UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 80–1224
DANIEL CONSTRUCTION CO., BOISE CASCADE PROJECT,
Respondent.

December 29, 1981

DECISION

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge Ben D. Worcester is before the Commission pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). Judge Worcester affirmed in part and vacated in part two citations issued by the Secretary of Labor (‘the Secretary’) to Respondent, Daniel Construction Company (‘Daniel’), following an inspection of a construction site in Rumford, Maine, where Daniel was engaged as the general contractor in constructing a paper mill for Boise Cascade Corporation. The Secretary petitioned for discretionary review of the judge’s disposition of five citation items or subitems and Commissioner Cottine directed review on the issues raised by the petition, including the following:

1. Whether the judge erred in vacating citation 1, item 1, alleging noncompliance with 29 C.F.R. § 1926.400(a).

2. Whether the judge erred in vacating citation 1, item 2, alleging noncompliance with 29 C.F.R. § 1926.451(a)(13), which relates to safe access for scaffolds, on the grounds that:

(a) it was conceded that a ladder was available at another location at the time of the inspection, and

(b) the employee’s use of diagonals to climb the scaffold was unpreventable employee misconduct.

3. Whether the judge erred in vacating citation 2, item 13, which alleged noncompliance with 29 C.F.R. § 1926.552(c)(15), on the ground that the Respondent performed regular maintenance on the hoist in question in compliance with 29 C.F.R. § 1926.501(c).

4. Whether the judge erred in vacating citation 2, items 14 and 15(b), alleging noncompliance with Articles 230–70(b) and 320–10, respectively, of the National Electrical Code (NFPA 70–1971), as incorporated by reference in 29 C.F.R. § 1926.400(a).

For the reasons set forth below, we affirm in part and reverse in part those portions of the judge’s decision before us on review.

I

Daniel was charged with a serious violation of the Act based on noncompliance with Article 110–17(a) of the National Electrical Code, as adopted by the standard at 29 C.F.R. § 1926.400(a),[1] in that a length of 12–2 NMC conductor with exposed live parts was lying on the ground.

At the hearing, royal Hoyt, a compliance officer with the Occupational Safety and Health Administration (‘OSHA’), testified that during the inspection he had discovered a piece of ‘romex’ wire lying on the ground next to some scrap lumber. The wire was adjacent to a path of access for employees coming in and out of the building under construction. The wire had been cut relatively cleanly and squarely; the insulation was not peeled back, but bare metal was exposed at the end. Hoyt performed two tests on the wire: the first, with a biomedical field probe, was positive, indicating that the wire was energized; the second, with a voltage tester, indicated that the line carried 110 volts. Hoyt identified the hazard as the potential for electrical shock or electrocution if someone came in contact with the wire. He observed two employees in the vicinity. One was operating a backhoe approximately 10 feet from the wire. A second brushed the wire with his pant leg while walking towards the inspection party. On cross-examination, though, Hoyt was asked to demonstrate how he had used the biomedical field probe during the test and, upon reading the instructions on the back of a similar tester, he changed his description of the manner in which he had operated the probe.

Henry Collins, the assistant superintendent for the electrical subcontractor on the project, testified for Respondent that he had examined the wire some 20 to 30 minutes after the compliance officer left the area and had determined that it was ‘dead.’ He also stated that the procedure that would be followed in removing a ‘dead’ wire was to erect black and yellow barricade tape around the area, turn the circuit breaker off, then sever the cable with a squared-off cut by a pair of saw cutters, and roll it up. Collins further noted that a cable that was still energized would be cut in a different manner and added that work on removing the cable in question had begun an hour before the OSHA inspection. Two witnesses asserted that barricade tape was erected in the area. However, Hoyt could not recall passing through any such tape.

In rebuttal, a second compliance officer, Elmer Creveling, testified that he had been part of the inspection party when Hoyt conducted the voltage test and that the voltage tester had registered 110 volts in the line. Creveling also stated that the romex wire had been cut so that the metal parts at the end of the wires were visible.

In his decision, Judge Worcester declared that the testimony of the two compliance officers lacked credibility, when compared with credible testimony to the contrary, because of Hoyt’s erroneous description regarding the proper use of the biomedical field tester. He also noted that the testimony regarding the presence of barricades was unrebutted. The judge concluded as a matter of law that the Secretary’s allegation of violation was not established by a preponderance of the evidence.

On review, the Secretary states that the judge rested his decision to vacate this citation on Hoyt’s inaccurate use of the field probe and argues that any ambiguity regarding the use of the field probe is immaterial because the voltage tester, with its precise measurement, is the only significant test here and it established the presence of 110 volts in the line. Moreover, the Secretary asserts, the testimony of the compliance officers as to the employee exposure at the time of the inspection was unrebutted. The Secretary adds that barricades that fail, as here, to prevent employee exposure to the hazard, cannot satisfy the requirements of the standard.

