Docket No. 86-1026

SECRETARY OF LABOR,

Complainant,

FRITO-LAY, INC.,

Respondent.

OSHRC DOCKET NO. 86-1026

ORDER

The Commission treats the Secretary's second notice of withdrawal as a motion to withdraw Citation 1 and grants the motion. In addition, the Commission sets aside the Judge's decision to the extent that it rules on Citation 1, the withdrawn citation. The Judge's report now becomes a final order to the extent that it rules on Citation 2.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

Dated: April 3, 1989

SECRETARY OF LABOR,

Complainant

FRITO-LAY, INC.

Respondent

OSHRC Docket No. 86-1026

Order Granting Respondent's Motion to Dismiss the Characterization of Citation No. 1 as Willful

The complainant presented his proof[[1/]] and rested his case on January 22, 1987 (Tr. 197). Respondent then moved to dismiss citation no. 1 insofar as it characterizes the single alleged violation there as willful (Tr. 199). The formal motion was filed with accompanying memorandum on February 19, 1987. Complainant's memorandum in support of his presentation and in opposition to the motion was filed on February 18, 1987. Respondent is scheduled to present its defense on February 26, 1987.

The motion, filed under rule 41(b) of the Federal Rules Of Civil Procedure,[[2/]] presents the broad question of whether "...upon the facts and the law the plaintiff [complainant] has shown no right to relief."

Complainant translates this to mean that the motion may not be granted unless the evidence "clearly establishes that the employer did not commit a violation," citing Secretary v. Texland Drilling Corp., BNA 9 OSHC 1023, 1980 OSHD ś 24,954. (Emphasis from Opposition, page 2) That case states the proposition differently, and the motion may not be granted "...unless it is clear that the Secretary has not proven his case by a preponderance of the evidence." The Commission there insists on a high level of definitiveness to avoid the necessity of remand and protracted proceedings.[[3/]]

This is in accord with rule 41(b) after the 1946 amendment (requiring the court to determine the facts upon a grant of the motion) and a prima facie showing is not sufficient to defeat a motion to dismiss. As stated in Ellis v. Carter, 328 F.2d 573 (1964) at 577:

Accordingly, the trial court was not required to deny the 41(b) motion even if the evidence, viewed in a light most favorable to the plaintiff, made a prima facie case. If, from the record as it stood at the close of plaintiff's case, the court was convinced that the evidence preponderated against Ellis [plaintiff], it was empowered to grant Carter's [defendant] motion.

Thus, the complainant has no benefits here. The evidence may not be viewed in a light most favorable to him and a mere prima facie showing, i.e., satisfying the burden of producing evidence, is not enough. All fictions and verbiage evaporate in the heat of a motion to dismiss. The facts, and those alone, determine the issue of whether the complainant has "the right to relief" on the question of whether respondent violated--if it did at all--one of the three standards cited against it willfully.

The Plain Meaning of "Willful" and the Issue:

There is no divisive difference of opinion among the Circuit Courts of Appeal on the Commission's definition of the "willfulness" of a violation. That is,

A violation is willful if it was committed voluntarily with either an intentional disregard for the requirements of the Act or with plain indifference to employee safety. Secretary v. A. C. Dellovade, Inc. BNA 13 OSHC 1019 (1987)

The Third Circuit had added to this, what later was interpreted merely as a cosmetic with no significant variation from the generally accepted definition, the elements or "flounting" ("flouting"?) "obstinate refusal," and "bad purpose." Frank Irey, Jr. v. OSHRC, 519 F.2d 1200 (1974). In 1980, that Circuit agreed with the D. C. Circuit [Cedar Construction Co. v. OSHRC, 587 F.2d 1303, 1305 (1978)] that there is little, if any, difference between the approaches taken by the Circuit. The meaning of the terms--obstinate refusal, defiance, flounting or flouting and intentional disregard--is the same. See Universal Auto Radiator Mfg. Co. v. Marshall, 631 F.2d 20, 23 (3d Cir. 1980), quoting from Babcock & Wilcox v. OSHRC, et al., 622 F.2d 1160, 1167-68 (3d Cir. 1980).

And that meaning has been put most simply and directly by the recent decision of the First Circuit in Brock v. Morello Bros. Construction, No. 86-1442, Jan. 20, 1987, BNA 13 OSHC 1033, as follows:

..."indifference" to the rules; he [the employer] need not be consciously aware that the conduct is forbidden at the time he performs it, but his state of mind must be such that, if he were informed of the rule, he would not care. 13 BNA 1033 at 1034 (emphasis mine)

By the same token, as pointed out by complainant,[[4/]] if an employer is aware of a hazard--albeit not of any safety standard governing the control of that danger--and persists in exposing employees to it, a willful violation will lie. Secretary v. John W. Eshelman & Sons, BNA 9 OSHC 1397 (1981).[[5/]]

Conversely, a knowing and intentional disregard of a safety standard will justify its characterization as willful despite the employer's good faith belief--and, perhaps, even the fact--that the work could be done without endangering the employees. Donovan v. Capital City Excavating Co., Inc., 712 F.2d 1008, 1010 (6th Cir. 1983).[[6/]]

The foregoing describes the circumstances determining a willful violation. Factors erasing that label have been found to be:

Actions which an employer takes to bring itself into compliance with a standard's requirements when it learns of its application. Secretary v. R. D. Anderson Construction Co., Inc., BNA 12 OSHC 1665 (1986). This remains true even if the attempts were "albeit inadequate," Secretary v. Williams Enterprises, Inc., BNA 4 OSHC 1663 at 1668 (1976), or if the actions fall short of complying with the directives in the employer's safety manual, Secretary v. U.S. Steel Corp, BNA 12 OSHC 1692 (1986).

