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

In the Matter of the Appeal of:

SACRAMENTO MUNICIPAL UTILITY DISTRICT
P.O. Box 15830
Sacramento, CA 95852

                                                 Employer

  Docket Nos.                                96-R2D1-4003
and 4004

 

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 Sacramento Municipal Utility District (Employer), makes the following decision after reconsideration.

JURISDCTION

On October 21, 1996, a representative of the Division of Occupational Safety and Health (the Division) conducted an accident inspection at a place of employment then maintained by Employer at 14310 Jackson Road, Sloughhouse, California. On December 19, 1996, the Division issued two citations alleging serious violations of section 3328(a) [operating equipment with unsafe loads] and section 3645(b) [failure to follow manufacturer’s operating instructions to stabilize aerial device]. No civil penalties were proposed.

Employer filed a timely appeal contesting the existence and classification of the violation and also the reasonableness of the abatement requirements. After a hearing before an administrative law judge (ALJ) of the Board, a decision was issued on April 16, 1998, finding serious violations of sections 3328(a) and 3645(b).

On May 21, 1998, Employer filed a skeleton petition for reconsideration and a request to file a supplemental petition. The Division filed an answer on June 25, 1998. On July 9, 1998, the Board granted Employer’s petition for reconsideration and request to file a supplemental petition. Employer filed a supplemental petition on August 13, 1998. The Division filed an answer to the supplemental petition on September 17, 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 two through eight of the ALJ’s decision.

Employer is a publicly owned electrical utility. Employer was using an aerial device to replace a deteriorated power pole. An employee was killed when the aerial device in which he had elevated himself 50 to 55 feet above ground fell over. The aerial device’s outriggers, used to stabilize the device, had not been extended. The manual issued by the aerial device’s manufacturer directs that the outriggers be extended whenever an employee is elevated in the aerial device. The manual also directs that the outriggers be extended whenever the aerial device is used on sloped ground.

Employer’s acting foreman at the site, who was responsible for enforcing safety rules and regulations, was a few feet away from and had an unobstructed view of the aerial device. He observed the aerial device only when he looked up at the extended boom, and did not notice that the outriggers had not been extended. Just before the aerial device fell, the foreman had been assisting the crew by finding and inspecting a transformer in the back of his pickup truck, and was preparing to move his pickup truck when the aerial device fell.

ISSUES

1. Does section 3645(b) apply to an aerial device?

2. Was a violation of section 3328(a) established?

3. Were the violations properly classified as serious?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The ALJ found that sections 3645(b) and 3328(a) both applied and had been violated. The ALJ further found that the violations should be classified as serious because the acting foreman was not enforcing Employer’s requirements for operation of the aerial device when he could have known of the violation with the exercise of reasonable diligence. In its petition, Employer contends that section 3645(b) did not apply to the alleged violation, that no violation of section 3328(a) was established, and that neither violation should be classified as serious.

1. Section 3645(b) Applies to Aerial Devices.

Section 3645 is part of Article 24, titled "Elevating Work Platforms and Aerial Devices." Section 3637 defines aerial devices and elevating work platforms as follows:

Aerial Device. Any vehicle-mounted or self-propelled device, telescoping extensible or articulating, or both, which is primarily designed to position personnel.

Elevating Work Platform. A device designed to elevate a platform in a substantially vertical axis. (Vertical Tower, Scissor Lift)

Section 3645 provides:

Stability on Inclined Surfaces.

(a) Unless recommended for such use by the manufacturer, no elevating work platform shall be used on an inclined surface.

(b) Procedures for maintaining stability must be clearly outlined in the special warnings section [see 3638(c)]. The user shall not deviate from the manufacturer’s instructions.

Employer contends that section 3645(b) does not apply to aerial devices but only to elevating work platforms. The principal basis for Employer’s argument is that section 3645(a) refers only to elevating work platforms, and section 3645(b) does not specifically refer to either elevating work platforms or aerial devices, and should be understood as referring only to the same equipment referred to in section 3645(a), elevating work platforms.

The Board finds that the ALJ correctly rejected this contention, finding that section 3645(b) governs both types of equipment. Section 3645(b) is part of Article 24, "Elevating Platforms and Aerial Devices." Section 3636(a) defines the application of Article 24 as follows:

This Article applies to elevating work platforms and vehicle-mounted or self-propelled aerial devices which are used to position personnel, along with their tools and necessary materials, to work locations. (Emphasis added.)

