WELSH FARMS ICE CREAM, INCORPORATED

OSHRC Docket No. 15906

Occupational Safety and Health Review Commission

August 23, 1977

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Before BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Reg. Sol., USDOL

Robert J. Smith, Secretary, Welsh Farms Ice Cream, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

The May 12, 1976 decision of Administrative Law Judge Edward V. Alfieri is on review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ["the Act"]. Judge Alfieri vacated a citation issued to respondent, Welsh Farms Ice Cream, Inc., alleging a serious violation of section 5(a)(2) of the Act for noncompliance with Article 110-17(a) of the National Electrical Code, incorporated by reference in the standard published at 29 CFR 1910.309(a). n1

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n1 1910.309 National Electrical Code.

(a) The requirements contained in the following articles and sections of the National Electrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. of C1-1968) shall apply to all electrical installations and utilization equipment:

Articles:

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110-17(a), (b), and (c) -- Guarding of Live Parts.

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

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

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

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

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

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

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I granted the petition for discretionary review filed by the Secretary of Labor. n2 The Secretary takes exception to the Judge vacating the citation because of respondent's lack of knowledge of the cited condition. The Secretary agrees with the Judge that, because of the absence of proof of employer knowledge of the cited condition, a serious violation has not been established. Nevertheless, analogizing to Graven Bros. & Co., 76 OSAHRC 40/A5, 4 BNA OSHC 1045, 1975-76 CCH OSHD para. 20,544 (No. 2538, 1976), he argues that the Judge should have found respondent in nonserious violation of the standard.

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n2 Former Commissioner Moran issued a direction for review in whic no issues were specified.

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On November 12, 1975, a representative of the Occupational Safety and Health Administration conducted an inspection of respondent's restaurant in Allamuchy, New Jersey. In the basement of the leased premises, the compliance officer observed [*3] a galvanized electrical junction box, 2 1/2 by 4 inches in size, located on a rear wall about 20 inches above the floor. The junction box was about 15 feet from a General Electric furnace and adjacent to shelving where foodstuffs were stored. The compliance officer observed that the junction box was not covered and that four wires carrying 110 volts of electricity were exposed. One wire had no insulating cap, another was fitted improperly.

Respondent's manager of restaurant operations, Mr. Walter Schlesser, accompanied the compliance officer during the inspection. The compliance officer testified that Schlesser stated that he was unaware of the condition of the junction box. The compliance officer further testified that Schlesser stated that electricians had been working in the basement a few weeks earlier and had probably neglected to replace the cover on the junction box.

Judge Alfieri ruled that the Secretary had established the existence of the violative condition and that respondent's employees had access to the hazard. He found that the hazard was created by the independent electrical contractor that had worked on the premises. The Judge also determined that respondent [*4] had no reason to believe that the electrical work had not been done in conformity with the National Electrical Code. Accordingly, he found that respondent had no knowledge of the violative condition and vacated the citation.

A divided Commission has held that, as part of his proof of a serious violation, the Secretary must establish employer knowledge. D.R. Johnson Lumber Co., 75 OSAHRC 54/A2, 3 BNA OSHC 1124, 1974-75 CCH OSHD para. 19,695 (No. 3179, 1975). The Judge correctly ruled that the Secretary failed to sustain that burden in this case. The finding that the violative condition was created by the electrical subcontractor and that respondent could not have known of the condition is supported by the record. Cf. Fry's Tank Service, Inc. and Cities Service Oil Company, 4 BNA OSHC 1515, 1976-77 CCH OSHD para. 20,999 (Nos. 4447 & 4648, 1976) Petition for review docketed, No. 76-1927 (10th Cir., October 9, 1976).

In Graven Bros. & Co., supra, relied upon by the Secretary in his petition, the Commission reiterated its position that where a citation alleges a willful violation, and all of the elements of that violation are established except [*5] for the willful characterization, the citation should not be vacated. Instead, a nonserious violation should ordinarily be found. In Graven Bros. it was further stated that a serious violation may be found in such circumstances if the elements of a serious violation have been established after being tried by the express or implied consent of the parties.

A divided Commission has held, however, that employer knowledge is an element of a nonserious as well as a serious violation. Scheel Constr., Inc., 76 OSAHRC 38/B6, 4 BNA OSHC 1824, 1976-77 CCH OSHD para. 21,263 (No. 8687, 1976); Green Constr. Co. and Massman Constr. Co., 76 OSAHRC 134/D9, 4 BNA OSHC 1808, 1976-77 CCH OSHD para. 21,235 (No. 5356, 1976). n3 Here, the Secretary acknowledges in his petition for discretionary review that the record is devoid of evidence of employer knowledge of the hazardous condition. This deficiency precludes finding either a nonserious or serious violation under Commission precedent.

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n3 I would add that the Commission should re-examine the holdings of Green and Massman Constr. Co., supra and D.R. Johnson Lumber Co., supra. Reconsideration should, however, await the appointment of a third member to the Commission to assure that majority action is possible in the event of a divided vote. Cf. Shaw Constr. v. O.S.H.R.C. and Usery, 534 F.2d 1183 (5th Cir. 1976).

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Accordingly, we affirm the Judge's order vacating the citation.

So ORDERED.