“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 80?1224 \u00a0 DANIEL CONSTRUCTION CO., BOISE CASCADE PROJECT, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 December 29, 1981DECISIONBefore: ROWLAND, Chairman; CLEARY and COTTINE,Commissioners.BY THE COMMISSION:??????????? A decisionof Administrative Law Judge Ben D. Worcester is before the Commission pursuantto section 12(j), 29 U.S.C. ? 661(i), of the Occupational Safety and Health Actof 1970, 29 U.S.C. ?? 651?678 (?the Act?). Judge Worcester affirmed in part andvacated in part two citations issued by the Secretary of Labor (?theSecretary?) to Respondent, Daniel Construction Company (?Daniel?), following aninspection of a construction site in Rumford, Maine, where Daniel was engagedas the general contractor in constructing a paper mill for Boise CascadeCorporation. The Secretary petitioned for discretionary review of the judge?sdisposition of five citation items or subitems and Commissioner Cottinedirected review on the issues raised by the petition, including the following:??????????? 1.Whether the judge erred in vacating citation 1, item 1, alleging noncompliancewith 29 C.F.R. ? 1926.400(a).??????????? 2.Whether the judge erred in vacating citation 1, item 2, alleging noncompliancewith 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 ofthe inspection, and??????????? (b)the employee?s use of diagonals to climb the scaffold was unpreventableemployee misconduct.??????????? 3. Whetherthe judge erred in vacating citation 2, item 13, which alleged noncompliancewith 29 C.F.R. ? 1926.552(c)(15), on the ground that the Respondent performedregular maintenance on the hoist in question in compliance with 29 C.F.R. ?1926.501(c).??????????? 4. Whetherthe judge erred in vacating citation 2, items 14 and 15(b), allegingnoncompliance with Articles 230?70(b) and 320?10, respectively, of the NationalElectrical Code (NFPA 70?1971), as incorporated by reference in 29 C.F.R. ?1926.400(a).??????????? Forthe reasons set forth below, we affirm in part and reverse in part thoseportions of the judge?s decision before us on review.I??????????? Danielwas charged with a serious violation of the Act based on noncompliance withArticle 110?17(a) of the National Electrical Code, as adopted by the standardat 29 C.F.R. ?\u00a01926.400(a),[1] in that a length of 12?2NMC conductor with exposed live parts was lying on the ground.??????????? Atthe hearing, royal Hoyt, a compliance officer with the Occupational Safety andHealth Administration (?OSHA?), testified that during the inspection he haddiscovered a piece of ?romex? wire lying on the ground next to some scraplumber. The wire was adjacent to a path of access for employees coming in andout of the building under construction. The wire had been cut relativelycleanly and squarely; the insulation was not peeled back, but bare metal wasexposed at the end. Hoyt performed two tests on the wire: the first, with abiomedical 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 orelectrocution if someone came in contact with the wire. He observed twoemployees in the vicinity. One was operating a backhoe approximately 10 feetfrom the wire. A second brushed the wire with his pant leg while walkingtowards the inspection party. On cross-examination, though, Hoyt was asked todemonstrate 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 hisdescription of the manner in which he had operated the probe.??????????? HenryCollins, the assistant superintendent for the electrical subcontractor on theproject, testified for Respondent that he had examined the wire some 20 to 30minutes after the compliance officer left the area and had determined that itwas ?dead.? He also stated that the procedure that would be followed inremoving a ?dead? wire was to erect black and yellow barricade tape around thearea, turn the circuit breaker off, then sever the cable with a squared-off cutby a pair of saw cutters, and roll it up. Collins further noted that a cablethat was still energized would be cut in a different manner and added that workon 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.??????????? Inrebuttal, a second compliance officer, Elmer Creveling, testified that he hadbeen part of the inspection party when Hoyt conducted the voltage test and thatthe voltage tester had registered 110 volts in the line. Creveling also statedthat the romex wire had been cut so that the metal parts at the end of thewires were visible.??????????? Inhis decision, Judge Worcester declared that the testimony of the two complianceofficers lacked credibility, when compared with credible testimony to thecontrary, because of Hoyt?s erroneous description regarding the proper use ofthe biomedical field tester. He also noted that the testimony regarding thepresence of barricades was unrebutted. The judge concluded as a matter of lawthat the Secretary?s allegation of violation was not established by a preponderanceof the evidence.??????????? Onreview, the Secretary states that the judge rested his decision to vacate thiscitation on Hoyt?s inaccurate use of the field probe and argues that anyambiguity regarding the use of the field probe is immaterial because the voltagetester, with its precise measurement, is the only significant test here and itestablished the presence of 110 volts in the line. Moreover, the Secretaryasserts, the testimony of the compliance officers as to the employee exposureat the time of