“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13477 WESTINGHOUSE ELECTRIC CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0March 16, 1978DECISIONBefore CLEARY, Chairman; BARNAKO, Commissioner.BY THE COMMISSION:??????????? The Secretaryof Labor cited Respondent (Westinghouse) for allegedly violating 29 C.F.R.1910.179(e)(6)(i)[1]by failing to guard rotating couplings adjacent to a walkway on an overheadcrane. Administrative Law Judge Ben D. Worcester concluded that Westinghousedid not violate the standard because its employees did not use the walkwayduring ?normal operating conditions? of the crane as that term is used in thestandard. We affirm the Judge?s disposition but for a different reason.[2]??????????? Subsequentto the hearing and the issuance of the Judge?s decision in this case, a dividedCommission held that the cited standard is only advisory with respect to cranesinstalled before August 31, 1971. Pittsburgh Des Moines Steel Co., 77OSAHRC 75\/E6, 5 BNA OSHC 1420, 1977?78 CCH OSHD para. 21,804 (No. 13708, 1977),pet. for review filed, No. 77?1089, 3rd Cir., June 20, 1977. See also UnitedStates Steel Corporation, 77 OSAHRC 64\/C8, 5 BNA OSHC 1289, 1977?78 CCHOSHD para. 21,795 (No. 10825, 1977).[3] Although Westinghouse didnot raise this issue, the Secretary?s compliance officer, upon being questionedby the Judge, testified that the crane was installed prior to 1971. Thus,Westinghouse could not have violated the standard because, as a matter of law,the standard was not mandatory with respect to its crane. Under thecircumstances, we will vacate the citation on this basis without reaching theother issues in the case.[4]??????????? Accordingly,the citation for violation of 29 C.F.R. 1910.179(e)(6)(i) and the correspondingproposed penalty are vacated.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATE: MAR 16, 1978\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13477 WESTINGHOUSE ELECTRIC CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 19, 1976DECISION AND ORDERAppearances:Matthew J. Rieder, Esq. of Philadelphia,Pennsylvania for the Secretary\u00a0Jack B. Albanese, Esq., of Pittsburgh,Pennsylvania for the Respondent\u00a0Ben D. Worcester, Judge, OSAHRC??????????? Thisproceeding arises pursuant to a notice of contest filed by the Respondent onMay 23, 1975, under the provisions of Section 10(c) of the Occupational Safetyand Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.)hereinafter called the Act. On May 1, 1975, a citation was issued alleging thatthe Respondent had violated Section 5(a)(2) of the Act.THE ISSUES??????????? Westinghouseis a corporate manufacturer of electrical equipment. Its manufacturing facilityat 700 Braddock Avenue, East Pittsburgh, Pennsylvania, which is known as theLarge Rotating Apparatus Division (LRA), was inspected by the Secretary onApril 23, 1975. On May 1, 1975, a citation was issued. Westinghouse filed atimely notice of contest of the proposed penalties of $40 each and the allegedviolations described in Items No. 6 and 7 of citation number 2. All other itemsin this citation have become a final order by operation of law and are not inissue. Both items allege violation of the General Industry Standardspromulgated by the Secretary as Part 1910, Title 29, Code of FederalRegulations. In Item 6 it was alleged that there was a violation of 29 CFR1910.179(e)(6)(i). This standard requires:(6) Guards for moving parts.(i) Exposed moving parts such as gears,set screws, projecting keys, chains, chain sprockets, and reciprocatingcomponents which might constitute a hazard under normal operating conditionsshall be guarded.?The citation alleged:Exposed moving part(s), in the overheadand\/or gantry crane(s), in the following location(s) which might constitute ahazard under normal operating conditions was\/were not guarded: (a) Twenty tonNorthern Overhead Crane-Section A?4, Line Shaft Couplings.\u00a0??????????? InItem 7 it was alleged that there was a violation of 29 CFR 1910.179(g)(2)(ii).This standard requires that:Electrical equipment shall be protectedfrom dirt, grease, oil and moisture.The citation alleged:Electrical equipment on the overheadand\/or gantry crane(s), in the following location was not protected from dirt,grease, oil, and moisture:?(a) Twenty ton Northern OverheadCrane-Section A?4, resister banks and switch or control boards???????????? Asamended at bar the Secretary alleged that foreign matter on resistor banks mightcause the crane to move erratically while handling a lift and thus create ahazard to employees on the floor below.