Daniel urges that Judge Worcester’s ruling on this issue be affirmed because the Secretary failed to establish that employees were exposed to a hazard. Daniel also argues that the Secretary failed to prove that Respondent had knowledge of the hazardous condition, since from all appearances—the use of the barricades and the squared-off cutting of the cable—the established procedures for removing ‘dead’ wire were being followed.

It is well-settled that, in order to establish a violation of section 5(a)(2) of the Act, the Secretary must prove that the cited employer either knew or could have known with the exercise of reasonable diligence of the presence of the noncomplying condition. General Electric Company, 81 OSAHRC 42/A2, 9 BNA OSHC 1722, 1981 CCH OSHD ¶25,345 (No. 13732, 1981); Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD ¶25,358 (No. 16147, 1981). The Secretary failed to meet that burden in this case. There is no evidence that Daniel had actual knowledge of a violative condition here. Moreover, we conclude on the basis of the record before us that it did not have constructive knowledge of the cited conditions. The record indicates that the wire was cut squarely. Its insulation was not peeled back as it would have been had the wire been energized at the time it was severed. Moreover, the preponderance of the evidence supports the judge’s finding that the area was marked with barricade tape. These measures were consistent with Collins’ unrebutted account of the standard procedures that were followed in removing deenergized wires. Therefore, even if a Deniel supervisor had observed the condition of the wire, the supervisor could reasonably have believed, based on the fact that dead-wire procedures were evidently being followed, that the wire was indeed deenergized and, thus, that no hazard was present. Accordingly, the Secretary has failed to prove that Daniel could have known of the violation with the exercise of reasonable diligence and the citation must be vacated.

II

Daniel was charged with a serious violation of the Act based on its alleged failure to comply with the standard at 29 C.F.R. § 1926.451(a)(13)[2] in that an employee working on a float scaffold was not provided with safe access to that scaffold.

During the inspection, an employee was observed on a float scaffold 33 feet above the ground with no visible means of access to or from the scaffold, other than the diagonal members of the structural steel that was bracing the building wall. Hoyt described these diagonal members as smooth steel, 8 to 10 inches wide, and placed at an incline of approximately 45 to 55 degrees from the horizontal. He identified the hazard as the potential for an employee to fall while using the diagonals as access to the scaffold. Daniel’s project safety manager, Charles Briggs, testified that, after their initial observation of the employee on the scaffold, the inspection party had seen two workers on the ground bring a ladder to the area below the scaffold at lunchtime and raise it up to the employee, who then came down the ladder. The employee, Robert Reid, testified that he had been working on the scaffold when the compliance officers had come by. He stated that on or about the date of the inspection he had ascended to the float scaffolds on more than one occasion by climbing on the diagonal bracing.

In his decision, Judge Worcester vacated this item, ruling that a ladder was available and used for descent, although noting that it was undisputed that there was no ladder present when Hoyt arrived at the location. In addition, the judge concluded, on the basis of the employee’s admission that he used diagonals instead of a ladder to climb up to the scaffold, that the employee had engaged in an isolated incident for which the employer could not be held accountable.

The Secretary argues on review that the cited standard requires use, not mere availability, of ladders for safe access and that Daniel’s noncompliance was therefore established by the evidence that he employee failed to use a ladder. Daniel insists that the judge found that the ladder was available and used; consequently, Daniel was in compliance with the standard. Deniel adds that Judge Worcester’s decision indicated that he found Reid’s testimony not to be credible, based on his perception of the employee’s demeanor, and that the Commission should defer to this credibility determination.

We conclude that the judge erred in vacating this item. As the judge himself pointed out, it was undisputed here that there was no ladder present when the compliance officer arrived at the scene. Moreover, there is no evidence in the record that Daniel provided any equivalent safe access. Because Daniel did not provide a ladder at the location and climbing the diagonal members of the structural steel bracing was not equivalent safe access, we conclude that Deniel failed to comply with section 1926.451(a)(13).[3] We further conclude, in light of the potential fall distance of up to 33 feet, that the violation is properly characterized as serious. Section 17(k) of the Act, 29 U.S.C. § 666(j).

Accordingly, we reverse the judge’s decision with respect to this item and we affirm the Secretary’s citation insofar as it alleges a serious violation of the Act based on noncompliance with the standard at 29 C.F.R. § 1926.451(a)(13).

III

Daniel was charged with an other than serious violation of the Act based on noncompliance with the standard at 29 C.F.R. §1926.552(c)(15)[4] in that a personnel/material hoist was overdue for required inspection and testing of all functions and safety devices.

