“SECRETARY OF LABOR,Complainant,V.OTIS ELEVATOR COMPANY.Respondent.Docket No. 90-1693*ORDER*On October 30, 1992, the Secretary filed a Notice of Withdrawal ofCitation in the above-captioned case. The Commission acknowledgesreceipt of the Secretary’s Notice of Withdrawal of Citation and setsaside that portion of the Judge’s Decision and Order affirming thealleged violation of 29 C.F.R. ? 1926.404(b)(1)(i). There being nomatters remaining before the Commission requiring further consideration,the Commission orders the above-captioned case dismissed.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated November 18, 1992————————————————————————SECRETARY OF LABOR,Complainant,V.OTIS ELEVATOR COMPANY.Respondent.Docket No. 90-1693*Appearances: *Kevin Sullivan, Esquire W. Scott Railton, EsquireOffice of the Solicitor Lawrence Brett, EsquireU. S. Department of Labor Reed, Smith, Shaw & McClay Boston,Massachusetts Washington, D. CFor Complainant For Respondent Before: Administrative Law Judge RichardDeBenedetto_DECISION AND ORDER_Otis Elevator Company (\”Otis\”) was cited on April 19, 1990, for seriousviolations of two electrical safety standards dealing with guarding oflive parts and ground fault protection by means of ground fault circuitinterrupter (\”GFCI\”).[[1]] Both charges stem from a single event whichtook place at a construction site in Warwick, Rhode Island, where Otiswas engaged to install an elevator.During the course of a general inspection of the construction project,an OSHA compliance officer observed Otis’s employee, Juan Amado, using aportable hammer drill while in the process of attaching a door frame tothe concrete floor. The drill was plugged into a \”knockout-type\”junction box measuring about four inches square and one and one-halfinches deep (Exh. C-2; Tr. 49). The junction box was attached to anextension cord which was connected to an outlet on a permanently wiredexisting building. When the compliance officer tested the permanentlywired outlet for GFCI protection, it proved negative (Tr. 73, 77-78)._The Junction Box_Both the citation and the complaint charge Otis with violating thestandard at 29 C.F.R. ? 1926.403(i)(2)(ii) which states:In locations where electric equipment would be exposed to physicaldamage, enclosures or guards shall be so arranged and of such strengthas to prevent such damage.The complaint details the allegations of the violation as follows:2) The Respondent’s employee was using a knockout-type receptacle boxdesigned for fixed installation as a portable extension to power aportable [drill]. Because the aforesaid receptacle box, which was notsecurely fastened in place by any means, was located on the floor of thework area near an elevator shaft, the metal receptacle box wassusceptible to being physically damaged and becoming energized therebyexposing an employee to the hazard of electrocution.3) Respondent could have eliminated or materially reduced exposure tothis violative condition by securely fastening the knockout receptacleto a stud or fixed structural member or in other appropriate fashion orby guarding said receptacle from physical damage by an enclosure or byequivalent means.A principal feature of the junction box used by Otis as an extensionoutlet consists of multiple openings which, when not used, are closedwith metal plugs (\”knockouts\”). The plugs may be pushed in by applyingpressure with one’s thumb (Tr. 97). According to the Secretary’s expertwitness, Hilda Chow, the junction box in question is designed to beinstalled in a wall or ceiling, with the knockout openings admittingpassage of conduit or cable. But when used as a receptacle for anextension cord, there was a potential shock or fire hazard in the eventa knockout was either accidentally pushed in or broken off (Tr. 113-14).Otis contends that the cited standard does not prohibit the use of theknockout box as a receptacle for an extension cord. Indeed, at leastduring the pleading stage of this proceeding, it appears that theSecretary agreed and that her only concern was that the box be securelyfastened \”to a stud\” or \”other appropriate fashion,\” as specified in thecomplaint. The thrust of the Secretary’s case took a new directionduring the hearing, the theory now being that it was unlawful to use thebox as an extension cord receptacle regardless of whether it was securedto a stud or other support. During the course of the hearing, thequestion of the appropriateness of the cited standard was addressed atlength by both parties. At one point the Secretary’s counsel openlyconsidered amending the complaint by adding as an alternative allegationthe charge of violating the standard at ? 1926.403(b)(2).