“Docket No. 81-1976 SECRETARY OF LABOR, Complainant, v.KECO Industries, INC.,Respondent. INTERNATIONAL ASSOCIATION OF MACHINIST AND AEROSPACE WORKERS, AFL-CIO, LOCAL LODGE NO. 162, DISTRICT LODGE NO. 34,Authorized Employee Representative.OSHRC Docket No. 81-1976DECISION Before:\u00a0 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 itfailed to comply with the electrical standard at 29 C.F.R. ? 1910.303(a) [[1]] by usingunapproved equipment.\u00a0 Judge Joe D. Sparks determined that Keco was in seriousviolation of section 1910.303(a) and therefore affirmed the citation item.\u00a0 Heassessed a penalty of $320.\u00a0 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 aerospace aircraft at itsplant in Cincinnati, Ohio.\u00a0 As a result of an inspection by two compliance officersfrom the Occupational Safety and Health Administration, the Secretary issued to Keco twocitations that each contained several items.\u00a0 Only the citation item concerningsection 1910.303(a) is at issue on review.\u00a0 That item alleged that Keco used anunapproved \”pigtail,\” a device containing a light-bulb socket and two lead wiresfor connection to an electrical circuit.\u00a0 The pigtail had been installed in Keco’stelephone switch gear circuit breaker box.James Washam, one of the compliance officers, testified that when he and theother compliance officer came to that box during the inspection there was a metal coverover the box that had an opening in the center for two vertical rows of circuit breakerswitches. Five such switches came through the opening while the bottom left corner spacewas open.\u00a0 Upon Washam’s request, a plant electrician assigned to assist thecompliance officers during the inspection removed the box’s cover, which was held in placeby screws, and reached in and pulled out the pigtail.\u00a0 With the cover off, Washamobserved that the pigtail was holding a fuse and had been connected to the bottom leftopening in the panel, which was intended to accommodate a sixth circuit breaker switch.\u00a0 The pigtail and fuse supplied overcurrent protection for the telephone switchinggear.\u00a0 The five circuit breaker switches in the box provided overcurrent protectionfor the lighting circuits in the building.Washam stated that he was told during the inspection that the pigtail hadbeen in the box for at least a year or two.\u00a0 George Andrews, Keco’s president,testified that he thought that the pigtail had been there since he had joined Keco, whichwas in 1959. According to Melio Cicchiani, Keco’s plant manager, the telephone company hadnot done any work on the telephone switch gear prior to the month in which the plant wasinspected by the two compliance officers.IIIt was undisputed that a pigtail is commonly used for temporary lighting in construction,industrial, and maintenance work, at which times the socket holds a light bulb. \u00a0Washam testified that the pigtail was designed to provide temporary lighting rather thanto hold an overcurrent protection device, such as a fuse, and should be replaced by acircuit breaker switch.\u00a0 He stated that he had no reason to believe that the pigtailand fuse would not operate satisfactorily, but the pigtail was not \”approved\”because there was no marking, stamp, or other indication of approval by any recognizedtesting laboratory or the Secretary of Labor.\u00a0 According to Larry Bland, a complianceofficer who had taught electrical hazard recognition at the OSHA Training Institute andwas qualified as an expert, the pigtail with the fuse \”will work the way it isconnected 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.\u00a0 Both Washam and Bland testified that thepigtail posed the hazard of electrical shocks and burns because the pigtail was installedsuch that:\u00a0 (1) with the cover on the box, there is a remote possibility that anemployee could stick a finger into the opening where the bottom left circuit breakerswitch was missing and thereby be exposed to live parts; and (2) in order to change thefuse in the pigtail, an employee would need to remove the cover and reach back into thebox and pull it out, thereby getting some fingers very close to live parts.\u00a0 Washamtestified that he did not observe and was told that there was not any disconnect switch onthe box.\u00a0 According to Bland, an employee working in the box would be in no danger ifthe disconnect switch associated with the box were pulled, but the switch would be lesslikely to be pulled if it was apart from the box or not adequately marked.Keco presented no evidence that the pigtail was \”approved.