SECRETARY OF LABOR,
Complainant,
V.
OTIS ELEVATOR COMPANY.

Respondent.

Docket No. 90-1693

ORDER

On October 30, 1992, the Secretary filed a Notice of Withdrawal of Citation in the above-captioned case. The Commission acknowledges receipt of the Secretary's Notice of Withdrawal of Citation and sets aside that portion of the Judge's Decision and Order affirming the alleged violation of 29 C.F.R. 1926.404(b)(1)(i). There being no matters remaining before the Commission requiring further consideration, the Commission orders the above-captioned case dismissed.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated November 18, 1992


SECRETARY OF LABOR,
Complainant,
V.
OTIS ELEVATOR COMPANY.

Respondent.

Docket No. 90-1693

Appearances:

Kevin Sullivan, Esquire W. Scott Railton, Esquire
Office of the Solicitor Lawrence Brett, Esquire
U. S. Department of Labor Reed, Smith, Shaw & McClay Boston, Massachusetts Washington, D. C
For Complainant For Respondent Before: Administrative Law Judge Richard DeBenedetto

DECISION AND ORDER

Otis Elevator Company ("Otis") was cited on April 19, 1990, for serious violations of two electrical safety standards dealing with guarding of live parts and ground fault protection by means of ground fault circuit interrupter ("GFCI").[[1]] Both charges stem from a single event which took place at a construction site in Warwick, Rhode Island, where Otis was engaged to install an elevator.

During the course of a general inspection of the construction project, an OSHA compliance officer observed Otis's employee, Juan Amado, using a portable hammer drill while in the process of attaching a door frame to the concrete floor. The drill was plugged into a "knockout-type" junction box measuring about four inches square and one and one-half inches deep (Exh. C-2; Tr. 49). The junction box was attached to an extension cord which was connected to an outlet on a permanently wired existing building. When the compliance officer tested the permanently wired outlet for GFCI protection, it proved negative (Tr. 73, 77-78).

The Junction Box

Both the citation and the complaint charge Otis with violating the standard at 29 C.F.R. 1926.403(i)(2)(ii) which states:

In locations where electric equipment would be exposed to physical damage, enclosures or guards shall be so arranged and of such strength as to prevent such damage.
The complaint details the allegations of the violation as follows:

2) The Respondent's employee was using a knockout-type receptacle box designed for fixed installation as a portable extension to power a portable [drill]. Because the aforesaid receptacle box, which was not securely fastened in place by any means, was located on the floor of the work area near an elevator shaft, the metal receptacle box was susceptible to being physically damaged and becoming energized thereby exposing an employee to the hazard of electrocution.

3) Respondent could have eliminated or materially reduced exposure to this violative condition by securely fastening the knockout receptacle to a stud or fixed structural member or in other appropriate fashion or by guarding said receptacle from physical damage by an enclosure or by equivalent means.

A principal feature of the junction box used by Otis as an extension outlet consists of multiple openings which, when not used, are closed with metal plugs ("knockouts"). The plugs may be pushed in by applying pressure with one's thumb (Tr. 97). According to the Secretary's expert witness, Hilda Chow, the junction box in question is designed to be installed in a wall or ceiling, with the knockout openings admitting passage of conduit or cable. But when used as a receptacle for an extension cord, there was a potential shock or fire hazard in the event a knockout was either accidentally pushed in or broken off (Tr. 113-14).

Otis contends that the cited standard does not prohibit the use of the knockout box as a receptacle for an extension cord. Indeed, at least during the pleading stage of this proceeding, it appears that the Secretary agreed and that her only concern was that the box be securely fastened "to a stud" or "other appropriate fashion," as specified in the complaint. The thrust of the Secretary's case took a new direction during the hearing, the theory now being that it was unlawful to use the box as an extension cord receptacle regardless of whether it was secured to a stud or other support. During the course of the hearing, the question of the appropriateness of the cited standard was addressed at length by both parties. At one point the Secretary's counsel openly considered amending the complaint by adding as an alternative allegation the charge of violating the standard at 1926.403(b)(2).[[2]] When serious doubts were expressed as to the suitability of this standard, counsel for the Secretary then referred to the standard at 1926.403(a), which simply states: "All electrical conductors and equipment shall be approved" (Tr. 166-68). In her posthearing brief, the Secretary confirmed the 403(a) amendment as an alternative charge.

