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. 81-1976

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

The Secretary of Labor alleges that Keco Industries committed a serious violation of the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678, in that it failed to comply with the electrical standard at 29 C.F.R. § 1910.303(a) [[1]] by using unapproved equipment.  Judge Joe D. Sparks determined that Keco was in serious violation of section 1910.303(a) and therefore affirmed the citation item.  He assessed a penalty of $320.  The Commission concludes that Keco's violation of section 1910.303(a) was de minimis and vacates the penalty assessment.

I
Keco manufactures specialized cooling systems for military and aerospace aircraft at its plant in Cincinnati, Ohio.  As a result of an inspection by two compliance officers from the Occupational Safety and Health Administration, the Secretary issued to Keco two citations that each contained several items.  Only the citation item concerning section 1910.303(a) is at issue on review.  That item alleged that Keco used an unapproved "pigtail," a device containing a light-bulb socket and two lead wires for connection to an electrical circuit.  The pigtail had been installed in Keco's telephone switch gear circuit breaker box.

James Washam, one of the compliance officers, testified that when he and the other compliance officer came to that box during the inspection there was a metal cover over the box that had an opening in the center for two vertical rows of circuit breaker switches. Five such switches came through the opening while the bottom left corner space was open.  Upon Washam's request, a plant electrician assigned to assist the compliance officers during the inspection removed the box's cover, which was 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 fuse and had been connected to the bottom left opening in the panel, which was intended to accommodate a sixth circuit breaker switch.   The pigtail and fuse supplied overcurrent protection for the telephone switching gear.  The five circuit breaker switches in the box provided overcurrent protection for the lighting circuits in the building.

Washam stated that he was told during the inspection that the pigtail had been in the box for at least a year or two.  George Andrews, Keco's president, testified that he thought that the pigtail had been there since he had joined Keco, which was in 1959. According to Melio Cicchiani, Keco's plant manager, the telephone company had not done any work on the telephone switch gear prior to the month in which the plant was inspected by the two compliance officers.

II
It 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.   Washam testified that the pigtail was designed to provide temporary lighting rather than to hold an overcurrent protection device, such as a fuse, and should be replaced by a circuit breaker switch.  He stated that he had no reason to believe that the pigtail and fuse would not operate satisfactorily, but the pigtail was not "approved" because there was no marking, stamp, or other indication of approval by any recognized testing laboratory or the Secretary of Labor.  According to Larry Bland, a compliance officer who had taught electrical hazard recognition at the OSHA Training Institute and was qualified as an expert, the pigtail with the fuse "will work the way it is connected at the present, but it is not approved."

Bland stated that, unless the fuse was screwed in tightly, the fuse and socket could deteriorate and cause a fire.  Both Washam and Bland testified that the pigtail posed the hazard of electrical shocks and burns because the pigtail was installed such that:  (1) with the cover on the box, there is a remote possibility that an employee could stick a finger into the opening where the bottom left circuit breaker switch was missing and thereby be exposed to live parts; and (2) in order to change the fuse in the pigtail, an employee would need to remove the cover and reach back into the box and pull it out, thereby getting some fingers very close to live parts.  Washam testified that he did not observe and was told that there was not any disconnect switch on the box.  According to Bland, an employee working in the box would be in no danger if the disconnect switch associated with the box were pulled, but the switch would be less likely to be pulled if it was apart from the box or not adequately marked.

Keco presented no evidence that the pigtail was "approved."   Andrews, Keco's president, and Cicchiani, Keco's plant manager, testified that the pigtail was no longer in use because a new telephone system, including a new power supply, with a separate circuit breaker, had been installed within a month after the inspection.   They 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 $320 penalty, Keco argues that the use of the pigtail did not pose a hazard to Keco's employees because there was a disconnect switch for the box, albeit not on the box itself, and the possibility of an electrical maintenance employee sticking a finger through the opening in the box's cover or touching live parts when the cover was off was exceedingly remote.   Keco notes that the plant electrician who removed the box's cover and pulled the pigtail out by hand at the request of the compliance officers during the inspection suffered no injury.

The Secretary contends that he proved that Keco failed to comply with the cited standard because the use of the pigtail was not "approved."  He notes that, 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 the subpart, who is the Assistant Secretary of Labor for 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 nationally recognized testing laboratory, another governmental agency, or the manufacturer 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 to rebut the Secretary's showing that the pigtail was not "approved."  With regard to Keco's contention that there was no violation because of the disconnect, the Secretary notes that the cited standard does not permit alternative methods of compliance.

