equipped and maintained "to promote the[ir] safe operation" (Vehicle Code section 34501(a)(1)), not to ensure the safety and health of the employees who load and unload cargo. Driver and vehicle maintenance records are examined, not terminal safety rules or facility inspection records or illness and injury logs. The carrier need only provide a "representative sample" of its fleet for inspection. Inspections are scheduled at yearly intervals, rather than in response to complaints or accidents; and those inspections can be avoided for up to 50 months once a carrier passes two consecutive annual inspections.

According to the CHP Commercial Enforcement Officer who testified at the hearing, terminal inspectors are not uniformed CHP law enforcement personnel but civilian employees who have no authority to issue Vehicle Code citations. While a uniformed CHP officer might respond to an accident or emergency at a terminal, he would do so pursuant to his normal duties as a law enforcement officer, not because of any specific program to ensure the safety of terminal personnel. Finally, terminal inspections represent only about 10% of the CHP’s motor carrier safety program.

It therefore cannot be said that jurisdiction over employee safety at Yellow Freight’s California terminals is "vested by law in, and actively exercised by" the CHP.

C. The Preemption Provisions of the Vehicle Code

Division 14.8 of the Vehicle Code has its own preemption provision, separate and apart from those found in the Occupational Safety and Health Act. Section 34503 provides:

"It is the legislative intention in enacting this division that the rules and regulations adopted by the Department of the California Highway Patrol pursuant to this division shall apply uniformly throughout the State of California, and no state agency, city, city and county, county, or other political subdivision of this State . . . shall adopt or enforce any ordinance or regulation which is inconsistent with the rules and regulations adopted by the department pursuant to this division."

Notice, first of all, that section 34503 only precludes other public entities from asserting jurisdiction where they are seeking to enforce an "ordinance or regulation which is inconsistent with the rules and regulations adopted by the [CHP]." Given the interpretation of section 3664(a)(22) that we have adopted (ante, pp. 13-14), no such inconsistency exists in this case.

Moreover, a careful examination of the "rules and regulations adopted by the [CHP] pursuant to [Division 14.8]" discloses no regulation similar to 49 U.S.C. § 392.20. Presumably, then, any parking brake requirements enforced by the CHP arise not under Division 14.8 but under provisions found elsewhere in the Code. (See Vehicle Code, §§ 26301, 26302, 26450 and 26451.) Those provisions are all statutes enacted by the legislature, not regulations adopted by the CHP, and all concern the type and the performance characteristics of the braking equipment to be installed—not, like 49 C.F.R. section 392.20—the circumstances under which a driver is to activate his parking brakes; that requirement appears to have been left to local authorities. (See Veh. Code § 22519 (Regulation of off-street parking).)

We therefore conclude that there is no conflict between the valuable inspections carried on by the California Highway Patrol at Employer’s terminals with those carried on by the Division. (See Sequoia Rock Company, OSHAB 76-1083, Decision After Reconsideration (Apr. 28, 1983).) CHP inspections are essential to the protection of the general public; OSHA inspections are essential to the safety and health of the workers employed at those terminals. Accordingly, California is not preempted from enforcing section 3664(a)(22).

RES JUDICATA

3. Does the order of the Board approving a stipulation dismissing a previous alleged violation of section 3664(a)(22) bar the current proceeding?

As a result of an earlier inspection, the Division issued Employer a citation for failure to block or otherwise restrain the trailers parked at its Santa Fe Springs terminal. Employer appealed and the matter was settled prior to hearing by a stipulation, dated August 1, 1994. The stipulation provided: "The Division agrees to withdraw [the citation] and its related civil penalty due to insufficiency of evidence to sustain the violation." It was approved by a Board order dated September 12, 1994.

Nine days after entering into the stipulation, the Division attempted to re-inspect the terminal. Access was denied, a search warrant was obtained, and, on August 22, 1994, the inspector went to the premises and issued Employer a citation again premised on the failure to block or otherwise restrain the trailers parked there.