[[2]] Whenserious doubts were expressed as to the suitability of this standard,counsel for the Secretary then referred to the standard at ?1926.403(a), which simply states: \”All electrical conductors andequipment shall be approved\” (Tr. 166-68). In her posthearing brief, theSecretary confirmed the 403(a) amendment as an alternative charge.What we should note is that the language of the 403(a) \”approval\”standard, by itself, begs the very point in dispute. Section 1926.449defines \”approved\” as follows:Approved. Acceptable to the authority enforcing this Subpart. Theauthority enforcing this Subpart is the Assistant Secretary of Labor forOccupational Safety and Health. The definition of \”acceptable\” indicateswhat is acceptable to the Assistant Secretary of Labor, and thereforeapproved within the meaning of this Subpart.Guided by the foregoing, it becomes apparent that in order to gaininsight into the meaning of the word \”approved,\” we must turn to thefollowing definition of \”acceptable\” under ? 1926.449:Acceptable. An installation or equipment is acceptable to the AssistantSecretary of Labor, and approved within the meaning of thisSubpart K:(a) If it is accepted, or certified, or listed, or labeled, or otherwisedetermined to be safe by a qualified testing laboratory capable ofdetermining the suitability of materials and equipment for installationand use in accordance with this standard; or(b) With respect to an installation or equipment of a kind which noqualified testing laboratory accepts, certifies, lists, labels, ordetermines to be safe, if it is inspected or tested by another Federalagency, or by a State municipal, or other local authority responsiblefor enforcing occupational safety provisions of the National ElectricalCode, and found in compliance with those provisions; or(c) With respect to custom-made equipment or related installations whichare 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.The Secretary did not produce sufficient evidence to bring the 403(a)approval standard into play.The Secretary’s vacillating treatment of this issue is a symptom of thefatal flaw in her case.[[3]] All the cited 403(i)(2)(ii) standardrequires is that where electrical equipment \”would be exposed tophysical damage, enclosures or guards shall be so arranged and of suchstrength as to prevent such damage.\” The obvious primary purpose of thestandard is to prevent damage to the electrical equipment. When weexamine the context in which the standard is set, the Secretary’s viewof the junction box issue falls into complete obscurity. The predecessorin a series of standards captioned \”guarding of live parts\” is ?1926.403(i)(2)(i), which prescribes that live parts of electricequipment shall be guarded against accidental contact by cabinets orother forms of enclosures, or by any of the following means:(a) By location in a room, vault, or similar enclosure that isaccessible only to qualified persons.(b) By partitions or screens so arranged that only qualified personswill have access to the space within reach of the live parts. Anyopenings in such partitions or screens shall be so sized and locatedthat persons are not likely to come into accidental contact with thelive parts or to bring conducting objects into contact with them.(c) By location on a balcony, gallery, or platform so elevated andarranged as to exclude unqualified persons.(d) By elevation of 8 feet (2.44 m) or more above the floor or otherworking surface and so installed as to exclude unqualified persons.Neither the cited standard nor the whole series of standards under theheading \”guarding of live parts\” alerts us to the claimed demerits ofthe knockout box. At the time the box was being used at the constructionsite, there were only two employees in the work area, both of whom wereemployed by Otis. There is no evidence that mechanical or other heavyequipment was being used in the vicinity, and no other trade was engagedin construction activity that could have disrupted the normalfunctioning of Otis’s work crew and, thereby, perhaps subject the box tofrequent moves or rough use and abuse (Tr. 68, 70, 90, 95-96). In otherwords, the conditions of the work site were not such that the box couldreasonably be perceived as being exposed to physical damage within themeaning of the 403(i)(2)(ii) standard.[[4]]_Ground Fault Circuit Interrupter_Otis was cited for violating the ground fault protection standard at 29C.F.R. ? 