“SECRETARY OF LABOR,Complainant,v.KECO Industries, INC.,Respondent.INTERNATIONAL ASSOCIATION OFMACHINIST AND AEROSPACE WORKERS, AFL-CIO, LOCAL LODGE NO. 162,DISTRICT LODGE NO. 34,AuthorizedEmployeeRepresentative.OSHRC Docket No. 81-1976_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:The Secretary of Labor alleges that Keco Industries committed a seriousviolation of the Occupational Safety and Health Act, 29 U.S.C. ??651-678, in that it failed to comply with the electrical standard at 29C.F.R. ? 1910.303(a) [[1]] by using unapproved equipment. Judge Joe D.Sparks determined that Keco was in serious violation of section1910.303(a) and therefore affirmed the citation item. He assessed apenalty of $320. The Commission concludes that Keco’s violation ofsection 1910.303(a) was _de_ _minimis_ and vacates the penalty assessment.IKeco manufactures specialized cooling systems for military and aerospaceaircraft at its plant in Cincinnati, Ohio. As a result of an inspectionby two compliance officers from the Occupational Safety and HealthAdministration, the Secretary issued to Keco two citations that eachcontained several items. Only the citation item concerning section1910.303(a) is at issue on review. That item alleged that Keco used anunapproved \”pigtail,\” a device containing a light-bulb socket and twolead wires for connection to an electrical circuit. The pigtail hadbeen installed in Keco’s telephone switch gear circuit breaker box.James Washam, one of the compliance officers, testified that when he andthe other compliance officer came to that box during the inspectionthere was a metal cover over the box that had an opening in the centerfor two vertical rows of circuit breaker switches. Five such switchescame through the opening while the bottom left corner space was open. Upon Washam’s request, a plant electrician assigned to assist thecompliance officers during the inspection removed the box’s cover, whichwas held in place by screws, and reached in and pulled out the pigtail. With the cover off, Washam observed that the pigtail was holding a fuseand had been connected to the bottom left opening in the panel, whichwas intended to accommodate a sixth circuit breaker switch. Thepigtail and fuse supplied overcurrent protection for the telephoneswitching gear. The five circuit breaker switches in the box providedovercurrent protection for the lighting circuits in the building.Washam stated that he was told during the inspection that the pigtailhad been in the box for at least a year or two. George Andrews, Keco’spresident, testified that he thought that the pigtail had been theresince he had joined Keco, which was in 1959. According to MelioCicchiani, Keco’s plant manager, the telephone company had not done anywork on the telephone switch gear prior to the month in which the plantwas inspected by the two compliance officers.IIIt was undisputed that a pigtail is commonly used for temporary lightingin construction, industrial, and maintenance work, at which times thesocket holds a light bulb. Washam testified that the pigtail wasdesigned to provide temporary lighting rather than to hold anovercurrent protection device, such as a fuse, and should be replaced bya circuit breaker switch. He stated that he had no reason to believethat the pigtail and fuse would not operate satisfactorily, but thepigtail was not \”approved\” because there was no marking, stamp, or otherindication of approval by any recognized testing laboratory or theSecretary of Labor. According to Larry Bland, a compliance officer whohad taught electrical hazard recognition at the OSHA Training Instituteand was qualified as an expert, the pigtail with the fuse \”will work theway it is connected at the present, but it is not approved.\”Bland stated that, unless the fuse was screwed in tightly, the fuse andsocket could deteriorate and cause a fire. Both Washam and Blandtestified that the pigtail posed the hazard of electrical shocks andburns because the pigtail was installed such that: (1) with the coveron the box, there is a remote possibility that an employee could stick afinger into the opening where the bottom left circuit breaker switch wasmissing and thereby be exposed to live parts; and (2) in order to changethe fuse in the pigtail, an employee would need to remove the cover andreach back into the box and pull it out, thereby getting some fingersvery close to live parts. Washam testified that he did not observe andwas told that there was not any disconnect switch on the box. Accordingto Bland, an employee working in the box would be in no danger if thedisconnect switch associated with the box were pulled, but the switchwould be less likely to be pulled if it was apart from the box or notadequately marked.Keco presented no evidence that the pigtail was \”approved.