BERTKE ELECTRIC COMPANY, INC.

OSHRC Docket No. 3409

Occupational Safety and Health Review Commission

June 24, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On January 17, 1974, the Commission directed review, pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"), of Judge Henry K. Osterman's decision and order of December 18, 1973. Judge Osterman affirmed a citation alleging that respondent violated section 5(a)(2) of the Act and 29 CFR 1926.400(a) n1 because its methods of supporting temporary electrical wiring failed to comply with the National Electrical Code (hereinafter "NEC"). The facts were stipulated by the parties and no hearing was held.

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n1 29 CFR 1926.400(a) provides that "[a]ll electrical work, installation, and wire capacities shall be in accordance with the pertinent provisions of the National Electrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. of C1-1968). . . ."

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We have reviewed the record and affirm the Judge's decision in its entirety.

Respondent, an electrical contractor, was engaged [*2] in the installation of temporary electric wiring at the Beckjord Power Plant, New Richmond, Ohio. On June 4, 1973, a compliance safety and health officer observed temporary energized wiring, of which some was supported by other pieces of insulated wire attached to I-beams and some supported by metal ductwork.

There is no dispute that the wiring in contact with the ductwork is violative of the NEC. The issue before us is whether the use of insulated wire to support temporary electrical wiring in branch circuits n2 is also a violation of the NEC. Respondent concedes that this method of support fails to comply with Article 320 n3 thereof but contends that Article 320 applies only to permanent wiring. According to respondent, temporary wiring is governed by Article 305, which, unlike Article 320, does not require rigid insulating supports for branch cirucits. n4

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n2 The stipulation does not state whether the wiring in question is for branch circuits or for feeder lines. As discussed herein, different standards apply depending on the type of circuit. However, in their briefs both parties regard the circuits as branch circuits and therefore we will assume that this is the case.

n3 Section 5 of this article reads as follows:

Supports.

(a) Conductors shall not be in contact with any object other than their insulating supports. They shall be rigidly supported on non-combustible, non-absorptive insulating material. . . .

n4 Section 2 of this article reads as follows:

(b) Feeders. . . . The conductors may be contained within multi-conductor cord or cable assemblies or where not subject to mechanical injury, they may be run as open conductors on insulators not more than 10 feet apart.

(c) Branch Circuits. . . . Conductors may be contained within multi-conductor cord or cable assemblies or as open wiring. . . . When run as open conductors they shall be fastened at ceiling height every 10 feet. No conductor shall be laid on the floor. . . .

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We do not agree that Article 320 is inapplicable in view of section 305-1, which defines the scope of Article 305:

The provisions of this Article are applicable to temporary electrical power and lighting wiring methods which may be of a class less than would be required for a permanent installation. Except as specifically modified in this Article, all other requirements of this Code for permanent wiring shall apply to temporary wiring installations. (Emphasis supplied)

We interpret this language to mean that all NEC requirements for permanent wiring apply as well to temporary wiring unless Article 305 explicitly imposes different requirements. Since section 305-2 provides that feeders may be run as open conductors on insulators it obviously provides a method of attachment of feeders. However, Article 305 is silent on the question how branch circuits run as open conductors, as in this case, are to be supported. The only attachment requirement specified for such circuits refers to the height and the interval of attachment ("fastened at ceiling height every 10 feet"). We therefore [*4] conclude that Article 320 is applicable to the method of attaching the wiring at issue by the plain terms of section 305-1. n5

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n5 Respondent contends that it is the intent of the NEC to distinguish "open conductors" (section 305-2) from "open wiring" as that term is defined in section 320-1: "Open wiring is a wiring method using cleats, knobs, tubes and flexible tubing for the protection and support of insulated conductors run in or on buildings, and not concealed by the building structure." We agree that according to this definition "open wiring" is a term of art denoting open conductors supported by insulators, and we thus agree that the phrases "open wiring" and "open conductors" may have different meanings. However, the issue before us is not their respective meanings but the applicability of Article 320 to conductors used in temporary wiring. It is obvious from note 3 supra that section 320-5 explicitly imposes requirements on "conductors," regardless of whether that term is distinguished from "open wiring," and we have concluded that such requirements apply to temporary wiring according to section 305-1. Therefore, the definition of open wiring does not limit the scope of Article 320.

[*5]

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As previously noted, there is no dispute that respondent failed to use the insulating supports required by Article 320 and that it also failed to comply with the NEC by allowing energized wiring to contact metal ductwork. We therefore agree with the Judge that respondent is in violation of 29 C.F.R. 1926.400(a).