In his decision, Judge Worcester found that regular maintenance of the hoist was performed under the supervision of the manufacturer as often as once a month. In his view, this satisfied the standard’s requirement that an inspection and test of all functions and safety devices be made by a competent person at intervals of no more than three months.

We have reviewed the pertinent portions of the record and have considered the parties’ arguments concerning this item, which arguments are essentially the same as those made before the judge. We conclude that the judge properly vacated the citation for the reason he assigned.[5]

Accordingly, we affirm the vacation of the Secretary’s citation insofar as it alleges noncompliance with the standard at 29 C.F.R. § 1926.552(c)(15).

IV

Daniel was charged with noncompliance with Article 230–70(b) of the National Electrical Code, as adopted by 29 C.F.R. § 1926.400(a), note 1 supra, in that a temporary electrical booth elevated on concrete blocks was not provided with steps for immediate access.[6]

At the hearing, Hoyt testified that he had observed a temporary electrical service panel enclosure, elevated above ground level approximately 3 to 4 feet and resting on several concrete blocks. The service booth housed various electrical circuit breakers and controls for both temporary and permanent wiring within the building under construction. There were no stairs, ladders or other equivalent means of access into the elevated service enclosure. Hoyt identified the hazard as the absence of a form of immediate access to the booth in order to shut down an electrical source in the event of an emergency, such that the delay could increase the probability or the extent of an electrical fire. Many employees were exposed to this alleged hazard, because the service panel controlled electrical service throughout the building. Hoyt admitted that he never actually entered the enclosure.

Bob Porter, a heavy industrial division safety manager for Daniel, testified that the penal booth was elevated because a crew was preparing to pour concrete on the floor, which would have been impossible had the booth been resting on the ground. He explained that the booth was suspended from the ceiling by two cables; the concrete blocks were used as dunnage to protect the workers when they installed reinforcing steel underneath the suspended booth. He maintained that access to the booth was possible, despite its elevation.

In his decision, Judge Worcester ruled that Article 230–70(b) of the National Electrical Code is irrelevant to the situation described by the compliance officer. The judge referred to Article 230–70(b) as ‘a safety standard which requires, when there is an emergency, that a means for disconnection of energized wires such as switches or circuit breakers be installed.’ He observed that neither the absence of loose blocks to step upon as a means of access to disconnectors in a temporary electrical service booth nor open wiring used to supply a temporary receptacle come within the purview of Article 230–70(b); thus, there was no violation of 29 C.F.R. § 1926.400(a). In addition, the judge specifically stated that there was no convincing proof that access to disconnect switches was impeded. On review, the Secretary contends that he established noncompliance with Article 230–70(b) because access to the panel booth was impeded. Daniel responds that the booth was easily accessible.

The standard requires that disconnecting means shall be located at a readily accessible point nearest the entrance of the conductors, either inside or outside the building or structure.[7] The NEC defines ‘readily accessible,’ in Article 100, as ‘capable of being reached quickly, for operation, renewal, or inspections, without requiring those to whom ready access is requisite to climb over or remove obstacles or to resort to portable ladders, chairs, etc.’ The compliance officer stated that the booth was elevated approximately 3 to 4 feet above ground level and gave his opinion that the booth was not readily accessible; Daniel’s official gave his opinion that it was. A photographic exhibit shows the floor of the booth at approximately waist-height of the workers. There is no other evidence. On these facts, we conclude that the Secretary has not established that the booth was not readily accessible.

For the reasons stated, we affirm Judge Worcester’s order vacating this item.

V

Daniel was charged with noncompliance with Article 320–10 of the National Electrical Code, as adopted by 29 C.F.R. § 1926.400(a), note 1 supra, in that open wiring used to supply a temporary receptacle was not separated at least 2 inches from metal conduit, piping or other conducting material.[8]

At the hearing one of the compliance officers, Creveling, testified that he observed two unprotected wires running through a junction box mounted on a wall in the building. Using a biomedical field probe, he determined that one of the wires was energized. The wires were hanging close to some metal brackets which were stacked against the wall. On each side of the junction box, the wires were in contact with the fixtures used to clamp the box to the beam. Creveling observed two employees within 8 feet of the box and described the area as one of free access by employees. The area was not barricaded. He stated his opinion that the conditions presented a hazard because a person storing the iron brackets could crush the wire’s covering with the brackets and could be exposed to a 110-volt shock. Daniel’s witness, Collins, testified that the open conductors were separated at least 2 inches from metal conduit, piping or other conducting material, except at the point where the wires entered the box. Collins added that the wires were protected by ‘20 amp breakers’ in a circuit breaker box.

