BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

PACIFIC GAS AND ELECTRIC COMPANY

123 Mission Street, H4A

San Francisco, CA 94105

                              Employer

 

 

Docket No.

96-R1D3-3335 and 3336

 

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 petition for reconsideration filed in the above-entitled matter by Pacific Gas and Electric Company (Employer), makes the following decision after reconsideration.

JURISDICTION

From April 17, 1996 through July 11, 1996, the Division of Occupational Safety and Health (the Division), through compliance officer Vic Doromal, conducted an accident inspection at a place of employment then maintained by Employer at Old Country Road near Brigatto Road, Belmont, California. On July 19, 1996, the Division issued citations alleging general violations of section1 1624(a) [width of ramps and runways], section 1621(a) [railings on ramps and runways], and a serious violation of section 1629(a)(3) [stairway at break in passageway elevation], with proposed civil penalties totaling $5900.

Employer filed a timely appeal contesting the existence of the violations and the reasonableness of the civil penalties. After a hearing before an administrative law judge (ALJ) of the Board, a decision was issued on April 28, 1998, finding general violations of sections 1624(a), 1621(a), and 1629(a)(3).

On June 2, 1998, Employer filed a petition for reconsideration. The Division filed an answer on July 7, 1998. The Board granted Employer’s petition for reconsideration on July 21, 1998.


EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case. The Board has taken no new evidence and adopts and incorporates by this reference the summary of evidence set forth on pages four and five of the ALJ’s decision.

Employer was using an aerial device to install a power pole. An employee who had been standing on the edge of the aerial device’s bucket lost his balance as he stepped down to the platform giving access to the aerial device bucket and fell to the ground, suffering serious injuries. The distance between the aerial device bucket and the platform the employee intended to step down to was two feet, eight inches. The runway leading to the platform was 18½ inches wide and had no railing.

The Division cited Employer for violation of section 1624(a) because the runway along the side of the aerial bucket truck the employee was stepping down to was over seven and one-half feet above ground and less than 20 inches wide. The Division cited Employer for violation of section 1621(a) because there was no railing on the step down from the bucket to the platform. The Division also cited Employer under section 1629(a)(3), which requires stairways, ramps or ladders where a break in elevation exceeding 18 inches exists in a passageway, entry or exit.

ISSUES

Did sections 1621(a), 1624(a), and 1629(a)(3) apply to Employer’s aerial device?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The ALJ found that it was undisputed that the truck-mounted aerial device was being used in a construction setting. The ALJ held that under the Board’s decision in Sacramento Municipal Utility District,2 the character of the tasks being performed by the employees determines whether the Construction Safety Orders or only the General Industry Safety Orders apply to a vehicle or other mobile equipment. Because the equipment was being used in a construction setting, the ALJ found that the Construction Safety Orders applied, and that the aerial device truck did not comply with sections 1621(a), 1624(a) and 1629(a)(3). The ALJ found that the definition of an elevated working area in section 3209 and the requirements of section 3210(a), both in the General Industrial Safety Orders, comported with the requirements of section 1621(a), and that the walkway giving access to the bucket was an elevated platform.

Employer does not dispute the ALJ’s findings that the aerial device was not in compliance with sections 1621(a), 1624(a) and 1629(a)(3). Employer contends that the Construction Safety Orders it was found to have violated do not apply to its truck-mounted aerial device. Employer argues that the Construction Safety Orders generally apply only to structures or conditions on construction sites, and do not extend to the configuration of motor vehicles used on construction sites. Employer contends that the only part of the Construction Safety Orders that may apply to its aerial device are those included within Article 11 of the Construction Safety Orders, titled “Vehicles, Traffic Controls, Flaggers, Barricades, and Warning Signs.”

Employer also contends that the requirements of sections 1621 and 1624 show that they were never meant to apply to equipment like its aerial device. Section 1621(a) requires that standard railings as specified in section 1620 be provided on runways, ramps, and elevated platforms. Employer points to sections 1620(a) through (e), the portion of section 1620 of the Construction Safety Orders that specify that a standard railing is made of wood and between 42 and 45 inches high. Employer argues that section 1624(a) of the Construction Safety Orders requires that ramps have a width of 20 inches in order to accommodate wheelbarrows. Employer also contends that section 1629(a)(3) cannot apply to its aerial device because it is preceded by section 1629(a)(1), which provides that stairways as required in section 1629(b) shall be provided on all buildings two or more stories in height.

The Board finds Employer’s arguments that sections 1621(a) and 1624(a) may not be applied to its aerial device unpersuasive. Section 1620 does not require that all standard railings be made of wooden two by fours. Section 1620(h) allows forms of railings other than the wooden railings described in sections 1620(a) through (e). Railings of metal or material other than wooden two-by-fours will satisfy the requirements of section 1620 if they meet the conditions stated in sections 1620(h)(1) through (3). The requirements of sections 1620(h)(1) through (3) are that the top of the railing have a smooth surface and be between 42 and 45 inches high, that the protection between the top rail and the walking surface equal the protection of a midrail, and that overhanging rail ends be eliminated. These requirements are substantially identical with the requirements for standard guard railings stated in section 3209 of the General Industrial Safety Orders, as the ALJ found in this case.

