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).