In his decision, Judge Worcester noted that the compliance officer’s testimony regarding the condition of the wire was undisputed by Respondent. Nevertheless, the judge observed that whenever temporary wiring enters a junction box it must pass through an opening in the box, which opening is likely to be less than 4 inches in diameter. Referring to the failure of the Secretary’s witnesses to explain how energized conductors could be insulated from contact with the very junction boxes they were entering, Judge Worcester determined that the NEC provision relied upon by the Secretary, Article 320–10, was not applicable here. Therefore, he dismissed this item of the citation.

The Secretary argues on review that Judge Worcester erred when he dismissed the citation on the basis that the standard must be unenforceable because a 2-inch separation would not ordinarily be maintained between an open conductor and the junction box at the point of entry. The Secretary faults this reasoning: first, because the NEC covers this very situation at Article 270–7(b);[9] and, second, because the condition of the junction box was never at issue here, only the relationship between the open conductor and the metal clamps.

Daniel’s fundamental argument is that the Secretary failed to show that the conductors posed a hazard. Daniel states that the photographic exhibits show that it would have been virtually impossible for the materials stacked against the wall to have damaged these conductors in any way. Accordingly, if any violation occurred, it was de minimis.

The Secretary presented unrebutted evidence that at least one energized wire on both sides of a junction box directly contacted the metal fixtures used to clamp the box to a beam. Accordingly, the Secretary established Daniel’s noncompliance with Article 320–10 of the National Electrical Code. Judge Worcester’s reference to the opening into the junction box is irrelevant, for the issue here was the failure to maintain a 2-inch separation between the conductor and the metal clamp, which was a ‘conducting material.’ This, Respondent failed to do. Nevertheless, the Commission has found violations to be de minimis when the hazard involved bears such a negligible relationship to employee safety as to render inappropriate the imposition of an abatement requirement or the assessment of a penalty. Bethlehem Steel Corporation, 81 OSAHRC ——, 9 BNA OSHC 2177, 1981 CCH OSHD ¶25,645 (No. 77–617, 1981). There is no evidence that the wire at issue was actually damaged. Moreover, an employee could only sustain a shock if the wire’s protective covering were damaged at the point where it was in contact with either of the metal clamps and the employee then reached behind the stacked brackets and touched one of the clamps. As noted by Daniel, the positioning of the wires behind the horizontal bar to which the junction box was attached minimized the possibility that they might be damaged at the point where they contacted the clamps. Furthermore, the wires themselves were additionally protected by circuit breakers. Thus, the record establishes that the possibility of injury was too remote and too speculative to warrant the imposition of a penalty or the entry of an abatement requirement and, hence, the de minimis classification is appropriate.[10]

Accordingly, we modify the judge’s decision as follows. Item 1 of citation 1 and items 13 and 14 of citation 2 are vacated. Subitem 15(b) of citation 2 is affirmed, although only as a de minimis violation. Finally, item 2 of citation 1 is affirmed and, in light of the statutory criteria prescribed in section 17(j) of the Act, 29 U.S.C. § 666(i), we assess a penalty of $550.

SO ORDERED.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: DEC 29, 1981

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 80–1224
DANIEL CONSTRUCTION CO., BOISE CASCADE PROJECT,
Respondent.

November 13, 1980

APPEARANCES:

Michael D. Felsen, Esq. and Constance Franklin, Atty. of Boston, Mass., for Complainant

George Harper, Esq. and Carl Carruth, Esq. of Greenville, South Carolina, for Respondent

DECISION

WORCESTER, Judge:

On January 23, 1980, pursuant to the provisions of 29 U.S.C. section 657 (section 6, The Occupational Safety and Health Act of 1970, 29 U.S.C. section 651 et seq., hereinafter called the Act), the complaint, Secretary of Labor, caused an inspection to be made of a construction project in Rumford, Maine, where Daniel Construction Co., as general contractor, was one of the contractors engaged in the construction of a paper mill. It is conceded that the Respondent filed a timely notice of contest and that Daniel is an employer within the meaning of the Act subject to the jurisdiction of this Commission.

When this proceeding came on for trial in Portland, Maine, on August 19, 1980, the Secretary moved to withdraw Items 2, 3, 6, 11(d), 15(a) and 16 of Citation 2. At the same time the Respondent Daniel moved to withdraw its notice of contest of Items 4 and 7 of Citation 2. No penalties were involved. Accordingly, the alleged violations described in the items withdrawn are vacated. Items 4 and 7 of Citation 2 are deemed to have become a final order by operation of law constituting violations as described therein without penalty.

