ORMET CORPORATION

OSHRC Docket No. 76-4398

Occupational Safety and Health Review Commission

April 21, 1981

[*1]

Before: BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Counsel for Regional Litigation, Office of the Solicitor, USDOL

William Kloepfer, Associate Regional Solicitor, USDOL

Robert W. Doty and John C. Artz, for the employer

Larry H. Mall, Chairman, Safety Committee, United Steelworkers of America District 23 - Local Union No. 5724, for employees

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge William E. Brennan is before the Commission under 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 Brennan, among other things, affirmed citation 4 which alleged that Respondent, Ormet Corporation ("Ormet"), violated section 110-17(b) of the National Electrical Code, NFPA 70-1971, ANSI C1-1971 (Rev. of C1-1968) ("the NEC"), n1 adopted and incorporated by reference under the standard at 29 C.F.R. 1910.309(a), by not guarding a main disconnect switch against physical damage. The alleged violation was characterized as other than serious.

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n1 Section 110-17(b) of the NEC states:

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

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(b) In locations 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.

[*2]

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Ormet filed a petition for discretionary review of the judge's decision. Acting Chairman Barnako directed review on the issues raised in the petition. Ormet's petition raises the issue of whether the reference to physical damage in NEC section 110-17(b) was intended to include damage intentionally and deliberately caused by employees. n2 We find that the cited switch was not "exposed to physical damage" within the meaning of NEC section 110-17(b), and we consequently vacate the citation issued by the Secretary of Labor ("the Secretary").

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n2 Ormet's petition raises four other issues: whether electrical power could not be locked out from any conveyor line while work was being performed; whether there was a hazard that the cited standard sought to protect against; whether Ormet should have instructed employees not to tamper with the box; and whether Ormet lacked a full commitment to employee health and safety in this matter. In view of our disposition, we need not reach these additional issues.

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On July 26, 1976, Compliance Officer Robert Beisel inspected Ormet's aluminum producing plant at Hannibal, Ohio. During the inspection, the compliance officer came upon a 480 volt, main disconnect switch box which controls the power to all 13 conveyor belts in Ormet's carbon baking furnace department.

In all, there are three sets of switches that control the conveyors. At each conveyor there is a switch for that conveyor ("conveyor switch"). Next to a wall in the furnace room there are 13 individual disconnect switch boxes, one for each conveyor ("individual disconnects"). Finally, there is the main disconnect switch box at issue here, which controls the power to all conveyors ("main disconnect"). To regulate the flow of blocks onto the conveyors, each belt is controlled by a timer, which is set to turn the conveyor on from 10 to 30 seconds. The timer turns off the conveyor when it reaches its carrying capacity.

The switch handle for the main disconnect switch box is located on the right side of the exterior of the box. During the inspection, the compliance officer observed that there was a locked padlock on the [*4] end of the switch handle. The clasp used to lock the main disconnect switch handle was broken off. As a result, the switch could not be locked in either the "on" or "off" position. The door to the switch box also was not locked and, according to the compliance officer, could be "opened like a door" by anyone.

Mr. Mall, Chairman of the Safety Committee of Local 5724, District 23 of the United Steelworkers of America ("the Union"), who was the Union's walkaround representative, told the compliance officer that the main disconnect previously had been locked in the "on" position in order to prevent the "production people" from using it as a "convenience" switch to turn off all of the conveyor lines. According to Mr. Mall, production employees are supposed to use the conveyor switches.

The compliance officer testified at the hearing that a hazard would be created if unauthorized employees used the main disconnect to turn off all of the conveyor lines while the lines are fully loaded with 300 to 500 pound carbon blocks. According to the compliance officer, if the conveyor switches and individual disconnects are in the "on" position when the main disconnect is turned "on," all of [*5] the conveyors would move for about 10 to 30 seconds before timers automatically would turn off the power to the conveyors. The surge of power under such circumstances would cause a sudden movement of the carbon blocks, with the possibility of one or more blocks falling off of a conveyor belt and onto an employee working in the area. The power surge also could cause the blocks to hit each other, causing small particles to break off and possibly injure nearby employees.