\” \u00a0Andrews, Keco’s president, and Cicchiani, Keco’s plant manager, testified that the pigtailwas no longer in use because a new telephone system, including a new power supply, with aseparate circuit breaker, had been installed within a month after the inspection. \u00a0They also testified that there was a disconnect switch for the entire electric department,which included the box at issue.III In response to the judge’s decision affirming the citation item and assessing a $320penalty, Keco argues that the use of the pigtail did not pose a hazard to Keco’s employeesbecause there was a disconnect switch for the box, albeit not on the box itself, and thepossibility of an electrical maintenance employee sticking a finger through the opening inthe box’s cover or touching live parts when the cover was off was exceedingly remote.\u00a0 Keco notes that the plant electrician who removed the box’s cover and pulled thepigtail out by hand at the request of the compliance officers during the inspectionsuffered no injury.The Secretary contends that he proved that Keco failed to comply with thecited standard because the use of the pigtail was not \”approved.\”\u00a0 He notesthat, under section 1910.399(a)(7), see supra note 1, in order for equipment to be\”approved\” it must be \”acceptable\” to the authority enforcing thesubpart, who is the Assistant Secretary of Labor for Occupational Safety and Health. TheSecretary notes that, in turn, \”acceptable\” is defined in section1910.399(a)(1), see supra note 1, as meaning certified as safe for its intended useby a nationally recognized testing laboratory, another governmental agency, or themanufacturer of custom-made equipment.\u00a0 According to the Secretary, because no suchcertification was received, the pigtail was not \”approved.\” The Secretary notesthat at no time did Keco attempt to rebut the Secretary’s showing that the pigtail was not\”approved.\”\u00a0 With regard to Keco’s contention that there was no violationbecause of the disconnect, the Secretary notes that the cited standard does not permitalternative methods of compliance.IV It is undisputed that the pigtail in Keco’s telephone switch gear circuit breaker box wasnot \”approved\” within the meaning of the cited standard.\u00a0 The partiesdisagree, however, about the degree to which the unapproved pigtail endangered Keco’semployees. Keco argues that the pigtail presented no hazard to its employees.\u00a0 TheSecretary asserts that Keco’s argument impermissibly challenges the wisdom of the standardbecause the standard presumes that unapproved electrical equipment is hazardous.\u00a0 TheSecretary further argues that the pigtail presented serious hazards of fire and electricalshock to Keco’s employees.Under the Act, violations are classified in three levels of severity: \u00a0serious, nonserious, and de minimis.\u00a0 A serious violation is one forwhich there is a substantial probability of death or serious harm to employees. \u00a0Section 17(k) of the Act, 29 U.S.C. ? 666(j).\u00a0 A de minimis violationis one in which there is technical noncompliance with a standard but the departure fromthe standard bears such a negligible relationship to employee safety or health as torender inappropriate the assessment of a penalty or the entry of an abatement order.\u00a0E.g., Bechtel Power Corp., 82 OSAHRC 49\/B8, 10 BNA OSHC 2003, 1982 CCH OSHD? 26,261 (No. 77-3222, 1982), appeal dismissed, No. 82-3498 (3rd Cir.January 24, 1983).\u00a0 A nonserious violation is one where the hazard is not negligible,but there is not a substantial probability of death or serious harm.\u00a0 The disputebetween the parties reduces to how the violation should be classified.\u00a0 The Secretaryargues that the violation was serious.\u00a0 In contending that the pigtail presented nohazard, Keco is essentially arguing for a de minimis classification.The Secretary bases his argument for a serious characterization on severalalleged hazards described at the hearing.\u00a0 On close examination, however, the factsdo not support the Secretary’s contention that the unapproved pigtail presented a hazard.\u00a0 The evidence does not show that there was any general defect in the design ormanufacture of the pigtail.\u00a0 Washam testified that the pigtail was designed toprovide temporary lighting, and there was no indication that the pigtail was notsatisfactory for that purpose. Further, both Washam and Bland, the Secretary’s witnesses,agreed that the pigtail with the fuse would function satisfactorily as an overcurrentprotection device.\u00a0 Rather than concerning the approval or lack thereof of thepigtail, the Secretary’s arguments as to why the violation should be classified as seriousrelate to the manner in which the pigtail or fuse in it was installed at Keco’s plant.Bland testified that there would be a fire hazard if the fuse was not screwedin tightly.\u00a0 However, there was no evidence in the record that Keco’s employees didnot know how to install a fuse properly or that the fuse in the cited pigtail was notscrewed in tightly.