The Validity of the Construction Safety Standards

Daniel in its answer and its post hearing brief contends that the Contract Work Hours and Safety Standards Act (86 Stat. 96; 40 U.S.C. 327) now commonly known as the Construction Safety Act (CCA), as amended in 1969, which was incorporated by reference in the Department of Labor’s promulgation of standards in 36 F.R. 7340, on April 17, 1971, as 29 CFR 1518.1 et seq. was unlawfully adopted. Part 1518.1 has subsequently been redesignated as Part 1926, (see Part 1518 issued under sec. 1, 83 Stat. 96, 97, adding sec. 107 to Public Law 87–581, 76 Stat. 357; 40 U.S.C. 333.)

This contention cannot be sustained if the grant of authority to the Secretary in section 6(a) of the Act (29 U.S.C.A. 655(a)) which provides in part:

Sec. 6(a) 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 established Federal standard.

This section authorized the Secretary to proceed as he did.

Chapter 5, Title 5, section 551 et seq., popularly known as the Administrative Procedure Act, in sec. 553 entitled ‘Rule Making’ defines the term ‘established Federal standard’ as an occupational safety and health standard established by an agency of the United States and presently in effect or contained in any Act of Congress in force on the date of enactment of the Act. 29 U.S.C.A. 652(10).

Daniel contends that notwithstanding the fact the Secretary published a notice of proposed rule making on February 2, 1971, and had held six informal regional hearings for the purpose of receiving oral and written comments on the proposed rules that Part 1926, of Title 29 was not lawfully promulgated, citing 29 U.S.C.A. 553(d) which states that:

(d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except—

(1) a substantive rule which grants or recognizes an exemption or relieves a restriction;

(2) interpretative rules and statements of policy; or

(3) as otherwise provided by the agency for good cause found and published with the rule.

The Respondent Daniel contends that OSHA, in its April 17, 1971, Federal Register notice attempted to circumvent section 553(d)(3) by making a regulation effective retroactively, saying that the Secretary based his finding of good cause on the unilateral, unsubstantiated statement that affected parties could comply with the new standard within ten days.

The Respondent takes the position that the Secretary of Labor, in order to avoid compliance with the rule making provision of the APA requiring notice, unlawfully sought to incorporate the regulatory provisions of section 107 of the CSA by publishing 29 CFR, Part 1518 (now 29 CFR, Part 1926) on April 17, 1971, just ten days before the Occupational Safety and Health Act of 1970 became effective. This was done under a claim that the 30 days public notice provisions were inapplicable. These standards were subsequently propertied to be adopted as OSHA standards under the authority of section 6(a) of the OSH Act.

Daniel contends that the standards are null, void and unenforceable because of the Secretary’s assertion of exemption is based upon an erroneous construction of section 553(d) of the APA.

Daniel says that Congress intended to impose upon an administrative agency seeking to utilize the 5 U.S.C.A. 553(d) exemption a heavy burden of showing public necessity for an early effective date where sanctions are to be imposed and that the Secretary arbitrarily found good cause contrary to the fundamental principles of fairness. This, it is argues, requires dismissal of this proceeding citing United States v. Gavrilovic, 551 F.2d 1099, 1105 (8th Cir. 1977); United States Chamber of Commerce v. Secretary of Labor, —— F.2d ——, No. 78–2221 (D.C. Cir. 1980).

The Court in Nat Indus. Constructors v. Secretary of Labor, 503 F.2d 1048, 1053 footnote 9 (8th Cir. 1978) said in part:

We cannot ignore the Secretary’s timing in these cases. The Construction Safety Act regulations became effective one day prior to April 28, 1971, the effective date of OSHA. Had they been published in the Federal Register for thirty days, the Secretary could not have summarily adopted them as ‘existing Federal standards’ under section 6(a) of OSHA.

But, the Court held that although they would have great difficulty upholding the Secretary’s claim of good cause, under these circumstances, an employer is barred from raising the issue in an enforcement proceeding. This view was approved by the court in National Industrial Constructors v. Secretary of Labor, 583 F.2d 1048, 1053 (8th Cir. 1978). On the other hand the 9th Cir. rejected this view, see Marshall v. Union Oil of Cal., 616 F.2d 113, 118 (1980) where the court said that 29 CFR 6(f) which gives any person adversely affected by a standard issued under this section the right to challenge its validity within 60 days does not bar an employer from raising this issue during an enforcement proceeding.

I do not consider the case of Nader v. Sawhill, 514 F.2d 1064, Temporary Emerging Court of Appeals (1975) holding that that the record must show clear error of judgment before agency action can be declared to be arbitrary and capricious to be significant except in the law of appellate procedure. The same may be said of Texaco, Inc. v. Federal Emergency Administration, 531 F.2d 1071 (Temporary Emerging Court of Appeals 1976) also cited by Daniel.