the inspection was unrebutted. The Secretary adds thatbarricades that fail, as here, to prevent employee exposure to the hazard,cannot satisfy the requirements of the standard.??????????? Danielurges that Judge Worcester?s ruling on this issue be affirmed because the Secretaryfailed to establish that employees were exposed to a hazard. Daniel also arguesthat the Secretary failed to prove that Respondent had knowledge of thehazardous condition, since from all appearances?the use of the barricades andthe squared-off cutting of the cable?the established procedures for removing?dead? wire were being followed.??????????? It iswell-settled that, in order to establish a violation of section 5(a)(2) of theAct, the Secretary must prove that the cited employer either knew or could haveknown with the exercise of reasonable diligence of the presence of thenoncomplying condition. General ElectricCompany, 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). TheSecretary failed to meet that burden in this case. There is no evidence thatDaniel had actual knowledge of a violative condition here. Moreover, weconclude on the basis of the record before us that it did not have constructiveknowledge of the cited conditions. The record indicates that the wire was cutsquarely. Its insulation was not peeled back as it would have been had the wirebeen energized at the time it was severed. Moreover, the preponderance of theevidence supports the judge?s finding that the area was marked with barricadetape. These measures were consistent with Collins? unrebutted account of thestandard 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-wireprocedures were evidently being followed, that the wire was indeed deenergizedand, thus, that no hazard was present. Accordingly, the Secretary has failed toprove that Daniel could have known of the violation with the exercise ofreasonable diligence and the citation must be vacated.II??????????? Danielwas charged with a serious violation of the Act based on its alleged failure tocomply with the standard at 29 C.F.R. ? 1926.451(a)(13)[2] in that an employeeworking on a float scaffold was not provided with safe access to that scaffold.??????????? Duringthe inspection, an employee was observed on a float scaffold 33 feet above theground with no visible means of access to or from the scaffold, other than thediagonal members of the structural steel that was bracing the building wall.Hoyt described these diagonal members as smooth steel, 8 to 10 inches wide, andplaced at an incline of approximately 45 to 55 degrees from the horizontal. Heidentified the hazard as the potential for an employee to fall while using thediagonals as access to the scaffold. Daniel?s project safety manager, CharlesBriggs, testified that, after their initial observation of the employee on thescaffold, the inspection party had seen two workers on the ground bring aladder to the area below the scaffold at lunchtime and raise it up to theemployee, who then came down the ladder. The employee, Robert Reid, testifiedthat he had been working on the scaffold when the compliance officers had comeby. He stated that on or about the date of the inspection he had ascended tothe float scaffolds on more than one occasion by climbing on the diagonalbracing.??????????? Inhis decision, Judge Worcester vacated this item, ruling that a ladder wasavailable and used for descent, although noting that it was undisputed thatthere was no ladder present when Hoyt arrived at the location. In addition, thejudge concluded, on the basis of the employee?s admission that he useddiagonals instead of a ladder to climb up to the scaffold, that the employeehad engaged in an isolated incident for which the employer could not be heldaccountable.??????????? TheSecretary argues on review that the cited standard requires use, not mereavailability, of ladders for safe access and that Daniel?s noncompliance wastherefore 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 thatJudge Worcester?s decision indicated that he found Reid?s testimony not to becredible, based on his perception of the employee?s demeanor, and that theCommission should defer to this credibility determination.??????????? Weconclude that the judge erred in vacating this item. As the judge himselfpointed out, it was undisputed here that there was no ladder present when thecompliance officer arrived at the scene. Moreover, there is no evidence in therecord that Daniel provided any equivalent safe access. Because Daniel did notprovide a ladder at the location and climbing the diagonal members of thestructural steel bracing was not equivalent safe access, we conclude thatDeniel failed to comply with section 1926.451(a)(13).[3] We further conclude, inlight of the potential fall distance of up to 33 feet, that the violation isproperly 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 theSecretary?s citation insofar as it alleges a serious violation of the Act basedon noncompliance with the standard at 29 C.F.R. ? 