Furthermore, for the reason that contact between energized wiring and metal is obviously hazardous we conclude that a penalty should be assessed for the violation. The parties stipulated to the appropriateness of the proposed penalty of $35. Since a considerable number of employees (14) were exposed, we consider the gravity of the violation to be moderate. Respondent's size (over 200 employees and net worth in excess of $1,000,000) is large but there is no evidence from which we could conclude that it has not acted in good faith and no evidence of any prior violations of the Act. Under the circumstances, we accept a $35 amount as appropriate.

Accordingly, the Judge's decision is affirmed.

[The Judge's decision referred to herein follows]

OSTERMAN, JUDGE: On June 18, 1973 [*6] Respondent was served with a Citation alleging four (4) non-serious violations. A Notice of Proposed Penalty in the total amount of $85.00 was issued at the same time. Thereafter, on June 25th Respondent filed a Notice of Contest with respect to Item 4 of the said Citation and the proposed penalty of $35.00. The other violations charged in the Citation are not at issue here. Item 4 charged a violation of 29 CFR 1926.400(a) N.E.C., NFPA 70-1971, Article 320-5. [Non-standard open wiring methods used to support temporary wiring].

A Complaint and Answer were filed and the matter was docketed for hearing on October 31, 1973. At the request of the parties the hearing was cancelled pending receipt of a Stipulation of Facts.

On November 5th a stipulation was filed which conceded inter alia the jurisdiction of this Commission and these additional pertinent facts:

1. That on June 4, 1973 fourteen of Respondent's employees were installing temporary electric wiring at a job site.

2. The temporary wiring was energized.

3. The temporary wiring was not in conduit.

4. The temporary wiring was 12 TW and Romex.

5. The temporary wiring was supported to I-beams with other pieces [*7] of insulated wire.

6. The temporary wiring was in contact with metal duct work.

7. That 29 CFR 1926.400(a) is the standard applicable to the installation of electrical wiring and that this standard states that all wiring shall be done in accordance with the National Electrical Code of 1971.

The issue for determination is whether or not the temporary wiring described above meets the applicable standard.

On November 9th and 12th Respondent and Complainant filed what are in effect cross-motions for summary judgment together with argument in support of the motions.

FINDINGS OF FACT

1. Respondent is a corporation organized and existing under the laws of the State of Ohio. It is engaged in business as an electrical contractor.

2. Respondent regularly uses materials and goods which have moved across state lines.

3. On or about June 4, 1973 Respondent was engaged in the installation of electrical equipment at the Beckjord Power Plant, Route 52 East, New Richmond, Ohio.

4. In the course of an inspection conducted on June 4th by a compliance officer employed by the Complainant it was observed that Respondent had installed temporary energized wiring at the worksite. [*8]

5. The said temporary wiring was supported overhead either by other pieces of insulated wire attached to I-beams or by being draped over metal ducts.

6. A Citation was issued to Respondent on June 18, 1973 charging inter-alia that the method of supporting the temporary wiring described in Finding #5 above was in violation of 29 CFR 1926.400(a). A penalty of $35.00 was proposed for this violation.

7. The standard established by 29 CFR 1926.400(a) for installation of temporary wiring is found in the National Electrical Code, Articles 305 and 320.

8. Article 305 of the National Electrical Code which is entitled "Temporary Wiring" expressly states that "Except as specifically modified in this Article, all other requirements of this Code for permanent wiring shall apply to temporary wiring installations."

9. Article 305 does not authorize the Respondent to use the method of supporting temporary wiring which is described in Finding #5 above.

10. The decision of the Administrative Law Judge in Secretary of Labor v. Amelco Electric, a Division of Amelco Industries, Docket No. 2462, is applicable to the instant case.

CONCLUSIONS OF LAW

1. Respondent is [*9] an "employer" engaged in "commerce" as those terms are defined by Section 3 of the Occupational Safety and Health Act of 1970 and is subject to the jurisdiction of this Commission.

2. On June 4, 1973 Respondent was in violation of 29 CFR 1926.400(a) N.E.C. NFPA 70-1971, Article 320-5.

ORDER

Pursuant to Section 10 of the Occupational Safety and Health Act of 1970 and Section 66 of this Commission's Rules of Procedure it is ORDERED:

1. That the Complainant's Motion for Summary Judgment be, and the same hereby is, GRANTED.

2. The Citation and the Proposed Penalty are AFFIRMED.