\” Andrews,Keco’s president, and Cicchiani, Keco’s plant manager, testified thatthe pigtail was no longer in use because a new telephone system,including a new power supply, with a separate circuit breaker, had beeninstalled within a month after the inspection. They also testifiedthat there was a disconnect switch for the entire electric department,which included the box at issue.IIIIn response to the judge’s decision affirming the citation item andassessing a $320 penalty, Keco argues that the use of the pigtail didnot pose a hazard to Keco’s employees because there was a disconnectswitch for the box, albeit not on the box itself, and the possibility ofan electrical maintenance employee sticking a finger through the openingin the box’s cover or touching live parts when the cover was off wasexceedingly remote. Keco notes that the plant electrician who removedthe box’s cover and pulled the pigtail out by hand at the request of thecompliance officers during the inspection suffered no injury.The Secretary contends that he proved that Keco failed to comply withthe cited standard because the use of the pigtail was not \”approved.\” He notes that, under section 1910.399(a)(7), see _supra_ note 1, inorder for equipment to be \”approved\” it must be \”acceptable\” to theauthority enforcing the subpart, who is the Assistant Secretary of Laborfor Occupational Safety and Health. The Secretary notes that, in turn,\”acceptable\” is defined in section 1910.399(a)(1), see _supra_ note 1,as meaning certified as safe for its intended use by a nationallyrecognized testing laboratory, another governmental agency, or themanufacturer of custom-made equipment. According to the Secretary,because no such certification was received, the pigtail was not\”approved.\” The Secretary notes that at no time did Keco attempt torebut the Secretary’s showing that the pigtail was not \”approved.\” Withregard to Keco’s contention that there was no violation because of thedisconnect, the Secretary notes that the cited standard does not permitalternative methods of compliance.IVIt is undisputed that the pigtail in Keco’s telephone switch gearcircuit breaker box was not \”approved\” within the meaning of the citedstandard. The parties disagree, however, about the degree to which theunapproved pigtail endangered Keco’s employees. Keco argues that thepigtail presented no hazard to its employees. The Secretary assertsthat Keco’s argument impermissibly challenges the wisdom of the standardbecause the standard presumes that unapproved electrical equipment ishazardous. The Secretary further argues that the pigtail presentedserious hazards of fire and electrical shock to Keco’s employees.Under the Act, violations are classified in three levels of severity: serious, nonserious, and _de_ _minimis_. A serious violation is one forwhich there is a substantial probability of death or serious harm toemployees. Section 17(k) of the Act, 29 U.S.C. ? 666(j). A _de__minimis_ violation is one in which there is technical noncompliancewith a standard but the departure from the standard bears such anegligible relationship to employee safety or health as to renderinappropriate the assessment of a penalty or the entry of an abatementorder. _E.g_., _Bechtel Power Corp_., 82 OSAHRC 49\/B8, 10 BNA OSHC2003, 1982 CCH OSHD ? 26,261 (No. 77-3222, 1982), _appeal_ _dismissed_,No. 82-3498 (3rd Cir. January 24, 1983). A nonserious violation is onewhere the hazard is not negligible, but there is not a substantialprobability of death or serious harm. The dispute between the partiesreduces to how the violation should be classified. The Secretary arguesthat the violation was serious. In contending that the pigtailpresented no hazard, Keco is essentially arguing for a _de_ _minimis_classification.The Secretary bases his argument for a serious characterization onseveral alleged hazards described at the hearing. On close examination,however, the facts do not support the Secretary’s contention that theunapproved pigtail presented a hazard. The evidence does not show thatthere was any general defect in the design or manufacture of thepigtail. Washam testified that the pigtail was designed to providetemporary lighting, and there was no indication that the pigtail was notsatisfactory for that purpose. Further, both Washam and Bland, theSecretary’s witnesses, agreed that the pigtail with the fuse wouldfunction satisfactorily as an overcurrent protection device. Ratherthan concerning the approval or lack thereof of the pigtail, theSecretary’s arguments as to why the violation should be classified asserious relate to the manner in which the pigtail or fuse in it wasinstalled at Keco’s plant.Bland testified that there would be a fire hazard if the fuse was notscrewed in tightly. However, there was no evidence in the record thatKeco’s employees did not know how to install a fuse properly or that thefuse in the cited pigtail was not screwed in tightly. With regard tothe alleged hazard of electric shock with the cover on the box, itappears from the record that the chance of an employee being injuredfrom contacting live parts is negligible. _See_ _Daniel ConstructionCo._, 81 OSAHRC 107\/D2, 10 BNA OSHC 1254, 1982 CCH OSHD ? 