[5]??????????? TheRespondent says that because 29 CFR 1910.179(e)(6)(ii) is a national consensusstandard derived from safety rules adopted by the American National StandardsInstitute, Inc. (ANSI), the ANSI interpretation of its meaning is controlling.In support of this contention the Respondent contends that the opinion of thechairman of the ANSI committee which drafted the ANSI standard is dispositiveof the issue. The chairman had said that this standard was not intended tocover maintenance work. For that reason, argues the Respondent, since there wasno proof that operating employees were ever exposed to the hazard, there was noviolation.??????????? The Complainantdisputes this assertion. The Secretary says that once he promulgates a standardand interprets it in such a manner as to justify the issuance of a citationthat no one, not even this Commission, can challenge his interpretation.??????????? In Secretaryof Labor v. Gilles and Cotting, Inc., 504 F.2d 1255, 1262 (4th Cir. 1974)the court said:The statute vests adjudicatory functionsin the Commission. Moreover, as is made clear by lengthy Congressional debatesover enforcement procedures and the successful floor amendment withdrawing theSecretary?s authority over adjudication . . ., Congress deliberately createdthe Commission separate and independent of the Secretary . . .. Rather thanplace the trial of alleged violations in the district courts and state trialcourts . . . where there could be wholly independent determinations ofquestions of law by reviewing appellate courts, Congress instead created aspecialized agency . . .???????????? If itis apparent that the interpretation of a standard is in violation of dueprocess, the administrative body which has the power to decide is under a dutyto declare such usurpation of the authority of Congress void and unenforceable?AmericanShip Building Co. v. N.L.R.B., 85 S.Ct. 955, 967 (1965). I find that theSecretary?s interpretation should be rejected. To hold otherwise would beequivalent to saying that, once the Secretary promulgates a standard and interpretsit to cover the facts in a pending case, that the issue is res judicata; thatthe employer cannot question the Secretary?s interpretation and that thisCommission lacks the authority to rule on the question. This would be absurd.??????????? Therecould be no violation of 29 CFR 1910.179(e)(6)(i) unless the evidence showsthat there were exposure of employees to the hazard described in Item 6 during?normal operating conditions.? The evidence adduced by the Secretary showedthat the only employee on the crane when the plant was operating was the craneoperator. He was in the cab where he was isolated from the hazard described. Ifproduction were to be stopped and this crane was not being operated the onlyemployees who would be near the site of the alleged hazard would be maintenanceemployees. Operation of a manufacturing plant and maintenance of the buildingand equipment and machinery used in the manufacturing process are two separateand distinct functions. When the plant is operating this is a normal condition.When a plant is not operating because of a breakdown of machinery or powerfailure, for instance, these are normal maintenance conditions, not normaloperating conditions. Repair of a crane in a manufacturing plant is a normalmaintenance procedure whether it happens once a day, once a week or once ayear. Maintenance is never performed during normal operating conditions. If acrane were put through its normal operating procedures for the purpose ofobserving a malfunction which could not be demonstrated otherwise, that wouldnot be a normal operating procedure. It would be normal maintenance regardlessof the frequency or infrequency of troubleshooting. If the standard weredevised to cover both operation and maintenance the words ?normal operatingconditions? would be superfluous. Clearly, the inclusion of these wordsexpressed an intention to make the standard applicable only when the equipmentis being used in the process of manufacturing a marketable commodity. Acontrary conclusion cannot reasonably be sustained by logic, reason or by aliberal and broad construction of this standard.??????????? TheRespondent?s reliance upon the argument that the ANSI interpretation of theterm ?normal operating conditions? is conclusive because the ANSI standardswere adopted by the Secretary is also rejected. If a term used in an ANSIstandard is one which has a meaning which is not readily understood outside ofthe particular industry, the ANSI standard may be helpful in determining theSecretary?s intentions, but an ANSI standard is not the law. The words ?normaloperating procedure? are not words of art. They are words of common usageeasily understood. The only word which could, in the most strainedconsideration of its meaning, be misunderstood is the word ?operating? andreference to any grammar school edition of Webster?s Dictionary will make itclear that it could not possibly include maintenance.FINDINGS OF FACTI??????????? Theunguarded coupling, all witnesses agreed, would only be accessible to maintenanceemployees[6] and then would notrotating unless the maintenance employees were to cause it to be done fortroubleshooting. Under those circumstances an experienced electrician ormechanic would take the necessary precautions to protect himself from contactwith the coupling. This was the only hazard according to the complainant?switness, Stanley.