"Merely negligent conduct is never deemed 'willful.'" Wehr v. Burroughs Corp., 619 F.2d 276, 282 (3d Cir. 1980);[[7/]] nor is a failure to exercise due diligence alone equal to what might be said to be a careless disregard of safety, Secretary v. Mosites Construction Co., BNA 9 OSHC 1808, 1813 (1981).

Applying these rationales and criteria to this case, the factual issue may be framed as follows:

Were the corrective actions taken by respondent after it became aware of a hazard existing in its workplace merely lacking in due diligence or negligent; or were they taken with plain indifference to employee safety.

The findings of fact below answer the first question affirmatively and its disjunctive negatively.

Findings of Fact Based on Complainant's Case-in-Chief:

I find the following:

I) The scene: Respondent produces potato chips at a plant in Dayville, Connecticut, employing about 500 people. The fryer, a large, stationary machine some 12 feet wide, is capable of processing two and a quarter tons of potatoes an hour. (Tr. 11)[[8/]]

Chips drop from the fryer onto vibrating Allen conveyor lines (to shake off excess oil) abutting to it taxing them to other areas for further processing. These lines are energized by flexible cables from a power source to the lines' motors.

To allow the fryer operator and pickers (who along the conveyors remove faulty chips) to cross from one area to another, a catwalk extends over a conveyor. This is made of stainless steel consisting of two vertical ladders between which extends the walkway or catwalk. As many as five employees may cross.

The conveyors are heavy (Tr. 13) and equipped with rollers; the catwalk is not and weighs about 100 pounds. (See photo exhibits C-4 and C-7). At the bottom of the ladder (at least one of them) is a kickplate which extended to the floor before it was cut and shortened on March 31, 1986. (See photo exhibits C-4 and C-5)

The flexible cord powering Allen conveyor no. 2 was, on two occasions, resting under that kickplate.

The entire area is cleaned by the respondent's sanitation department using high pressure hoses every weekend and more often if required because the process is greasy. The conveyors are disconnected and the cords are wrapped around the machinery. They and the catwalk are moved out of the way to facilitate the cleaning. (Tr. 39-40)

II) The first shock: In January 1986, the fryer's operator, Robert Hohler, as he was climbing off the catwalk, touched a conveyor and felt a "tingle," an electrical current, run up his arm.

He reported this to his supervisor, Mr. Dan Hanson, and "immediately" (Tr. 20) someone (Brian Arnio, a maintenance mechanic) was sent to look at it after Mr. Hanson investigated (Tr. 128-29).

Mr. Arnio, after testing the catwalk, found it was energized from the cord,[[9/]] underneath it which had been cut through by the kickplate. He unplugged the cord, taped the cut, put it back on the floor, and wrote up a work order to have the cord replaced. It was 15 feet seven inches long (Tr. 77).

Mr. Arnio, did not know what became of the work order which he gave to his supervisor, Mr. Borden[[10/]] (Tr. 50). Charles Wall, the processing supervisor, could not find his copy of the work order but believed he had ordered replacement according to Compliance Officer Mulligan; Mr. Hanson told him that he did not think that the cord had been replaced but that the problem had been rectified (Tr. 173). Mr. Borden did not think replacement had occurred. (Tr. 129-31)

The supervisor of the sanitation crew [Mr. Shultz (Tr. 129)] told the Officer that, among the many volumes of rules and regulations respondent maintains, there were no written rules governing the placement of cords on the floor (Tr. 131).

In the seven years Mr. Arnio has been employed in maintenance, he has taped minor cuts in the cords about six times. In each case, he prepared work orders for the replacement of the cords (Tr. 42).

III) The second shock: Some two months after this January incident, on March 31, 1986, Mr. Hohler, while crossing over on the catwalk, grabbed the siderails and received a severe shock. He was thrown from the catwalk, hospitalized overnight for observation and does appear to have suffered severely.[[11/]]

As in the January experience, again it was found that the kickplate had cut through the cord powering Allen conveyor no. 2 and the catwalk had become energized.

In response to this incident, Mr. Arnio that day was directed by his supervisor to cut the kickstand, that is, shorten it so the cord could not be cut; and, in addition, the cords were run through pipes.

IV) The procedural facts regarding the inspection, citation and amendments: On April 1, 1986, the day after the second shock, Compliance Officer Stephan Mulligan made his inspection. As a result, and after discussion with his immediate supervisor, he recommended that a citation be issued alleging a willful violation of some sub-part of 29 C.F.R. § 1910.303 [not specified (Tr. 179)] because the cord was of insufficient strength and durability. At his closing conference, some five days later (Tr. 176), he told respondent's management officials that the use of those cords, because of the stated deficiencies, would be the basis of any citation that might be issued (Tr. 176-77).

