EXECUTIVE SUMMARY

OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD

Summary of JD2, Inc. – Decision after reconsideration

The employer appealed from a serious violation of section 1670(a) [fall protection] on the grounds that the applicable safety order was section 1710(h). Section 1710(h) which has a fall protection distance of 30 feet is in conflict with section 1670(a) which has a fall protection distance of 7 ½ feet. The division argued that section 1710(h) did not apply because the building was a retail store and did not conform to the list in section 1710(h). The employer was working on a warehouse type building, which the board had previously held in McLean Steel, Cal/OSHA App. 93-1851, DAR (Aug. 26, 1997) was not included in the types of structures listed in section 1710(h). The board found that McLean Steel was decided incorrectly and reversed its holding and found that section 1710(a), applied in this case because the language contemplates the same sort of open span or area as other structures which are delineated within the section. Since the fall distance in this case was less than 30 feet, the board found that section 1710(h) applied and that the employer was in compliance.

Further, this case involved the mistake of serving the June 4, 2003 final ALJ decision upon the wrong division office. On June 25, 2003, a purported copy of the original June 4, 2003 decision was re-mailed to the parties and to the proper division office. That document however, was different from the original June 4, 2003 decision in that its holding was opposite. An errata was issued on July 21, 2003 which indicated that due to clerical error the “decision” mailed on June 25, 2003 was a copy of an earlier draft instead of a copy of the final decision. The board found that the June 4, 2003 decision complied with the above requirements for rendering an effective decision and that the errata sufficiently clarified that the mailing of the second purported decision was due to clerical error.

JD2 Inc., 02- 2693 (Word)
JD2 Inc., 02- 2693 (Adobe Acrobat)

August 16, 2004