SECRETARY OF LABOR,
Complainant,

v.
ECCO HIGH FREQUENCY ELECTRIC CORP.,
Respondent.

OSHRC Docket No. 77-1030

DECISION

Before:  ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:

The Secretary of Labor ("Secretary") alleges that Ecco High Frequency Electric Corp.  ("Ecco") violated Article 110-17(a) of the 1971 National Electrical Code ("NEC"), as adopted by 29 C.F.R. § 1910.309(a), [[1]] by failing to guard certain live electrical parts against accidental contact.  In his first decision in this case, Administrative Law Judge Robert P. Weil held that Article 110-17(a) did not apply to the electrical installation that was the subject of the citation.  The Commission reversed that ruling and remanded to the judge for a decision on the merits. [[2]]

On remand, Judge Weil determined that Ecco had failed to comply with Article 110-17(a) but held that the standard, as interpreted by the Commission in its earlier decision, was invalidly promulgated.  On this basis, the judge again vacated the citation.  The Secretary's petition for review of the judge's decision was granted by Commissioner Cleary pursuant to 29 U.S.C. § 661(i).

The threshold argument raised in the Secretary's petition is that Judge Weil's decision on remand exceeded the scope of the Commission's remand order.  The Secretary points out that the Commission specifically remanded for a decision "on the merits of the allegation that Respondent failed to comply with section 110-17(a) of the National Electrical Code as adopted by 29 C.F.R. § 1910.309(a)."  We agree with the Secretary's argument.  Ecco had not questioned the validity of the standard before the judge and therefore the Commission's remand order, even under the broadest possible interpretation, could not have contemplated a ruling on that issue.  See New England Telephone & Telegraph Co., 78 OSAHRC 40/A13, 6 BNA OSHC 1613, 1978 CCH OSHD ¶ 22,727 (No. 9627, 1978), rev'd on other grounds, 589 F.2d 81 (1st Cir. 1978) (judge erred in ruling on issue that employer had not previously raised and was outside scope of remand order).  Furthermore, the judge's conclusion that the standard as interpreted by the Commission was invalidly promulgated was based in part on his assumption that the NEC was intended by its drafters to have prospective effect only and not to apply to existing installations.  However, the parties did not present evidence or argument regarding the actual intent of the NEC on this point.  Therefore, the judge's decision was made without any supporting record. Accordingly, the judge's ruling on the validity of the standard is set aside.

Normally, we would remand this case for the judge to issue a decision in conformity with the original remand order.[[3]]  However, because Judge Weil is no longer with the Commission, and the Commission possesses the authority to make the determinations necessary to dispose of the case, we shall rule on the merits.  See Butler Lime & Cement Co., 79 OSAHRC 103/D12, 7 BNA OSHC 1973, 1974, 1979 CCH OSHD ¶ 24,091 at p. 29,267 (No. 855, 1979).

The alleged violation concerns three uninsulated copper bars, energized to 110-220 volts, on an electrical test panel.  The bars are 5 to 6 feet above the floor and approximately 16 feet long.  The panel is used only by trained personnel familiar with electricity, but the area in which the panel was located had no partitions to keep other employees away.  Immediately after the Secretary's compliance officer pointed out the problem, Ecco covered the exposed copper bars.

Because Ecco did not use any of the means of guarding permitted by Article 110-17(a), note 1 supra, it violated the standard.[[4]] We conclude that the violation is serious, as alleged by the Secretary.  The compliance officer's testimony that contact with the energized copper bars would cause serious electrical shock or flash burns was unrebutted.  We also conclude, however, that only a nominal penalty should be assessed.[[5]]  Ecco is a small employer, and it demonstrated good faith by immediately abating the hazard.