1926.451(a)(13).III??????????? Danielwas charged with an other than serious violation of the Act based onnoncompliance with the standard at 29 C.F.R. ?1926.552(c)(15)[4] in that apersonnel\/material hoist was overdue for required inspection and testing of allfunctions and safety devices.??????????? Inhis decision, Judge Worcester found that regular maintenance of the hoist wasperformed under the supervision of the manufacturer as often as once a month.In his view, this satisfied the standard?s requirement that an inspection andtest of all functions and safety devices be made by a competent person at intervalsof no more than three months.??????????? Wehave reviewed the pertinent portions of the record and have considered theparties? arguments concerning this item, which arguments are essentially thesame as those made before the judge. We conclude that the judge properlyvacated the citation for the reason he assigned.[5]??????????? Accordingly,we affirm the vacation of the Secretary?s citation insofar as it allegesnoncompliance with the standard at 29 C.F.R. ? 1926.552(c)(15).IV??????????? Danielwas charged with noncompliance with Article 230?70(b) of the NationalElectrical Code, as adopted by 29 C.F.R. ? 1926.400(a), note 1 supra, in that a temporary electricalbooth elevated on concrete blocks was not provided with steps for immediateaccess.[6]??????????? Atthe hearing, Hoyt testified that he had observed a temporary electrical servicepanel enclosure, elevated above ground level approximately 3 to 4 feet andresting on several concrete blocks. The service booth housed various electricalcircuit breakers and controls for both temporary and permanent wiring withinthe building under construction. There were no stairs, ladders or otherequivalent means of access into the elevated service enclosure. Hoyt identifiedthe hazard as the absence of a form of immediate access to the booth in orderto shut down an electrical source in the event of an emergency, such that thedelay could increase the probability or the extent of an electrical fire. Manyemployees were exposed to this alleged hazard, because the service panelcontrolled electrical service throughout the building. Hoyt admitted that henever actually entered the enclosure.??????????? BobPorter, a heavy industrial division safety manager for Daniel, testified thatthe penal booth was elevated because a crew was preparing to pour concrete onthe floor, which would have been impossible had the booth been resting on theground. He explained that the booth was suspended from the ceiling by twocables; the concrete blocks were used as dunnage to protect the workers whenthey installed reinforcing steel underneath the suspended booth. He maintainedthat access to the booth was possible, despite its elevation.??????????? Inhis decision, Judge Worcester ruled that Article 230?70(b) of the NationalElectrical Code is irrelevant to the situation described by the complianceofficer. The judge referred to Article 230?70(b) as ?a safety standard whichrequires, when there is an emergency, that a means for disconnection ofenergized wires such as switches or circuit breakers be installed.? He observedthat neither the absence of loose blocks to step upon as a means of access todisconnectors in a temporary electrical service booth nor open wiring used tosupply 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 judgespecifically stated that there was no convincing proof that access todisconnect switches was impeded. On review, the Secretary contends that heestablished noncompliance with Article 230?70(b) because access to the panelbooth was impeded. Daniel responds that the booth was easily accessible.??????????? Thestandard requires that disconnecting means shall be located at a readilyaccessible point nearest the entrance of the conductors, either inside oroutside the building or structure.[7] The NEC defines ?readilyaccessible,? in Article 100, as ?capable of being reached quickly, foroperation, renewal, or inspections, without requiring those to whom readyaccess is requisite to climb over or remove obstacles or to resort to portable ladders,chairs, etc.? The compliance officer stated that the booth was elevatedapproximately 3 to 4 feet above ground level and gave his opinion that thebooth was not readily accessible; Daniel?s official gave his opinion that itwas. A photographic exhibit shows the floor of the booth at approximatelywaist-height of the workers. There is no other evidence. On these facts, weconclude that the Secretary has not established that the booth was not readilyaccessible.??????????? Forthe reasons stated, we affirm Judge Worcester?s order vacating this item.? V??????????? Danielwas charged with noncompliance with Article 320?10 of the National ElectricalCode, as adopted by 29 C.F.R. ? 1926.400(a), note 1 supra, in that open wiringused to supply a temporary receptacle was not separated at least 2 inches frommetal conduit, piping or other conducting material.[8]??????????? Atthe hearing one of the compliance officers, Creveling, testified that heobserved two unprotected wires running through a junction box mounted on a wallin the building. Using a biomedical field probe, he determined that one of thewires was energized. The wires were hanging close to some metal brackets whichwere stacked against the wall. On each side of the junction box, the wires werein contact with the fixtures used to clamp the box to the beam. Crevelingobserved two employees within 8 feet of the box and described the area as oneof free access by employees. The area was not barricaded. He stated his opinionthat the conditions presented a hazard because a person storing the ironbrackets could crush the wire?s covering with the brackets and could be exposedto a 110-volt shock. Daniel?s witness, Collins, testified that the openconductors were separated at least 2 inches from metal conduit, piping or otherconducting material, except at the point where the wires entered the box.Collins added that the wires were protected by ?20 amp breakers? in a circuitbreaker box.??????????? Inhis decision, Judge Worcester noted that the compliance officer?s testimonyregarding the condition of the wire was undisputed by Respondent. Nevertheless,the judge observed that whenever temporary wiring enters a junction box it mustpass through an opening in the box, which opening is likely to be less than 4inches in diameter. Referring to the failure of the Secretary?s witnesses toexplain how energized conductors could be insulated from contact with the veryjunction boxes they were entering, Judge Worcester determined that the NECprovision relied upon by the Secretary, Article 320?10, was not applicablehere. Therefore, he dismissed this item of the citation.??????????? TheSecretary argues on review that Judge Worcester erred when he dismissed thecitation on the basis that the standard must be unenforceable because a 2-inchseparation would not ordinarily be maintained between an open conductor and thejunction 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 thecondition of the junction box was never at issue here, only the relationshipbetween the open conductor and the metal clamps.??????????? Daniel?sfundamental argument is that the Secretary failed to show that the conductorsposed a hazard. Daniel states that the photographic exhibits show that it wouldhave been virtually impossible for the materials stacked against the wall tohave damaged these conductors in any way. Accordingly, if any violationoccurred, it was de minimis.??????????? TheSecretary presented unrebutted evidence that at least one energized wire onboth sides of a junction box directly contacted the metal fixtures used toclamp the box to a beam. Accordingly, the Secretary established Daniel?snoncompliance with Article 320?10 of the National Electrical Code. JudgeWorcester?s reference to the opening into the junction box is irrelevant, forthe issue here was the failure to maintain a 2-inch separation between theconductor and the metal clamp, which was a ?conducting material.? This,Respondent failed to do. Nevertheless, the Commission has found violations tobe de minimis when the hazard involved bears such a negligible relationship toemployee safety as to render inappropriate the imposition of an abatementrequirement or the assessment of a penalty. BethlehemSteel 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 actuallydamaged. Moreover, an employee could only sustain a shock if the wire?sprotective covering were damaged at the point where it was in contact witheither of the metal clamps and the employee then reached behind the stackedbrackets and touched one of the clamps. As noted by Daniel, the positioning ofthe wires behind the horizontal bar to which the junction box was attachedminimized the possibility that they might be damaged at the point where theycontacted the clamps. Furthermore, the wires themselves were additionallyprotected by circuit breakers. Thus, the record establishes that thepossibility of injury was too remote and too speculative to warrant theimposition 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 13and 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 isaffirmed and, in light of the statutory criteria prescribed in section 17(j) ofthe Act, 29 U.S.C. ? 666(i), we assess a penalty of $550.?SO ORDERED.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: DEC 29, 1981\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 80?1224 \u00a0 DANIEL CONSTRUCTION CO., BOISE CASCADE PROJECT, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 November 13, 1980APPEARANCES:Michael D. Felsen, Esq. and ConstanceFranklin, Atty. of Boston, Mass., for Complainant\u00a0George Harper, Esq. and Carl Carruth, Esq.of Greenville, South Carolina, for Respondent?DECISIONWORCESTER, Judge:??????????? OnJanuary 23, 1980, pursuant to the provisions of 29 U.S.C. section 657 (section6, The Occupational Safety and Health Act of 1970, 29 U.S.C. section 651 etseq., hereinafter called the Act), the complaint, Secretary of Labor, caused aninspection to be made of a construction project in Rumford, Maine, where DanielConstruction Co., as general contractor, was one of the contractors engaged inthe construction of a paper mill. It is conceded that the Respondent filed atimely notice of contest and that Daniel is an employer within the meaning ofthe Act subject to the jurisdiction of this Commission.??????????? Whenthis proceeding came on for trial in Portland, Maine, on August 19, 1980, theSecretary 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 contestof Items 4 and 7 of Citation 2. No penalties were involved. Accordingly, thealleged violations described in the items withdrawn are vacated. Items 4 and 7of Citation 2 are deemed to have become a final order by operation of lawconstituting violations as described therein without penalty.??????????? TheValidity of the Construction Safety Standards??????????? Danielin its answer and its post hearing brief contends that the Contract Work Hoursand Safety Standards Act (86 Stat. 96; 40 U.S.C. 327) now commonly known as theConstruction Safety Act (CCA), as amended in 1969, which was incorporated byreference 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. Part1518.1 has subsequently been redesignated as Part 1926, (see Part 1518 issuedunder sec. 1, 83 Stat. 96, 97, adding sec. 107 to Public Law 87?581, 76 Stat.357; 40 U.S.C. 333.)??????????? Thiscontention cannot be sustained if the grant of authority to the Secretary insection 6(a) of the Act (29 U.S.C.A. 655(a)) which provides in part:Sec. 6(a) Without regard to Chapter 5 oftitle 5, United States Code, or to the other subsections of this section, theSecretary shall, as soon as practicable during the period beginning with theeffective date of this Act and ending two years after such date, by rulepromulgate as an occupational safety or health standard any established Federalstandard.?This section authorized the Secretary to proceed as hedid.??????????? Chapter5, Title 5, section 551 et seq., popularly known as the AdministrativeProcedure Act, in sec. 553 entitled ?Rule Making? defines the term ?establishedFederal standard? as an occupational safety and health standard established byan agency of the United States and presently in effect or contained in any Actof Congress in force on the date of enactment of the Act. 29 U.S.C.A. 652(10).??????????? Danielcontends that notwithstanding the fact the Secretary published a notice ofproposed rule making on February 2, 1971, and had held six informal regionalhearings for the purpose of receiving oral and written comments on the proposedrules that Part 1926, of Title 29 was not lawfully promulgated, citing 29U.S.C.A. 553(d) which states that:(d) The required publication or service ofa substantive rule shall be made not less than 30 days before its effectivedate, except?(1) a substantive rule which grants orrecognizes an exemption or relieves a restriction;?(2) interpretative rules and statements ofpolicy; or?(3) as otherwise provided by the agencyfor good cause found and published with the rule.\u00a0??????????? TheRespondent Daniel contends that OSHA, in its April 17, 1971, Federal Registernotice attempted to circumvent section 553(d)(3) by making a regulation effectiveretroactively, saying that the Secretary based his finding of good cause on theunilateral, unsubstantiated statement that affected parties could comply withthe new standard within ten days.??????????? TheRespondent takes the position that the Secretary of Labor, in order to avoidcompliance with the rule making provision of the APA requiring notice,unlawfully sought to incorporate the regulatory provisions of section 107 ofthe 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 becameeffective. This was done under a claim that the 30 days public noticeprovisions were inapplicable. These standards were subsequently propertied tobe adopted as OSHA standards under the authority of section 6(a) of the OSHAct.??????????? Danielcontends that the standards are null, void and unenforceable because of theSecretary?s assertion of exemption is based upon an erroneous construction ofsection 553(d) of the APA.??????????? Danielsays that Congress intended to impose upon an administrative agency seeking toutilize the 5 U.S.C.A. 553(d) exemption a heavy burden of showing publicnecessity for an early effective date where sanctions are to be imposed andthat the Secretary arbitrarily found good cause contrary to the fundamentalprinciples of fairness. This, it is argues, requires dismissal of thisproceeding 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).??????????? TheCourt in Nat Indus. Constructors v.Secretary of Labor, 503 F.2d 1048, 1053 footnote 9 (8th Cir. 1978) said inpart:We cannot ignore the Secretary?s timing inthese cases. The Construction Safety Act regulations became effective one dayprior to April 28, 1971, the effective date of OSHA. Had they been published inthe Federal Register for thirty days, the Secretary could not have summarilyadopted them as ?existing Federal standards? under section 6(a) of OSHA.???????????? But,the Court held that although they would have great difficulty upholding theSecretary?s claim of good cause, under these circumstances, an employer isbarred from raising the issue in an enforcement proceeding. This view wasapproved by the court in NationalIndustrial Constructors v. Secretary of Labor, 583 F.2d 1048, 1053 (8thCir. 1978). On the other hand the 9th Cir. rejected this view, see Marshall v. Union Oil of Cal., 616 F.2d113, 118 (1980) where the court said that 29 CFR 6(f) which gives any personadversely affected by a standard issued under this section the right tochallenge its validity within 60 days does not bar an employer from raisingthis issue during an enforcement proceeding.??????????? I donot consider the case of Nader v. Sawhill,514 F.2d 1064, Temporary Emerging Court of Appeals (1975) holding that that therecord must show clear error of judgment before agency action can be declaredto be arbitrary and capricious to be significant except in the law of appellateprocedure. The same may be said of Texaco,Inc. v. Federal Emergency Administration, 531 F.2d 1071 (Temporary EmergingCourt of Appeals 1976) also cited by Daniel.??????????? However,the First Circuit has not spoken on this issue. For that reason and inconsideration of the fact that there is a conflict of views in other circuitsthe rule pronounced by the Review Commission in Secretary of Labor v. Daniel Construction Co., OSHRC Nos. 7672 and7734, 5 BNA OSHC 1005, 1007, February 10, 1977, is controlling. In thatproceeding the Commission rejected the contention of Respondent that theadoption of the Construction