Employer argues that under the principles of res judicata, the prior stipulation and order bars the instant proceeding.

A dismissal entered into by both parties as a result of a settlement will bar subsequent litigation by them of any issue which was resolved in the prior settlement. (7 Witkin, Cal. Procedure (3d ed.) Judgments, § 225, pp. 662-663, and cases cited therein.) However, if the issue was not addressed and resolved, the prior settlement is no bar. (Neil Norman, Ltd. v. William Kasper & Co., (1983) 149 Cal.App.3d 942, 948-949; Nakash v. Superior Court (1987) 196 Cal.App.3d 59, 67.)

Here, the inspector testified that the earlier case was settled after the Division attorney assigned to the matter advised him that the citation "would not hold water" because he had failed to enter the terminal to determine whether Employer had posted the forklift operating rules on which a violation of section 3664(a)(22) is premised.

For its part, Employer presented no sworn evidence that, in settling the case, the Division had agreed that it was not required to chock its trailers. Instead, it chose to rely on the wording of the stipulation as justifying such an inference. But the wording is ambiguous. It is just as consistent with the Division’s explanation that the case was dropped because one element—the failure to post—could not be proven. That being so, the Division’s sworn account is accepted.

Since the settlement did not reach the issue of whether chocks were required, there is no factual basis for a finding that the settlement of the previous citation barred the current citation. (Nakash v. Superior Court, supra.) Moreover, even if that issue had been reached, a subsequent inspection to determine whether section 3664(a)(22) had been violated because spring brakes were absent or non-functional would have been quite proper. (Cutter Laboratories, OSHAB 81-440, Decision After Reconsideration (Feb. 24, 1982); Wieland Daley Corporation, OSHAB 95-4069, Denial of Petition for Reconsideration (Aug. 5, 1997).)

DEFERRAL TO ARBITRATION

4. Should the Board defer to the decision of a grievance panel that the chocking of the trailers was not required under the terms of the collective bargaining agreement covering Employer’s operations?

Employer argues that the chocking issue was disposed of by a ruling issued under the grievance and arbitration procedure of the Teamster collective bargaining agreement covering its employees. The ruling provided that the failure to chock trailers was "no violation of the DOT safety regulations or Article 16 of the [Collective Bargaining Agreement]." (Exhibit E.)

In Marshall v. N.L. Industries, Inc. (7th Cir. 1980) 618 F.2d 1220, 1223-1223, the 7th Circuit relied on the Supreme Court’s decision in Alexander v. Gardner-Denver Co. (1974) 415 U.S. 36, which had concluded that an arbitrator’s adverse decision under a collective bargaining agreement does not bar an employment discrimination action brought under Title VII of the Civil Rights Act of 1964, and held:

"That conclusion applies equally well for the Occupational Safety and Health Act. Like Title VII, this legislation was passed to mobilize the resources of the federal government in an effort to eradicate a specific group of problems confronting workers nationwide. (Citation omitted.) Enacted after the Supreme Court developed its policies encouraging deference to arbitration in a pure collective bargaining context, the OSHA legislation was intended to create a separate and general right of broad social importance existing beyond the parameters of an individual labor agreement and susceptible of full vindication only in a judicial forum. As a result, giving preclusive effect or even requiring total deference to an arbitrator’s decision in this context would be inconsistent with the statutory purpose. (Citations omitted.)" (See also Reich v. Sysco Corp. (S.D. Ohio 1994) 870 F.Supp. 777.)

For the reasons stated in the Marshall and Gardner-Denver cases, we likewise conclude that the Board is under no obligation to defer to arbitration decisions dealing with safety issues arising under collective bargaining agreements; and, under the circumstances presented, we decline to do so in this case.

THE MERITS

5. Did Employer violate section 3664(a)(22) by failing to securely block or restrain the trailers parked at the loading docks of its Santa Fe Springs Terminal?