But this was changed. The citation, as originally issued, alleges a willful violation of 29 C.F.R. § 1910.305(g)(1)(i), using flexible cords where they should not be used, i.e., this standard specifies where such cords may be used.

On January 21, 1986, the day before the hearing, complainant moved to amend[[12/]] the citation to plead in the alternative (1) a willful violation of 29 C.F.R. § 1910.305(a)(2)(ii)(G), alleging a failure to protect flexible cords from accidental damage while in temporary use;[[13/]] or (2) a willful violation of the general duty clause, 29 U.S.C. § 654(a)(1). The description of the violation, in any case, went unchanged as stated in the citation--in essence--insufficient strength and durability of the cords. To be consistent, these terms must mean that flexible cords were not permitted. For the purposes of this motion, I find that meaning to be the citation's charge.

Conclusions and Order:

The definition of a "willful" violation requires that if it is found that an employer

(1) intentionally disregarded a requirement of the Act (i.e., a standard or the general duty clause);

(2) acted with plain indifference to employee safety; or

(3) committed both of the above,

then the violation for which it is charged must be deemed willful.

The procedural facts show that there is some doubt as to just what governs the respondent's use or the flexible cord here and what it violated, if anything. While this may not be fatal to justifying a characterization of willfulness so long as some standard can be shown to apply,[[14/]] there is no evidence that respondent was aware it was violating any specific standard while employing these cords as it did, let along willfully so.

As originally charged, 29 C.F.R. § 1910.305(g)(1)(i) might permit the use of flexible cords for sub-part (H) allows them for "Appliances where fastening means and mechanical connections are designed to permit removal for maintenance and repair."

"Appliances" are defined at 29 C.F.R. § 1910.399(a)(6) as

Utilization equipment, generally other than industrial, normally built in standardized sizes or types, which is installed or connected as a unit to perform one or more functions such as clothes washing, air conditioning, food mixing, deep frying, etc. (Emphasis mine)

This definition is taken directly from the 1978 National Electrical Code, Article 100, according to complainant (Tr. 139-41 and quoted at Tr. 140). While this appears to exclude the conveyors, some doubt is injected by use of the terms "generally" and "normally." More importantly, the 1981 Code Handbook[[15/]] deletes the definitions of "fixed," "portable"[[16/]] and "stationary" appliances because ". . .some requirements for [these] appliances were based on different meanings of the terms." Hence, respondent could reasonably believe that the conveyors were "portable" equipment and use of the cords would be excluded only "generally" but not totally. Any error here could not conceivably be deemed willful.

Or, subpart (F) permits the use of flexible cords for the "connection of stationary equipment to facilitate their frequent interchange." Although the compliance officer testified that it was not so used (Tr. 141), there was no explanation as to why the conveyors, locked into place except when unplugged, are not stationary in the main, or "not easily moved from one place to another in normal use" (1978 National Electric Code, Article 100, if this were to apply). Here, again, any error in interpretation could not be deemed as willful.

Either of these instances permits the use of flexible cords to operate the conveyors so that any misuse cannot be considered as a foregone conclusion.

Amendment one charges the alternative violation of 29 C.F.R. § 1910.305(a)(2)(iii)(G) under which flexible cords must be protected from accidental damage. But this entire section [29 C.F.R. § 1910.305(a)(2)] is directed only to temporary wiring such as while remodeling, etc., experiments and development, or Christmastime. That certainly is not the case here and this amended section does not apply.

Finally, the second proposed amendment of a violation of the general duty clause would apply only if no standard does. One standard not cited by complainant (a fourth possibility including the compliance officer's) is 29 C.F.R. § 1910.305(g)(1)(iii)(C) which forbids the use of flexible cords if otherwise permitted by subsection (1)(i) of that section "Where run through doorways, windows or similar openings." While some interpretive difficulties would be encountered here, running the cords under the conveyors must include openings similar to the hazard of one run through a doorway or window. But this subsection has neither been charged nor has any proof been brought forward to sustain it.

Complainant does not address this latter point (applicability of the general duty clause) only that it has been violated in any event because respondent was on notice of the hazard (the January shock) and did not remove it (the March incident).

Suffice to say that this record allows no basis for holding that no standard applies to bring down onto respondent the general duty clause. No violation of that mandate is yet possible here.

Since it may not be found that respondent intentionally disregarded a requirement of the Act by the use of flexible cords where a standard forbids it willfulness will only lie if it can be shown that respondent acted with plain indifference to employee safety. There is no such proof.

Respondent reacted immediately to the first sign of danger. It had no other choice. A repair was made. Replacement of the cord was to have taken place and that it did not is not traceable to any intentional act. Its lack of diligence here in not assuring that the cord would not be placed under the kickplate was unfortunate amounting to negligence but it falls short of any intentional or willful failure to protect employees.

