Docket No. 77-3790

GENERAL MOTORS CORPORATION, CENTRAL FOUNDRY DIVISION

OSHRC Docket No. 77-3790

Occupational Safety and Health Review Commission

August 30, 1982

[*1]

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor, U.S. Department of Labor

Otis M. Smith and Wallett Bancroft Rogers, General Motors Corporation, for the employer

Robert V. Zener, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Judge Vernon Riehl is before the Commission pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). Judge Riehl found that General Motors Corporation, Central Foundry Division ("General Motors") had violated section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), n1 by failing to properly install and maintain a Lincoln welder and by failing to deenergize the welder before changing the polarity of the machine. We affirm Judge Riehl's decision but for reasons different than those the judge gave.

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n1 Section 5(a)(1) provides:

Sec. 5.(a) Each employer -- (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

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The case involves a citation issued following the accidental electrocution of a General Motors employee. The incident occurred while the employee was attempting to change the polarity of a Lincoln Welder. The Lincoln Welder, a 300-pound upright motor generator manual arc welder, was located under a workbench close to a wall in General Motors' Pattern Shop. The current and voltage controls were on the front of the welder base. The input to the welder was alternating current at 440 volts. This drove a motor generator, which produced the electrical power used for welding. The output of the motor generator was direct current at a maximum of 30 volts. This power was supplied to the welding electrodes and leads through studs on the back corners of the welder base. To change the polarity of the leads, an employee had to remove both leads and reverse their connection to the studs. Because of the welder's position, this required the employee to reach underneath the workbench around to the back of the welder. An approximately 10-foot long, taut flexible cable, plugged into an outlet about 10 feet [*3] away, provided the 440-volt input to the welder.

While the employee was attempting to change the polarity of the welding leads, n2 he apparently put pressure on the 440-volt input cable of the welder. The pressure was sufficient to pull the cable through the strain release connector, a device on the left side of the welder through which the cable entered the welder casing. The cable was clamped to the strain release connector to prevent the cable from being pulled out of the welder casing. When the cable pulled loose from the strain release connector, a frayed wire inside the cable was exposed. The employee apparently contacted the exposed wire and was electrocuted. Before the incident, the frayed wife could not be seen by simply looking at the machine.

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n2 A report compiled by General Motors after the incident indicates that the employee was experiencing difficulty in obtaining the proper current to perform a particular welding job. Apparently, he believed that reversing the polarity would assist in solving this problem.

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The Lincoln welder had been used in General Motors' pattern shop for the past fifteen years. The welder received maintenance when it malfunctioned but had not required maintenance in the six months prior to the electrocution. Although there was no routine maintenance program for this machine, operators were instructed to perform a visual check before each use and to report any signs of wear or abuse. Six months before the accident, employees had complained several times that the welder was not maintaining a steady heat supply. An electrician was called to fix the welder. Whether the electrician found anything wrong is not clear but from then until the time of the accident, the welder operated without incident.

General Motors instructed its employees to turn off the switch controlling the welder output voltage whenever they changed the polarity of the welding leads. Employees were not, however, required to deenergize the entire welder by unplugging it. Thus, during the change in polarity, the 440-volt input cable, and other machine parts inside the welder casing, remained energized.

At the hearing, the Secretary argued that General Motors had violated section [*5] 5(a)(1) of the Act by the manner in which it had serviced and maintained the Lincoln Welder. n3 The Secretary noted that the Lincoln Welder's maintenance manual suggested eight possible corrective measures to take when the welder would not maintain heat. According to the Secretary, if General Motors had followed these procedures, the frayed cable wire in the welder would have been discovered and the accident avoided. Generally, the Secretary believed that General Motors did not have a preventive maintenance program sufficiently rigorous to uncover defects in the welder. Also, the Secretary believed the employee should have been required to deenergize the machine by pulling the plug out of the outlet before changing the polarity. According to the Secretary, this is standard procedure in the industry. In the Secretary's view, if the welder had been completely deenergized, the employee would not have been electrocuted.

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n3 In the citation, the Secretary alleged that General Motors violated 29 C.F.R. § 1910.309(a) and § § 400-4 and 400-10 of the National Electrical Code because the flexible cord was too taut and permanent wiring should have been used instead of the flexible cord. However, the citation was amended at the pre-hearing conference to allege a violation of section 5(a)(1) in the alternative. The judge found that General Motors did not violate the cited standards, and that issue is not before us.

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General Motors argued that the frayed conductor wire which caused the accident was a latent defect and no preventive maintenance program could have discovered the problem. The defect was only discovered when the connector was dismantled and the industry did not normally perform this kind of preventive maintenance. General Motors also countered that the maintenance manual's instructions involved the low voltage generator side of the welder and not the 440-volt side where the defect was located. Thus, even if General Motors had followed the manual, it would not have discovered the defect. Finally, General Motors argued that, while it could have deenergized the entire welder in order to change its polarity, General Motors did not believe this was necessary. Employees were instructed to turn off the welder and no other plant or industry required employees to deenergize or unplug the entire welder when changing the polarity.

Judge Riehl found General Motors in violation of section 5(a)(1). n5 General Motors petitioned for review, repeating the arguments it made to Judge Riehl. Commissioner Cottine [*7] directed review on all of the issues raised by the petition including the following:

Whether the administrative law judge erred in finding the Respondent in violation of § 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), by failing to inquire into conditions associated with the operation of the welder that could require implementation of preventative maintenance procedures to assure safe operation.

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n5 Although Judge Riehl found only one serious violation of section 5(a)(1), his discussion suggests several theories of the violation. Judge Riehl found that,

The preponderance of the credible evidence of record establishes that Respondent had an improper or inadequate preventive maintenance program.

Respondent also permitted a hazard to exist on the Lincoln Welder in question by permitting a "tautness" of the cable for sometime prior to and up to the death of Respondent's employee. Still another known hazard that Respondent either knew or should have known of was that they failed to have an adequate lock-out procedure; this act of omission constituted the hazard or failure to address the recognized hazard.

Respondent failed to properly train its maintenance employees so that they would deal with such recognized hazards as malfunctioning of the welder prior to the accident; that they failed to take the additional ten minutes to check out all sources of electrical power which would include the plug in, thereby creating the hazard which killed Respondent's employee.

Respondent failed to provide the inspection and preventive maintenance procedures, having a degree of detail, which would discover hazards in the equipment in use by their employees.

Respondent also had an "inappropriate strain release connector" condition concerning the Lincoln Welder involved in the fatality. A lack of preventive maintenance caused the connection to pull loose, exposing the electrically charged wire which contacted Respondent's deceased employee and electrocuted him.

[*8]

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III

To establish a section 5(a)(1) violation, the Secretary must show that an employer failed to render its workplace free from a hazard that is recognized and likely to cause death or serious physical harm to its employees. See Little Beaver Creek Ranches, Inc., No. 77-2096 (June 30, 1982). The Secretary must also demonstrate that there were feasible means available to abate the hazard. Id.; National Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1268 (D.C. Cir. 1973).

In this case, most of the evidence and arguments about recognition of the hazard concern the foreseeability of the particular incident as it occurred. For example, the parties extensively litigated whether General Motors was aware of the defect in the welder. The Commission had held, however, that it is the hazard, not be specific incident resulting in injury, that is the relevant consideration in determining the existence of a recognized hazard. See Kansas City Power & Light Co., 82 OSAHRC , 10 BNA OSHC 1417, 1982 CCH OSHD P25,957 (No. 76-5255, 1982). More specifically, a recognized hazard is [*9] a conditin or practice in the workplace that is known to be hazardous by either the industry in general or the employer in particular. Kansas City Power & Light Co., supra; Continental Oil Co. v. OSHRC, 630 F.2d 446, 448 (6th Cir. 1980), cert. denied, 101 S.Ct. 1481 (March 2, 1981); Empire Detroit Steel Division, Detroit Steel Corp. v. OSHRC, 579 F.2d 378, 383 (6th Cir. 1978). Although they focused on the specific incident, the parties also introduced evidence about general awareness of risks associated with energized electrical parts. General Motors' electrical engineering consultant testified that in general vibrations can damage an electrical wire. He also testified about electrical malfunctions such as overheating. There was also evidence about general awareness of the risks of servicing energized electrical equipment. Thus, the hazard in this case is electric shock by contact with energized electrical parts during the servicing of equipment.

This hazard is recognized as a matter of common knowledge, as this record shows. General Motors required employees to completely deenergize and lockout electrical equipment when maintenance work was being performed [*10] on the equipment. Also, General Motors required employees to partially deenergize welders before changing the polarity. Witnesses for both the Secretary and General Motors testified that deenergization procedures were generally followed to prevent accidental shock and electrocution.

The workplace was not free of the hazard. Defects in electrical equipment may present the hazard of shock or electrocution as long as some parts are energized. As the record in this case establishes, strain release connectors are not failsafe, and the insulation on wiring can wear out. Accordingly, to free the workplace of the hazard, such equipment must be deenergized whenever it undergoes servicing or modification. Although General Motors required employees to completely deenergize and lockout electrical equipment during maintenance, only partial deenergization was required before changing the polarity on the welder. Because General Motors did not require total deenergization when changing the polarity of the welder, it failed to free its workplace of the recognized hazard. Furthermore, as the record clearly indicates, the likely result of an accident would be either serious injury or death. [*11] Contact with electrical parts energized at 440 volts is likely to cause death or serious physical harm.

Moreover, the feasibility of abatement in this case is clear. Deenergization can be achieved by merely pulling the plug. General Motors argues that no other member of its industry takes such precautions. However, as this Commission has frequently noted, abatement requirements are based on feasibility and an abatement order may require practices that are of a higher standard than the industry considers appropriate. Kansas City Power & Light Co., supra; Beaird-Poulan, A Division of Emerson Electric Co., supra. Since the fatal incident in this case, General Motors has instituted complete deenergization procedures whenever the polarity is changed on a welder.

Because all of the elements of a section 5(a)(1) violation are established, we affirm Judge Riehl's decision insofar as he found General Motors in violation of section 5(a)(1) for failing to deenergize the welder when changing its polarity. n7 A penalty of $600 is assessed. SO ORDERED.

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n7 Because we have found a § 5(a)(1) violation on another ground, we do not need to consider whether the judge was correct in finding that General Motors' preventive maintenance was inadequate.

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DISSENTBY: ROWLAND

DISSENT:

ROWLAND, Commissioner, dissenting:

I dissent from the majority's determination that General Motors violated section 5(a)(1). The Secretary did not establish that it is a recognized hazard to change the polarity of welding leads on a "DC" arc welder when the welder's generator is deenergized. Nor did the Secretary show that General Motors's preventive maintenance was inadequate. Accordingly, I would vacate the section 5(a)(1) charge.

In concluding that the hazard is "electrical shock by contact with energized electrical parts during the servicing of equipment", the majority asserts that the parties' evidence concerned the "general awareness of risks" - such as "vibrations" and "overheating" - associated with electrical equipment. n8 Throughout the procedings however, both the Secretary and General Motors focused on the specific operation of reversing the polarity of the leads on the welder. For example, the Secretary's primary witness, Mr. Bode, explained:

[T]he most serious deficiency in this case and most likely the cause of death . . . is the power to that cable [supplying the alternating [*13] current] at the time this gentleman was changing polarity. . . . He should have turned off and locked out or unplugged the power . . . before attempting to change polarity. (Emphasis added).

As evidenced by Mr. Bode's testimony, the Secretary contended that reversing the polarity of the leads presented a danger of potential electrical shock if performed when only the generator, rather than the entire welder, was deenergized. Similarly, the testimony elicited by General Motors was directed toward changing the leads' polarity after de-activating the "generator side" or "DC side" of the machine. Since the Commission's definition of the hazard must comport with the legal theory under which the parties tried the alleged 5(a)(1) violation, I conclude that the hazard should be described as potential electrical shock while changing the polarity of welding leads when only the welder's generator is deenergized. United States Steel Corp., 82 OSHRC 35/A2, 10 BNA OSHC 1752, 1755-56, 1982 CCH OSHD P p. (No. 77-1796, 1982). See National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1267, n.40 (D.C. Cir. 1973); Kansas City Power & Light Co., 82 OSAHRC 13/A2, [*14] 10 BNA OSHC 1417, 1424, 1982 CCH OSHD P25,957, p. 32,542, (No. 76-5255, 1982) (dissenting opinion).

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n8 I note that contrary to the majority's account of the "apparent" cause of the accident, the parties agreed that the exact circumstances of the accident were unknown. Furthermore, I cannot accept the majority's speculative theory that the employee contacted an "exposed" frayed wire, particularly because the wire remained inside the strain release connector after the accident. Indeed, no one discovered the frayed wire until General Motors completely dismantled the connector during its accident investigation.

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In an effort to establish industry recognition, Mr. Bode and Mr. Segall testified on behalf of the Secretary. However, Mr. Bode's testimony was based mainly on his experience with a different industry, the airline industry. Mr. Segall, the Secretary's expert, merely opined that a lockout "while working on electrical equipment" is "a safe procedure." He did not assert that changing the polarity of the leads [*15] - with the generator deenergized - is a recognized hazard warranting a total lockout in addition to the protection afforded by deactivation of the generator. Significantly, both Mr. Bode and Mr. Segall conceded that it is not hazardous to reverse the polarity of the welder's leads if the generator is first turned off. Moreover, Mr. Schifo, General Motor's plant engineer in charge of the Engineering Department, explained without contradiction that neither General Motors nor the industry recognized the hazard of potential electrocution while reversing the polarity of welding leads when the generator is deenergized.

The majority nevertheless concludes that the hazard was recognized because General Motors required its electricians to completely deenergize the welder during maintenance. In my view, this practice does not show recognition because an electrician performing repairs and maintenance examines the internal mechanisms of the welding machine whereas a welding operator changing the polarity of the leads only contacts the outside of the machine and has no occasion to contact the internal wiring under normal circumstances. In light of Mr. Bode's and Mr. Segall's concessions, [*16] and in light of Mr. Schifo's testimony, I conclude that the record does not show the hazard was recognized, either by the industry or by General Motors. See, e.g., Cargill Inc., Nutrena Feed Division, 82 OSAHRC 11/A2, 10 BNA OSHC 1398, 1399, 1982 CCH OSHD P25,935, p. 32,484 (No. 78-5707, 1982) (recognition of the hazard, either by the employer or the employer's industry, is an element of the Secretary's prima facie case in proving a violation of the general duty clause.)

Furthermore, the record does not support the Secretary's contention that General Motor's preventive maintenance was inadequate. With respect to preventive maintenance, the Secretary was concerned about an alleged hazard involving a latent defect: the potential electrocution caused by inadvertently pulling a non-visible frayed electrical wire from its location inside the strain release connector, which connects the alternating current cable to the welder, while changing the polarity of the leads on a "DC" arc welder. It is undisputed that a frayed wire inside the strain release connector could not be visually observed and could not be detected by General Motor's maintenance procedures. Moreover, a preventive [*17] maintenance program which followed the manufacturer's instructions would not have disclosed a frayed wire in the strain release connector because the manufacturer's instructions pertained only to the "generator side" of the welder, not the "AC side" where the strain release connector and power cable were located. There is no evidence that General Motors should have perceived the need for additional maintenance procedures. Indeed, the record suggests that a power cable and strain release mechanism can never be rendered fail safe, regardless of the type of connector, the tautness of the power cable, or the maintenance procedures followed. See Jones & Laughlin Steel Corp., 82 OSAHRC / , 10 BNA OSHC 1778, 1782, 1982 CCH OSHD P26,128, p. 32,887 (No. 76-2636, 1982) (an employer's duty under section 5(a)(1) is to free its workplace - to the extent feasible - of recognized hazards.) As the Court of Appeals for the D.C. Circuit aptly explained: "Congress quite clearly did not intend the general duty clause to impose strict liability: The duty was to be an achievable one." (footnote deleted). National Realty & Construction Co. v. OSHRC, supra, pp. 1265-1266. Because [*18] the record demonstrates that it was not possible to detect or prevent the occurrence of a non-visible, frayed wire inside a strain release connector, I conclude that the Secretary failed to show what further measures General Motors should have taken to render its workplace free from the asserted hazard associated with General Motor's allegedly inadequate preventive maintenance. Therefore, I would vacate the 5(a)(1) allegation.