[7]There is no credible testimony that such an accident has ever occurred or islikely to occur. The conclusion of the Secretary?s witnesses that a contacthazard existed because of an unguarded coupling is speculative. Even if it wereassumed that maintenance is included in the term ?normal operating conditions,?the Complainant has not sustained the burden of proof.II??????????? TheComplainant neglected to state in the citation what hazard was created by thealleged failure to protect resistor banks and switch control boards on anoverhead crane from dirt, grease, oil and moisture as alleged in Item 7. Thecomplaint did not include a ?short and plain statement of the claim? asrequired by Rule 8(a)(2), F.R.C.P. or a ?plain statement of the relief sought,together with the grounds therefore.? as required by Commission Rule 30(a).Instead, the ambiguous and unenlightening allegations of Item 7 wereincorporated by reference. Although counsel for the parties knew what questionof fact was in issue under Item 7 from preliminary discussion, I was unawareuntil the hearing was in progress and the Secretary was granted leave to amendthat the real issue was substantially the following: Resistor banks on atwenty-ton Northern Overhead Crane Section A?4 were not protected from dirt,grease, oil and moisture subjecting employees on the floor to injury frommalfunction of the crane.[8]??????????? TheSecretary has not sustained the burden of proof that there was such a hazard.His inspector, Stanley, had previously inspected cranes as an investigator foran insurance company and a law firm. The April 23, 1975, inspection wasprimarily to investigate a fatality but Stanley made a general inspection whilethere. When asked what hazard he had observed he said that when resistor banksare not protected from dirt, grease, oil or moisture that a short could causethe hoist to move improperly which would make a load either swing or drop.??????????? Insupport of this assertion the Secretary offered the testimony of MatthewsShields, Jr., a mechanical (not electrical) engineer. He said that a malfunctionof the crane might occur if the debris were current carrying. If it wereflammable material it might cause a fire which might burn a wire off but hedisagreed with Stanley?s conclusion that this might cause the load to drop.[9] He said that if the controlpanel or resistors were affected by a heavy accumulation it might interferewith movement of the crane, the trolley, or the hoist. This would ?cause theequipment not to function or to stick in an operating condition, if theaccumulation got bad.?[10] ??????????? TheRespondent?s witness, McWhirter, testified that he had been an electricalengineer at Westinghouse since completing a four-year training courseapproximately 25 years ago. He disputed Stanley?s statement that theaccumulation of debris was a hazard and that enclosure of the panel wouldcorrect the alleged hazard. Because of the generation of heat a louvered panelwould be required. He said that unless there was a filter behind the panel theamount of dust would not be diminished because it is produced by the heat andair circulation. Moisture would not collect in any area periodically heated.Obviously, heat would cause it to evaporate. If a louvered panel were installedsome grease would still deposit itself on the resistor banks. In any event theamount which might be present would immediately burn off. If a spot of oil fellupon hot resistor banks it might cause a flash out there would be nothing morethan a momentary flame. There never could be an accumulation of a large amountof grease.??????????? Theinspecting officer, Stanley, was recalled in rebuttal. He testified that therewere large oil deposits of oil all over the end of the footwalk, on the bridgebeam and the trolley. There was some oil on the metal plate that was on top ofthe resistor banks and the control panel. However, he did not dispute thetestimony of McWhirter that if there had been any oil on the resistor banksthat it would be quickly and harmlessly consumed by the heat.??????????? It isnot the responsibility of Westinghouse to assume the burden of showing that theaccumulation of oil near the resistor banks might cause a fire. This burden ison the Complainant. In the absence of persuasive rebuttal evidence that, underthe conditions described, it is probable that there would be a fire severeenough to cause malfunction of the crane, the citation must be vacated. Thetestimony of Westinghouse?s electrical engineer that fire under the conditionsdescribed would amount to no more than momentary