However, the First Circuit has not spoken on this issue. For that reason and in consideration of the fact that there is a conflict of views in other circuits the rule pronounced by the Review Commission in Secretary of Labor v. Daniel Construction Co., OSHRC Nos. 7672 and 7734, 5 BNA OSHC 1005, 1007, February 10, 1977, is controlling. In that proceeding the Commission rejected the contention of Respondent that the adoption of the Construction Safety Act (40 U.S.C. 333 et seq.) as an occupational safety and health standard under authority of section 6(a) of the OSH Act was invalid.

The Commission said that the making of the CSA standards applicable earlier than 30 days after publication was consistent with the objective of the Construction Safety Act which was to promote employee safety. This, said the Commission, constituted good cause as defined by section 553(d) of the Administrative Procedure Act.

Accordingly, I find and conclude as a matter of law that Part 1926, Title 29 of the Code of Federal Regulations was lawfully promulgated by the Secretary. The Respondent’s argument to the contrary is accordingly rejected.

At the conclusion of the case for the Secretary, the Respondent moved for dismissal of Items 1, 12, 13 and 15(b) of Citation 2. Ruling was reserved. The Secretary failed to sustain the burden of proof of violation in each item. For that reason the motion will be granted and the citations named together with the proposed penalty of $150 mentioned in Item 13 will be vacated.

Citation 2, Item 1

The Secretary’s proof that there was combustible gas in the area and that the fire extinguishers were not within 50 feet is not convincing. There was no violation of 29 C.F.R. 1926.150(c)(1)(VI).

The Secretary’s witness Hoyt, purporting to speak for himself and everyone else present (saying that the ‘inspection party’ observed no fire extinguishers) was the chief source for this citation. Not even under the liberal rules of administrative procedure can a witness’ conclusion as to what was in the minds of other persons in a group be the basis of a finding of fact. Viewing Hoyt’s testimony in its most favorable light, the most it proves is that Hoyt didn’t see any fire extinguishers, but he made no measurements and offered no explanation for his failure to do so. There is not even a prima facie case of violation of 1926.150(c)(1)(VI).

Even if it were assumed arguendo that there was a prima facie case, and that this portion of Respondent’s motion could be denied, the testimony of the Respondent’s witness, Briggs, that there were 520 fire extinguishers at the site, some within 50 feet of the worksite involved, is sufficient to sustain vacation of this allegation. Hoyt had an opportunity to rebut this assertion. He did not.

Citation 2, Item 12

The doorway mentioned was not part of a stairway. It was located across a landing opposite the top of the stairway. In any event it is common knowledge that there are many tripping hazards in a building under construction which construction employees must be wary of. The rebar installed in the doorway for stabilization until the area was enclosed is an example. There was no violation of 29 C.F.R. 1926.501(c).

Citation 2, Item 13

Regular maintenance of the hoist referred to in Item 13 was performed under the supervision of the manufacturer as often as once a month. This is convincing proof of compliance with the provisions of sec. 501(c) which says only that an inspection and test of all functions and safety devices shall be made by a competent person at intervals of no more than three months.

Citation 2, Item 15(b)

The Secretary’s inspection observed open wiring running into a junction box. He said that because it was not protected by some type of covering there was a risk of physical damage to the line. This could result in exposure of employees to contact with energized wires. It was alleged that this was a violation of 29 C.F.R. 1926.400(a) which incorporates Article 320–10 of the National Electrical Code by reference which requires that open conductors be separated at least 2 inches from other electric current conducting material. These wires were not so protected.

The Respondent does not dispute this testimony but argues that Article 320–10 is inapplicable to temporary wiring.

This Commission has ruled (see Secretary of Labor v. Berthe Electric Co., Inc., CCH OSHA para. 19753 (1975)) that all NEC requirements apply to both permanent and temporary wiring unless specifically excluded by Article 305.

Accordingly, it is my conclusion, and matter of law, that 29 C.F.R. 1926.400(a) is applicable to both permanent and temporary wiring systems. However, it is obvious that whenever temporary wiring enters a junction box that it must pass through an opening in the box which most likely would be less than four inches in diameter. If there is an approved method of insulating energized conduits from contact with junction boxes as used here, the Secretary’s witnesses didn’t mention it. No doubt this could be done, but the NEC provision relied upon by the Secretary, Art. 320–10, does not appear to be applicable.

The Respondent’s motion to dismiss Items 1, 12, 13 and 15(b) of Citation 2 is granted.