As soon as respondent became aware that its first protective step (taping) was insufficient, it went further and removed the edge that cut the cord (shortening the kickplate) and the cords were run through pipes to forestall other types of damage. These were acts directed by respondent's managerial personnel.

At best complainant has shown a serious violation if some requirement of the Act may be said to apply in that, with diligence, respondent should have been aware of the hazard; but no shadow of willfulness blackens what may be there. Applying the Morello test, above, as soon as respondent became aware of the hazard, it attempted corrections and finally cured it. It has not been shown that respondent did not care. It did, and it acted before the appearance of any regulatory authority.

There is yet another serious defect in complainant's attempt to prove willfulness. That is respondent's awareness of the hazard. Mr. Arnio taped and had replaced cords less than once a year. While he is not the only mechanic, no evidence was adduced that broken cords are a generally recurring problem. Even, perhaps, rarer is a cord cut by a kickplate or some other piece of machinery. No evidence was adduced that this should be an event respondent could be held to expect. As far as this record goes, it happened once, in January 1986 and was repaired. Since this hazard was not actually known to respondent before January 1986, and steps were taken to remove it after it became known, it is not certain that respondent--even though what it did do was insufficient--was on notice sufficient to support a charge of willfulness.

The factual picture drawn here does not portray the detail of respondent winking at employee safety matters. It was on notice of the hazard but not that it had to do more because it was not believed the problem would recur. If it failed to finally cure the hazard in January, that failure was not as a result of any sort of indifference to its employees' safety.

Since it has not satisfactorily been shown, which, if any, standard respondent may have violated rendering the question of a general duty clause violation as premature; and since it has not been shown that respondent was plainly indifferent to employee safety; I conclude that respondent did not willfully violate the Act's requirements.

It is, therefore, ORDERED that the characterization of citation no. 1, issued June 26, 1986, as willful be vacated.

DAVID J. Knight
Judge, OSHRC
Dated: February 23, 1987
Boston, Massachusetts

SECRETARY OF LABOR,

Complainant,

FRITO-LAY, INC.,

Respondent.

OSHRC Docket No. 86-1026

DECISION & ORDER

For the Complainant: Albert H. Ross, Regional Solicitor
U. S. Department of Labor
Boston, Massachusetts
By: David Baskin, Esq.

For the Respondent: William J. Rodgers, Esq.
Finley, Kumble, Wagner, Heine,
Underberg, Manley, Myerson & Casey
Washington, D.C.

Statement of Proceedings:
Frito-Lay, Inc., a producer of potato chips at a plant in Dayville, Connecticut (respondent) was charged with several allegations of violations[[1/]] of safety standards by the Occupational Safety and Health Administration of the U. S. Department of Labor (complainant or OSHA).

The complainant presented his case-in-chief on January 22, 1987, and respondent moved to dismiss the characterization of willfulness from citation no. 1. This motion was granted by decision [[2/]] dated February 23 and the following facts were found:

(1) The scene: Respondent produces potato chips at a plant in Dayville, Connecticut, employing about 500 people. The fryer, a large, stationary machine some 12 feet wide, is capable of processing two and a quarter tons of potatoes an hour (Tr. 11) [[3/]]

Chips drop from the fryer onto vibrating Allen conveyor lines (to shake off excess oil) abutting to it taking them to other areas for further processing. These lines are energized by flexible cables from a power source to the lines motors.

To allow the fryer operator and pickers (who along the conveyors remove faulty chips) to cross from one area to another, a catwalk extends over a conveyor. This is made of stainless steel consisting of two vertical ladders between which extends the walkway or catwalk. As many as five employees may cross.

The flexible cord powering Allen conveyor no. 2 was, on two occasions, resting under that kickplate.

The entire area is cleaned by the respondent's sanitation department using high pressure hoses every weekend, and more often if required because the process is greasy. The conveyors are disconnected and the cords are wrapped around the machinery. They and the catwalk are moved out of the way to facilitate the cleaning. (Tr. 39-40)

II) The first shock: In January 1986, the fryer's operator, Robert Hohler, as he was climbing off the catwalk, touched a conveyor and felt a "tingle," an electrical current, run up his arm.

He reported this to his supervisor, Mr. Dan Hanson, and "immediately" (Tr. 20) someone (Brian Arnio, a maintenance mechanic) was sent to look at if after Mr. Hanson investigated (Tr. 128-29).

Mr. Arnio, after testing the catwalk, found it was energized from the cord [[4/]] underneath it which had been cut through by the kickplate. He unplugged the cord, taped the cut, put it back on the floor, and wrote up a work order to have the cord replaced. It was 15 feet 7 inches long (Tr. 77).

Mr. Arnio did not know what became of the work order which he gave to his supervisor, Mr. Borden [[5/]] (Tr. 50). Charles Wall, the processing supervisor, could not find his copy of the work order but believed he had ordered replacement according to Compliance Officer Mulligan; Mr. Hanson told him that he did not think that the cord had been replaced but that the problem had been rectified (Tr. 173). Mr. Borden did not think replacement had occurred. (Tr. 129-31)

The supervisor of the sanitation crew [Mr. Shultz (Tr. 129)] told the Officer that, among the many volumes of rules and regulations respondent maintains, there were no written rules governing the placement of cords on the floor (Tr. 131).

In the seven years Mr. Arnio has been employed in maintenance, he has taped minor cuts in the cords about six times. In each case, he prepared work orders for the replacement of the cords (Tr. 42).

As in the January experience, again it was found that the kickplate had cut through the cord powering Allen conveyor no. 2 and the catwalk had become energized.

On January 21, 1986, the day before the hearing, complainant moved to amend [[7/]] the citation to plead in the alternative (1) a willful violation of 29 C.F.R. § 1910.305 (a)(2)(ii)(G), alleging a failure to protect flexible cords from accidental damage while in temporary use; [[8/]] or (2) a willful violation of the general duty clause, 29 U.S.C. § 654(a)(2). The description of the violation, in any case, went unchanged as stated in the citation--in essence--insufficient strength and durability of the cords.

Another citation, alleging three non-serious violations involving the use of flexible cords, was also issued and contested as discussed below.

Discussion, Findings and Conclusions:

As initially cited, respondent is charged with violating 29 C.F.R. § 1910.305(g)(1)(i):

(g) Flexible cords and cables--(1) Use of flexible cords and cables. (i) Flexible cords and cables shall be approved and suitable for for conditions of use and location. Flexible cords and cables shall be used only for:
(A)
(B)
(C) Connection of portable lamps or appliances;
(D)
(E)
(F) Connection of stationary equipment to facilitate their frequent interchange;
(G)
(H) Appliances where the fastening means and mechanical connections are designed to permit removal for maintenance and repair;

According to the facts and testimony given by respondent's expert witness, electrical engineer Bernard Stankevich, respondent's use of flexible cord in its chip processing area complied with this standard. Specifically, the use of flexible cord to operate respondent's conveyors was established as being approved and suitable under either subparts (C), (F), or (H) of this section. This evidence was not rebutted.

Subpart (H) would allow the use of flexible cord for "(a)ppliances where the fastening means and mechanical connections are designed to permit removal for maintenance and repair." The definition of "appliances" is found at 29 C.F.R. § 1910.399(a)(6) as:

Utilization equipment, generally other than industrial, normally built in standardized sizes or types, which is installed or connected as a unit to perform one or more functions such as clothes washing, air conditioning, food mixing, deep frying, etc.

The definition of "utilization equipment" is found at 29 C.F.R. § 1910.399(a)(127):

(E)quipment which utilizes electric energy for mechanical, chemical, heating, lighting, or similar useful purpose.

Stankevich testified that the conveying equipment used by Frito-Lay is contained in the definition of "appliance" (Tr. 14, 15, 16).

Although the conveying equipment used by respondent is industrial equipment, the definition of utilization equipment comprises that which is "generally other than industrial." This would not unequivocally exclude respondent's conveying equipment from the definition of "appliance."

Subpart (C) allows the use of flexible cord for the "(c)onnection of portable lamps or appliances." Subpart (F) permits the use of flexible cords for the "(c)onnection of stationary equipment to facilitate their frequent interchange." As stated earlier, the conveyors are equipped with wheels, thus, they are portable; once moved to a chosen location, the wheels are able to be locked, thus rendering them, effectively, stationary. While it may appear anomalous to deem the conveyors both "portable" [[9/]] as in subpart (C), and "stationary," as in subpart (F), the conveyors are capable of both characterizations by virtue of their locking wheels.

Stankevich's testimony confirmed that the use of flexible cord in respondent's chip processing area was a proper installation, and was permitted under OSHA standards (Tr. 11). In his experience as an electrical engineer, and based on previous inspections and safety audits of other industrial plants, [[10/]] he testified that the use of flexible cord in respondent's plant conformed to industry-wide practice. Further, the type "SO" cord which was involved in the January and March shock incidents, and which energized the drive motor on the no. 2 Allen Inspector Conveyor, was suitable for extra-hard usage of the type in Frito-Lay's potato chip processing area. [[11/]] Indeed, complainant concedes that this testimony "established that respondent's use of flexible cords was per se reasonable and that "serious violation of the standard was not committed by mere use of the cords in general." [[12/]] This "mere use" is the substance and purpose of the cited standard. It is limited to delineating those circumstances in which flexible cord shall be used. The standard would permit the use of flexible cords to operate respondent's conveyors pursuant to either three of its aforementioned subparts, and I so conclude.

But, subsection (iii) (C) of this same standard does not permit the use of flexible cords: [[13/]]

Both the January and March shock incidents were attributed to the position of the cord underneath the kickplate. The cord was found to have been run underneath the conveyors in both instances. The space underneath the conveyors, specifically under the kickplate, would certainly be deemed to constitute an opening similar to doorways or windows. When the cord was run underneath this opening, it fell within the prohibition of the standard. Although the use of flexible cord was approved and suitable for conditions of use and location in respondent's chip processing area, the real issue in dispute was the way in which the cord was used. It is uncontroverted, as elicited from Stankevich's testimony, that any piece of equipment should never rest upon any flexible cord (Tr. 41). Equipment would include the 100-pound kickplate that rested on top of the cord (Tr. 45), discovered upon the January and March shock incidents.