In the course of determining that the Division had jurisdiction to inspect Employer’s terminals, we discussed and adopted the interpretation of section 3664(a)(22) proposed by our ALJ, namely, that trailers equipped with functioning spring brakes are sufficiently restrained once the parking brake is actuated. (ante, pp. 13-14.) Since the evidence establishes that all of Employer’s trailers were equipped with spring brakes and since there is no evidence to indicate that any of them had brakes which were out of adjustment or otherwise impaired, no violation has been established.

Employer’s responsibility under section 3664(a)(22) extends not only to its own trailers but to those of other carriers being loaded or unloaded by Yellow Freight employees at the terminal. Thus a violation would be found if Employer failed to securely restrain any of those trailers which lacked functioning spring brakes. However, there is no evidence of the presence of such vehicles at the terminal.

We therefore conclude that the Division has failed to establish a violation of section 3664(a)(22).

SANCTIONS

Employer alleges several acts of misconduct by the Division leading up to the inspection and during the course of these proceedings. The primary remedy sought by Employer—the dismissal of the citation—has been mooted by our determination that no violation occurred. However, Employer’s request for additional sanctions remains.

I

6. Should additional sanctions be awarded against the Division for failing to disclose the names and addresses of witnesses?

Prior to the hearing, Employer wrote to the Division requesting "the names and addresses of witnesses in this matter and those intended to be called to testify at the hearing." (Exhibit D.] At no time did the Division provide such a list.

Under the regulations which existed at the time, Employer had the right to petition the superior court for an order to compel compliance under section 372.6 and Government Code section 11507.7. It chose not to do so; instead, it allowed the matter to proceed to hearing. There, it moved the ALJ to bar the admission of any testimony from the Division based on his discretionary power under section 372.7 to impose sanctions for discovery abuse.

The ALJ determined that the Division had violated its obligation under section 372 to provide witness names and exercised his discretion to confine the Division to testimony from the compliance engineer who conducted the inspection—the one witness who Employer had every reason to believe would be called to testify.

That ruling was well within the discretion of the ALJ to fashion an appropriate remedy for the failure of the Division to comply with a proper discovery request. (See Bach v. McNelis (1989) 207 Cal.App.3d 852, 878-879) We therefore decline to disturb the ruling and consider additional sanctions.

II

7. Should sanctions be awarded against the Division for its conduct in obtaining the inspection warrant?

A. The Alleged Misconduct

The second instance of alleged misconduct concerns the Division’s conduct in obtaining the inspection warrant which led to the citation. (Exhibit C.) Employer contends that it acted wrongfully by proceeding ex parte and by misleading the court concerning the length of time that had passed between the employee complaint and the Division’s request for a warrant.

On August 1, 1994, the parties met and entered into the stipulation described and discussed in connection with Employer’s claim of res judicata. (ante, pp. 23-24.) At the time, counsel for Employer advised the Division that it would continue to refuse to chock its trucks and trailers. On August 9th, the inspector was denied access when he attempted to re-inspect the terminal. On August 15th, without advising Employer or counsel of his intentions, he sought an inspection warrant from the superior court for Los Angeles County. His sworn declaration in support of the issuance of the warrant states:

"On August 10, 1994, I was assigned by my supervisor to investigate the basis for a complaint received by the Division concerning the health and safety of employees at a place of employment maintained by Yellow Freight Systems, Inc. [hereinafter "Employer"]. The complainant claimed personal knowledge of conditions existing at Employer’s place of business, including the failure to block wheels of highway trucks and trailers as they are loaded and unloaded." (Exhibit C, Declaration, ¶ 7.)

The complaint described in the declaration was received in early March, and the assignment was made on March 14th, not on August 10th. August 10th was the date on which the inspector was instructed to re-inspect the premises. He waited until after the previous citation had been resolved (on August 1st) because it was the Division’s policy not to follow up on a complaint while another citation, involving the same issue, is pending.