Mr. Ring, an Ormet electrician and a member of the Union Safety Committee, testified that the purpose of the main disconnect is to turn off power to the conveyors when work was to be performed on them. He stated that each electrician has a key for the padlock on the main disconnect switch handle. Mr. Ring also testified that the individual disconnects are locked out before maintenance is performed on a conveyor's motors. Mr. Ring testified that after Ormet locked the main disconnect in the "on" position to prevent unauthorized employees from using it to turn off all of the conveyors, employees used steel rods or sledgehammers to break the locking clasp in order to use the main disconnect switch. Mr. Ring also testified [*6] that guards had been installed on some individual disconnects, but had been broken off.

Mr. Ring went on to testify that he had never seen a block fall off of the conveyor, but had seen them lift up from the belt. He also stated that employees use the aisleway near the conveyors as a passageway to get to their work areas during shift changes and that these employees could be injured by any falling blocks.

Mr. Ring testified that the "easiest way" to solve the problem of unauthorized use of the main disconnect switch as well as deliberate employee destruction of locks and guards is to install a new, lockable main disconnect switch box. He also suggested that the main disconnect switch box could be elevated to a height of 14 feet above floor level, in the hope that the inconvenience of using a ladder to reach it would deter employee abuse and misuse of the main disconnect. Finally, Mr. Ring testified that no inquiry was made by Ormet to determine which employee or employees were tampering with the box. He was certain, however, that it was done by Ormet personnel.

Mr. Pfohl, Ormet's Safety Director, testified that the main disconnect switch box and the 13 individual disconnect [*7] switches are secured to a backing board. The backing board is recessed between two building columns in the furnace room. Mr. Pfohl also testified that the aisleway near this switch board is usually used by employees, but that the aisleway is not generally used as a passageway for mechanical equipment such as forklift trucks. He did testify, however, that occasionally a forklift would use the aisleway when bringing in a "skip bucket" to collect debris from the furnace room. He also stated that there had never been barrier guards for the disconnects and that they have never been damaged by mechanical equipment.

II

Judge Brennan affirmed the citation. He found that the hazard presented by the inability to lock the main switch was that "electrical power could not be effectively 'locked out' from any conveyor line while maintenance was being performed . . . ." He also found that if a conveyor loaded with heavy carbon blocks was energized by engaging the main disconnect switch, the belts could move and cause the blocks to topple off the conveyor or back up against each other. Judge Brennan concluded that the NEC standard applied to both deliberate and accidental damage. He reasoned [*8] that because the standard is silent as to whether it prohibits deliberate damage by employees "[i]t is thus susceptible to applying to either accidental or deliberate damage." It was his view that to construe the standard otherwise would frustrate the intended purpose of the NEC provision and be contrary to the objectives of the Act. The judge added that if the damaged main disconnect switch was energized and resulted in employee injury, whether the damage to the switch was caused accidentally or deliberately would be irrelevant. The judge also found that it would not be impossible for Ormet to prevent damage to the main disconnect switch. He recommended that Ormet instruct employees not to tamper with the switch, enforce these instructions through disciplinary action, and install the new, lockable switch box that was in Ormet's possession 6 months prior to the inspection.

III

On review Ormet argues that the judge erred in finding that the term "physical damage" in the cited standard was intended to include intentional damage to electrical equipment by employees. If the standard is construed to apply to this type of damage, Ormet contends, locked enclosures would be required [*9] at every location of electrical equipment throughout the country for "[e]very location which is not behind locked doors is exposed to intentional physical damage . . . ." Ormet suggests that such an expansive reading of the NEC is unwarranted.

