KISCO COMPANY, INC.

OSHRC Docket No. 2703

Occupational Safety and Health Review Commission

May 14, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Alan M. Wienman dated January 28, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i). After reviewing the record in this case, we affirm the Judge's disposition.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the Chairman's disposition of this case. Submissions by the parties were invited on the following:

1. Was the Judge correct in stating that the Secretary of Labor did not transgress any provision of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter the Act) by fixing an abatement date prior to the expiration of 15 working days?

2. What is the provision of law which gives effectiveness to such an abatement date?

3. Whether the Judge erroneously found that respondent was not in violation of the standard at 29 CFR 1910.252(c)(1)(i) because the record failed to establish a violation of the standard?

4. In the alternative, whether the Judge committed reversible error by refusing to continue the hearing in the instant case for two days so that complainant could have subpoenaed an [*2] expert witness to testify in rebuttal to respondent's witness.

I would accept the Judge's findings of fact and I would also agree with his disposition on the merits as set forth on pages 12 through 14 of his decision.

The essential difficulty here rests not with the welding standard, but with an inadequacy in the electrical standards in limiting to new or replacement installations after March 15, 1972, a requirement that circuit breakers and disconnecting means indicate when they are in an open or closed position. Rules of this type would place less dependence upon human behavior.

The answers to questions 1 and 2 listed above are given clearly in Brennan v. O.S.H.R.C. & Kesler & Sons Constr. Co., No. 74-1518 (10th Cir., March 28, 1975). Kesler held that the Secretary of Labor may require abatement in less than 15-working days, even though an employer has 15-working days in which to contest the citation in which abatement is prescribed.

[The Judge's decision referred to herein follows]

WIENMAN, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting [*3] a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citation alleged on the basis of an inspection of a workplace under the ownership, operation and control of Respondent located at 6300 St. Louis Avenue, Hillsdale, Missouri, that the Respondent violated the Act by failing to comply with certain Occupational Safety and Health Standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation for Serious Violation, issued April 5, 1973, alleges that the violation resulted from failure to comply with standards promulgated by the Secretary by publication in the Federal Register on October 18, 1972 (37 FR 202) and codified as 29 CFR 1910.252(c)(1)(i) and 29 CFR 1910.252(c)(6)

The alleged violation is described on the Citation as follows:

Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

29 CFR Section 1910.252(c)(1)(i), page 22306, column 2 -- The main disconnecting switch that provided 440 volts to the side seam welder #W-40, Model #6957, located in the welding department was not a safety [*4] type disconnecting switch in that it was not maintained in an operative manner because when the handle was pulled to the off or open position the knife blades did not disconnect from the main contact and did not shut off the power when the machine and its controls were being serviced. -- April 16, 1973.

29 CFR Section 1910.252(c)(6), page 22307, column 2 -- Periodic inspection of the main switch box labeled #W-40 was not made by qualified maintenance personnel and the operator of the main switch box #W-40 was not instructed to report any equipment defects to his supervisor and the use of the equipment was not discontinued until safety repairs have been completed. -- April 16, 1973

The above violations were cited from the Federal Register, dated October 18, 1972, Volume 37, Number 202.

The standard codified as 29 CFR 1910.252(c)(1)(i) provides as follows:

(c) Installation and operation of resistance welding equipment.

(1) General. (i) Installation. All equipment shall be installed by a qualified electrician in conformance with Subpart S of this part. There shall be a safety-type disconnecting switch or a circuit breaker or circuit interrupter to open each power circuit [*5] to the machine, conveniently located at or near the machine, so that the power can be shut off when the machine or its controls are to be serviced.

The standard codified as 29 CFR 1910.252(c)(6) provides as follows:

(6) Maintenance. Periodic inspection shall be made by qualified maintenance personnel, and records of the same maintained. The operator shall be instructed to report any equipment defects to his supervisor and the use of the equipment shall be discontinued until safety repairs have been completed.