1926.404(b)(1)(i), which calls for the use of either a GFCI oran assured equipment grounding conductor program while using portablepower tools. Otis’s practice is to use a GFCl for ground faultprotection instead of an equipment grounding conductor program (Tr. 46).Ground fault protection by means of a GFCI is addressed by ?1926.404(b)(1)(ii), which reads in relevant part:All 120-volt, single-phase, 15- and 20-ampere receptacle outlets onconstruction sites, which are not a part of the permanent wiring of thebuilding or structure and which are in use by employees, shall haveapproved ground fault circuit interrupters for personal protection ….Even though the junction box and extension cord were connected topermanent wiring of the building, under the 404(b)(1)(ii) standard aGFCI is required whenever an extension cord is used since the extensioncord itself is considered to be temporary wiring (Tr. 80, 83-84, 122).Official notice is taken that OSHA has consistently applied thisenforcement policy.The following facts emerge from the evidentiary record: Otis’s ownemployee at the site, Juan Amado, admitted to the compliance officerthat he was not using a GFCI at the time of the OSHA inspection. Thecompliance officer’s test of the permanently wired wall outlet forground fault protection was negative. During the hearing, the partiesentered into the stipulation that at the time in question, the maindistribution panel located inside the building had ground fault circuitprotection (Tr. 217). According to the uncontradicted testimony ofOtis’s expert witness, James Comer, by placing a ground fault circuitprotector on the main distribution panel, every outlet \”downstream\” isthereby ground fault protected (Tr. 220-22). When questioned by thejudge regarding the apparent inconsistency in the compliance officer’snegative test for ground fault protection and the stipulation, Otis’sexpert opined that perhaps the testing device was not the proper one touse or, if it was proper, he might not have used it correctly, orperhaps the testing device was not functioning properly (Tr. 231).Toward the end of the hearing, counsel for the Secretary expressed theview that it was OSHA’s position that the 404(b)(1)(ii) standardrequired Otis to have a GFCI \”at the cord set\” despite the presence ofground fault protection on the distribution panel. When serious doubtwas raised as to the validity of the position taken by counsel, and uponbeing directed to address the issue specifically in posthearing brief,Secretary’s counsel moved to withdraw the stipulation on the ground thathe entered into it by mistake. Otis opposed the motion (Tr. 236-39).As the Secretary correctly points out, a party may be relieved from animprovident stipulation or one that might work injustice. United Statesv. Montgomery, 620 F.2d 753, 757 (10th Cir. 1980). The trial court hasdiscretion to reopen a case for further evidence should the opposingparty be prejudiced by setting the stipulation aside. Id. at 757. Inview of the conclusion reached on the GFCI issue, set forth below, theSecretary’s motion is moot.The first matter that claims our attention is Otis’s September 4, 1990,answer to the Secretary’s complaint. Here Otis denied it violated theground fault protection standard and stated, in pertinent part:Respondent had no need to use a GFCI or an assured grounding program inthat the tool used was doubly insulated as is permitted by Complainant’sstandards thereby eliminating the ground fault hazard.* * *Respondent also avers that no employee was exposed to a hazardous condition.Respondent … avers that if there was a technical violation, it is onlyremotely connected to worker safety.In its December 3, 1990, prehearing disclosure statement, Otisformulated the ground fault issue in line with its answer:(a) Whether compliance with the requirements of 29 C.F.R. ?1926.404(b)(1)(i) is reasonably necessary to employee safety or isremote with respect to employee safety when a doubly insulatedelectrical tool is sued [sic] on a construction site.Otis also listed two witnesses and a summary of their expectedtestimony; an unnamed \”person having expertise in electricity\” and \”the[unnamed] construction superintendent.\” The contemplated testimony ofthe former would be: \”[T]hat a doubly insulated electrical tool isprotected against ground fault currents, and that such tool does notpresent an electrical safety hazard to employees using it on temporarypower.\” The construction superintendent would testify concerning Otis’selectrical safety program.As can be seen, no reference was made by Otis about the presence ofground fault circuit protection on the main distribution panel insidethe adjacent building, the subject of the stipulation. This situationdid not change when Otis submitted a supplemental prehearing statementon January 11, 1991, when it named James Comer as its expert witness whowould:…. testify that extension cords plugged into permanent power and usedto supply electricity to an electrically operated tool is an acceptablepractice under the NEC [National Electrical Code]. He is also expectedto testify that a doubly insulated tool does not require a GFCI underthe NEC.Larry Kimmel was named as the construction superintendent whosetestimony would concern:… conditions on the jobsite on the day OSHA made its inspection, Otis’assured grounding program, and circumstances concerning Mr. Amado’sequipment, particularly that it was temporary equipment used in lieu ofhis original equipment which had been stolen.A hearing on the merits was held on January 18, 1991. One of thewitnesses called by the Secretary was Juan Amado, who was