Citation 1, Item 1

It is alleged that an energized wire was lying in a work area where employees could have come in contact with it. The Secretary’s witness, Hoyt, testified that upon observing the wire, he used a biomedical field probe which indicated to him that the wire was energized. He then used a voltage tester which indicated to him that the conductor was carrying 110 volts. The Secretary’s witness, Creveling, corroborated Hoyt’s statement that he used a voltage tester as did Daniel’s project safety manager, Briggs, who was also present. However, without expressing any doubt as to the veracity of Hoyt and Creveling, it cannot be denied that their testimony lacks credibility when in conflict with credible testimony to the contrary because of Hoyt’s admitted erroneous description of the proper method of using the biomedical field tester. (Tr. II, 93–95)

It cannot be denied that Hoyt attempted to test the line. Daniel’s project safety officer testified that he saw it done. However, there is the unrebutted testimony from the same witness, Briggs, that the inspection party passed through two barricades, after first being cleared to enter by a carpenter foreman, before reaching the site where the wire was observed (Tr. II, p. 189). Hoyt denied that there were any barricades present (Tr. II, p. 90).

In view of Hoyt’s previously noted careless attention to critical facts as opposed to the Respondent’s witness Briggs prompt and unqualified admission against interest that Hoyt had in fact used a testing device in his presence, it is concluded as a matter of law that the Secretary’s allegation of violation in Item 1, Citation 1 is not established by a preponderance of the evidence.

Citation 1, Item 2

It is not disputed that, although there was no ladder present when Hoyt arrived at the location where two men were working on a scaffold, it was conceded that a ladder was available and used for descent. I consider the employee’s admission that he used diagonals instead of a ladder to climb up to the scaffold to be an isolated incident for which the employer cannot be held accountable for. There was no violation of 29 C.F.R. 1926.451(a)(13).

Citation 1, Item 3

The two welders working upon the scaffold were wearing safety belts and lanyards, but they were not tied off to a life line. This constitutes a violation of 29 C.F.R. 1926.451(w)(6). However, the Secretary’s evidence failed to show, upon consideration of the criteria established by the provisions of 29 U.S.C.A. 666(i) what facts justify a penalty of $400. Accordingly, a penalty of no more than $100 is considered to be reasonable.

Citation 2, Item 5

The bench grinder referred to in the citation was not in use when observed. The compliance officer said that it looked new. The Respondent’s equipment and supply manager agreed that a work rest not only is required but necessary. He said the could not use a bench grinder without it, but this grinder had not yet been operated. There was no violation of 29 C.F.R. 1926.303(c)(2).

Citation 2, Item 8

It is obvious that use of a rope which could be severed if the flame from the welding equipment on the scaffold came too close to it created a hazard proscribed by section 451(a)(18). It is equally clear that the provisions of sec. 1926.451(w) which appear to approve the use of manila rope on float scaffolds are not applicable when welding is being done. A violation was shown.

Citation 2, Items 9 and 10

The openings described in Items 9 and 10 were created for the performance of work which could only be done through these means of access. There was no violation of 29 C.F.R. 1926, section 500(b)(1) and 500(b)(8).

Citation 2, Item 11

There was evidence showing that there was some minor sagging of wire rope barricades. However, the Secretary’s witnesses neglected to find out if any of the workmen observed in this area were Respondent’s employees (Tr. 121, 124, 127). There were several contractors on the project. The burden of proof of violation of 29 C.F.R. 1926.500(d)(1) has not been satisfied.

Citation 2, Item 14

Assuming without deciding that section 230–70(b), National Electrical Code, NFPA 70–1971, was lawfully adopted by reference in 29 C.F.R. 1926.400(a), it is irrelevant to the situation described by the compliance officer. Section 230–70(b) is a safety standard which requires, when there is an emergency, that a means for disconnection of energized wires such as switches or circuit breakers be installed. Neither the absence of loose blocks to step upon as a means of access to disconnectors in a temporary electrical service booth (if indeed access to disconnect switches was impeded and there is no convincing proof that it was) nor open wiring used to supply a temporary receptacle come within the purview of section 230–70(b), NEC. There was no violation of 29 C.F.R. 1926.400(a).

ORDER

Upon consideration of the foregoing findings of fact and conclusions of law, it is ordered that Citation 1, Item 3 be affirmed with a penalty of $100 being assessed for this violation; that Citation 2, Item 8 be affirmed without penalty; and that all other items in Citations 1 and 2, except Citation 2, Items 4 and 7 which have become final, be vacated.

BEN D. WORCESTER

Judge, OSHRC

Dated: November 13, 1980

Boston, Massachusetts

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[1] The standard at 29 C.F.R. § 1926.400(a) provides:

All 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), unless otherwise provided by regulations of this part.

Article 110–17(a) of the National Electrical Code provides:

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 wit in 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.

[2] The standard at 29 C.F.R. § 1926.451(a)(13) provides:

§ 1926.451 Scaffolding.

(a) General requirements.

