San Francisco Bay Area Rapid Transit District v. Division of Occupational Safety & Health

[364]Opinion

POCHÉ, J. Petitioner, San Francisco Bay Area Rapid Transit District (BART) seeks mandamus to annul a special order of the Division of Occupational Safety and Health (Division) requiring modification of fire hose outlets in the Transbay Tube. We conclude that Labor Code section 6800, subdivision (b), confers jurisdiction on the Division over the safety of BART employees but only with respect to activities and locations mentioned in that statute, no one of which is involved in the challenged order. Accordingly, we direct the Division to vacate its order.

On January 17, 1979, a fire occurred aboard a BART train operating in BART’s Transbay Tube. Thereafter the Public Utilities Commission (PUC) conducted hearings and issued safety orders which resulted first in the closing and then in the resumption of service subject to certain safety requirements. After its own investigation the Division issued a special order requiring outlets for fire hoses to be extended into the gallery between tunnels within the Transbay Tube. In the administrative appeals process that followed, BART unsuccessfully contested the Division’s jurisdiction to issue this special order.

This petition followed. We issued an alternative writ and invited the PUC to appear as amicus.

It is settled that an order of the Division may be reviewed by mandamus , in this court in the first instance. (Lab. Code, § 6308; see Bendix Forest Products Corp. v. Division of Occupational Saf. & Health (1979) 25 Cal.3d 465, 469 [158 Cal.Rptr. 882, 600 P.2d 1339].)

With respect to the jurisdiction of the Division, the centerpoint is Labor Code section 6800 which grants the Division limited jurisdiction over certain employees of railroads, electric interurban or street railroads and certain public utilities. It provides: “The division has jurisdiction over:

“(a) The safety and health of railroad employees employed in offices and in shops devoted to the construction, maintenance or repair of railroad equipment, and all other railroad employees with respect to occupational health, including, but not limited to, air contaminants, noise, sanitation and availability of drinking water.

[365]