All of that could easily have been explained in his sworn declaration, but it was not; instead, the court was given the misleading impression of a recent complaint and a recent assignment.

Search warrants, both civil and criminal, are obtained ex parte to prevent evidence from being destroyed or conduct altered. While it is a rare situation in which law enforcement officials can confidently dispense with the need for secrecy and surprise, this appears to be just such a case. Its counsel had clearly announced to the Division that it planned to continue—freely and openly—its non-chocking policy. And the Division, for its part, had no reason to doubt his word and therefore had no basis for fearing that its search would be impaired if notice were given.

The difficulty with Employer’s argument is not its factual basis or even its reasonableness. The problem lies with the clear legislative mandate of Labor Code, section 6321:

"No person or employer shall be given advance warning of an inspection or investigation by any authorized representative of the division unless authorized under provisions of this part.

"Only the chief [of the Division] or, in the case of his absence, his authorized representatives shall have the authority to permit advance notice of an inspection or investigation. The director [of the Department of Industrial Relations] shall, as soon as practicable, set down limitations under which an employer may be granted advance notice by the chief. In no case, except an imminent danger to the health or safety of an employee or employees, is advance notice to be authorized when the investigation or inspection is to be made as a result of an employee complaint. . . ."

Where entry has been refused, the application for an inspection warrant is a necessary and essential part of the investigation and inspection. As such, the Division is forbidden from notifying an employer or its representative of its intentions unless it does so pursuant to the procedure found in the second paragraph of this statutory provision. That procedure, however, is not available where the investigation is the result of an employee complaint except in the case of "imminent danger to the health or safety of an employee or employees."

Here, the investigation was the result of an employee complaint, but Employer takes the position that employees were not in imminent danger and the Division asserted no such claim. That being so, the Division was forbidden by statute from giving counsel advance notice of its application for an inspection warrant.

Employer’s assertion that it was entitled to notice is therefore tantamount to a claim that section 6321 is, under the circumstances presented, an unconstitutional deprivation of its due process rights.

We are without power to adjudicate that issue. Article III, section 3.5 of the California Constitution, discussed above (ante, pp. 15-16), precludes an administrative agency from declaring a statute enacted by the legislature to be unconstitutional.

B. The Propriety of Sanctions

Having determined that the Division erred by filing a misleading declaration, the matter of sanctions must be addressed.

In view of our decision that Employer was under no obligation to chock its trailers (ante, pp. 25-26), this is not a situation where the normal remedy for a Fourth Amendment violation—the exclusion of evidence—has any meaning.

As for monetary sanctions, administrative agencies, unlike courts, have only such powers as have been conferred on them by constitution or statute (Ferdig v. State Personnel Bd. (1969) 71 Cal.2d 96, 103-104), and thus they have no inherent power to award monetary sanctions. (Bauguess v. Paine (1978) 22 Cal.3d 626; Sam Andrews’ Sons v. ALRB (1988) 47 Cal.3d 157, 171-172; Consumers Lobby Against Monopolies v. PUC (1979) 25 Cal.3d 891 [Statute granting general powers to PUC is subject to restrictions of an award of attorney’s fees found in Code Civ. Proc. section 1021.]; Yarnell & Associates v. Superior Court (1980) 106 Cal.App.3d 918, 922-923. At the time of the events in question, the Board was without statutory or constitutional authority to make such an award.

The Board does, however, have the authority to admonish a party for misconduct. We therefore admonish the Division for failing to provide the court with a full and accurate account of the circumstances leading up to its request for a warrant.

DECISION AFTER RECONSIDERATION

Docket No. 94-R4D2-2565

The decision of the ALJ, dated October 5, 1995, is affirmed.

Docket No. 95-R1D3-4592

In view of the above decision, the Board grants Employer’s appeal from Citation No. 1, item 7.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA