UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 13477
WESTINGHOUSE ELECTRIC CORPORATION,
Respondent.

January 19, 1976

DECISION AND ORDER

Appearances:

Matthew J. Rieder, Esq. of Philadelphia, Pennsylvania for the Secretary

Jack B. Albanese, Esq., of Pittsburgh, Pennsylvania for the Respondent

Ben D. Worcester, Judge, OSAHRC

This proceeding arises pursuant to a notice of contest filed by the Respondent on May 23, 1975, under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.) hereinafter called the Act. On May 1, 1975, a citation was issued alleging that the Respondent had violated Section 5(a)(2) of the Act.

THE ISSUES

Westinghouse is a corporate manufacturer of electrical equipment. Its manufacturing facility at 700 Braddock Avenue, East Pittsburgh, Pennsylvania, which is known as the Large Rotating Apparatus Division (LRA), was inspected by the Secretary on April 23, 1975. On May 1, 1975, a citation was issued. Westinghouse filed a timely notice of contest of the proposed penalties of $40 each and the alleged violations described in Items No. 6 and 7 of citation number 2. All other items in this citation have become a final order by operation of law and are not in issue. Both items allege violation of the General Industry Standards promulgated by the Secretary as Part 1910, Title 29, Code of Federal Regulations. In Item 6 it was alleged that there was a violation of 29 CFR 1910.179(e)(6)(i). This standard requires:

(6) Guards for moving parts.

(i) Exposed moving parts such as gears, set screws, projecting keys, chains, chain sprockets, and reciprocating components which might constitute a hazard under normal operating conditions shall be guarded.

The citation alleged:

Exposed moving part(s), in the overhead and/or gantry crane(s), in the following location(s) which might constitute a hazard under normal operating conditions was/were not guarded: (a) Twenty ton Northern Overhead Crane-Section A–4, Line Shaft Couplings.

In Item 7 it was alleged that there was a violation of 29 CFR 1910.179(g)(2)(ii). This standard requires that:

Electrical equipment shall be protected from dirt, grease, oil and moisture.

The citation alleged:

Electrical equipment on the overhead and/or gantry crane(s), in the following location was not protected from dirt, grease, oil, and moisture:

(a) Twenty ton Northern Overhead Crane-Section A–4, resister banks and switch or control boards

As amended at bar the Secretary alleged that foreign matter on resistor banks might cause the crane to move erratically while handling a lift and thus create a hazard to employees on the floor below.[5]

The Respondent says that because 29 CFR 1910.179(e)(6)(ii) is a national consensus standard derived from safety rules adopted by the American National Standards Institute, Inc. (ANSI), the ANSI interpretation of its meaning is controlling. In support of this contention the Respondent contends that the opinion of the chairman of the ANSI committee which drafted the ANSI standard is dispositive of the issue. The chairman had said that this standard was not intended to cover maintenance work. For that reason, argues the Respondent, since there was no proof that operating employees were ever exposed to the hazard, there was no violation.

The Complainant disputes this assertion. The Secretary says that once he promulgates a standard and interprets it in such a manner as to justify the issuance of a citation that no one, not even this Commission, can challenge his interpretation.

In Secretary of Labor v. Gilles and Cotting, Inc., 504 F.2d 1255, 1262 (4th Cir. 1974) the court said:

The statute vests adjudicatory functions in the Commission. Moreover, as is made clear by lengthy Congressional debates over enforcement procedures and the successful floor amendment withdrawing the Secretary’s authority over adjudication . . ., Congress deliberately created the Commission separate and independent of the Secretary . . .. Rather than place the trial of alleged violations in the district courts and state trial courts . . . where there could be wholly independent determinations of questions of law by reviewing appellate courts, Congress instead created a specialized agency . . .

If it is apparent that the interpretation of a standard is in violation of due process, the administrative body which has the power to decide is under a duty to declare such usurpation of the authority of Congress void and unenforceable—American Ship Building Co. v. N.L.R.B., 85 S.Ct. 955, 967 (1965). I find that the Secretary’s interpretation should be rejected. To hold otherwise would be equivalent to saying that, once the Secretary promulgates a standard and interprets it to cover the facts in a pending case, that the issue is res judicata; that the employer cannot question the Secretary’s interpretation and that this Commission lacks the authority to rule on the question. This would be absurd.

There could be no violation of 29 CFR 1910.179(e)(6)(i) unless the evidence shows that there were exposure of employees to the hazard described in Item 6 during ‘normal operating conditions.’ The evidence adduced by the Secretary showed that the only employee on the crane when the plant was operating was the crane operator. He was in the cab where he was isolated from the hazard described. If production were to be stopped and this crane was not being operated the only employees who would be near the site of the alleged hazard would be maintenance employees. Operation of a manufacturing plant and maintenance of the building and equipment and machinery used in the manufacturing process are two separate and distinct functions. When the plant is operating this is a normal condition. When a plant is not operating because of a breakdown of machinery or power failure, for instance, these are normal maintenance conditions, not normal operating conditions. Repair of a crane in a manufacturing plant is a normal maintenance procedure whether it happens once a day, once a week or once a year. Maintenance is never performed during normal operating conditions. If a crane were put through its normal operating procedures for the purpose of observing a malfunction which could not be demonstrated otherwise, that would not be a normal operating procedure. It would be normal maintenance regardless of the frequency or infrequency of troubleshooting. If the standard were devised to cover both operation and maintenance the words ‘normal operating conditions’ would be superfluous. Clearly, the inclusion of these words expressed an intention to make the standard applicable only when the equipment is being used in the process of manufacturing a marketable commodity. A contrary conclusion cannot reasonably be sustained by logic, reason or by a liberal and broad construction of this standard.

The Respondent’s reliance upon the argument that the ANSI interpretation of the term ‘normal operating conditions’ is conclusive because the ANSI standards were adopted by the Secretary is also rejected. If a term used in an ANSI standard is one which has a meaning which is not readily understood outside of the particular industry, the ANSI standard may be helpful in determining the Secretary’s intentions, but an ANSI standard is not the law. The words ‘normal operating procedure’ are not words of art. They are words of common usage easily understood. The only word which could, in the most strained consideration of its meaning, be misunderstood is the word ‘operating’ and reference to any grammar school edition of Webster’s Dictionary will make it clear that it could not possibly include maintenance.

FINDINGS OF FACT

The unguarded coupling, all witnesses agreed, would only be accessible to maintenance employees[6] and then would not rotating unless the maintenance employees were to cause it to be done for troubleshooting. Under those circumstances an experienced electrician or mechanic would take the necessary precautions to protect himself from contact with the coupling. This was the only hazard according to the complainant’s witness, Stanley.[7] There is no credible testimony that such an accident has ever occurred or is likely to occur. The conclusion of the Secretary’s witnesses that a contact hazard existed because of an unguarded coupling is speculative. Even if it were assumed that maintenance is included in the term ‘normal operating conditions,’ the Complainant has not sustained the burden of proof.

The Complainant neglected to state in the citation what hazard was created by the alleged failure to protect resistor banks and switch control boards on an overhead crane from dirt, grease, oil and moisture as alleged in Item 7. The complaint did not include a ‘short and plain statement of the claim’ as required by Rule 8(a)(2), F.R.C.P. or a ‘plain statement of the relief sought, together with the grounds therefore.’ as required by Commission Rule 30(a). Instead, the ambiguous and unenlightening allegations of Item 7 were incorporated by reference. Although counsel for the parties knew what question of fact was in issue under Item 7 from preliminary discussion, I was unaware until the hearing was in progress and the Secretary was granted leave to amend that the real issue was substantially the following: Resistor banks on a twenty-ton Northern Overhead Crane Section A–4 were not protected from dirt, grease, oil and moisture subjecting employees on the floor to injury from malfunction of the crane.[8]

The Secretary has not sustained the burden of proof that there was such a hazard. His inspector, Stanley, had previously inspected cranes as an investigator for an insurance company and a law firm. The April 23, 1975, inspection was primarily to investigate a fatality but Stanley made a general inspection while there. When asked what hazard he had observed he said that when resistor banks are not protected from dirt, grease, oil or moisture that a short could cause the hoist to move improperly which would make a load either swing or drop.

In support of this assertion the Secretary offered the testimony of Matthews Shields, Jr., a mechanical (not electrical) engineer. He said that a malfunction of the crane might occur if the debris were current carrying. If it were flammable material it might cause a fire which might burn a wire off but he disagreed with Stanley’s conclusion that this might cause the load to drop.[9] He said that if the control panel or resistors were affected by a heavy accumulation it might interfere with movement of the crane, the trolley, or the hoist. This would ‘cause the equipment not to function or to stick in an operating condition, if the accumulation got bad.’[10]

The Respondent’s witness, McWhirter, testified that he had been an electrical engineer at Westinghouse since completing a four-year training course approximately 25 years ago. He disputed Stanley’s statement that the accumulation of debris was a hazard and that enclosure of the panel would correct the alleged hazard. Because of the generation of heat a louvered panel would be required. He said that unless there was a filter behind the panel the amount of dust would not be diminished because it is produced by the heat and air circulation. Moisture would not collect in any area periodically heated. Obviously, heat would cause it to evaporate. If a louvered panel were installed some grease would still deposit itself on the resistor banks. In any event the amount which might be present would immediately burn off. If a spot of oil fell upon hot resistor banks it might cause a flash out there would be nothing more than a momentary flame. There never could be an accumulation of a large amount of grease.

The inspecting officer, Stanley, was recalled in rebuttal. He testified that there were large oil deposits of oil all over the end of the footwalk, on the bridge beam and the trolley. There was some oil on the metal plate that was on top of the resistor banks and the control panel. However, he did not dispute the testimony of McWhirter that if there had been any oil on the resistor banks that it would be quickly and harmlessly consumed by the heat.

It is not the responsibility of Westinghouse to assume the burden of showing that the accumulation of oil near the resistor banks might cause a fire. This burden is on the Complainant. In the absence of persuasive rebuttal evidence that, under the conditions described, it is probable that there would be a fire severe enough to cause malfunction of the crane, the citation must be vacated. The testimony of Westinghouse’s electrical engineer that fire under the conditions described would amount to no more than momentary flash stands unchallenged. The Secretary has no, sustained the burden of proof.

The Secretary has cited the cases of Secretary of Labor v. Wheeling-Pittsburgh Steel Corporation, OSAHRC Docket Nos. 10611 and 11327; Secretary of Labor v. United States Steel, OSAHRC Docket Nos. 10825 and 10849; and Secretary of Labor v. Bethlehem Steel Corporation, OSAHRC Docket No. 9968. Each of these cases has been taken up for review by the Commission. They have not yet become a final order and, for that reason, establish no precedent. Even though I agree that 29 C.F.R. 1910.179 was properly promulgated, I do not reach that issue. If the Secretary had sustained the burden of proof that there were hazards to employees as alleged in Item 7, he offered no proof that the subject crane could have been feasibly and economically altered as required by 29 C.F.R. 1910.179(b)(2). This is not an affirmative defense. The burden is on the Secretary to come forward with such evidence. It is an essential element of proof. See New York Life Insurance Company v. Gomer, 58 S.Ct. 500 (1938).

I respectfully disagree with so much of any of the aforementioned cases as holds that the term ‘normal operating conditions’ includes maintenance work even if it involves troubleshooting. If troubleshooting must be performed free of all hazards, in many cases such as when maintenance must be performed on an overhead crane, it could not be accomplished. A standard cannot be construed so as to prevent maintenance. Secretary of Labor v. Grayson Lumber Company 3 OSAHRC 541 (1973).

CONCLUSIONS OF LAW

Upon consideration of the record as a whole as summarized in the foregoing findings of fact I make the following conclusions of law:

1. The Secretary of Labor has failed to sustain the burden of proof that any of the Respondent’s employees were exposed to a hazard from uncovered moving parts during normal operating conditions in violation of 29 C.F.R. 1910.179(e)(6)(i) as alleged in Item 6, Citation 2. Only maintenance employees could be exposed to the alleged hazard described. The performance of maintenance work including troubleshooting is not done during normal operating conditions and is thus excluded from the scope of this standard.

2. The Secretary of Labor has failed to sustain the burden of proof that any of Respondent’s employees were exposed to the risk of injury from a malfunction of an overhead crane because of failure to cover resistor banks as alleged in Item 7, Citation 2, as amended. The evidence adduced by the Secretary when weighed against that of the Respondent is not persuasive the Secretary’s contention that a cover over the resistor banks would eliminate the alleged hazard if installed.

3. I accordingly find that, as a matter of law, the Secretary of Labor has not met the burden of proof required by Commission Rule 73.

ORDER

It is therefore hereby ordered that Items 6 and 7 of Citation 2 dated May 2, 1975, and the proposed penalties of $40 each be vacated and this proceeding dismissed.

BEN D. WORCESTER

Judge, OSAHRC

Dated: January 19, 1976

Hyattsville, Maryland

[1] Section 1910.179 applies to overhead and gantry cranes. Subsection 1910.179(e)(6)(i) provides:

Exposed moving parts such as gears, set screws, projecting keys, chains, chain sprockets, and reciprocating components which might constitute a hazard under normal operating conditions shall be guarded.

[2] Initially, Westinghouse received one serious citation and one nonserious citation containing seven items. Westinghouse filed a timely notice of contest directed at only two of the nonserious items. The serious citation and the five remaining nonserious items are therefore final orders of the Commission by operation of law. 29 U.S.C. 659(a).

The two contested items include the alleged violation of 1910.179(e)(6)(i) and an alleged violation of 1910.179(g)(2)(ii). The Judge vacated both items. The Secretary’s petition for review, granted by Chairman Cleary, took exception only to the Judge’s disposition of the alleged violation of 1910.179(e)(6)(i). Neither party has taken exception to the Judge’s vacation of the alleged violation of 1910.179(g)(2)(ii), and that item is therefore not before us on review.

[3] Although Chairman Cleary dissented in these cases and continues to believe they were wrongly decided, he agrees to follow them ‘in the interest of reasonable expectancy in the application of the standards involved.’ Wheeling-Pittsburgh Steel Corporation, 77 OSAHRC 81/C10, 5 BNA OSHC 1495 (No. 10611, 1977) (concurring opinion), pet. for review filed, No. 77–1810, 3rd Cir., June 20, 1977.

[4] We note, however, that the interpretation of the term ‘normal operating conditions’ advanced by the Judge differs from that set forth by a majority of the Commission members in United States Steel Corporation, supra.