(13) An access ladder or equivalent safe access shall be provided.

[3] Respondent’s assertion in its brief that Judge Worcester found Reid’s testimony not to be credible is not supported. The judge made no implicit or explicit credibility determination against the employee. He merely characterized Reid’s admitted resort to the bracing as a means of ascending to the scaffold as an isolated incident of employee misconduct for which Daniel should not be held accountable. The Commission has recognized unpreventable employee misconduct as an affirmative defense to a charge of violation where an employer establishes that the action of its employee was a departure from a work rule that the employer effectively communicated and uniformly enforced. See Frank Swidzinski Co., 81 OSAHRC 4/E14, 9 BNA OSHC 1230, 1981 CCH OSHD ¶ 25,129, (No. 76–4627, 1981). Here, the affirmative defense—raised not by Respondent, but by the judge sua sponte—is without foundation in the record. There is no evidence that a pertinent work rule existed and, to the contrary, the record indicates both that Reid climbed the bracing on more than one occasion and also that he was never reprimanded for doing so. Accordingly, the defense has not been established.

Chairman Rowland agrees that the judge erred in finding that Daniel cannot be held responsible for its employee’s failure to use a ladder as a means of access to the scaffold. However, Chairman Rowland does not join in the majority’s reliance on the ‘affirmative defense’ of unpreventable employee misconduct as the basis for rejecting the judge’s finding. Rather, Chairman Rowland concludes that Daniel could have anticipated the employee’s actions because Daniel knew or should have known that no ladder was available for use by the employee. Therefore, in the Chairman’s view, it is unnecessary to consider whether under Daniel’s work rules the employee would have been required to use a ladder had one been provided.

[4] The standard at 29 C.F.R. § 1926.552(c)(15) provides:

Following assembly and erection of hoists, and before being put in service, an inspection and test of all functions and safety devices shall be made under the supervision of a competent person. A similar test and inspection is required following major alteration of an existing installation. All hoists shall be inspected and tested at not more than 3-month intervals. Records shall be maintained and kept on file for the duration of the job.

[5] The judge’s reference in his decision to § 1926.501(c), which reference is reiterated in the direction for review, appears to be merely a citation error. Section 1926.501(c), a standard governing stairways, was at issue concerning a separate item in the Secretary’s original citation. It has nothing to do with personnel hoists. We conclude that the judge was referring to the requirements of the cited standard, § 1926.552(c)(15). We also note that the judge overstated the role of the manufacturer in declaring that the regular maintenance of the hoist was performed under the ‘supervision’ of the manufacturer. Nevertheless, the record clearly indicates that Respondent’s mechanic was trained by the manufacturer’s representative and acted in accordance with the manufacturer’s recommendations. These minor inaccuracies in the judge’s decision do not detract from his correct conclusion that Respondent complied with the requirements of the standard.

[6] Article 230–70(b) of the National Electrical Code provides, in pertinent part:

The disconnecting means shall be located at a readily accessible point nearest to the entrance of the conductors, either inside or outside the building or structure. Sufficient access and working space shall be provided about the disconnecting means.

[7] The Secretary correctly points out the judge’s apparent reliance upon the terms of Article 230–70(a) of the National Electrical Code as the basis of his decision, rather than upon Article 230–70(b), which was cited by the Secretary. Article 230–70(a) provides:

Means shall be provided for disconnecting all conductors in the building or other structure from the service-entrance conductors.

Article 230–70(a) was never at issue here.

[8] Article 320–10 of the National Electrical Code provides:

Open conductors shall be separated at least two inches from metallic conduit, piping, or other conducting material, and from any exposed lighting, power or signal conductor, or shall be separated therefrom by a continuous and firmly fixed nonconductor additional to the insulation of the conductor. Where any insulating tube is used, it shall be secured at the ends. Deviation from this requirement may, when necessary, be allowed by the authority enforcing this Code.

[9] The Secretary probably intended to refer here to Article 370–7(b); there is no Article 270–7(b) in the NEC.

[10] Commissioner Cottine dissents to the de minimis classification of the violation. The photographs in evidence show that the conductor wires lay over solidly attached metal clamps in a position where they were exposed to being struck and having their insulation damaged. The compliance officer testified that ‘a person storing the iron brackets . . . could mash the hot wire against the metal [clamps], crush the covering and be exposed to shock from the hundred and ten volts.’ In Commissioner Cottine’s view, this hazard has more than a negligible relationship to employee safety, and abatement of the hazard should be required. See Southwestern Electric Power Co., 80 OSAHRC 81/C7, 8 BNA OSHC 1974, 1980 CCH OSHD ¶24,730 (No. 77–3391, 1980) (Cottine, Commissioner, dissenting).