flash stands unchallenged. TheSecretary has no, sustained the burden of proof.??????????? TheSecretary has cited the cases of Secretary of Labor v. Wheeling-PittsburghSteel Corporation, OSAHRC Docket Nos. 10611 and 11327; Secretary ofLabor v. United States Steel, OSAHRC Docket Nos. 10825 and 10849; and Secretaryof Labor v. Bethlehem Steel Corporation, OSAHRC Docket No. 9968. Each ofthese cases has been taken up for review by the Commission. They have not yetbecome a final order and, for that reason, establish no precedent. Even thoughI agree that 29 C.F.R. 1910.179 was properly promulgated, I do not reach thatissue. If the Secretary had sustained the burden of proof that there werehazards to employees as alleged in Item 7, he offered no proof that the subjectcrane could have been feasibly and economically altered as required by 29C.F.R. 1910.179(b)(2). This is not an affirmative defense. The burden is on theSecretary to come forward with such evidence. It is an essential element ofproof. See New York Life Insurance Company v. Gomer, 58 S.Ct. 500(1938).??????????? Irespectfully disagree with so much of any of the aforementioned cases as holdsthat the term ?normal operating conditions? includes maintenance work even ifit involves troubleshooting. If troubleshooting must be performed free of allhazards, in many cases such as when maintenance must be performed on anoverhead crane, it could not be accomplished. A standard cannot be construed soas to prevent maintenance. Secretary of Labor v. Grayson Lumber Company3 OSAHRC 541 (1973).CONCLUSIONS OF LAW??????????? Uponconsideration of the record as a whole as summarized in the foregoing findingsof fact I make the following conclusions of law:??????????? 1.The Secretary of Labor has failed to sustain the burden of proof that any ofthe Respondent?s employees were exposed to a hazard from uncovered moving partsduring normal operating conditions in violation of 29 C.F.R. 1910.179(e)(6)(i)as alleged in Item 6, Citation 2. Only maintenance employees could be exposedto the alleged hazard described. The performance of maintenance work includingtroubleshooting is not done during normal operating conditions and is thusexcluded from the scope of this standard.??????????? 2.The Secretary of Labor has failed to sustain the burden of proof that any ofRespondent?s employees were exposed to the risk of injury from a malfunction ofan overhead crane because of failure to cover resistor banks as alleged in Item7, Citation 2, as amended. The evidence adduced by the Secretary when weighedagainst that of the Respondent is not persuasive the Secretary?s contention thata cover over the resistor banks would eliminate the alleged hazard ifinstalled.??????????? 3. Iaccordingly find that, as a matter of law, the Secretary of Labor has not metthe burden of proof required by Commission Rule 73.ORDER??????????? It istherefore hereby ordered that Items 6 and 7 of Citation 2 dated May 2, 1975,and the proposed penalties of $40 each be vacated and this proceedingdismissed.?BEN D. WORCESTERJudge, OSAHRCDated: January 19, 1976Hyattsville, Maryland[1] Section 1910.179applies to overhead and gantry cranes. Subsection 1910.179(e)(6)(i) provides:Exposedmoving parts such as gears, set screws, projecting keys, chains, chainsprockets, and reciprocating components which might constitute a hazard undernormal operating conditions shall be guarded.[2] Initially,Westinghouse received one serious citation and one nonserious citationcontaining seven items. Westinghouse filed a timely notice of contest directedat only two of the nonserious items. The serious citation and the five remainingnonserious items are therefore final orders of the Commission by operation oflaw. 29 U.S.C. 659(a).The two contested items include thealleged violation of 1910.179(e)(6)(i) and an alleged violation of1910.179(g)(2)(ii). The Judge vacated both items. The Secretary?s petition forreview, granted by Chairman Cleary, took exception only to the Judge?sdisposition of the alleged violation of 1910.179(e)(6)(i). Neither party hastaken exception to the Judge?s vacation of the alleged violation of 1910.179(g)(2)(ii),and that item is therefore not before us on review.[3] Although ChairmanCleary dissented in these cases and continues to believe they were wronglydecided, he agrees to follow them ?in the interest of reasonable expectancy inthe application of the standards involved.? Wheeling-Pittsburgh SteelCorporation, 77 OSAHRC 81\/C10, 5 BNA OSHC 1495 (No. 10611, 1977)(concurring opinion), pet. for review filed, No. 77?1810, 3rd Cir., June20, 1977.[4] We note, however,that the interpretation of the term ?normal operating conditions? advanced bythe Judge differs from that set forth by a majority of the Commission membersin United States Steel Corporation, supra.[5] Tr. 30[6] Tr. 16[7] Tr. 49[8] Tr. 31[9] Tr. 74[10] Tr. 75”