Filed 8/13/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

CALIFORNIA DEPARTMENT OF 

INDUSTRIAL RELATIONS, DIVISION OF 

OCCUPATIONAL SAFETY AND HEALTH,

Plaintiff and Respondent,

v.

CALIFORNIA OCCUPATIONAL SAFETY 

AND HEALTH APPEALS BOARD,

Defendant and Appellant,

AC TRANSIT (ALAMEDA-CONTRA 

COSTA TRANSIT DISTRICT),

 Real Party in Interest and Appellant.

 A142799

 (County of Alameda 

 No. RG13687314)

 

In this appeal, we consider a narrow question of regulatory interpretation: Can the 

interior of a non-air-conditioned bus be deemed an “outdoor place of employment” for 

purposes of the heat illness prevention standards promulgated by the California 

Occupational Safety and Health Standards Board (Standards Board) as stated in section 

3395 of title 8 of the California Code of Regulations (section 3395)? After the 

Department of Industrial Relation’s Division of Occupational Safety and Health 

(Division) cited the Alameda-Contra Costa Transit District (AC Transit) for several 

violations of section 3395 involving its non-air-conditioned buses, AC Transit sought 

administrative review, arguing, among other things, that the buses were not “outdoor” 

places of employment for purposes of the heat illness prevention regulation. The

Occupational Safety and Health Appeals Board (Appeals Board) ultimately agreed,

1
affirming the dismissal of the appealed-from violations by one of its administrative law 

judges (ALJ). However, after the Division filed a petition for writ of mandate in the trial 

court disputing this decision, the trial court determined that the Appeals Board’s 

definition of “outdoor” was too narrow and issued a peremptory writ of mandate 

instructing the Appeals Board to reconsider the matter using a broader definition of 

outdoor that could include non-air-conditioned vehicles. Both AC Transit and the 

Appeals Board appealed. We conclude—based upon our independent analysis of the 

question—that the trial court’s construction of section 3395 is well supported both by the 

language of the regulation and by its related regulatory history. We therefore remand the 

matter for further proceedings consistent with our analysis.

I. BACKGROUND

The three state agencies relevant to these proceedings are all branches of

California’s Department of Industrial Relations that are involved in the regulation of 

workplace health and safety. The Standards Board promulgates regulations setting 

occupational health and safety standards. (Lab. Code, § 140 et seq.) The Division 

enforces those standards, inspecting workplaces and issuing citations for health and 

safety violations. (Id., § 142; see also id., § 6300 et seq.) Finally, it is the responsibility 

of the Appeals Board to adjudicate appeals of Division citations. (Id., § 148 et seq.) As 

the trial court pointed out below, this case presents “the interesting situation” where the 

Division and the Appeals Board advocate different interpretations of regulations issued 

by the Standards Board.1

Section 3395—the regulation here at issue—sets forth requirements for heat 

illness prevention in outdoor places of employment and was initially adopted by the 

Standards Board in 2005 as an emergency regulation after an unusual number of reports 

of serious occupational heat-related illnesses and deaths that year. Thereafter, the 

Standards Board initiated a rulemaking action to promulgate a permanent version of 

section 3395, issuing an Initial Statement of Reasons (See Standards Board, Initial 

1 The Standards Board is not a party to these proceedings.

2

 
Statement of Reasons, New Section 3395: Heat Illness Prevention (ISOR).) In 2006, the 

Standards Board issued its Final Statement of Reasons, responding to oral and written 

comments. (See Standards Board Final Statement of Reasons, New Section 3395: Heat 

Illness Prevention (FSOR).) It then adopted the permanent version of section 3395

applicable broadly to “all outdoor places of employment.” (former Cal. Code Regs., tit. 

8, § 3395, subd. (a), Register 2006, No. 30 (July 27, 2006).)2 Generally speaking, section 

3395 sets standards for the provision of water, shade, and training for employees working 

in outdoor environments. (Ibid.)

AC Transit operates transit buses throughout Alameda County and adjoining 

areas. Bus routes range from 15 minutes to over an hour, with a small recovery time 

scheduled at the end of each route, which may or may not be available to the driver 

depending on whether he or she is running on schedule. Drivers can be behind the wheel 

driving for up to ten hours a shift. During relevant timeframes, AC Transit employed 

between 1200 and 1900 drivers and operated 695 buses, only 20 percent of which were 

air-conditioned. In November 2007, the Division cited AC Transit for three alleged 

violations of section 3395 with respect to the operation of its non-air-conditioned buses: 

(1) failure to supply adequate drinking water to drivers; (2) failure to make shade 

continuously available for drivers; and (3) failure to develop heat illness procedures and 

related training for employees and supervisors. (See § 3395, subds. (c), (d), & (e).) 