Accordingly, the citation alleging a serious violation of Article 110-17(a) of the 1971 NEC, as adopted by 29 C.F.R. § 1910.309(a), is affirmed.  A penalty of one dollar is assessed.  SO ORDERED.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  APR 20 1983

COTTINE, Commissioner, concurring:

The Commission's earlier remand order did not preclude the judge from ruling on the validity of the cited standard.  However, it was improper for the judge to consider the issue because it was not raised by Ecco and is not jurisdictional.   Despite the impropriety, the judge's ruling on this issue was dispositive below and his decision is before the Commission for review. Accordingly, the validity issue should be considered in the disposition of this case.  I conclude that the standard was validly promulgated for the reasons that follow and concur in the judgment that Ecco violated the standard for the reasons set forth in the lead opinion.

I
As the lead opinion notes, the Commission's original decision in this case held that the judge erroneously found the cited standard inapplicable to Ecco's equipment and remanded for a decision on the merits.  The Commission's ruling on the applicability question was the law of the case and could not be reconsidered by the judge on remand.  See Bethlehem Steel Corp., 82 OSAHRC 31/A2, 10 BNA OSHC 1673, 1676 n. 6, 1982 CCH OSHD ¶ 26,083 at p. 32,832 n. 6 (No. 77-1807, 1982).  However, nothing in the remand order precluded the judge from considering a different issue that would be dispositive of whether Ecco should be found in violation of the cited standard.  Cf. B.F. Goodrich Co., 81 OSAHRC 23/F1, 9 BNA OSHC 1444, 1981 CCH OSHD ¶ 25,261 (No. 2038, 1981) (procedural posture of case on remand from court of appeals required consideration of issue not strictly encompassed within the court's remand order).  The error in the judge's ruling on the validity of the standard was not that the issue was precluded by the remand order, but that the parties had not raised that issue before the judge.

The validity of a standard is not a jurisdictional issue that is appropriately raised sua sponte.  Huber, Hunt & Nichols, Inc, and Blount Brothers Corp., a Joint Venture, 76 OSAHRC 71/A2, 4 BNA OSHC 1406, 1407, 1976-77 CCH OSHD ¶ 20,837 at p. 25,010 (No. 6007, 1976); Juhr & Sons, 76 OSAHRC 1/A9, 3 BNA OSHC 1871, 1975-76 CCH OSHD ¶ 20,297 (No. 2314, 1976).  See Consolidated Pine, Inc., 75 OSAHRC 55/E14, 3 BNA OSHC 1178, 1974-75 CCH OSHD ¶ 19,597 (No. 5543, 1975).  However, after the judge issued his decision, the validity issue was directed for review, and has been fully argued by the parties.   This issue is also potentially dispositive of the case.  Under these circumstances, the issue is properly before the Commission.  See Power Systems Div., United Technologies Corp., 81 OSAHRC 50/C13, 9 BNA OSHC 1813, 1981 CCH OSHD ¶ 25,350 (No. 79-1552, 1981)(Commission permitted employer to amend its answer to challenge validity of standard after judge had ruled on his own motion that standard was invalid).

II
Section 6(a) of the Act, 29 U.S.C. § 655(a), authorized the Secretary, for a period of 2 years from the effective date of the Act, to summarily adopt national consensus standards as occupational safety and health standards. [[1/]] The electrical standards were initially adopted under this authority in 1971 from the 1968 edition of the National Electric Code ("NEC").  36 Fed. Reg. 10699 (1971).  After the 1971 revisions to the NEC, the Secretary repromulgated the electrical standards, adopting relevant provisions of the revised NEC. 37 Fed. Reg. 3432 (1972).  Section 1910.309(a) incorporated standards that were unchanged from the 1968 to 1971 editions of the NEC and remained applicable to all installations.  Section 1910.309(b) incorporated revised NEC provisions and contained a grandfather clause for existing installations.  See lead opinion note 2, supra.