Thus, based on respondent's expert witness's testimony, a violation of 29 C.F.R. § 1910.305 (g)(1)(iii)(C) is clearly evident: the permissible use of flexible cord impermissibly placed. Complainant phrases this issue similarly, albeit citing the wrong standard:

Complainant submits that Mr. Stankevich's testimony establishes that Respondent violated § 1910.305(g)(1)(i) by using a cord which was otherwise suitable for hard usage in Respondent's work area in a manner which was unsuitable due to the specific placement of the cord. (emphasis mine) (p. 3)

Respondent, despite its expert's testimony, argues (on this alleged violation) that it "...is aware of no standard requiring that cable ... may not run across a floor." (p. 12-13) It does not mention the specifics of this standard and this portion is necessarily inconsistent with the evidence from its case-in-chief.

I conclude that respondent--by not ensuring that the cable would not pass beneath the kickplate--violated this standard [29 C.F.R. § 1910.305(g)(1)(iii)(C)] in that the cable was allowed to run through an opening presenting the same hazard as a window or doorway. [[14/]] This is the cause of both events in January and March and the violation, in terms of potential injury, is serious (see footnote 6, above).

That respondent knew or should have known of this potentially dangerous condition [29 U.S.C. § 666(j)] is shown either by the requirement of showing the cause of damage on Mr. Arnio's work order calling for replacement of the cable (a fact not broached by either party); or if Mr. Arnio did not report the cause of the cord's cut, this reflects on his training by respondent to report and correct hazards the existence which respondent' s expert admitted. Brennan v. Butler Lime and Cement Co., 520 F.2d 1011, 1017. In one case and the other, respondent knew or should have known of the hazardous condition. And the facts surrounding both occurrences (January and March) were tried out to the extent that no prejudice results to the respondent by amending this alleged non-serious violation to one of a serious characterization. Kaiser Aluminum and Chemical Corp, 4 OSHC 1162, 1165, 1975-76; National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). An amendment under Rule 15(b) is proper if it can be determined that the unpleaded issue was tried, and that the parties either expressly or impliedly consented to do so. Rule 15(b). Secretary of Labor v. McWilliams Forge Company, Inc., 11 OSHC 2128 (July 20, 1984). "At least it must appear that the parties understood the evidence to be aimed at the unpleaded issue.'" McWilliams Forge, citing Consolidated Data Terminals v. Applied Digital Data Systems, 780 F.2d 385, 397 (9th Cir. 1983), quoting MBI Motor Company v. Lotus/East, Inc., 506 F.2d 709, 711 (6th Cir. 1974).

It is of no avail to respondent to argue that it could not reasonably expect the January event to recur in March when it took no steps (other than an attempted replacement of the cable) to ensure that the cable would not again be cut in the same way.

The penalty for this violation I set at $250 and is based mainly on its gravity. Respondent's size, good faith and history do not detract from its commitment to safety. 29 U.S.C. § 666(i).

With these findings and conclusions the proposed amendments must be vacated. The general duty clause will not apply because a standard preempts it exclusively concerning the hazard and conditions described by the evidence. Cf., Int. Un. U.A.W. v. General Dynamics Land Sys. Div., 815 F.2d 1570 (1987). Complainant admits that the remaining proposed amendment [29 C.F.R. § 1910.305 (a)(2)(iii)(g) - temporary wiring] is not applicable (Brief. p. 2).

Citation No. 2 (the non-serious items):

Item 1: An alleged violation of 29 C.F.R. § 1910.22(a)(1)

(a) Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

Respondent does not dispute the fact that the flexible cord energizing the sizer ran across the floor and presented a tripping hazard. It does take issue with the language of the citation that the cord was subject to damage. That should be deleted, it argues, because the cable (type "SO") was suitable for this installation and there is no proof otherwise. (Brief, p. 4)

As noted above, respondent's expert testified without refutation that this cable is suited for the purpose used. This necessarily means that it can withstand some abuse. The implication of the disputed language is that the cord-which might be damaged by someone tripping over it--is less suitable than a safety-conscious employer would put to use. Given no proof, only conjecture, that the cord would suffer or break under this possibility, respondent's point is well taken.

This item is affirmed in the order below but only insofar as the cord created a tripping hazard.

Item 2:

The complainant also invoked § 1910.305 (g)(1)(i) to charge respondent with a non-serious violation, the substance of which was that "the flexible cord used to energize the no. 1 Allen Conveyor had the outer sheath cut. [[15/]] While this charge may be relevant to an improper manner in which the cord was used, it has no bearing on whether or not the use of flexible cord was permitted under the standard. As stated, supra, the use of flexible cord to energize the conveyors was approved and suitable under the standard.

The compliance officer would have preferred fixed wiring here rather than flexible cord connected to the frame of the conveyor (Tr. 151-52, 181).