AC Transit appealed, and an administrative hearing before an ALJ was 

subsequently held over the course of several days. During the hearing, several bus 

drivers testified that it was normally hotter inside the buses than outside during the 

2 The 2006 version of section 3395 is the operative version of the regulation for 

purposes of this appeal, and all unidentified references to section 3395 shall be to the 

2006 version. Section 3395 was subsequently amended twice, in 2010 (2010 version) 

and 2015 (current version). (See history following Cal. Code Regs., tit. 8, § 3395.) We 

discuss the relevance of later iterations of the regulation below. Like the 2006 version of 

section 3395, however, both the 2010 version and the current version cover “all outdoor 

places of employment,” and neither define the phrase. (See Cal. Code Regs., tit. 8, 

§ 3395; former Cal. Code Regs., tit. 8, § 3395, subd. (a), Register 2010, No. 41 (Oct. 5, 

2010).) 

3

 
daytime, even when the exterior temperature was in the 70s. They further reported that 

some of the non-air-conditioned buses had issues with ventilation and engine 

compartments that radiated heat into the bus interior. One driver, who was also a union 

representative, testified that he had heard concerns from AC Transit drivers “[t]hat the 

conditions on very hot days were unhealthy and unsafe.” A Division employee explained 

that the variable weather pattern in AC Transit’s service area created a risk of heat illness 

due to lack of time for drivers’ bodies to acclimatize during short-term heat waves. 

Further, in one heat wave—with outside temperatures between 93 and 97 degrees—this 

employee had measured temperatures between 97 and 102 degrees immediately behind 

the driver seats on four AC Transit buses. Another Division employee noted that sitting 

next to large windows subjects bus drivers to direct solar radiation, adding to their 

bodies’ heat burden. Finally, an occupational medicine physician and consultant to the 

Division testified that the effects of even mild heat illness could impair a bus driver’s 

ability to multi-task, leading to safety risks. AC Transit put on no evidence, conceding 

that it had not complied with section 3395. It argued, instead, that it was not subject to 

the regulation and that section 3395 was unenforceably vague. 

After considering the evidence presented, the ALJ concluded that “the term 

‘outdoor places of employment’ [in section 3395 was] a relatively new term, without a 

proven ‘common usage’ and no ‘common law meaning.’ ” Moreover, after a review of 

various dictionary definitions of “outdoor,” the ALJ further found that “there is more than 

one common meaning” for that term. The ALJ thus reviewed the regulatory history of 

section 3395 in an attempt to ascertain its underlying purpose and decided that the 

“weight of the evidence” argued against defining “outdoor places of employment” to 

include “the interiors of municipal transit buses.” He therefore dismissed the citations 

and vacated the corresponding penalties and abatement requirements. In response, the 

Division filed a petition for reconsideration with the Appeals Board on the “sole issue” of 

whether “drivers of non-air-conditioned public transit buses are excluded from coverage” 

under section 3395. 

4
In its Decision After Reconsideration (DAR), the Appeals Board agreed with the

conclusion of the ALJ, albeit under different reasoning. After incorporating the ALJ’s 

Summary of Evidence, the Appeals Board declared that the plain meaning of section 

3395 confirmed that bus interiors are not outdoor places of employment for purposes of 

the regulation. Rather, based on a review of dictionary definitions, the Appeals Board 

opined that “the ordinary and commonsense meaning of the word ‘outdoor’ means 

literally to be ‘out of doors,’ or in an open air environment.” In making this 

determination, the Appeals Board expressly rejected the Division’s assertion that non-airconditioned buses could qualify as outdoor places of employment based on the regulatory 

history of section 3395, stating: “We do not find any support in the rulemaking record or 

the regulation’s text itself that would support that the meaning of the word ‘outdoor’ 

turned on the existence or non-existence of a cooling device.” 