Pursuant to the enforcement procedures set forth in Section 10(a) of the Act, the Respondent was notified by letter dated April 5, 1973, from A. F. Costranova, Area Director, Occupational Safety and Health Administration, U.S. Department of Labor, that he proposed to assess a penalty for the alleged serious violation in the amount of $700.00.

Respondent filed a timely Notice of Contest, and Complaint and Answer were filed by the parties.

Prior to hearing in the cause Respondent filed a Motion to Vacate the Citation and proposed penalty. In support of this Motion, Respondent represented:

(1) That the standards allegedly violated by Respondent are unenforceable and void [*6] because they are neither National Consensus Standards nor established Federal standards as defined in the Act, and that in so promulgating the standards the Secretary exceeded his authority as set forth in Section 6(a) of the Act.

(2) That Respondent was deprived of substantive due process under the Constitution and also deprived of the safeguards of the Act because Respondent was given only six working days rather than 15 working days to contest the Citation.

(3) That the Respondent was denied substantive due process under the Constitution and also denied rights afforded under the Compliance Operations Manual of January 1972 (OSHA-2006) because the Compliance Officer during the closing conference did not tell, or would not tell the Respondent of any violations known to the Compliance Officer.

(4) That 29 CFR 1910.252(c)(6) is not applicable to Respondent's operation in that the standard does not require that maintenance records be kept on electrical switch gear equipment.

Herbert E. Bates, Judge, OSAHRC entered an order June 21, 1973 denying Respondent's Motion to Vacate the Citation and Proposed Penalty en toto with a proviso that the denial was made without prejudice [*7] to Respondent's right to raise by future Motion the issue embraced in paragraph 3 above. The proviso was made to afford both parties the opportunity to present evidence relating to the closing conference.

The case was assigned for hearing to the undersigned Judge by an order of the Commission dated June 22, 1973, and the cause came on for hearing at St. Louis, Missouri on July 11, 1973.

Respondent renewed its Motion to Vacate at the hearing, and the Motion was taken under advisement.

THE ISSUES

The primary issue for resolution is whether the Respondent violated the safety standards as alleged in the Citation, and, if so, what penalty is appropriate. Additional Issues raised by Respondent's Motion to Vacate the Citation and Proposed Penalty include the questions of whether 29 CFR 1910.252(c)(6) is a National Consensus Standard promulgated pursuant to the Secretary's authority as set out in Section 6(a) of the Act; whether the Respondent was deprived of due process because it was afforded less than 15 working days to contest the Citation; whether the Respondent was denied due process by the Compliance Officer's failure to inform Respondent of violations at the closing conference; [*8] and whether regulation 29 CFR 1910.252(c)(6) is "applicable to Respondent's operation."

SUMMARY OF THE EVIDENCE AND DISCUSSION

The Motion to Vacate

Although Judge Bates denied Respondent's Motion to Vacate the Citation and Proposed Penalty en toto, the undersigned Judge nevertheless reviewed each ground urged in support of the Motion. Particular heed was paid to the proposition that the Occupational Safety Standards allegedly violated by Respondent are not National Consensus Standards or established Federal standards as defined in the Act. The case of Secretary of Labor v. Oberhelman-Ritter Foundry, Inc., The Oberhelman-Ritter Foundry, Inc. case involved alleged violation of standards requiring specified bridge and trolley bumpers for overhead and gantry cranes, and the standards in question, [*9] 29 CFR 1910.179(e)(2) and e(3) have their origin in the American National Standards Institute (ANSI) code sections B30.2-1.7.2 and B30.2-1.7.3 rules stating that such bumpers "should" be installed. In the corresponding sections of the OSHA Standards, the term "should" was changed to "shall." (The ANSI safety code used the terms "should" and "shall" to distinguish between advisory and mandatory rules, and the change from "should" to "shall" in the promulgation in the Secretary's regulations was said to have been inadvertent. It was the announced intent of the Secretary of Labor in promulgating part 1910 to designate as National Consensus Standards only the mandatory provisions of the ANSI standards. (FR 36 No. 105, T. 10466))

In the instant case a comparison of regulation 29 CFR 1910.252(c)(1)(i) and ANSI Z-49.1, 1967, the source document for the subsection, reveals no comparable substantive changes rendering the subsection invalid. ANSI Z-49.1 stated:

All (resistance welding) equipment shall be installed by a qualified electriciam in conformance with the National Electric Code . . . and meet local inspection requirements.