IV
It is undisputed that the pigtail in Keco's telephone switch gear circuit breaker box was not "approved" within the meaning of the cited standard.  The parties disagree, however, about the degree to which the unapproved pigtail endangered Keco's employees. Keco argues that the pigtail presented no hazard to its employees.  The Secretary asserts that Keco's argument impermissibly challenges the wisdom of the standard because the standard presumes that unapproved electrical equipment is hazardous.  The Secretary further argues that the pigtail presented serious 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 for which there is a substantial probability of death or serious harm to employees.   Section 17(k) of the Act, 29 U.S.C. § 666(j).  A de minimis violation is one in which there is technical noncompliance with a standard but the departure from the standard bears such a negligible relationship to employee safety or health as to render inappropriate the assessment of a penalty or the entry of an abatement order.  E.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).  A nonserious violation is one where the hazard is not negligible, but there is not a substantial probability of death or serious harm.  The dispute between the parties reduces to how the violation should be classified.  The Secretary argues that the violation was serious.  In contending that the pigtail presented no hazard, Keco is essentially arguing for a de minimis classification.

The Secretary bases his argument for a serious characterization on several alleged hazards described at the hearing.  On close examination, however, the facts do not support the Secretary's contention that the unapproved pigtail presented a hazard.   The evidence does not show that there was any general defect in the design or manufacture of the pigtail.  Washam testified that the pigtail was designed to provide temporary lighting, and there was no indication that the pigtail was not satisfactory for that purpose. Further, both Washam and Bland, the Secretary's witnesses, agreed that the pigtail with the fuse would function satisfactorily as an overcurrent protection device.  Rather than concerning the approval or lack thereof of the pigtail, the Secretary's arguments as to why the violation should be classified as serious relate 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 screwed in tightly.  However, there was no evidence in the record that Keco's employees did not know how to install a fuse properly or that the fuse in the cited pigtail was not screwed in tightly.  With regard to the alleged hazard of electric shock with the cover on the box, it appears from the record that the chance of an employee being injured from contacting live parts is negligible.  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).  Concerning the alleged hazard of electric shock with the cover off the box, there is no evidence that Keco's employees had taken or would take inadequate precautions when taking off the cover or in servicing the circuit breaker box.   We further note that the Secretary's standards contemplate that "qualified persons" have access to live parts.  See, e.g., 29 C.F.R. §§ 1910.399(a)(100) ("[q]ualified person" is "[o]ne familiar with the construction and operation of the equipment and hazards involved"); § 1910.303 (g)(2)(B) (partitions or screens must be "so arranged that only qualified persons will 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 only authorized qualified persons have access" to live parts).  Furthermore, with the cover 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 the use of the unapproved pigtail was too remote to warrant an abatement requirement or a penalty assessment.  Therefore, we hold that the violation was de minimis [[2]].  We note that the evidence established that the pigtail is no longer in use because, 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 as it alleged a violation of section 1910.303(a) but classify the violation as de minimis, therefore assessing no penalty.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  FEB 29 1984

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), 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 this subpart shall be acceptable only if approved.

Section 1910.399(a)(7) states that "[a]pproved" means:

Acceptable to the authority enforcing this subpart.  The authority enforcing this subpart is the Assistant Secretary of Labor for Occupational Safety and Health.  The definition of "acceptable" indicates what is acceptable to the Assistant 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 of Labor, and approved within the meaning of this Subpart S: (i) If it is accepted, or certified, or listed, or labeled, or otherwise determined to be safe by a nationally recognized testing laboratory, such as, but not limited to, Underwriters' Laboratories, Inc. and Factory Mutual Engineering Corp.; or (ii) with respect to an installation or equipment 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 Federal agency, or by a State, municipal, or other local authority responsible for enforcing occupational safety provisions of the National Electrical Code, and found in compliance with 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 be safe for its intended use by its manufacturer on the basis of test data which the employer keeps and makes available for inspection to the Assistant Secretary and his authorized representatives.

[[2]] Commissioner Cleary would characterize the violation as nonserious rather than de minimis.

The cited standard recognizes that electrical equipment may contain dangerous defects that are not detectable by visual inspection and therefore requires an objective determination of safety.  In most instances, approval of electrical equipment follows rigorous testing by a recognized testing laboratory to assure the safety of the equipment.

It should be obvious that hazards due to electrical malfunction are not negligible and that section 1910.303(a) is directed to such hazards to the extent they are due to latent defects which are discoverable by laboratory or other testing.  Thus, use of unapproved electrical equipment bears more than a negligible relationship to employee safety and health.

Whether the cited equipment was installed properly is irrelevant to the question of whether lack of laboratory testing poses more than a negligible 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 to use unapproved equipment in the future.