Refusing to accept this result, the Division filed a petition for writ of mandate in 

Alameda County Superior Court, asserting that the Appeals Board’s conclusions in its

DAR amounted to a prejudicial abuse of discretion and were clearly erroneous. After 

briefing and hearing, the trial court agreed, issuing an order granting the Division’s 

petition (Order). In particular, the trial court concluded that the Appeals Board erred in 

limiting the definition of “outdoor” for purposes of section 3395 to “ ‘out of doors’ or ‘in 

an open air environment.’ ” Instead, the trial court agreed with the ALJ that there is no 

single, common meaning for the term “outdoor,” and thus the plain text of the regulation 

was not helpful in determining regulatory intent. The court therefore considered the 

regulatory history related to the Standards Board’s adoption of section 3395 and 

concluded that “the Standards Board intended the regulations to protect employees who 

did not have ‘the environmental protections indoor working environments can provide.’ ” 

The court further found, however, that the regulatory history contained conflicting 

statements regarding the scope of the term “outdoor.” It thus went on to consider 

whether deference should be granted to either of the contradictory interpretations of 

“outdoor” advocated by the Division and the Appeals Board, and determined that the 

Division’s interpretation was entitled to greater deference than the Appeals Board’s 

5
construction. In the end, the court held that, for purposes of section 3395, “ ‘outdoors’ is 

defined as ‘out of doors’ or ‘not in a building’ and that if an enclosure or structure does 

not provide sufficient environmental protections to be considered ‘indoor’ then it is 

‘outdoor.’ ” On this basis, the trial court granted judgment in the Division’s favor 

(Judgment) and ordered issuance of a writ of mandate (Writ), directing the Appeal’s 

Board to set aside its decision and reconsider the matter in accordance with this “proper”

definition of “outdoor.” 

Timely notices of appeal were subsequently filed by both AC Transit and the 

Appeals Board, bringing the matter before this court. 

II. DISCUSSION

A. Rules of Interpretation and Standard of Review

“The interpretation of a regulation, like the interpretation of a statute, is, of course, 

a question of law” and is therefore subject to our de novo review. (Carmona v. Division 

of Industrial Safety (1975) 13 Cal.3d 303, 310 (Carmona).) Accordingly, while an 

administrative agency’s interpretation of its own regulation is entitled to deference 

appropriate to the circumstances, “the ultimate resolution of such legal questions rests 

with the courts.” (Ibid.; Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 

Cal.4th 1, 7-8, 11-13 (Yamaha) [An agency’s interpretation of a regulation is contextual

and is only one among several tools available to the court: “Depending on the context, it 

may be helpful, enlightening, even convincing. It may sometimes be of little worth.”].) 

When interpreting an administrative regulation, we follow the same rules of construction 

that apply to statutes. (County of Sacramento v. State Water Resources Control Bd.

(2007) 153 Cal.App.4th 1579, 1586 (Sacramento County).) Thus, our fundamental 

objective is to ascertain and effectuate the intent of the agency issuing the regulation. 

(New Cingular Wireless PCS, LLC v. Public Utilities Com. (2016) 246 Cal.App.4th 784, 

795 (New Cingular); see also De La Torre v. California Horse Racing Bd. (2017) 7 

Cal.App.5th 1058, 1066 (De La Torre); Katz v. Los Gatos-Saratoga Joint Union High 

School Dist. (2004) 117 Cal.App.4th 47, 54 (Katz).)

6
In determining the issuing agency’s intent, we look first to the language of the 

regulation itself. (Katz, supra, 117 Cal.App.4th at p. 54; De La Torre, supra, 

7 Cal.App.5th at p. 1066.) “ ‘If the language is clear and unambiguous there is no need

for construction, nor is it necessary to resort to indicia of the intent of the [agency]. . . .’ 

[Citation.] ‘But the “plain meaning” rule does not prohibit a court from determining 

whether the literal meaning of a [regulation] comports with its purpose. . . .’ [Citation.] 

Furthermore, ‘ “where a word of common usage has more than one meaning, the one

which will best attain the purposes of the [regulation] should be adopted, even though the

ordinary meaning of the word is thereby enlarged or restricted and especially in order to

avoid absurdity or to prevent injustice.” ’ ” (Katz, supra, 117 Cal.App.4th at p. 54; see 

also New Cingular, supra, 246 Cal.App.4th at pp. 796-797 [choosing from “any number 

of permissible interpretations” the one that was reasonable—keeping in mind the 

“Legislature’s expressly stated intent.”) Moreover, “[w]e do not construe a regulation in 

isolation, but instead read it with reference to the scheme of law of which it is a part, so 

that the whole may be harmonized and retain effectiveness.” (De La Torre, supra, 7 

Cal.App.5th at p. 1066; New Cingular, supra, 246 Cal.App.4th at p. 795.) Finally, when

an examination of regulatory language in its proper context fails to resolve an ambiguity,

courts may “turn to the [regulatory] history of an enactment as an aid to its 

interpretation.” (Katz, supra, 117 Cal.App.4th at p. 55.)