Safety Act (40 U.S.C. 333 et seq.) as anoccupational safety and health standard under authority of section 6(a) of theOSH Act was invalid.??????????? TheCommission said that the making of the CSA standards applicable earlier than 30days after publication was consistent with the objective of the ConstructionSafety Act which was to promote employee safety. This, said the Commission,constituted good cause as defined by section 553(d) of the AdministrativeProcedure Act.??????????? Accordingly,I find and conclude as a matter of law that Part 1926, Title 29 of the Code ofFederal Regulations was lawfully promulgated by the Secretary. The Respondent?sargument to the contrary is accordingly rejected.??????????? Atthe conclusion of the case for the Secretary, the Respondent moved fordismissal of Items 1, 12, 13 and 15(b) of Citation 2. Ruling was reserved. TheSecretary failed to sustain the burden of proof of violation in each item. Forthat reason the motion will be granted and the citations named together withthe proposed penalty of $150 mentioned in Item 13 will be vacated.??????????? Citation2, Item 1??????????? TheSecretary?s proof that there was combustible gas in the area and that the fireextinguishers were not within 50 feet is not convincing. There was no violationof 29 C.F.R. 1926.150(c)(1)(VI).??????????? TheSecretary?s witness Hoyt, purporting to speak for himself and everyone elsepresent (saying that the ?inspection party? observed no fire extinguishers) wasthe chief source for this citation. Not even under the liberal rules ofadministrative procedure can a witness? conclusion as to what was in the mindsof other persons in a group be the basis of a finding of fact. Viewing Hoyt?stestimony in its most favorable light, the most it proves is that Hoyt didn?tsee any fire extinguishers, but he made no measurements and offered noexplanation for his failure to do so. There is not even a prima facie case ofviolation of 1926.150(c)(1)(VI).??????????? Evenif it were assumed arguendo that there was a prima facie case, and that thisportion of Respondent?s motion could be denied, the testimony of theRespondent?s witness, Briggs, that there were 520 fire extinguishers at thesite, some within 50 feet of the worksite involved, is sufficient to sustainvacation of this allegation. Hoyt had an opportunity to rebut this assertion.He did not.??????????? Citation2, Item 12??????????? Thedoorway mentioned was not part of a stairway. It was located across a landingopposite the top of the stairway. In any event it is common knowledge thatthere are many tripping hazards in a building under construction whichconstruction employees must be wary of. The rebar installed in the doorway forstabilization until the area was enclosed is an example. There was no violationof 29 C.F.R. 1926.501(c).??????????? Citation2, Item 13??????????? Regularmaintenance of the hoist referred to in Item 13 was performed under thesupervision of the manufacturer as often as once a month. This is convincingproof of compliance with the provisions of sec. 501(c) which says only that aninspection and test of all functions and safety devices shall be made by acompetent person at intervals of no more than three months.??????????? Citation2, Item 15(b)??????????? TheSecretary?s inspection observed open wiring running into a junction box. Hesaid that because it was not protected by some type of covering there was arisk of physical damage to the line. This could result in exposure of employeesto contact with energized wires. It was alleged that this was a violation of 29C.F.R. 1926.400(a) which incorporates Article 320?10 of the National ElectricalCode by reference which requires that open conductors be separated at least 2inches from other electric current conducting material. These wires were not soprotected.??????????? TheRespondent does not dispute this testimony but argues that Article 320?10 isinapplicable to temporary wiring.??????????? ThisCommission has ruled (see Secretary ofLabor v. Berthe Electric Co., Inc., CCH OSHA para. 19753 (1975)) that allNEC requirements apply to both permanent and temporary wiring unlessspecifically excluded by Article 305.??????????? Accordingly,it is my conclusion, and matter of law, that 29 C.F.R. 1926.400(a) isapplicable to both permanent and temporary wiring systems. However, it isobvious that whenever temporary wiring enters a junction box that it must passthrough an opening in the box which most likely would be less than four inchesin diameter. If there is an approved method of insulating energized conduitsfrom contact with junction boxes as used here, the Secretary?s witnesses didn?tmention it. No doubt this could be done, but the NEC provision relied upon bythe Secretary, Art. 320?10, does not appear to be applicable.??????????? TheRespondent?s motion to dismiss Items 1, 12, 13 and 15(b) of Citation 2 is granted.??????????? Citation1, Item 1??????????? It isalleged that an energized wire was lying in a work area where employees couldhave come in contact with it. The Secretary?s witness, Hoyt, testified thatupon observing the wire, he used a biomedical field probe which indicated tohim that the wire was energized. He then used a voltage tester which indicatedto him that the conductor was carrying 110 volts. The Secretary?s witness,Creveling, corroborated Hoyt?s statement that he used a voltage tester as didDaniel?s project safety manager, Briggs, who was also