What we should note is that the language of the 403(a) "approval" standard, by itself, begs the very point in dispute. Section 1926.449 defines "approved" as follows:

Approved. Acceptable to the authority enforcing this Subpart. The authority enforcing this Subpart is the Assistant Secretary of Labor for Occupational Safety and Health. The definition of "acceptable" indicates what is acceptable to the Assistant Secretary of Labor, and therefore approved within the meaning of this Subpart.

Guided by the foregoing, it becomes apparent that in order to gain insight into the meaning of the word "approved," we must turn to the following definition of "acceptable" under 1926.449:

Acceptable. An installation or equipment is acceptable to the Assistant Secretary of Labor, and approved within the meaning of this

Subpart K:

(a) If it is accepted, or certified, or listed, or labeled, or otherwise determined to be safe by a qualified testing laboratory capable of determining the suitability of materials and equipment for installation and use in accordance with this standard; or

(b) With respect to an installation or equipment of a kind which no qualified testing laboratory accepts, certifies, lists, labels, or determines to be safe, if it is inspected or tested by another Federal agency, or by a State municipal, or other local authority responsible for enforcing occupational safety provisions of the National Electrical Code, and found in compliance with those provisions; or

(c) With respect to custom-made equipment or related installations which are designed, fabricated for, and intended for use by a particular customer, if it is determined to be safe for its intended use by its manufacturer on the basis of test data which the employer keeps and makes available for inspection to the Assistant Secretary and his authorized representatives.

The Secretary did not produce sufficient evidence to bring the 403(a) approval standard into play.

The Secretary's vacillating treatment of this issue is a symptom of the fatal flaw in her case.[[3]] All the cited 403(i)(2)(ii) standard requires is that where electrical equipment "would be exposed to physical damage, enclosures or guards shall be so arranged and of such strength as to prevent such damage." The obvious primary purpose of the standard is to prevent damage to the electrical equipment. When we examine the context in which the standard is set, the Secretary's view of the junction box issue falls into complete obscurity. The predecessor in a series of standards captioned "guarding of live parts" is 1926.403(i)(2)(i), which prescribes that live parts of electric equipment shall be guarded against accidental contact by cabinets or other forms of enclosures, or by any of the following means:

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

(b) By 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.

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

(d) By elevation of 8 feet (2.44 m) or more above the floor or other working surface and so installed as to exclude unqualified persons.

Neither the cited standard nor the whole series of standards under the heading "guarding of live parts" alerts us to the claimed demerits of the knockout box. At the time the box was being used at the construction site, there were only two employees in the work area, both of whom were employed by Otis. There is no evidence that mechanical or other heavy equipment was being used in the vicinity, and no other trade was engaged in construction activity that could have disrupted the normal functioning of Otis's work crew and, thereby, perhaps subject the box to frequent moves or rough use and abuse (Tr. 68, 70, 90, 95-96). In other words, the conditions of the work site were not such that the box could reasonably be perceived as being exposed to physical damage within the meaning of the 403(i)(2)(ii) standard.[[4]]

Ground Fault Circuit Interrupter

Otis was cited for violating the ground fault protection standard at 29 C.F.R. 1926.404(b)(1)(i), which calls for the use of either a GFCI or an assured equipment grounding conductor program while using portable power tools. Otis's practice is to use a GFCl for ground fault protection instead of an equipment grounding conductor program (Tr. 46). Ground fault protection by means of a GFCI is addressed by 1926.404(b)(1)(ii), which reads in relevant part:

All 120-volt, single-phase, 15- and 20-ampere receptacle outlets on construction sites, which are not a part of the permanent wiring of the building or structure and which are in use by employees, shall have approved ground fault circuit interrupters for personal protection ....

Even though the junction box and extension cord were connected to permanent wiring of the building, under the 404(b)(1)(ii) standard a GFCI is required whenever an extension cord is used since the extension cord itself is considered to be temporary wiring (Tr. 80, 83-84, 122). Official notice is taken that OSHA has consistently applied this enforcement policy.