\u00a0 With regard to the alleged hazard of electric shock with thecover on the box, it appears from the record that the chance of an employee being injuredfrom contacting live parts is negligible.\u00a0 See Daniel Construction Co.,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).\u00a0 Concerning the alleged hazard of electric shock withthe cover off the box, there is no evidence that Keco’s employees had taken or would takeinadequate precautions when taking off the cover or in servicing the circuit breaker box.\u00a0 We further note that the Secretary’s standards contemplate that \”qualifiedpersons\” have access to live parts.\u00a0 See, e.g., 29 C.F.R. ??1910.399(a)(100) (\”[q]ualified person\” is \”[o]ne familiar with theconstruction and operation of the equipment and hazards involved\”); ? 1910.303(g)(2)(B) (partitions or screens must be \”so arranged that only qualified personswill have access to the space within reach of the live parts\”); ? 1910.303 (h)(2)(i)(\”exposed live parts shall be accessible to qualified persons only\”; and ?1910.308(a)(3)(ii) (\”[e]nclosures and metal cabinets shall be locked so that onlyauthorized qualified persons have access\” to live parts).\u00a0 Furthermore, with thecover off the box, live parts would be accessible even if the pigtail was not there.Accordingly, we conclude that the possibility of injury as a result of theuse of the unapproved pigtail was too remote to warrant an abatement requirement or apenalty assessment.\u00a0 Therefore, we hold that the violation was de minimis[[2]].\u00a0 We note that the evidence established that the pigtail is no longer in usebecause, within a month after the inspection, a new telephone system was installed.We thus modify the decision of Judge Sparks in that we affirm the citation item insofar asit alleged a violation of section 1910.303(a) but classify the violation as de minimis,therefore assessing no penalty.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 FEB 29 1984 The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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) providesApproval.\u00a0 The conductors and equipment required or permitted bythis subpart shall be acceptable only if approved. Section 1910.399(a)(7) states that \”[a]pproved\” means:Acceptable to the authority enforcing this subpart.\u00a0 The authorityenforcing this subpart is the Assistant Secretary of Labor for Occupational Safety andHealth.\u00a0 The definition of \”acceptable\” indicates what is acceptable to theAssistant Secretary of Labor, and therefore 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 is accepted, orcertified, or listed, or labeled, or otherwise determined to be safe by a nationallyrecognized testing laboratory, such as, but not limited to, Underwriters’ Laboratories,Inc. and Factory Mutual Engineering Corp.; or (ii) with respect to an installation orequipment of a kind which no nationally recognized testing laboratory accepts, certifies,lists, labels, or determines to be safe, if it is inspected or tested by another Federalagency, or by a State, municipal, or other local authority responsible for enforcingoccupational safety provisions of the National Electrical Code, and found in compliancewith the provisions of the National Electrical Code as applied in this Subpart; or (iii)with respect to custom-made equipment or related installations which are designed,fabricated for, and intended for use by a particular customer, if it is determined to besafe for its intended use by its manufacturer on the basis of test data which the employerkeeps and makes available for inspection to the Assistant Secretary and his authorizedrepresentatives.[[2]] Commissioner Cleary would characterize the violation as nonseriousrather than de minimis.The cited standard recognizes that electrical equipment may contain dangerousdefects that are not detectable by visual inspection and therefore requires an objectivedetermination of safety.\u00a0 In most instances, approval of electrical equipment followsrigorous testing by a 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 to the extent they aredue to latent defects which are discoverable by laboratory or other testing.\u00a0 Thus,use of unapproved electrical equipment bears more than a negligible relationship toemployee safety and health.Whether the cited equipment was installed properly is irrelevant tothe question of whether lack of laboratory testing poses more than a negligible hazard.\u00a0 To characterize this violation as de minimis because there is noproof that the equipment was improperly installed both misperceives the standardand gives the employer carte blanche to use unapproved equipment in the future.”