working at thesite when the compliance officer conducted his inspection. As previouslynoted, Amado admitted to the compliance officer that he was not using aGFCI at the time. During his testimony, Amado offered the following tworeasons for the absent GFCI: that his \”gang box\” had been stolen and\”mainly\” that the drill he was using was connected to a permanentlywired wall outlet (Tr. 65-66). While the first reason implies that hewould have used a GFCI if only his gang box (apparently containing theGFCI) had not been stolen, the second implies that since the tool andextension cord were connected to a permanently wired outlet, he felt aGFCI was not required.The \”stolen\” equipment reason suggests the defense of impossibility orinfeasibility of compliance. This is an affirmative defense which wasneither pleaded, as required by Commission Rule 36(b), nor seriouslypursued at any time by Otis during the course of the hearing. Suffice itto say that failure to plead an affirmative defense excludes that issuefrom the case. Dole v. Williams Enterprises, Inc., 876 F.2d 186, 189-90(D.C. Cir. 1989).The second reason relates to the contemplated testimony of Otis’s expertwitness, James Comer, as disclosed in the January 11, 1991, supplementalprehearing statement. Although the point was not covered in histestimony, Mr. Comer could have testified that OSHA’s requirements forground fault protection differs from that of the National ElectricalCode. Authority is hardly required to support the proposition that it isthe OSHA regulation that governs the outcome of this case and not theNational Electrical Code. As previously indicated, OSHA has consistentlyapplied its enforcement policy of requiring a GFCl whenever an extensioncord is used notwithstanding the fact that the extension cord isconnected to a permanently wired receptacle. As mentioned by theSecretary’s expert witness (Tr. 122), this policy was clearly set forthwhen OSHA published its final revisions of the electrical safetystandards for construction:The OSHA regulation is different from the NEC in several respects. Theprimary difference is that OSHA’s GFCI option applies to receptacleoutlets which are not part of the permanent wiring, while the NECrequirement only applies to temporary wiring. For example, under theOSHA regulation for GFCIs, protection must be provided for thereceptacle outlets on the end of extension cord sets even if theextension cords are supplied by permanent wiring.51 F.R. 25,294 at 25,310 (July 11, 1986). The Secretary’s interpretationof a regulation is to be accorded deference when the interpretation isconsistent with the regulatory language and is otherwise reasonable. TheSecretary’s litigating position before the Commission is also deservingof judicial deference. Martin v. OSHRC, 111 S. Ct. 1171.During the hearing, both parties devoted considerable attention towhether the portable drill was doubly insulated and, if so, whether itobviated the need for a GFCI. The testimony of the Secretary’s expertwitness on this point was persuasive and made it abundantly clear thatregardless of whether the drill was doubly insulated, there still was aneed for a GFCI because the tool or the cord fixed to the drill, as wellas the extension cord, were subject to damage and consequent groundfault (Tr. 119-21, 130).The ground fault protection stipulation was entered into at a time latein the hearing when Otis called its construction superintendent,Lawrence Kimmel, to testify on its behalf. Kimmel testified that he\”checked with the owner and architect and they stated the fact that thecircuit was ground fault interrupted\” (Tr. 211).[[5]] Counsel for theSecretary objected to the testimony on the ground of hearsay. Before aruling was made on the objection, Otis’s counsel began to questionKimmel about a document which Kimmel described as a letter he requestedand received from \”the manager of the building\” which stated, insubstance, that the circuit in question \”was protected at the maindistribution panel\” (Tr. 212). Again, counsel for the Secretary objectedon the ground of hearsay. At this point the parties entered into thestipulation.Of controlling importance to the conclusion reached herein is the factthat counsel for the Secretary never manifested any intent that thestipulation would supplant the compliance officer’s testimony as to hisnegative test for ground fault protection (Tr. 213-217, 239). We mustalso bear in mind that Kimmel and Amado were the only other witnessespresent at the jobsite during the time of the OSHA inspection, and bothwitnesses admitted that they did not test the equipment for ground faultprotection (Tr. 39, 66, 214).It is generally recognized that tools and electrical cords onconstruction sites may be subject to rough use and failures. When Otis’sexpert witness was asked to explain the inconsistency presented by thenegative test for ground fault protection and the stipulation, hepointed conjecturally only to the possible inadequacies of the testingdevice and its operator, thereby suggesting that the ground faultprotection system stipulated as having been present on the maindistribution panel was unfailing in effectiveness or operation. There isno evidence in the record to support such a conclusion.