In 29 CFR 1910.252(c)(1)(i) the words "Subpart [*10] S of this part" are substituted for "the National Electric Code," and the words "meet local inspection requirements" are deleted. The standards promulgated by the Secretary incorporate by reference the National Electric Code, and the substitution of "Subpart S" for National Electric Code is only a substantive change to the extent that Subpart S limits the applicability of the Code. As to the elimination of the words "and meet local inspection requirements," the conjunctive is important; there is no substantive change at all unless such local requirement happens to be more stringent than those of Subpart S.

Thus, neither of the "changes" in ANSI Z-49.1 language prejudice an employer by imposing stricter requirements than did the source document. To the contrary, the changes constitute deletions of certain requirements. Such deletion is a valid exercise of the Secretary of Labor's authority under Section 6(a) of the Act to promulgate ". . . any National Consensus Standard . . . unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees." In excluding the requirement that resistance welders ". [*11] . . meet local inspection requirements," the Secretary is clearly acting within the scope of his authority.

The argument that Respondent was deprived of its statutory right to contest the Citation within 15 working days as provided in Section 10(a) of the Act because the Citation specified an abatement period of only six working days is without merit in view of the provisions of Section 17(d) of the Act. This section, in substance, states that the period permitted for correction of violation does not begin to run until the date of the Final Order of the Commission in case the employer initiates review proceedings in good faith.

It is clear that the Secretary did not transgress any provision of the Act by fixing an abatement date prior to the expiration of 15 working days. Respondent, however, challenges the procedure with the argument that if an employer elects to abate by the abatement date he cannot contest because the issue of alleged violation is moot, or, if he contests after the abatement date he runs the "chilling risk" of additional penalties. The net effect, Respondent contends, is to deprive the employer of substantive due process required by the Fifth Amendment [*12] of the Constitution of the United States.

This issue insofar as it constitutes a challenge to the constitutionality of the Act, is one which will not be ruled upon in this decision. The undersigned Judge is persuaded that neither the Commission nor its Judges have jurisdiction to pass on the statute from which the Commission derives its authority. Respondent is entitled to have the constitutional issues decided, but this Decision is limited to issues relating to compliance with safety standards and statutory enforcement procedures.

The argument that Respondent was denied substantive due process because of the manner in which the closing conference was conducted is also without merit since neither the Act nor the Compliance Operations Manual require the Compliance Officer to specify alleged violations at the closing conference. This particular point was litigated in the case of Secretary of Labor v. R.D. Hall Manufacturing, Inc., OSAHRC Docket #825, wherein Judge Risteau held that although not preferable, the failure of an OSHA inspector to point out alleged violations to the employer does not invalidate the Citation. n1

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n1 The Compliance Operations Manual requires only that the Compliance Officer advise the employer representative of "all conditions and practices disclosed by the inspection which may constitute safety or health violations. He should also indicate, where possible, the applicable section or sections of the standard which may have been violated. Copies of the applicable standards will be left with the employer at the conclusion of the conference."

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The final ground urged in support of the Motion is that the requirements of safety regulation 29 CFR 1910.252(c)(6) are not applicable to switch gear equipment. However, Subsection (c) of 1910.252 by its terms applies to welding equipment, its installation and operation, not merely to welders per se. There is a specific reference in 1910.252(c)(1)(i) to disconnecting switches which must be employed to shut off power when servicing the machine or controls. The maintenance requirements of 1910.252(c)(6) apply to such switches in the absence of any express exclusion or an overriding regulation. We find no such exclusion [*14] or regulation, and conclude that the Motion to vacate was properly denied.

The Alleged Violation

The case arose out of an accident which occurred at Respondent's plant March 14, 1973 when one Irl Hicks, a maintenance electrician, died from electric shock while attempting repairs on a welding machine. The facts surrounding the fatal occurrence are not in dispute, and the testimony of OSHA Compliance Officer Barbara Horsley was largely based upon information of the accident.