With all of the foregoing principles in mind, we address the task at hand: 

interpreting the term “outdoor” in the context of the Standard Board’s heat illness 

prevention regulation, section 3395.

B. Application of Section 3395 to Non-Air-Conditioned Vehicles 

If one thing is clear in this case, it is that the term “outdoor places of employment”

as used in section 3395 is not clear. Thus, contrary to the conclusion reached by the 

Appeals Board in this matter, there is no dispositive “plain meaning” that can be relied 

upon when determining its import. Rather, “outdoor” can be defined variously as: 

something “[t]hat is done, exists, lives, or is used, out of doors, without the house, or in 

the open air” (X Oxford English Dict. (2d ed. 1989) p. 1011); “existing, happening, or 

7
done outside a building” (Cambridge Dict.

<https://dictionary.cambridge.org/us/dictionary/english/outdoor#dataset-americanenglish> [as of Aug. 13, 2018]); “of or relating to the outdoors” or “not enclosed: having 

no roof” (Merriam-Webster’s Collegiate Dict. (11th ed. 2014) p. 880 (MerriamWebster’s)); and “characteristic of, located, occurring, or belonging outdoors” 

(Dictionary.com <http://www.dictionary.com/browse/outdoor> [as of Aug. 13, 2018]

(Dictionary.com)). Similarly, when used in its noun form—as in some definitions of 

outdoor—“outdoors” is defined in a number of ways as well, including: “any area outside 

buildings or shelter, typically [] far away from human habitation” (English Oxford Living 

Dicts. <https://en.oxforddictionaries.com/definition/outdoors> [as of Aug. 13, 2018]); “a 

place outside, away from buildings, where you can experience nature” (Cambridge Dict.

<https://dictionary.cambridge.org/us/dictionary/ english/outdoors>) [as of Aug. 13, 

2018]; “a place or location away from the confines of a building” (Merriam Webster’s at 

p. 880); or “the world outside of or away from houses; open air” (Dictionary. Com). It 

thus appears that the term “outdoor” includes within its common meanings both the idea 

of being “outside of a building” and the notion of being “in the open air.” 

Because the plain language of the regulation is not dispositive, we turn next to the 

relevant regulatory history. (See J.G. Boswell Co. (CALOSHA, Feb. 21, 1991) OSHAB 

90-R2D5-284 [1991 WL 528460], Decision After Reconsideration [Final Statement of 

Reasons approved by the Standards Board is “clear evidence of the intent of the 

Standards Board”].) As stated above, after issuance of an emergency heat illness 

prevention regulation, the Standards Board promulgated the permanent, 2006 version of 

section 3395 at the culmination of an administrative rulemaking process which included 

issuance of an ISOR and a FSOR. The ISOR states that section 3395 applies only to 

outdoor places of employment in order to “limit the requirements of the proposed 

standard to employers with employees having significant exposure to outdoor work, with 

the intended effect of protecting employees performing such work from the increased risk 

of heat illness that can result from working without the environmental protections indoor 

working environments can provide.” (ISOR at p. 2, italics added.)

8
Despite a number of requests after issuance of the ISOR, the Standards Board 

expressly declined to expand section 3395 to indoor places of employment. (FSOR at pp. 

6-7, 50-51, 54.) Although the Standards Board recognized that “risk of heat illness is not 

limited to outdoor work environments, and that in fact some of the most severe exposures 

to heat can occur in artificially heated environments,” it believed that the “vast majority” 

of serious cases had occurred “where the employee is working out of doors.” (FSOR at 

p. 6.) The Standards Board indicated its intent to study indoor environments at a later 

time. (Id. at p. 7.)