According to the testimony of engineer Stankevich, a crack in a flexible cord may only require temporary taping until it can be replaced (Tr. 22). If metal in one of the interior wires is exposed, [[16/]] it is general engineering practice to temporarily repair it with electrical tape, and continue to use the cord until it can be replaced (Tr. 22, 39). The inner wires in respondent's cord were not so exposed (Tr. 151). Respondent complied with general engineering practice, as it taped and submitted a work order for the replacement, of the damaged cord. However compliant or diligent respondent may have been in this respect, the condition of the cord is not relevant to the approval or suitability of flexible cord use under the cited standard. [[17/]] Thus, the condition of the cord having no bearing on the permissibility of its use under these circumstances, this standard was not violated by respondent. This item is vacated in the order below.

Item 3:

This item alleges two violations of 29 C.F.R. § 1910.305 (g)(1)(iii):

1. That the flexible cord to power the no. 2 conveyor was used in lieu of fixed wiring. This aspect has been decided as the nub of citation no. 1, item 1; and

2. The flexible cords for the seasoner machine on the no. 1 Allen conveyor were attached to the conveyor with plastic wire ties.

Complainant asks that this (as well as both items 2 and 3 here) be affirmed as the cords created tripping hazards as in item 1 because these cords were strung along the floor. (Brief, pp. 8-9) All the evidence does here, and I so find, is place the cords on the floor; there is little to suggest tripping and the tenor of the officer's testimony was a problem with these cords under the conveyors (Tr. 148-49, 153-55). Considering this request as a motion to amend the citation and complaint, it is denied.

I also conclude that this sub-item must be vacated. The cited section does not prohibit plastic wire ties where flexible cord is permitted even though so fixing the cords in place this way suggests that fixed wiring should have been used (Respondent's brief, p. 13, note 12). On the contrary, respondent's unattacked evidence shows that so attaching these cords is a standard safety practice in industry and hospitals to prevent possible disasters such as having a cord accidentally torn from its connection (Tr. 23-24, 2/26/87). Complainant did not take advantage of his opportunity (which he preserved) to rebut this testimony. (Tr. 61-62, 2/26/87).

This item, too, is vacated in the order below.

ORDER:

Based on the findings of fact and conclusions of law reached after considering the evidence and the parties' arguments and proposals, which to the extent shown are adopted or rejected as having insufficient support in the preponderance of the evidence or precedent, it is ORDERED

1) Citation no. 1, issued June 26, 1986, alleging a willful violation of 29 C.F.R. § 1910.305(g)(1)(i) is vacated (see also the order of February 23, 1987) together with its proposed civil penalty of $9,000 and is affirmed as a serious violation of 29 C.F.R. § 1910.305(g)(1)(iii)(C) with a civil penalty of $250 assessed therefor;

2) The motion to amend this citation to allege a violation either (1) of 29 C.F.R. § 1910.305(a)(2)(ii)(G) or (2) of the general duty clause, 29 U.S.C. § 654(a)(1) is denied; and

3) Citation no. 2, also issued June 26, 1986, alleging non-serious violations of

a) 29 C.F.R. § 1910.22(a)(1), as item 1 thereof, is affirmed only as the flexible cord specified there created a tripping hazard and no civil penalty is assessed therefor; and b) 29 C.F.R. § 1910.305(g)(1)(i), as item 2 thereof, and 29 C.F.R. § 1910.305(g)(1)(iii), as item 3 thereof, are vacated.

DAVID J. KNIGHT
Judge, OSHRC
Dated: February 5, 1988
Boston, Massachusetts

FOOTNOTES:

[[1/]] To support any one of three alternative charges that respondent used flexible cords improperly in powering machinery producing potato chips. It may have violated 29 C.F.R. § 1910.305(g)(1)(i) as charged in the citation; or, as amended on the eve of hearing, 29 C.F.R. § 1910.305(a)(2)(iii)(G) or the general duty clause, 29 U.S.C. § 654(a)(1).

[[2/]] The Commission has no specific rule governing motions to dismiss. Thus, the Federal rules apply. See Commission rule 2(b), 29 C.F.R. § 2200.2(b).

[[3/]] To the same point, Secretary v. R. C. Diving Co., Inc., BNA 9 OSHC 1402 at footnote 4. The text even goes further stating that the motion should not be granted unless the evidence preponderates against the complainant.

[[4/]] Opposition, page 6.

[[5/]] This case puts to rest respondent's argument (Memorandum, page 8) that an employer unaware of a standard may normally not be found in willful violation. It would also have to be found that it was unaware of the hazard.

[[6/]] Good or bad faith is immaterial. Respondent's action determines the nature of a violation. However, a good faith attempt to comply with a standard's dictate will relieve a respondent of the stigma of willfulness. Secretary v. Lukens Steel Co., BNA 10 OSHC 1115, 1127 (1981).

[[7/]] This statement was applied to the Act's "willful" while stated in a proceeding involving another statute. Babcock & Wilcox, above, 1168, footnote 7, cited by respondent at page 11 of its memorandum.

[[8/]] Transcript references are used only where the parties' memoranda do not mention a fact or where it is in dispute.

[[9/]] The parties did not stipulate the amount of power carried by the cords; it was either 110 or 440 volts (Tr. 24-25) or a 443-phase electrical cord (Officer Mulligan, Tr. 186-87).

