BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

ROSENDIN ELECTRIC, INC.

880 N. Mabury Road

San Jose, CA 95133

                              Employer

 

 

Docket No.

98-R1D3-2298

 

DECISION AFTER

RECONSIDERATION


Before the Appeals Board is a decision dated February 17, 1999, by an administrative law judge (ALJ) of the Board, finding a serious violation of section 2946(b)(3) of the occupational safety and health standards and orders found in Title 8, California Code of Regulations1 and assessing a civil penalty of $1,750.

On March 24, 1999, Rosendin Electric, Inc. (Employer) filed a petition for reconsideration. The Division of Occupational Safety and Health (the Division) filed an answer on April 28, 1999. The Board granted Employer’s petition for reconsideration on May 4, 1999.

BACKGROUND

Employer is an electrical contractor. On December 18, 1997, the Division through Safety Engineer Vic Doromal (Doromal), conducted an accident investigation at the site. A boom on a hydraulic truck-mounted crane contacted an energized overhead high-voltage line while traveling southbound next to the 101 freeway. Doromal spoke to the crane operator, Daniel Briones, who told him that he forgot to lower the boom after he and another electrician had loaded poles that were being transported to the worksite.

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer contends that it did not violate section 2946(b)(3) because, “It was not engaged in erecting, operating, or dismantling the lifting or hoisting equipment of the boom truck at the moment the lifting or hoisting equipment of the boom truck contacted the power line; rather, petitioner was engaged in driving the boom truck in its capacity as a motor vehicle from one worksite to a different worksite.”

Section 2946(b)(3) states that:

“The erection, operation or dismantling of any boom-type lifting or hoisting equipment, or any part thereof, closer than the minimum clearances from energized overhead high-voltage lines [as] set forth in Table 2 shall be prohibited.”

According to Table 2, the minimum clearance required from overhead high-voltage lines energized at 600 to 50,000 voltage is 10 feet, and at 50,000 to 75,000 voltage, 11 feet. The facts in this case established that actual contact was made with energized overhead high voltage lines so clearly the minimum clearance was not maintained.

Under the facts of this case, the boom was erected, (at least partially) and in operation because Employer’s employees failed to lower the boom after they had loaded poles onto the truck on which the crane was mounted.

We have read and considered the decision of the ALJ and the record in light of Employer’s petition for reconsideration and find no errors in the logic or application of law to the facts of the case. We therefore affirm the ALJ’s summary of evidence, rulings, findings, and conclusions and adopt the decision in its entirety. Accordingly, the ALJ’s decision is attached hereto and incorporated herein by reference.

Employer’s argument that its employees were only driving the boom truck in its capacity as a motor vehicle at the time of the accident is unpersuasive. Employer contends that the citation must be set aside because section 2946(b)(2) is more specific to a boom truck being driven between work locations rather than when its crane is being used at a fixed work location. We find that section 2946(b)(2) does not apply because, in relevant part, it states:

Operation of boom-type equipment shall conform to the minimum clearances set forth in Table 2, except in transit where the boom is lowered and there is no load attached, in which case the distances specified in Table 1 shall apply.

Section 2946(b)(2) provides no basis for setting aside the citation. Section 2946(b)(2) does not apply because the boom was not lowered when the accident occurred. Even if section 2946(b)(2) did apply and was the more appropriate section for the Division to have cited, the only difference in the clearance requirements is that Table 1 provides closer clearance distances than does Table 2. Because the boom came into direct contact with the high voltage lines Employer would have been in violation of either section, and the fact that the Division cited an arguably less appropriate section does not constitute a defense to the section cited. (Wetsel-Oviatt Lumber Company, OSHAB 94-1462, DAR (Apr. 12, 2000).

We agree with Employer’s assertion that the concern of section 2946 is to prevent contact between “any boom-type hoisting equipment” and an overhead high-voltage line. It is precisely that concern that compels us to adopt the ALJ’s decision in its entirety. All of Employer’s legitimate concerns were presented at the hearing and were addressed by the ALJ.

DECISION AFTER RECONSIDERATION

The Board affirms the ALJ’s decision finding a serious violation of section 2946(b)(3) and assessing a $1,750 civil penalty.


MARCY V. SAUNDERS, Member GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: June 29, 2001

1 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.