The following facts emerge from the evidentiary record: Otis's own employee at the site, Juan Amado, admitted to the compliance officer that he was not using a GFCI at the time of the OSHA inspection. The compliance officer's test of the permanently wired wall outlet for ground fault protection was negative. During the hearing, the parties entered into the stipulation that at the time in question, the main distribution panel located inside the building had ground fault circuit protection (Tr. 217). According to the uncontradicted testimony of Otis's expert witness, James Comer, by placing a ground fault circuit protector on the main distribution panel, every outlet "downstream" is thereby ground fault protected (Tr. 220-22). When questioned by the judge regarding the apparent inconsistency in the compliance officer's negative test for ground fault protection and the stipulation, Otis's expert opined that perhaps the testing device was not the proper one to use or, if it was proper, he might not have used it correctly, or perhaps the testing device was not functioning properly (Tr. 231).

Toward the end of the hearing, counsel for the Secretary expressed the view that it was OSHA's position that the 404(b)(1)(ii) standard required Otis to have a GFCI "at the cord set" despite the presence of ground fault protection on the distribution panel. When serious doubt was raised as to the validity of the position taken by counsel, and upon being directed to address the issue specifically in posthearing brief, Secretary's counsel moved to withdraw the stipulation on the ground that he entered into it by mistake. Otis opposed the motion (Tr. 236-39).

As the Secretary correctly points out, a party may be relieved from an improvident stipulation or one that might work injustice. United States v. Montgomery, 620 F.2d 753, 757 (10th Cir. 1980). The trial court has discretion to reopen a case for further evidence should the opposing party be prejudiced by setting the stipulation aside. Id. at 757. In view of the conclusion reached on the GFCI issue, set forth below, the Secretary's motion is moot.

The first matter that claims our attention is Otis's September 4, 1990, answer to the Secretary's complaint. Here Otis denied it violated the ground fault protection standard and stated, in pertinent part:

Respondent had no need to use a GFCI or an assured grounding program in that the tool used was doubly insulated as is permitted by Complainant's standards thereby eliminating the ground fault hazard.

* * *

Respondent also avers that no employee was exposed to a hazardous condition.

Respondent ... avers that if there was a technical violation, it is only remotely connected to worker safety.

In its December 3, 1990, prehearing disclosure statement, Otis formulated the ground fault issue in line with its answer:

(a) Whether compliance with the requirements of 29 C.F.R. 1926.404(b)(1)(i) is reasonably necessary to employee safety or is remote with respect to employee safety when a doubly insulated electrical tool is sued [sic] on a construction site.

Otis also listed two witnesses and a summary of their expected testimony; an unnamed "person having expertise in electricity" and "the [unnamed] construction superintendent." The contemplated testimony of the former would be: "[T]hat a doubly insulated electrical tool is protected against ground fault currents, and that such tool does not present an electrical safety hazard to employees using it on temporary power." The construction superintendent would testify concerning Otis's electrical safety program.

As can be seen, no reference was made by Otis about the presence of ground fault circuit protection on the main distribution panel inside the adjacent building, the subject of the stipulation. This situation did not change when Otis submitted a supplemental prehearing statement on January 11, 1991, when it named James Comer as its expert witness who would:

.... testify that extension cords plugged into permanent power and used to supply electricity to an electrically operated tool is an acceptable practice under the NEC [National Electrical Code]. He is also expected to testify that a doubly insulated tool does not require a GFCI under the NEC.

Larry Kimmel was named as the construction superintendent whose testimony would concern:

... conditions on the jobsite on the day OSHA made its inspection, Otis' assured grounding program, and circumstances concerning Mr. Amado's equipment, particularly that it was temporary equipment used in lieu of his original equipment which had been stolen.