Therefore, section 3645(b), like all sections of Article 24 applies to both aerial devices and elevating work platforms unless the language of the specific section being considered provides otherwise. While section 3645(a) deals only with elevating work platforms, section 3645(b) regulates aerial devices as well as elevating platforms. Therefore, section 3645(b) regulates the operation of aerial devices as well as elevating platforms.

The ALJ found that where the ground the aerial device is resting on has any discernible slope, section 3645 applies. Employer argues that this interpretation makes section 3645(b) apply in all cases, because virtually all land surfaces have some slope. Employer further argues that the Appeals Board should adopt a more restrictive interpretation, defining the degree of slope that must exist before a violation of section 3645(b) is found.

The ALJ correctly rejected this argument. The Standards Board did not provide a threshold percentage of slope that must exist before section 3645(a) applies, and for the Appeals Board to do so when the Standards Board did not would usurp the Standards Board’s exclusive authority to promulgate standards.

There is no dispute that the failure to extend the outriggers violated the device manufacturer’s instructions for maintaining its stability. Section 3645(b) requires that aerial devices be operated in accordance with the manufacturers instructions, and Employer’s failure to follow those instructions by extending the outriggers violated section 3645(b).

2. A Violation of Section 3328(a) Was Established.

Section 3328(a) provides:

Machinery and equipment shall be of adequate design and shall not be used or operated under conditions of speeds, stresses, or loads which endanger employees.

The ALJ found that elevation of the aerial device’s boom without the outriggers being extended created a load that endangered employees.

Employer contends that the evidence does not support the ALJ’s finding that the boom was operated with an unsafe load. Employer contends that there was no evidence of the location of the bucket when the aerial device tipped over, or that a single employee could constitute an unsafe load.

The ALJ credited the testimony of the compliance officer based on his examination of the accident scene that the boom was elevated to an altitude of 50 to 55 feet above ground. The ALJ found that the record established that the elevation of the boom to 50 to 55 feet above ground without the outriggers being extended created a load that the aerial device could not safely handle. In addition to the compliance officer’s testimony, the device manufacturer’s operating manual specified that the stability of the vehicle depended on factors including the gross weight of the vehicle and its load, the slope, and whether the ground was firm enough to support the outriggers. Where an ALJ’s findings of fact are supported by substantial evidence, they will not be overruled absent contrary evidence of considerable substantiality. No evidence contradicting the evidence the ALJ relied on was presented.

The Board therefore finds a violation of section 3328(a) was established.

3. The Violations Were Properly Classified as Serious.

To prove a serious violation under Labor Code section 6432 as written at the time the citation issued, the Division had to prove both that if an accident occurred, the resulting injury would more likely that not be serious, and that the employer knew or could, with the exercise of reasonable diligence, have known of the existence of the violative condition. There is no dispute that the accident resulting from the failure to extend the outriggers in this case, a fall of 50 to 55 feet would more likely than not produce a serious injury.

The Division therefore had to prove that the acting foreman knew of the violative condition, or could have known of it with the exercise of reasonable diligence.

Employer contends that the violation must be classified as general because the acting foreman was exercising reasonable diligence in carrying out his duties. The acting foreman was diligent in the sense that he kept himself busy working hand in hand with the crew. He spent part of his time on tasks such as removing the new transformer to be installed from the back of his truck. When he did direct his attention to the aerial device involved in the accident, he was looking upward to the top of the pole and the extended arm and bucket, rather than at ground level where he could have observed the outriggers.

The reasonable diligence test does not refer to reasonable diligence in assisting crewmembers but in observing the work site for the presence of hazards. There is no dispute that the outriggers were in the supervisor’s view a few feet from where he was standing. Where violative conditions are in a supervisor’s plain view, the Board has held that the supervisor could have been aware of them with the exercise of reasonable diligence. The evidence therefore established that the supervisor could have known of the existence of the violation with the exercise of reasonable diligence.

Employer points out that the other employees on the job did not notice that the outriggers were not extended. Employer argues that it should therefore be inferred that he would not have noticed the violative condition with the exercise of reasonable diligence. Because the duty to exercise reasonable diligence falls on supervisors and not employees, the fact that other employees failed to notice the violative condition does not excuse the acting foreman’s duty to do so.

The Board therefore finds that the violations were properly classified as serious.

DECISION AFTER RECONSIDERATION

Employer’s appeal is denied. The decision of the ALJ dated April 16, 1998, is reinstated and affirmed in.

                        BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member

            SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - December 21, 2000