A
Because section 6(a) permitted adoption of standards without resort to the rulemaking requirements of the Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706 (1977), standards adopted under that section cannot differ substantively from their source standards.  See American Can Co., 82 OSAHRC 5/A2, 10 BNA OSHC 1305, 1982 CCH OSHD ¶ 25,899 (Nos. 76-5162, 77-773, & 78-4478, 1982); Rockwell International Corp., 80 OSAHRC 118/A2, 9 BNA OSHC 1092, 1980 CCH OSHD ¶ 24,979 (No. 12470, 1980).  A section 6(a) standard would be invalid to the extent it altered the substantive requirements of a source standard.  Id.  Ecco's principal argument on review is that the NEC is a building design code, intended to be applied only to new installations, and that the Commission's application of Article 110-17(a) to an existing installation constitutes a substantive change from the source NEC.  However, nothing in either the NEC or in the record in this case supports the conclusion that the NEC
is intended to apply only to new installations.  The burden is on Ecco to show that a substantive change was made.  In view of the lack of any evidence that either the NEC in general or Article 110-17(a) in particular was intended to apply only to new installations, Ecco has not carried that burden.[[2/]]  See George C. Christopher & Sons, Inc., 82 OSAHRC 9/A2, 10 BNA OSHC 1436, 1443, 1982 CCH OSHD ¶ 25,956 at p. 32,531 (No. 76-647, 1982) (burden of proving invalidity of standard rests with party challenging standard's validity).

B
Judge Weil concluded that the 1971 NEC had been invalidly adopted because the Secretary could not exercise his section 6(a) authority more than once with respect to the same area of regulation.  The judge stated:

[T]he purpose of Congress in providing for the promulgation of the interim standards by the short cut method of § 6(a) --to quickly get on the books a body of rules upon which the duties of employers, under § 5(a), [2]9 U.S.C. § 654(a)(2), could be enforced -- carried with it its own limitation:  there would be one exercise of § 6(a) power in a given area of regulation, such as that covered by Subpart S, after which modifications would have to be effected by notice and comment rule making under § 6(b) of the Occupational Safety and Health Act and § 4 of the APA.

The Act's language and legislative history do not support the limitation read by the judge into section 6(a).  By its terms, section 6(a) is unequivocal, authorizing the Secretary to promulgate as an occupational safety and health standard any national consensus standard within the two-year period after the effective date of the Act.  See Chlorine Institute, Inc. v. OSHA, 613 F.2d 120 (5th Cir.), cert. den., 449 U.S. 826 (1980).  There is no question that the 1971 NEC contains this type of standard.  Moreover, the definition of a national consensus standard, note 1 supra, expressly includes modifications of existing standards by the standards-producing organization.  Read together with section 6(a), this definition suggests that Congress specifically intended the Secretary to have the authority to adopt modifications of national consensus standards made within the two-year period by the standards-producing organization.

Interpreting section 6(a) to permit the Secretary to promulgate revisions of national consensus standards within the two-year period is also consistent with the congressional purpose underlying that section:

The purpose of this procedure [summary adoption of national consensus standards] is to establish as rapidly as possible national occupational safety and health standards with which industry is familiar.  These standards may not be as effective or as up-to-date as is desirable, but they will be useful for immediately providing a nationwide minimum level of health and safety.

S. Rep. No. 1282, 91st Cong., 2d Sess. 6 (1970), reprinted in Subcomm. on Labor, Senate Comm. on Labor & Public Welfare, The Legislative History of the Occupational Safety and Health Act of 1970 at 146(1971).  See also Noblecraft Industries, Inc. v. Secretary of Labor, 614 F.2d 199, 203 (9th Cir. 1980). The express Congressional concern that certain national consensus standards adopted under section 6(a) would not be as up-to-date as desirable suggests that Congress did not intend to preclude the Secretary from adopting an updated version of a national consensus standard during the two-year period of section 6(a) authority simply because the Secretary had previously promulgated an earlier version of the same standard.

Accordingly, the incorporation of Article 110-17(a) of the 1971 NEC was a valid promulgation and the judge's ruling is properly reversed.  For the reasons stated in the lead opinion, I concur in finding Ecco in violation of that standard.

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] At the time this case arose, 29 C.F.R. § 1910.309(a) provided that certain articles and sections of the 1971 version of the NEC, including Article 110-17(a), applied to all electrical installations and utilization equipment.  Article 110-17(a) provided:

110-17 Guarding of Live Parts.  (Not more than 600 volts)

(a) Except as elsewhere required or permitted by this Code, live parts of electrical equipment operating at 50 volts or more shall be guarded against accidental contact by approved cabinets or other forms of approved enclosures, or any of the following means:

(1) By location in a room, vault, or similar enclosure which is accessible only to qualified persons.