In addition, the Standards Board declined a request to include a definition of 

“outdoor places of employment” in section 3395, stating that it did not believe it was 

necessary. (FSOR at pp. 27-28.) In particular—in a statement highly relevant to the 

instant case—the Standards Board rejected a definition of “outdoor” which would include 

“nominally outdoor places of employment,” stating: “The [Standards] Board recognizes 

that packing sheds and partial or temporary structures, such as tents, lean-tos, and 

structures with one or more open sides, can be either indoor or outdoor workplaces 

depending on the circumstances. In many case these structures may actually be hotter 

than the environment outside of them because of heating by the sun and conditions inside 

like limited air circulation and/or lack of insulation. The Board believes that it is clear 

the standard is intended to protect employees from heat illness resulting from exposure to 

outdoor environmental risk factors, and therefore temporary or partial structures that do 

not significantly reduce the net effect of the environmental risk factors that exist 

immediately outside should be considered outdoor workplaces.” (Ibid., italics added.) 

We believe this statement is strong evidence that the Standards Board intended section 

3395 to apply to workplaces outside of a building where the environmental protections 

offered are insufficient to reduce existing environmental risk factors for heat illness, as 

the trial court held. 

There are, moreover, additional statements in the regulatory history that further 

support this view. For instance, in response to a request that work vehicles used for 

extended travel be required to have working air conditioning systems during periods of 

9
extreme heat, the Standards Board opined: “The proposed standard would apply to nonair-conditioned work vehicles used for extended travel during periods of extreme heat. 

Employees traveling in these conditions are entitled to all of the protections provided by 

the standard including access to shade. The standard specifically states, ‘Shade is not 

adequate when heat in the area of shade defeats the purpose of shade, which is to allow 

the body to cool. For example, a car sitting in the sun does not provide acceptable shade 

to a person inside it, unless the car is running with air[-]conditioning.’ The [Standards] 

Board is not aware of any scientific evidence that passengers riding in a work vehicle, in 

compliance with motor vehicle and other applicable standards, are exposed to a greater 

risk of heat illness than workers at other outdoor workplaces, which are not required to 

be air-conditioned. The [Standards] Board believes the issues related to the necessity and 

feasibility of a proposed requirement for air-conditioned vehicles were not adequately 

vetted during this rulemaking. Therefore the [Standards] Board does not believe that 

further modification to the proposal is necessary as a result of this comment.” (FSOR at 

p. 30, italics added; see also ISOR at p. 3; § 3395, subd. (b).)3

 Thus, the Standards Board 

expressly distinguished air-conditioned and non-air-conditioned vehicles for purposes of 

section 3395, confirmed that it was not requiring that air conditioning be installed to 

comply with the terms of the regulation, and clearly believed that non-air-conditioned 

vehicle interiors could be deemed outdoor places of employment.4

It is true that the emergency version of section 3395 “limited application of its 

provisions to ‘outdoor places of employment at those times when the environmental risk 

factors for heat illness as defined in (b), are present.’ ” (See ISOR at p. 2, italics added.) 

3 Although this request was made by the California Rural Legal Assistance 

Foundation, there is no indication that the Standards Board’s statements in response are 

limited to agricultural transport vehicles as the Appeals Board and the DAR suggest. 

4 While AC Transit suggests that this interpretation, if adopted, would apply to 

“every driver of every vehicle” doing the “work” of driving, such a construction is 

obviously overbroad as the regulation is clearly targeted at outdoor places of employment. 

Thus, it would only cover employees who are required to drive or ride in vehicles during 

the course of their employment, making such vehicles a worksite. 

10

 
However, as stated in the ISOR, “[t]his limitation is not included in the proposed 

permanent rule because of the variability of environmental risk factors and the resulting 

difficulty of predicting with confidence when environmental risk factors for heat illness 

may be present.” (Ibid.) And the FSOR expressly refused to reinsert similar language on 

the same grounds. (FSOR at pp. 3, 15.) Thus, section 3395 is intended to apply to “all 

outdoor places of employment in California year round, whether or not there is any risk 

of heat illness.” (FSOR at p. 20; see also id. at p. 8 [noting Standards Board’s belief that 

“requiring all employers with employees working outdoors to determine the WBGT [Wet 

Bulb Globe Temperature] on a continuous, or even intermittent, basis would not 

substantially contribute to control of employee risk of heat illness while at the same time 

consuming resources that could have a greater effect implementing control measures, 

such as providing readily available drinking water along with shade and other means of 

cooling”].)

The Appeals Board argues that this regulatory history suggests that the Standards 

Board deliberately avoided any language in the regulation that would limit its application 

based on the presence or absence of environmental risk factors and that the trial court’s 

proposed definition—stating that “if an enclosure or structure does not provide sufficient 

environmental protections to be considered ‘indoor’ then it is ‘outdoor’ ”—does exactly 

that, contrary to the intent of the Standards Board. And, indeed, the trial court appears to 

have relied on these aspects of the regulatory record in concluding that the history

contained “contrary indications” regarding the appropriate definition of outdoor. We 

agree with the Division, however, that the Appeals Board’s argument improperly 

conflates two very different things. 

