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
Mail Code H4A
P.O. Box 77000
San Francisco, CA 94177

                                          Employer

  Docket Nos. 99-R4D3-1806                          and 1807

 

DENIAL OF PETITION
FOR RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code, hereby denies the petition for reconsideration filed in the above-entitled proceeding by Pacific Gas and Electric Company (Employer).

JURISDICTION

Between January 27, 1999 and May 27, 1999, a representative of the Division of Occupational Safety and Health (Division) conducted an inspection at a place of employment maintained by Employer 1.4 miles north of Seventh Standard Road and .4 miles west of Verdugo Lane, in Kern County, California. On June 9, 1999, the Division issued to Employer citations alleging a general violation of section 3273(c) [guardrails] and a serious violation of section 3210(a) [width of runways and access platforms] of the General Industrial Safety Orders appearing in Title 8 of the California Code of Regulations, with proposed civil penalties totaling $5,450.

Employer filed a timely appeal from the citations, contesting the existence of the violations, the classification of the serious violation, and the reasonableness of both the abatement requirements and the proposed civil penalties. In a decision dated April 25, 2000, an administrative law judge of the Board (ALJ) denied Employer’s appeal but reduced the classification of the serious violation to general and reduced the civil penalties to a total of $1,050.

On May 26, 2000, Employer filed a petition for reconsideration. The Division filed an answer on June 26, 2000.

EVIDENCE

The Board has taken no new evidence in this case.

ISSUE

Has Employer raised a valid ground for reconsideration of the ALJ’s decision?

REASONS FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Labor Code section 6617 sets forth five grounds upon which a petition for reconsideration may be based:

(a) That by such order or decision made and filed by the appeals board or hearing officer, the appeals board acted without or in excess of its powers.

(b) That the order or decision was procured by fraud.

(c) That the evidence does not justify the findings of fact.

(d) That the petitioner has discovered new evidence material to him, which he could not, with reasonable diligence, have discovered and produced at the hearing.

(e) That the findings of fact do not support the order or decision.

Labor Code section 6616 provides that:

The petition for reconsideration shall set forth specifically and in full detail the grounds upon which the petitioner considers the final order or decision made and filed by the appeals board or a hearing officer to be unjust or unlawful, and every issue to be considered by the appeals board.

Employer’s petition alleges that the ALJ’s findings of fact do not support the decision.

Employer does not dispute any of the facts found by the ALJ. The ALJ found that the walkway, which was on the top of the tool bin on the aerial device, was 16 inches wide and had no guardrails. The top of the tool bin was approximately seven feet above ground. Section 3210(a) requires that guardrails be provided on elevated working levels more than 30 inches above ground. Section 3273(c) requires that walkways on elevated working levels more than 30 inches above ground be no less than two feet wide. The ALJ found that Employer had violated sections 3273(c) and 3210(a).

Employer argues that another part of the General Industrial Safety Orders, Group 4, General Mobile Equipment and Auxiliaries, which includes Article 24, Elevating Work Platforms and Aerial Devices, is more specific to aerial devices than the other sections of the General Industrial Safety Orders, including sections 3210(a) and 3273(c). Group 4 is silent both as to whether guardrails are required on aerial devices, and the width required for elevated working levels on such equipment. Relying only on the general rule of statutory construction that more specific provisions control over more general provisions, Employer argues that the silence of Group 4 on guardrails and width of working levels means that the Standards Board intended that sections 3210(a) and 3273(c) did not apply to aerial devices.

The Board disagrees. The Board has long held that a general industrial safety order applies to all places of employment, unless it is inconsistent with a more specific order. If a more specific section is silent on an issue covered by the general industrial safety order, there can be no inconsistency. Therefore, the silence of a safety order specific to a particular type of equipment means that the general industrial safety order does fully apply to that equipment, and not the reverse, as Employer contends.

Employer argues that section 3202(c) prohibits the application of sections 3210(a) and 3273(c) to the aerial device or any other mobile equipment because sections 3210(a) and 3273(c) are building standards. Section 3202(c) provides in relevant part:

Regulations herein affecting building standards apply to any building, or building alteration, or building modification for which construction is commenced after the effective date of the regulations. . . ." (Emphasis added.)

Employer’s contention that section 3202(c) makes sections 3210(a) and 3273(c) inapplicable to mobile equipment is not supported by the language of section 3202(c) or by Board precedent.

Section 3202(c) does not convert any general industrial safety order into a building standard. It provides only that if a general industrial safety order affects a building standard, only buildings whose construction commenced after the adoption of the present body of Title 8 safety orders are subject to the general industrial safety order requirement. Section 3202(c) therefore recognizes that general industrial safety orders apply to places of employment generally, and that "places of employment" includes buildings and other work sites, including mobile equipment. The Board has held that General Industrial Safety Orders apply to "places of employment" including specialized mobile equipment like Employer’s aerial device involved in this case.

While Employer alleges that the aerial device involved in this case is subject to an American National Standards Institute (ANSI) Standard listed in section 3638(b), it makes no contention that the ANSI Standard contains any provision inconsistent with sections 3210(a) and 3273(c), and the Board has found none.

Employer’s petition therefore fails to raise any grounds to establish that the facts found by the ALJ do not support the decision, and the Board therefore denies Employer’s petition.

DECISION

Employer’s petition for reconsideration is denied. The decision dated April 25, 2000, is affirmed

BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - July 19, 2000