A hearing on the merits was held on January 18, 1991. One of the witnesses called by the Secretary was Juan Amado, who was working at the site when the compliance officer conducted his inspection. As previously noted, Amado admitted to the compliance officer that he was not using a GFCI at the time. During his testimony, Amado offered the following two reasons for the absent GFCI: that his "gang box" had been stolen and "mainly" that the drill he was using was connected to a permanently wired wall outlet (Tr. 65-66). While the first reason implies that he would have used a GFCI if only his gang box (apparently containing the GFCI) had not been stolen, the second implies that since the tool and extension cord were connected to a permanently wired outlet, he felt a GFCI was not required.

The "stolen" equipment reason suggests the defense of impossibility or infeasibility of compliance. This is an affirmative defense which was neither pleaded, as required by Commission Rule 36(b), nor seriously pursued at any time by Otis during the course of the hearing. Suffice it to say that failure to plead an affirmative defense excludes that issue from the case. Dole v. Williams Enterprises, Inc., 876 F.2d 186, 189-90 (D.C. Cir. 1989).

The second reason relates to the contemplated testimony of Otis's expert witness, James Comer, as disclosed in the January 11, 1991, supplemental prehearing statement. Although the point was not covered in his testimony, Mr. Comer could have testified that OSHA's requirements for ground fault protection differs from that of the National Electrical Code. Authority is hardly required to support the proposition that it is the OSHA regulation that governs the outcome of this case and not the National Electrical Code. As previously indicated, OSHA has consistently applied its enforcement policy of requiring a GFCl whenever an extension cord is used notwithstanding the fact that the extension cord is connected to a permanently wired receptacle. As mentioned by the Secretary's expert witness (Tr. 122), this policy was clearly set forth when OSHA published its final revisions of the electrical safety standards for construction:

The OSHA regulation is different from the NEC in several respects. The primary difference is that OSHA's GFCI option applies to receptacle outlets which are not part of the permanent wiring, while the NEC requirement only applies to temporary wiring. For example, under the OSHA regulation for GFCIs, protection must be provided for the receptacle outlets on the end of extension cord sets even if the extension cords are supplied by permanent wiring.

51 F.R. 25,294 at 25,310 (July 11, 1986). The Secretary's interpretation of a regulation is to be accorded deference when the interpretation is consistent with the regulatory language and is otherwise reasonable. The Secretary's litigating position before the Commission is also deserving of judicial deference. Martin v. OSHRC, 111 S. Ct. 1171.

During the hearing, both parties devoted considerable attention to whether the portable drill was doubly insulated and, if so, whether it obviated the need for a GFCI. The testimony of the Secretary's expert witness on this point was persuasive and made it abundantly clear that regardless of whether the drill was doubly insulated, there still was a need for a GFCI because the tool or the cord fixed to the drill, as well as the extension cord, were subject to damage and consequent ground fault (Tr. 119-21, 130).

The ground fault protection stipulation was entered into at a time late in the hearing when Otis called its construction superintendent, Lawrence Kimmel, to testify on its behalf. Kimmel testified that he "checked with the owner and architect and they stated the fact that the circuit was ground fault interrupted" (Tr. 211).[[5]] Counsel for the Secretary objected to the testimony on the ground of hearsay. Before a ruling was made on the objection, Otis's counsel began to question Kimmel about a document which Kimmel described as a letter he requested and received from "the manager of the building" which stated, in substance, that the circuit in question "was protected at the main distribution panel" (Tr. 212). Again, counsel for the Secretary objected on the ground of hearsay. At this point the parties entered into the stipulation.

Of controlling importance to the conclusion reached herein is the fact that counsel for the Secretary never manifested any intent that the stipulation would supplant the compliance officer's testimony as to his negative test for ground fault protection (Tr. 213-217, 239). We must also bear in mind that Kimmel and Amado were the only other witnesses present at the jobsite during the time of the OSHA inspection, and both witnesses admitted that they did not test the equipment for ground fault protection (Tr. 39, 66, 214).
It is generally recognized that tools and electrical cords on construction sites may be subject to rough use and failures. When Otis's expert witness was asked to explain the inconsistency presented by the negative test for ground fault protection and the stipulation, he pointed conjecturally only to the possible inadequacies of the testing device and its operator, thereby suggesting that the ground fault protection system stipulated as having been present on the main distribution panel was unfailing in effectiveness or operation. There is no evidence in the record to support such a conclusion.[[6]]

Under cross-examination by Otis's counsel, the compliance officer testified that he used at "standard GFCI tester." He explained the procedure for operating the device and the signs registered thereon that reflect the presence or the absence of ground fault protection (Tr. 77-78). There is nothing complicated about the device or the procedure, and no subjective judgment was required. Moreover, Otis's counsel did not challenge the accuracy or the reliability of the tester instrument.