In adopting the permanent version of section 3395, the Standards Board clearly 

and repeatedly declined to include environmental triggers for when the heat illness 

prevention standards would apply to outdoor work due to the difficulties employers 

would encounter in constantly monitoring employee work environments to determine 

whether any such adopted thresholds were met. (ISOR at p. 2; FSOR at p. 3.) Thus, 

once a worksite is determined to be outdoor, section 3395 applies continuously and 

11
prophylactically, regardless of whether there is any current risk of heat illness. (FSOR at 

p. 20.) In contrast, the Standards Board unequivocally indicated that reference to 

environmental factors is appropriate in determining whether certain atypical structures or 

enclosures should be considered outdoor workplaces and therefore subject to section 

3395. (FSOR at p. 28.) This approach is not inconsistent with the Standards Board’s ban 

on specific environmental triggers, as any such analysis is a one-time determination 

focused solely on whether the enclosure in question contains sufficient environmental 

protections to “significantly reduce the net effect of the environmental risk factors that 

exist immediately outside.” It therefore presents none of the issues of continuing 

variability and unpredictability that caused the Standards Board to abandon reliance on 

environmental triggers. 

In addition, we are unpersuaded by the Appeals Board’s argument that the trial 

court in this case created a two-pronged test that is contrary to the regulatory language 

and history. For instance, the Appeal Board contends at length that if outdoor is defined 

as “not in a building” in accordance to the first prong of the trial court’s test, then all 

work vehicles—whether air-conditioned or non-air-conditioned—as well as underground 

worksites must be considered outdoor places of employment, contrary to the position of 

the Division and the regulatory history.5

 The Appeals Board further asserts that the 

second prong of the trial court’s test—defining outdoor to mean an enclosure or structure 

that does not provide sufficient environmental protections—significantly departs from the 

plain meaning of the word outdoor. 

We do not, however, view the trial court’s definition as bifurcated in this way. 

Rather, outdoor is defined simply as outside of a building, a common meaning of the 

word. It is only in determining what types of non-traditional structures or enclosures 

5 The Appeals Board misreads the regulatory history to the extent it asserts that the 

FSOR specifically declined to extend the protections of section 3395 to air-conditioned 

vehicles. Rather, the referenced statement in the FSOR—which we quote in full above—

provides only that the Standards Board would not consider a requirement that all vehicles 

provide air conditioning because that suggestion had not been adequately vetted during 

the rulemaking process. 

12

 
should be deemed buildings for purposes of this standard that the regulatory history 

expressly indicates the need to consider whether the structures or enclosures 

“significantly reduce the net effect of the environment risk factors that exist immediately 

outside.” If they do not, then the Standards Board’s apparent intent is to protect 

employees working in those environments “from the increased risk of heat illness that 

can result from working without the environmental protections indoor working 

environments can provide.” (ISOR at p. 2.) The trial court’s construction appropriately 

takes into account this regulatory intent. Thus, under the trial court’s definition, neither 

air-conditioned vehicles nor underground worksites would be deemed “outdoor” due to 

their inherent cooling attributes. In contrast, it appears from the existing administrative 

record that AC Transit’s non-air-conditioned buses may very well fall within the purview 

of the outdoor standard. 

We determine, then, that the regulatory history in this matter not only strongly 

supports the interpretation of “outdoor places of employment” adopted by the trial 

court—which is broad enough to include non-air-conditioned transit buses—but also 

speaks unambiguously on that issue and is therefore conclusive.

6

 

Moreover, the trial court’s interpretation of section 3395 is consistent with the 

underlying purpose of the entire regulatory scheme of which it is a part. Specifically, in 

the particular context of workplace health and safety here at issue, our high court has 

reviewed the statutory structure and—noting that the relevant provisions “speak in the 

broadest possible terms”—has concluded that “the terms of the legislation are to be given 

a liberal interpretation for the purpose of achieving a safe working environment.” 