Ormet also argues that the judge erred in finding that the proper method to prevent intentional damage was to instruct employees not to tamper with the switch and to enforce the instructions through disciplinary action. Ormet maintains that, under the judge's view, employers would have to station uniformed guards at the switch every minute. Ormet further argues that the judge erred in finding that individual conveyor belts could not be effectively locked out while maintenance work was being performed. Ormet points to testimony of Mr. Ring that the individual disconnects are locked out when working on individual conveyor motors. Ormet also argues that no hazard was shown to result from the inability to lock the main disconnect switch and that, even if a hazard did exist, it was not the hazard against which the cited standard was designed to protect. Lastly, Ormet argues that the judge erred in finding that it lacked a "full commitment to [*10] employee health and safety in this area."

On review, the Secretary filed a letter indicating that he is relying on the judge's decision and the record below. He relies on Judge Brennan's finding that if the main switch was turned off and then turned on, heavy carbon blocks could topple off the conveyor. The Secretary also noted that "employees working in the vicinity of the machines, or walking through the passageways or crossing over a conveyor line could be thrown off balance and fall as a result of the condition created by overloading the conveyors."

IV

Ormet urges on review essentially that there are two reasons why it should not be held in violation of NEC section 110-17(b): first, deliberate damage by employees is not the type of "physical damage" the standard was intended to protect against; and second, based on the record, the switch box at issue was not shown to have been exposed to physical damage. We agree.

Our reading of the standard at issue indicates that it was intended to address only accidental damage from, for example, the elements, mechanical equipment, or employee inadvertence. From all that appears from this record, however, the damage to the main disconnect [*11] switch was caused by intentional destruction by an employee or employees. We do not interpret this NEC provision as requiring employers to take precautions against deliberate damage by employees. We note that under the Secretary's view of the phrase "physical damage," electrical equipment would almost always be exposed to physical damage. Section 1910.308(b) states that "[t]he purpose of the National Electrical Code is the practical safeguarding of any persons . . . ." (Emphasis added.) Cf. Dravo Corporation v. OSHRC, 584 F.2d 637 (3d Cir. 1978) (difficulty of compliance considered in interpreting standard). We therefore hold that "exposed to physical damage" as that term is used in section 110-17(b) does not encompass deliberate damage by employees. While the absence of a means to lock this main disconnect switch box may have been hazardous, and may have violated another standard or section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1), it does not violate NEC section 110-17(b). n3

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n3 We emphasize that this decision should not be read as holding that a standard may never be construed to require an employer to construct or design equipment to forestall deliberate employee misbehavior. For example, we have construed the requirement of the machine guarding standard at 29 C.F.R. 1910.212(a)(3)(ii) -- that employers equip their machines' points of operation with guards that are "so designed and constructed as to prevent the operator from having part of his body in the danger zone" -- as forbidding a guard that can be easily circumvented by improperly operating a lever of a two-hand tripping device with one's knee rather than one's hand. See MRS Printing, Inc., 78 OSAHRC 84/B10, 6 BNA OSHC 2025, 1978 CCH OSHD P23,102 (No. 76-3113, 1978). MRS Printing did not, however, concern deliberate employee destruction of safety equipment and is therefore not controlling here. See 1910.217(c)(2)(i)(d) (fasteners of guarding devices may not be "readily removable by [the] operator, so as to minimize the possibility of misuse . . ."); 1910.217(c)(3)(viii)(d) (guarding device "shall be fixed in position so that only a supervisor or safety engineer is capable of relocating the controls").

[*12]

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We now inquire into whether this switch box was exposed to physical damage within the meaning of section 110-17(b). We find insufficient evidence that it was so exposed. The switch box was somewhat recessed between two building columns. The judge found that the box was "not out in the open." Mr. Pfohl testified that the switch box had never been damaged by mobile equipment. Although Mr. Pfohl testified that on occasion a forklift carrying a "skip bucket" would come through the furnace room aisleway next to the location of the switch box, there is no testimony that the forklift could inadvertently contact the box in a way that could damage it.

Accordingly, the judge's decision is reversed, and citation 4 is vacated.

SO ORDERED.