Section 1624(a) makes no reference to wheelbarrows. Section 1504 defines a runway as “[a]n elevated passageway.” As the ALJ found, these requirements comport with sections 3209 and 3210(a).

The Board has held that section 1629(a)(1) does not limit the application of the other parts of section 1629(a) to apply only to stairways between two floors of a building.3 Section 1629(a)(3) is a separate requirement from section 1629(a)(1). Section 1629(a)(3) requires stairways, ramps, or ladders at any break in elevation in a passageway that exceeds 18 inches. Section 1629(a)(3) therefore requires stairways for much smaller breaks in elevation than does section 1629(a)(1), which only requires stairs between one story of a building and another, or every 12 feet. The Board therefore rejects Employer’s argument based on the requirement in section 1629(a)(1) that stairways are required between two floors of a building. Section 1629(a)(3) applies to all frequently traveled passageways, entries, and exits, and not just to access between floors of a building.

The Board finds that nothing in sections 1621(a), 1624(a) or 1629(a)(3) makes them inapplicable to an aerial device used in a construction setting. The Board therefore finds that these sections could apply to Employer’s aerial device when used in a construction setting, unless some other safety order imposes more specific and inconsistent requirements.

Article 11 of the Construction Safety Orders includes no regulations that address truck-mounted aerial devices. Article 11 contains three sections, 1597, 1598, and 1599. Section 1597, Jobsite Vehicles, applies only to vehicles used on construction jobsites exclusively and which are excluded from the provisions of traffic and vehicle codes. The photographic evidence shows that the cited truck-mounted aerial device is designed for highway use. There is no contention that Employer’s aerial device was not able to operate as a vehicle on public highways under the Vehicle Code. No other safety orders in Article 11 address vehicles. Section 1598, “Traffic Control for Public Streets and Highways,” applies to traffic control measures, not vehicles. Section 1599, “Flaggers,” applies only to employees assigned to direct traffic.

The Board therefore finds that nothing in Article 11 of the Construction Safety Orders is inconsistent with sections 1621(a), 1624(a), or 1629(a)(3). Its silence as to walkway and railing requirements therefore leaves the aerial device subject to sections 1621(a), 1624(a), and 1629(a)(3).

Employer further contends that sections 1621(a), 1624(a), and 1629(a)(3) may not be applied to its aerial device because only Article 24 of the General Industrial Safety Orders, “Elevating Work Platforms and Aerial Devices,” governs the configuration of aerial devices. Article 24 does not address railings and elevated walkways on aerial devices. Section 3638(a), part of Article 24, provides that aerial devices placed in service before December 23, 1999, must meet a specified standard issued by the American National Standards Institute.4 The Board has examined the applicable ANSI standard, and finds no provision addressing elevated walkways and breaks in elevation, or railings, except for those that are part of the elevating bucket. The Board’s review of the ANSI standard is corroborated by the minutes of the May 7-8, 1997 meeting of the Occupational Healthy and Safety Standards Board’s Advisory Committee on Guardrails/Fall Protection at Elevated Locations (Non-Construction), introduced into the record in this case by Employer. The minutes note that the ANSI standards are largely silent on the subject of railings and other forms of fall protection.

The silence of Article 24 on aerial device railing and walkway requirements does not preclude the application of other safety orders that do apply to railings and walkways.5 Rather, because Article 24 is silent on the issues of railings and walkways on aerial devices, Article 24 cannot be inconsistent with other safety orders governing railings and walkways, such as sections 1621(a), 1624(a), and 1629(a)(3).6 Because the aerial device is being used in a construction setting,7 sections 1621(a), 1624(a), and 1629(a)(3) of the Construction Safety Orders apply.

The Board therefore finds that sections 1621(a), 1624(a), and 1629(a)(3) applied to Employer’s truck-mounted aerial device. The Board finds that the aerial device violated sections 1621(a), 1624(a), and 1629(a)(3).

DECISION AFTER RECONSIDERATION

The decision of the ALJ dated April 28, 1998 is reinstated and affirmed and civil penalties totaling $1,350 are assessed.

BILL DUPLISSEA, Member
MARCY V. SAUNDERS, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - February 27, 2001

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.
2 OSHAB 92-1711, DAR (Nov. 14, 1995).
3 County of Los Angeles Metropolitan Transportation Authority, OSHAB 98-539, DAR (Dec. 21, 1999).
4ANSI A92.2¾1969 or 1979.
5 Pacific Gas and Electric Company, OSHAB 99-1806, Denial (July 19, 2000).
6 Terry Roof Truss, OSHAB 96-288, DAR (Oct. 4, 2000).
7 Sacramento Municipal Utility District, supra.