25,840 (No.80-1224, 1981), _aff’d_, 692 F.2d 818 (1st Cir. 1982). Concerning thealleged hazard of electric shock with the cover off the box, there is noevidence that Keco’s employees had taken or would take inadequateprecautions when taking off the cover or in servicing the circuitbreaker box. We further note that the Secretary’s standardscontemplate that \”qualified persons\” have access to live parts. _See_,_e.g_., 29 C.F.R. ?? 1910.399(a)(100) (\”[q]ualified person\” is \”[o]nefamiliar with the construction and operation of the equipment andhazards involved\”); ? 1910.303 (g)(2)(B) (partitions or screens must be\”so arranged that only qualified persons will have access to the spacewithin reach of the live parts\”); ? 1910.303 (h)(2)(i) (\”exposed liveparts shall be accessible to qualified persons only\”; and ?1910.308(a)(3)(ii) (\”[e]nclosures and metal cabinets shall be locked sothat only authorized qualified persons have access\” to live parts). Furthermore, with the cover off the box, live parts would be accessibleeven if the pigtail was not there.Accordingly, we conclude that the possibility of injury as a result ofthe use of the unapproved pigtail was too remote to warrant an abatementrequirement or a penalty assessment. Therefore, we hold that theviolation was _de_ _minimis_ [[2]]. We note that the evidenceestablished that the pigtail is no longer in use because, within a monthafter the inspection, a new telephone system was installed.We thus modify the decision of Judge Sparks in that we affirm thecitation item insofar as it alleged a violation of section 1910.303(a)but classify the violation as _de_ _minimis_, therefore assessing nopenalty.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: FEB 29 1984————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] Section 1910.303(a) provides_Approval_. The conductors and equipment required or permitted by thissubpart shall be acceptable only if approved.Section 1910.399(a)(7) states that \”[a]pproved\” means:Acceptable to the authority enforcing this subpart. The authorityenforcing this subpart is the Assistant Secretary of Labor forOccupational Safety and Health. The definition of \”acceptable\”indicates what is acceptable to the Assistant Secretary of Labor, andtherefore approved within the meaning of this Subpart.Section 1910.399(a)(l) defines \”acceptable\” as follows:An installation or equipment is acceptable to the Assistant Secretary ofLabor, and approved within the meaning of this Subpart S: (i) If it isaccepted, or certified, or listed, or labeled, or otherwise determinedto be safe by a nationally recognized testing laboratory, such as, butnot limited to, Underwriters’ Laboratories, Inc. and Factory MutualEngineering Corp.; or (ii) with respect to an installation or equipmentof a kind which no nationally recognized testing laboratory accepts,certifies, lists, labels, or determines to be safe, if it is inspectedor tested by another Federal agency, or by a State, municipal, or otherlocal authority responsible for enforcing occupational safety provisionsof the National Electrical Code, and found in compliance with theprovisions of the National Electrical Code as applied in this Subpart;or (iii) with respect to custom-made equipment or related installationswhich are designed, fabricated for, and intended for use by a particularcustomer, if it is determined to be safe for its intended use by itsmanufacturer on the basis of test data which the employer keeps andmakes available for inspection to the Assistant Secretary and hisauthorized representatives.[[2]] Commissioner Cleary would characterize the violation as nonseriousrather than _de_ _minimis_.The cited standard recognizes that electrical equipment may containdangerous defects that are not detectable by visual inspection andtherefore requires an objective determination of safety. In mostinstances, approval of electrical equipment follows rigorous testing bya recognized testing laboratory to assure the safety of the equipment.It should be obvious that hazards due to electrical malfunction are notnegligible and that section 1910.303(a) is directed to such hazards tothe extent they are due to latent defects which are discoverable bylaboratory or other testing. Thus, use of unapproved electricalequipment bears more than a negligible relationship to employee safetyand health.Whether the cited equipment was _installed_ properly is irrelevant tothe question of whether lack of laboratory testing poses more than anegligible hazard. To characterize this violation as _de_ _minimis_because there is no proof that the equipment was improperly _installed_both misperceives the standard and gives the employer carte blanche touse unapproved equipment in the future.”