present. However, withoutexpressing any doubt as to the veracity of Hoyt and Creveling, it cannot bedenied that their testimony lacks credibility when in conflict with credibletestimony to the contrary because of Hoyt?s admitted erroneous description ofthe proper method of using the biomedical field tester. (Tr. II, 93?95)??????????? Itcannot be denied that Hoyt attempted to test the line. Daniel?s project safetyofficer testified that he saw it done. However, there is the unrebuttedtestimony from the same witness, Briggs, that the inspection party passedthrough two barricades, after first being cleared to enter by a carpenterforeman, 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).??????????? Inview of Hoyt?s previously noted careless attention to critical facts as opposedto the Respondent?s witness Briggs prompt and unqualified admission againstinterest that Hoyt had in fact used a testing device in his presence, it isconcluded as a matter of law that the Secretary?s allegation of violation inItem 1, Citation 1 is not established by a preponderance of the evidence.??????????? Citation1, Item 2??????????? It isnot disputed that, although there was no ladder present when Hoyt arrived atthe location where two men were working on a scaffold, it was conceded that aladder was available and used for descent. I consider the employee?s admissionthat he used diagonals instead of a ladder to climb up to the scaffold to be anisolated incident for which the employer cannot be held accountable for. Therewas no violation of 29 C.F.R. 1926.451(a)(13).??????????? Citation1, Item 3??????????? Thetwo 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 29C.F.R. 1926.451(w)(6). However, the Secretary?s evidence failed to show, uponconsideration 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 morethan $100 is considered to be reasonable.??????????? Citation2, Item 5??????????? Thebench grinder referred to in the citation was not in use when observed. Thecompliance officer said that it looked new. The Respondent?s equipment and supplymanager agreed that a work rest not only is required but necessary. He said thecould not use a bench grinder without it, but this grinder had not yet beenoperated. There was no violation of 29 C.F.R. 1926.303(c)(2).??????????? Citation2, Item 8??????????? It isobvious that use of a rope which could be severed if the flame from the weldingequipment on the scaffold came too close to it created a hazard proscribed bysection 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 notapplicable when welding is being done. A violation was shown.??????????? Citation2, Items 9 and 10??????????? Theopenings described in Items 9 and 10 were created for the performance of workwhich could only be done through these means of access. There was no violationof 29 C.F.R. 1926, section 500(b)(1) and 500(b)(8).??????????? Citation2, Item 11??????????? Therewas 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 workmenobserved in this area were Respondent?s employees (Tr. 121, 124, 127). Therewere several contractors on the project. The burden of proof of violation of 29C.F.R. 1926.500(d)(1) has not been satisfied.??????????? Citation2, Item 14??????????? Assumingwithout deciding that section 230?70(b), National Electrical Code, NFPA70?1971, was lawfully adopted by reference in 29 C.F.R. 1926.400(a), it isirrelevant to the situation described by the compliance officer. Section230?70(b) is a safety standard which requires, when there is an emergency, thata means for disconnection of energized wires such as switches or circuitbreakers be installed. Neither the absence of loose blocks to step upon as ameans of access to disconnectors in a temporary electrical service booth (ifindeed access to disconnect switches was impeded and there is no convincingproof that it was) nor open wiring used to supply a temporary receptacle comewithin the purview of section 230?70(b), NEC. There was no violation of 29C.F.R. 1926.400(a).ORDER??????????? Uponconsideration of the foregoing findings of fact and conclusions of law, it isordered that Citation 1, Item 3 be affirmed with a penalty of $100 beingassessed for this violation; that Citation 2, Item 8 be affirmed withoutpenalty; 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. WORCESTERJudge, OSHRCDated: November 13, 1980?Boston, Massachusetts[1] The standard at29 C.F.R. ? 1926.400(a) provides:Allelectrical work, installation, and wire capacities shall be in accordance withthe pertinent provisions of the National Electrical Code, NFPA 70?1971; ANSIC1?1971 (Rev. of C1?1968), unless otherwise provided by regulations of thispart.Article110?17(a) of the National Electrical Code provides:Exceptas elsewhere required or permitted by this Code, live parts of electricalequipment operating at 50 volts or more shall be guarded against accidentalcontact by approved cabinets or other forms of approved enclosures, or any ofthe following means:(1)By location in a room, vault, or similar enclosure which is accessible only toqualified persons.(2)By suitable permanent, substantial partitions or screens so arranged that onlyqualified 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 thatpersons are not likely to come into accidental contact with the live parts orto bring conducting objects into contact with them.(3)By location on a suitable balcony, gallery, or platform so elevated andarranged as to exclude unqualified persons.