6 Because we find the rulemaking history both dispositive and consistent with the 

regulatory language, we need not reach the issue of which agency’s interpretation, if any, 

is entitled to greater deference in this context, a question discussed at length by the trial 

court and strongly disputed by the parties. As stated above, “the ultimate resolution” of 

this question of regulatory interpretation “rests with the courts.” (Carmona, supra, 13 

Cal.3d at p. 310.) If anything, the fact that the two agencies tasked with applying section 

3395—the Division and the Appeals Board—fundamentally disagree on its interpretation 

argues against the existence of any consistent administrative construction to which we 

should defer. (Yamaha, supra, 19 Cal.4th at p. 13.)

13

 
(Carmona, supra, 13 Cal.3d at pp. 312-313; see, e.g., Lab. Code, § 6401 [“Every 

employer shall do every . . . thing reasonably necessary to protect the life, safety, and 

health of employees.”]; id., § 6307 [providing that the Division “has the power, 

jurisdiction, and supervision over every employment and place of employment in this 

state, which is necessary to adequately enforce and administer all laws and lawful 

standards and orders, or special orders requiring such employment and place of 

employment to be safe, and requiring the protection of the life, safety, and health of every 

employee in such employment or place of employment”].) On this basis, the Supreme 

Court in Carmona rejected a narrow agency construction excluding short-handled hoes 

from the purview of a regulation mandating that unsafe hand tools not be used. 

(Carmona, supra, 13 Cal.3d at pp. 305-308.) 

The agency in Carmona had reasoned that short-handled hoes were not inherently 

dangerous, but only had the potential to cause harm with extended use in a bent-over 

position. (Carmona, supra, 13 Cal.3d at pp. 305-308.) However, noting the “clear 

language of the regulation” and the “comprehensive sweep” of worker safety legislation, 

the Carmona court disagreed, holding that “any hand tool which causes injury, immediate 

or cumulative, when used in the manner in which it was intended to be used may 

constitute an ‘unsafe hand tool’ within the meaning of the regulation.” (Id. at p. 313.) 

Similarly, in this case, selecting the interpretation of “outdoor” espoused by the trial court 

both acknowledges the “comprehensive sweep” of worker safety legislation and chooses 

from among common meanings the interpretation which will best attain the purpose of 

section 3395, the prevention of heat illness in employees who do not work indoors. (See 

Carmona, supra, 13 Cal.3d at p. 313; Katz, supra, 117 Cal.App.4th at p. 54 [“ ‘ “where a

word of common usage has more than one meaning, the one which will best attain the

purposes of the [regulation] should be adopted, even though the ordinary meaning of the

word is thereby enlarged” ’ ”].) 

14
Finally, although not necessary to our conclusion, we note that the current version 

of section 3395 supports our construction of the term “outdoor.”7

 As stated above, this 

iteration of the regulation still applies to “all outdoor places of employment,” and that 

term remains undefined. (Cal. Code Regs., tit. 8, § 3395, subds. (a) & (b).) However, the 

current regulation includes certain high-heat procedures which are triggered when the 

temperature equals or exceeds 95 degrees Fahrenheit. (Id., subd. (e).) While these highheat procedures are only applicable to certain industries and would not apply to AC 

Transit’s non-air-conditioned buses, they are nevertheless instructive because, pursuant to 

the express terms of the regulation, they do apply to the “[t]ransportation or delivery of 

agricultural products, construction materials or other heavy materials (e.g. furniture, 

lumber, freight, cargo, cabinets, industrial or commercial materials), except for 

employment that consists of operating an air-conditioned vehicle and does not include 

loading or unloading.” (Id., subd. (a)(2)(E), italics added.) Moreover, subparagraph (2), 

of which this language is a part, states that it is a “[l]ist of industries subject to all 

7 AC Transit’s pending motion for judicial notice of the current version of section 

3395 is hereby granted, and, on our own motion, we take judicial notice of the 2010 

version of the regulations as well. (See Evid. Code, §§ 452, subd. (b); 459, subd. (a); see 

also Cal. Code Regs., tit. 8, § 3395; former Cal. Code Regs., tit. 8, § 3395 [2010 

version].) AC Transit argues that the current version of section 3395 is relevant because 

it sets forth the requirements that it will be obligated to meet going forward if its non-airconditioned buses are deemed to be “outdoor places of employment.” The Division 

objects, arguing that the sole issue before this court is whether the term “outdoor” should 

be interpreted to include non-air-conditioned buses and thus any issues involving AC 