In sum, the salient facts are these:

1. An Otis employee used an electrical hand drill with extension cord connected to a permanently wired wall receptacle.

2. Otis's work rules called for the use of a GFCI when required instead of an assured equipment grounding conductor program.

3. At the time of the OSHA inspection, the employee acknowledged that he was not using a GFCI, and the permanently wired wall receptacle tested negative for ground fault protection.

4. The main distribution panel was equipped with GFCI protection (as stipulated by the parties) that normally would have provided GFCI protection at other receptacles located "downstream."

5. At the time of the OSHA inspection, the ground fault protection at the main distribution panel did not function so as to provide GFCI protection at the permanently wired wall receptacle, as demonstrated by the compliance officer's test.

6. No person employed by Otis had knowledge of the presence of GFCI protection at the main distribution panel and no person relied on that stipulated fact in the failure to use a GFCI during the time in question.

7. The use of the hand drill with extension cord exposed Otis's employee to a ground fault hazard.

The presence of GFCI protection at the main distribution panel not justifying the failure of Otis's employee to use a GFCI when required by the standard, it is concluded that the Secretary has met her burden of proof notwithstanding the stipulation mistakenly entered into by Secretary's counsel, and that the GFCI defense mounted by Otis has no merit. The penalty proposed by the Secretary for this item in the amount of $280 is appropriate under the penalty criteria of 29 U.S.C. 666(j).

The findings of fact and conclusions of law having been sufficiently set forth herein. Fed. R. Civ. P. 52(a), it is
ORDERED that:

(1) The Secretary's motion to be relieved from a stipulation is denied for bring moot;

(2) The citation for violating the standard at 1926.403(i)(2)(ii), or the alternative 1926.403(a), is vacated; and

(3) The citation for violating the standard at 1926.404(b)(1)(i) is affirmed and a penalty of $280 is assessed.

RICHARD DeBENEDETTO
 Judge, OSHRC

December 13, 1991 DATED:
Boston, Massachusetts


FOOTNOTES:
[[1]] The Secretary amended the two-item citation to reflect nonserious in lieu of serious violations (Secretary's complaint at pg. 2).

[[2]] Section 1926.403 (b)(2) reads:

Installation and use. Listed, labeled, or certified equipment shall be installed and used in accordance with instructions included in the listing, labeling, or certification.

[[3]] In the posthearing brief on Page 5, the Secretary's counsel again reaches into the cornucopia of standards and draws out the previously unmentioned standard at 1926.403(b)(l)(ii), apparently as another example of what the Secretary has in mind in this case. That standard directs the employer to consider the following factors when examining electrical equipment for safety: "Mechanical strength and durability, including, for parts designed to enclose and protect other equipment, the adequacy of the protection thus provided."

[[4]] The photographic evidence (Exh. C-2) shows a part of one of the metal plugs on the junction box was slightly depressed. The evidence does not suggest, and the Secretary makes no serious claim, that the slightly recessed area resulted from damage (Tr. 95).

[[5]] Kimmel explained that he was referring to the outlet on the outside of the wall of the building where the extension cord was plugged into. Presumably, this information was obtained by Kimmel long after the OSHA inspection and sometime after the prehearing disclosure statements were filed by the parties.

[[6]] At the end of his testimony, Otis's expert witness himself acknowledged the possibility of a GFCl system malfunctioning (Tr. 232). It is officially noticed here as a peripheral matter that malfunction is a contingency provided for by some GFCls by being made with a test button for the purpose of achieving prompt on-site assurance of the integrity of the system. See Desco, Vitro Glaze of Schenectady, Inc., 14 BNA OSHC 1498, 1990 CCH OSHD 28,801 (No. 88-2316,1990).