The decedent, a well qualified maintenance electrician, had been assigned to correct an arcing problem in a side seam welding machine identified as W-10. First shift welding department foreman Charles A. Van Cleave pointed out the problem in a conference with Hicks and Alvin H. Ellis, superintendent of maintenance, who was Hicks supervisor. Van Cleave showed Hicks what he wanted done, and Hicks indicated the repair work would be done during his shift.

Current for the side seam welder was supplied from external sources through a switch box (labeled G-40) on a wall. This switch was identified in testimony as the "wall switch" or "the box at the wall." There was an additional switch box at the welding [*15] machine itself.

At approximately 6:45 p.m. Hicks dispatched his helper, Ambrose Van Doren, to the machine shop to cut a copper bar. When Van Doren returned he found Hicks laying between a conveyor and the welding machine.

Van Doren reported that when he first talked to Hicks, the control panel box on the welder was open, apparently indicating Hicks had already begun working on the fuse box (Exhibit G-3: Respondent's Supplemental Report of Fatality).

J. W. Kisling Jr., Respondent's Executive V.P., told Ms. Horsley the results of Respondent's investigation and its theories as to the sequence of events: Hicks was working on the switch box on the W-40 welding machine. An Allen wrench and a crescent wrench were connected to a lug in the machine switch box. It was believed Hicks was trying to tighten the lug when he came in contact with a live circuit. It was found that the switch box on the wall, the source of power for the welding machine, was not in an open position.

Kisling and Wells demonstrated for Ms. Horsley the appearance of the wall switch box at the time of the fatality. The box was closed, and the handle appeared to be in a down position with no current flowing. [*16] However, when the box was opened it was shown from the position of the knife blades that the current was not cut off. Ellis and Kisling placed the blades in the position as found.

A number of photographs of the wall switch box with the handle in various positions were admitted into the record, and considerable testimony was devoted to the condition and functioning of the box. To summarize, the knife blades remained in contact until the handle was pushed through the last inch or final 5 degrees. The switch was functional -- the blades disconnected and power was cut off -- when the handle was pushed down all the way through its arc.

The Compliance Officer made several observations as to the condition of the wall switch box. It appeared to take additional effort or pressure to push the handle all the way to the lower stop. The box was a heavy duty box equipped with springs to provide a snap type opening and minimize arcing. However, the lower spring, used to make opening easier, was broken. The bail bar appeared to be in a rusty condition, and a ceramic arc shield was missing.

The testimony about the decedent indicated he was a qualified maintenance electrician who had worked [*17] for Respondent nine years. He was known to be careful to check circuits with a voltage tester to insure that the power was turned off before working on equipment. The voltage tester was found next to his body. It was in working order.

Robert Hoffman, Respondent's chief engineer, testified he had purchased the side seam welding machine. It was equipped with a central panel which included a disconnect switch (Exhibit G-12). He verified that the wall switch would function, i.e., turn power off and on, and stated that a spring disconnect was not necessary on 440 volt equipment, and some 440 volt switches are designed without springs. The wall switch was not "locked out" at the time of the accident, and he did not believe Hicks could have used his voltage tester before the accident.

Rule 8 of Respondent's General Safety (September, 1970) ordered:

8. When any maintenance or cleaning is being done on a machine, it absolutely must be locked out and the main power cut off. (Exhibit G-8).

Clearly disproved in the record is any allegation that Respondent was in violation of 29 CFR 1910.252(c)(1)(i). The welding machine was provided with a conveniently located disconnecting [*18] switch, and the power could have been shut off by pulling the handle to the off or open position. That the power was not shut off at the time Hicks attempted to work on the machine must be attributed to two factors: First, an inherent defect in the design of the switch which did not clearly indicate when it was in the open or closed position. Second, an apparently imprudent act on the part of a normally careful electrician who failed to test the terminals on the fatal occasion.