[[10/]] Complainant called four witnesses: two employees, a state police officer and the inspecting compliance officer and rested. No supervisory employees were questioned despite five other employees--supervisory or not-- being subpoenaed by him, present in the courtroom, but not called (Tr. 197-99)

[[11/]] Based on Mr. Hohler's testimony (Tr. 21-25) and that of Officer Johnson (Tr. 100), if nothing else were offered, I would find any violation here to be "serious" as that is defined at 29 U.S.C. § 666(j).

[[12/]] This motion was granted subject to the condition that the factual pattern did not differ from that used to support the original citation (Tr. 8).

[[13/]] 29 C.F.R. § 1910.305(a)(2) governs the use or "Temporary Wiring."

[[14/]] Cases on this point cited by complainant (L. R. Willson & Sons, Inc. v. OSHRC, 698 F.2d 507 and Donovan v. Williams Enterprises, Inc., 744 F.2d 170) are inapposite. (Opposition, page 9) In neither case, did the Courts address the question of choosing among complainant-sponsored alternatives.

[[15/]] The Code of Federal Regulations published by the Office of the Federal Register, National Archives and Records Service Administration, revised as of July 1, 1985, references the 1981 National Electrical Code as "...helpful in understanding and complying" with these standards. See Appendix A following 29 C.F.R. § 1910.399. The 1978 Code, then, is not applicable.

[[16/]] "Portable" meant an appliance which is actually moved in normal use.

[[1/]] By citation issued June 26, 1986, with an amendment to plead alternatively. The notice of contest is dated July 18, 1986. Respondent admitted the necessary jurisdictional facts in its answer to the complaint. See 29 U.S.C. §§ 652, 658 and 659. Hearing was held on January 22 and February 26, 1987, with both parties represented by counsel. Final briefs were filed by May 26, 1987.

[[2/]] Attached as "attachment A" hereto.

[[3/]] Transcript references are used only where the parties memoranda do not mention a fact or where it is in dispute.

[[4/]] The parties did not stipulate the amount of power carried by the cords; it was either 110 or 440 volts (Tr. 24-25) or a 443-phase electrical cord (Officer Mulligan, Tr. 186-87).

[[5/]] Complainant called four witnesses: two employees, a state police officer and the inspecting compliance officer and rested. No supervisory employees were questioned despite five other employees--supervisory or not--being subpoenaed by him, present in the courtroom, but not called (Tr. 197-99)

[[6/]] Based on Mr. Hohler's testimony (Tr. 21-25) and that of officer Johnson (Tr. 100), if nothing else were offered. I would find any violation here to be "serious" as that is defined at 29 U.S.C. § 666(j). Respondent does not raise the question of the effect of electrical shock in its brief.

[[7/]] This motion was granted subject to the condition that the factual pattern did not differ from that used to support the original citation (Tr. 8).

[[8/]] 29 C.F.R. § 1910.305(a)(2) governs the use of "Temporary Wiring."

[[9/]] The Code of Federal Regulations omits definitions of "portable" and "'stationary." "Portable" as it is normally used, and as it was understood in this case, meant an appliance which is actually moved in normal use (attachment A), p. 10, n. 16). See also Secretary v. Emery Industries, Inc., 12 OSHC 1300, OSAHRC Docket No. 84-200, March 11, 1985, which adopted the same definition, but vacated employer's citation of 29 C.F.R. § 1910.305(g)(1), in part, "because the regulation does not define 'portable' and therefore, fails reasonably to apprise employer of the prohibited conduct."

[[10/]] Stankevich testified to having performed approximately 500 inspections (Tr. 6).

[[11/]] Although charged by the Secretary as part of the 29 C.F.R. § 1910.305 (g)(1)(i) citation, the "strength and durability" of the flexible cord is not an element of this standard. After inspection of the facility by compliance officer Mulligan, he recommended that a citation be issued alleging a willful violation of 29 C.F.R. § 1910.303. Subpart (b)(ii) requires electrical equipment to be of sufficient "strength and durability" to prevent damage to the inner conductors. This was later changed to allege a violation of 29 C.F.R. § 1910.305 (g)(1)(i), but the language has remained the same.

[[12/]] Complainant's brief, p. 4.

[[13/]] there are five prohibitions against using flexible cords once their use is generally permitted. Although this standard, 29 C.F.R. § 1910.305(g)(1)(iii)(C) is written as a self-contradiction, its clear meaning is found in the National Electric Code for 1971, § 400-4 which states that the cords shall not be used in the prohibited ways.

[[14/]] Shutting one or the other (or the kickplate pressing down on a cable) risks cutting it through.

[[15/]] "Cut" meaning that the outer sheath of the flexible cord became "broken" or cracked (Tr. 184).

[[16/]] There are, generally, three, but no less than two, interior wires in a cord (Tr. 22).

[[17/]] At the January hearing, respondent elicited from Mr. Mulligan, OSHA's compliance officer, that at the January 13, 1987, deposition, Mulligan stated that the condition of the cord as it existed on March 31, 1986, before the incident, was not relevant to his issuance of the citation (Tr. 185).