[[6]]Under cross-examination by Otis’s counsel, the compliance officertestified that he used at \”standard GFCI tester.\” He explained theprocedure for operating the device and the signs registered thereon thatreflect the presence or the absence of ground fault protection (Tr.77-78). There is nothing complicated about the device or the procedure,and no subjective judgment was required. Moreover, Otis’s counsel didnot challenge the accuracy or the reliability of the tester instrument.In sum, the salient facts are these:1. An Otis employee used an electrical hand drill with extension cordconnected to a permanently wired wall receptacle.2. Otis’s work rules called for the use of a GFCI when required insteadof an assured equipment grounding conductor program.3. At the time of the OSHA inspection, the employee acknowledged that hewas not using a GFCI, and the permanently wired wall receptacle testednegative for ground fault protection.4. The main distribution panel was equipped with GFCI protection (asstipulated by the parties) that normally would have provided GFCIprotection at other receptacles located \”downstream.\”5. At the time of the OSHA inspection, the ground fault protection atthe main distribution panel did not function so as to provide GFCIprotection at the permanently wired wall receptacle, as demonstrated bythe compliance officer’s test.6. No person employed by Otis had knowledge of the presence of GFCIprotection at the main distribution panel and no person relied on thatstipulated fact in the failure to use a GFCI during the time in question.7. The use of the hand drill with extension cord exposed Otis’s employeeto a ground fault hazard.The presence of GFCI protection at the main distribution panel notjustifying the failure of Otis’s employee to use a GFCI when required bythe standard, it is concluded that the Secretary has met her burden ofproof notwithstanding the stipulation mistakenly entered into bySecretary’s counsel, and that the GFCI defense mounted by Otis has nomerit. The penalty proposed by the Secretary for this item in the amountof $280 is appropriate under the penalty criteria of 29 U.S.C. ? 666(j).The findings of fact and conclusions of law having been sufficiently setforth herein. Fed. R. Civ. P. 52(a), it isORDERED that:(1) The Secretary’s motion to be relieved from a stipulation is deniedfor bring moot;(2) The citation for violating the standard at ? 1926.403(i)(2)(ii), orthe alternative ? 1926.403(a), is vacated; and(3) The citation for violating the standard at ? 1926.404(b)(1)(i) isaffirmed and a penalty of $280 is assessed.RICHARD DeBENEDETTO Judge, OSHRCDecember 13, 1991 DATED:Boston, MassachusettsFOOTNOTES:[[1]] The Secretary amended the two-item citation to reflect nonseriousin lieu of serious violations (Secretary’s complaint at pg. 2).[[2]] Section 1926.403 (b)(2) reads:Installation and use. Listed, labeled, or certified equipment shall beinstalled and used in accordance with instructions included in thelisting, labeling, or certification.[[3]] In the posthearing brief on Page 5, the Secretary’s counsel againreaches into the cornucopia of standards and draws out the previouslyunmentioned standard at ? 1926.403(b)(l)(ii), apparently as anotherexample of what the Secretary has in mind in this case. That standarddirects the employer to consider the following factors when examiningelectrical equipment for safety: \”Mechanical strength and durability,including, for parts designed to enclose and protect other equipment,the adequacy of the protection thus provided.\”[[4]] The photographic evidence (Exh. C-2) shows a part of one of themetal plugs on the junction box was slightly depressed. The evidencedoes not suggest, and the Secretary makes no serious claim, that theslightly recessed area resulted from damage (Tr. 95).[[5]] Kimmel explained that he was referring to the outlet on theoutside of the wall of the building where the extension cord was pluggedinto. Presumably, this information was obtained by Kimmel long after theOSHA inspection and sometime after the prehearing disclosure statementswere filed by the parties.[[6]] At the end of his testimony, Otis’s expert witness himselfacknowledged the possibility of a GFCl system malfunctioning (Tr. 232).It is officially noticed here as a peripheral matter that malfunction isa contingency provided for by some GFCls by being made with a testbutton for the purpose of achieving prompt on-site assurance of theintegrity of the system. See Desco, Vitro Glaze of Schenectady, Inc., 14BNA OSHC 1498, 1990 CCH OSHD ? 28,801 (No. 88-2316,1990).”