Neither of the above factors constitutes a basis for charging Respondent with violation of any safety regulations. The National Electric Code now requires that circuit breakers and disconnecting means indicate when they are in the open or closed position, but the NEC sections mandating such indicators (230-70(f) and 204-25(e)) are not incorporated in 29 CFR 1910.309(a) wherein the Secretary designated certain sections of the NEC for application to all electrical installations. Indicators are required only on new or replacement installations made after March 15, 1972 under the provisions of 1910.309(b), and no regulation in force in March 1973 was designed to meet the particular hazard which this older [*19] switch box presented.

The allegation that Respondent violated 29 CFR 1910.252(c)(6) by failing to inspect the wall switch box, report defects, and discontinue the use of equipment "until safety repairs have been completed" strikes us as a contrived charge. Nowhere in the record is it indicated that the switch box required "safety repairs" despite a broken spring and a missing arc shield, since neither item was shown to be necessary for safe operation of a 440-volt disconnecting switch. We do not accept Respondent's theory that 29 CFR 1910.252(c)(6) is inapplicable to a switch box controlling the power supply to a welding machine because the maintenance subsection excepts no part of the welding equipment installation. However, to predicate a serious violation of the Act upon a mere failure to inspect periodically or keep inspection records is absurd absent proof of dangerous defects which could have or would have been revealed by inspection.

To summarize, the switch box was indeed dangerous, but the hazard was not one dealt with in any safety regulation applicable to pre-1972 installations. If Respondent's theory of the sequence of events is correct, the deceptive appearance [*20] of the switch box handle may have created the circumstances which led to a fatal accident, but nothing in the Citation was addressed to this condition.

It was an act of negligence on the part of the employer, perhaps, not to have replaced the switch box with a model conforming to the National Electric Code, but no violation of the Act is involved therein, and no purpose is served by speculating about the tort aspects of the acts of the employer and deceased employee. The evidence of record fails to establish a violation of the Act, and the findings are made accordingly.

FINDINGS OF FACT

1. Kisco Company, Inc., the Respondent herein, is a corporation with a place of business located at 6300 St. Louis Avenue, Hillsdale, Missouri, where it is engaged in the fabrication of coil and sheet metal and various products.

2. On March 14, 1973, one Irl Hicks, a maintenance electrician employed by Respondent, was killed while attempting repairs on a welding machine (W-40) in Respondent's place of business. The fatality was duly reported to the Occupational Safety and Health Administration, St. Louis Area Office. Subsequent to that notification an occupational safety inspection was conducted [*21] at the facility of Respondent and a Citation for Serious Violation was issued to Respondent on April 5, 1973.

3. The evidence with respect to the alleged violation of safety standards at Respondent's plant on March 14, 1973 revealed:

(a) The welding machine (W-40) was provided with a safety type disconnecting switch or a circuit breaker or circuit interrupter to open each power circuit to the machine, conveniently located at or near the machine. The main disconnecting switch on the power circuit to the machine was in an operative condition so that the power could be shut off when the machine or its controls were serviced.

(b) Prior to March 14, 1973 inspection of the above-mentioned main disconnecting switch was not conducted on a periodic basis; however, machine operators were instructed to report all equipment defects and use of equipment was discontinued until repairs were completed. The evidence with respect to the main disconnecting switch also revealed that on the day of the inspection a spring which aided opening of the switch was broken, and a ceramic arc shield was absent, but neither spring nor arc shield was necessary for safe operation of the switch.

CONCLUSIONS [*22] OF LAW

1. At all times material hereto, the Respondent was an employer engaged in business affecting commerce within the meaning of Section 3(5) of the Act. The Occupational Safety and Health Review Commission has jurisdiction of the parties and the subject matter herein.

2. On March 14, 1973 Respondent was not in violation of the safety regulations codified as 29 CFR 1910.252(c)(1)(i) and 29 CFR 1910.252(c)(6) as alleged in the Citation for Serious Violation issued April 5, 1973.

ORDER

Based on the above Findings of Fact and Conclusions of Law it is ORDERED that the Citation for Serious Violation issued Respondent April 5, 1973 and the penalty proposed thereon are hereby vacated.