(2) By suitable permanent, substantial partitions or screens so arranged that only qualified persons will have access to the space within reach of the live parts.   Any openings in such partitions or screens shall be so sized and located that persons are not likely to come into accidental contact with the live parts or to bring conducting objects into contact with them.

(3) By location on a suitable balcony, gallery, or platform so elevated and arranged as to exclude unqualified persons.

(4) By elevation at least 8 feet above the floor or other working surface.

Since this case arose, the Secretary has promulgated new electrical standards in 29 C.F.R., Part 1910 pursuant to 29 U.S.C. § 655(b).  46 Fed. Reg. 4034 (Janu. 16, 1981).  Included in the new standards is a provision essentially identical to the version of Article 110-17(a) quoted above.  29 C.F.R. § 1910.303(g)(2)(i).

[[2]] In holding that the standard did not apply, the judge relied on 29 C.F.R. § 1910.309(b), which provided that electrical installations or utilization equipment installed or modified after March 15, 1972 had to comply with the entirety of the 1971 NEC. The judge noted that the installation in Ecco's plant that was the subject of the citation had been installed prior to March 15, 1972
and had not been modified since that date.  In reversing the judge's decision, the Commission held that the particular provisions of the NEC incorporated under § 1910.309(a) were not subject to the "grandfather clause" in § 1910.309(b).   Ecco High Frequency Elec. Corp., 80 OSAHRC 51/A8, 8 BNA OSHC 1418, 1980 CCH OSHD ¶ 24,496 (No. 77-1030, 1980 ).  See also Delaware & Hudson Ry. Co., 80 OSAHRC 35/D10, 8 BNA OSHC 1252, 1980 CCH OSHD ¶ 24,422 (No. 76-787, 1980).

[[3]] The judge stated in his decision that Ecco failed to comply with the cited standard but made no findings of fact to support that conclusion.  This is not an acceptable decision on the merits.  See P & Z Co., 77 OSAHRC 211/F5, 6 BNA OSHC 1189, 1977-78 CCH OSHD ¶ 22,413 (No. 76-431, 1977).

[[4]] Ecco's president testified that a railing in front of the panel functioned as a guard.  However, a railing is not one of the guarding methods permitted by Article 110-17(a).  We note that one purpose of Article 110-17(a) is to prevent persons from contacting live parts with conducting objects.  See Article 110-17(a)(2).  A railing would not serve this purpose as effectively as the means of guarding required under the standard.

[[5]] Assessment of a monetary penalty for a serious violation is mandatory.   Section 17(b) of the Act, 29 U.S.C. § 666(b).

[[1/]] Section 6(a) provides, in pertinent part:

Without regard to chapter 5 of title 5, United States Code, or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this Act and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard. . . .

"National consensus standard" is defined in section 3(9) of the Act, 29 U.S.C. § 652(9), as:

any occupational safety and health standard or modification thereof which (1), has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provision of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been designated as such a standard by the Secretary, after consultation with other appropriate Federal agencies.

The NEC was adopted by the National Fire Protection Association and meets the definition of a national consensus standard.  See Newport News Shipbuilding & Drydock Co., 80 OSAHRC 119/A2, 9 BNA OSHC 1085, 1089, 1980 CCH OSHD ¶ 25,003 at p. 30,890 (No. 76-171, 1980).

[[2/]] Ecco contends that there is a strong presumption against retroactive application of laws in the absence of explicit language providing for such application.   The company cites, among other cases, Greene v. United States, 376 U.S. 149 (1964).   The presumption that these cases address concerns the application of laws to conduct that occurred before the laws became effective.  In this case, the effective date of the cited standard preceded the alleged violation.  Thus, there is no retroactive application of law as that doctrine is applied in the cases cited by Ecco.