(4)By elevation at least 8 feet above the floor or other working surface. [2] The standard at29 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?sassertion in its brief that Judge Worcester found Reid?s testimony not to becredible is not supported. The judge made no implicit or explicit credibilitydetermination against the employee. He merely characterized Reid?s admittedresort to the bracing as a means of ascending to the scaffold as an isolatedincident of employee misconduct for which Daniel should not be heldaccountable. The Commission has recognized unpreventable employee misconduct asan affirmative defense to a charge of violation where an employer establishesthat the action of its employee was a departure from a work rule that the employereffectively communicated and uniformly enforced. See Frank Swidzinski Co., 81 OSAHRC 4\/E14, 9 BNA OSHC 1230, 1981CCH OSHD ? 25,129, (No. 76?4627, 1981). Here, the affirmative defense?raisednot by Respondent, but by the judge sua sponte?is without foundation in therecord. There is no evidence that a pertinent work rule existed and, to thecontrary, the record indicates both that Reid climbed the bracing on more thanone occasion and also that he was never reprimanded for doing so. Accordingly,the defense has not been established.Chairman Rowland agrees that thejudge erred in finding that Daniel cannot be held responsible for itsemployee?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 forrejecting the judge?s finding. Rather, Chairman Rowland concludes that Danielcould have anticipated the employee?s actions because Daniel knew or shouldhave known that no ladder was available for use by the employee. Therefore, inthe Chairman?s view, it is unnecessary to consider whether under Daniel?s workrules the employee would have been required to use a ladder had one beenprovided.[4] The standard at29 C.F.R. ? 1926.552(c)(15) provides:Following assembly and erection ofhoists, and before being put in service, an inspection and test of allfunctions and safety devices shall be made under the supervision of a competentperson. A similar test and inspection is required following major alteration ofan existing installation. All hoists shall be inspected and tested at not morethan 3-month intervals. Records shall be maintained and kept on file for theduration of the job. [5] The judge?sreference in his decision to ? 1926.501(c), which reference is reiterated inthe direction for review, appears to be merely a citation error. Section1926.501(c), a standard governing stairways, was at issue concerning a separateitem in the Secretary?s original citation. It has nothing to do with personnelhoists. We conclude that the judge was referring to the requirements of thecited standard, ? 1926.552(c)(15). We also note that the judge overstated therole of the manufacturer in declaring that the regular maintenance of the hoistwas performed under the ?supervision? of the manufacturer. Nevertheless, therecord clearly indicates that Respondent?s mechanic was trained by themanufacturer?s representative and acted in accordance with the manufacturer?srecommendations. These minor inaccuracies in the judge?s decision do notdetract from his correct conclusion that Respondent complied with therequirements of the standard.[6] Article 230?70(b)of the National Electrical Code provides, in pertinent part:Thedisconnecting means shall be located at a readily accessible point nearest tothe entrance of the conductors, either inside or outside the building orstructure. Sufficient access and working space shall be provided about thedisconnecting means.[7] The Secretary correctlypoints out the judge?s apparent reliance upon the terms of Article 230?70(a) ofthe National Electrical Code as the basis of his decision, rather than uponArticle 230?70(b), which was cited by the Secretary. Article 230?70(a)provides:Meansshall be provided for disconnecting all conductors in the building or otherstructure from the service-entrance conductors.Article 230?70(a) was never atissue here.[8] Article 320?10 ofthe National Electrical Code provides:Openconductors shall be separated at least two inches from metallic conduit,piping, or other conducting material, and from any exposed lighting, power orsignal conductor, or shall be separated therefrom by a continuous and firmlyfixed nonconductor additional to the insulation of the conductor. Where anyinsulating tube is used, it shall be secured at the ends. Deviation from thisrequirement may, when necessary, be allowed by the authority enforcing thisCode.[9] The Secretaryprobably intended to refer here to Article 370?7(b); there is no Article270?7(b) in the NEC.[10] CommissionerCottine dissents to the de minimis classification of the violation. Thephotographs in evidence show that the conductor wires lay over solidly attachedmetal clamps in a position where they were exposed to being struck and havingtheir insulation damaged. The compliance officer testified that ?a personstoring the iron brackets . . . could mash the hot wire against the metal[clamps], crush the covering and be exposed to shock from the hundred and tenvolts.? In Commissioner Cottine?s view, this hazard has more than a negligiblerelationship to employee safety, and abatement of the hazard should berequired. See Southwestern Electric PowerCo., 80 OSAHRC 81\/C7, 8 BNA OSHC 1974, 1980 CCH OSHD ?24,730 (No. 77?3391,1980) (Cottine, Commissioner, dissenting).”