Transit’s ability to comply with the regulation are irrelevant. While we observe that the 

regulatory structure contains a number of alternatives to strict compliance, we agree with 

the Division that those questions are not before us. (Lab. Code, §§ 143 [allowing for a 

permanent variance from an occupational safety and health standard “upon a showing of 

an alternate program, method, practice means, device, or process which will provide 

equal or superior safety for employees”], 6450 [permitting Division to grant a temporary 

variance]; see also Cal. Code Regs., tit. 8, § 3395, subd. (d) exceptions (1) & (2)

[allowing alternative procedures for providing access to shade, including use of cooling 

measures, that provide equivalent protection]; FSOR at p. 46 [noting availability of 

personal cooling devices].) Instead, we consider both the current version and the 2010

version of section 3395 only as they relate to the issue of regulatory interpretation with 

which we are here presented.

15

 
provisions of this standard, including subsection (e) [the high-heat procedures].” (Id., 

subd. (a)(2), italics added.) Since section 3395 continues to apply only to outdoor places 

of employment and purports to regulate certain non-air-conditioned vehicles, it is 

apparent that, at least currently, the Standards Board intends “outdoor places of 

employment” to be interpreted broadly enough to encompass non-air-conditioned 

vehicles. 

In sum, we find the trial court’s definition of “outdoor” to be consistent with the 

language of section 3395 and amply supported by its regulatory history. Moreover, this

broader construction comports with the underlying purpose of the entire statutory 

scheme: the achievement of safe working environments. (Carmona, supra, 13 Cal.3d at 

pp. 312-313.) Under such circumstances, we will not here disturb it. 

However, in its Order granting the Division’s petition for writ of mandate, the trial 

court—after setting forth the “proper” definition of outdoor for purposes of section 

3395—went on to instruct the Appeals Board to determine on remand “whether a bus is 

physically ‘outdoor,’ whether employment in a bus is consistently or only intermittently 

‘outdoor,’ and whether AC Transit provided water, shade or a shade equivalent, [and] 

appropriate training.” We agree that the Appeals Board must determine on remand 

whether AC Transit’s non-air-conditioned buses are “outdoor” places of employment for 

purposes of section 3395. Specifically, as discussed above, the Appeals Board should 

consider whether the buses at issue “significantly reduce the net effect of the environment 

risk factors that exist immediately outside.” (FSOR at p. 28.) If they do not, they are 

outdoor worksites subject to section 3395. The Appeals Board need not, however, 

determine on remand whether employment as a bus driver on these non-air-conditioned 

buses is only intermittently outdoors as the trial court suggests. Rather, the Standards 

Board has indicated that even work that is only intermittently outdoors is covered by 

section 3395 and that “it is the responsibility of the employer to determine if the time 

spent indoors satisfies the requirements for an adequate supply of water and shade for 

preventative recovery periods, thus leaving the employer with an obligation to provide 

training.” (FSOR at p. 3.) Finally, the administrative record is clear that AC Transit 

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never argued that it had complied with section 3395 either before the ALJ or the Appeals 

Board. Thus, it has forfeited this potential defense and is not entitled to raise it on 

remand. 

III. DISPOSITION

The Order and related Judgment are affirmed in part and reversed in part as set 

forth herein. The trial court is instructed to vacate the related Writ and issue a new writ 

of mandate in its place directing the Appeals Board to reconsider its DAR in light of this 

opinion. Each party to bear its own costs.

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_________________________

REARDON, J.

We concur:

_________________________

STREETER, ACTING P. J.

_________________________

SMITH, J.*

*Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, 

section 6 of the California Constitution.

A142799 CA Industrial Relations v. CA OSHA

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Trial Court:

Alameda County Superior Court

Trial Judge:

Hon. Evelio M. Grillo

Counsel for Defendant and Appellant:

J. Jeffrey Mojcher; Chief Counsel, California Occupational Safety and 

Health Appeals Board

Aaron R. Jackson; Industrial Relations Counsel III, California Occupational 

Safety and Health Appeals Board

Autumn R. Gonzales; Industrial Relations Counsel II, California 

Occupational Safety and Health Appeals Board

Counsel for Real Party in Interest and Appellant

Robert D. Peterson; Robert D. Peterson Law Corporation

Counsel for Plaintiff and Respondent:

Amy D. Martin; Chief Counsel, Division of Occupational Safety and 

Health

Allyce Kimerling; Staff Counsel, Division of Occupational Safety and 

Health

A142799 CA Industrial Relations v. CA OSHA

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