BETHLEHEM STEEL CORPORATION
OSHRC Docket No. 9968
Occupational Safety and Health Review Commission
February 4, 1977
[*1]
Before: MORAN and CLEARY, Commissioners. n1
n1 Chairman Barnako disqualified himself from consideration of this case.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Marshall H. Harris, Reg., Sol., USDOL
John L. Klutta, Labor Attorney, Bethlehem SteelCorporation, for the employer
John N. Santichen, United Steelworkers of America, Local No. 2635, for the employees
OPINION:
MEMORANDUM DECISION
BY THE COMMISSION: A decision of Review Commission Judge Joseph Chodes, dated July 9, 1975, which is attached hereto as Appendix A, is before this Commission for review pursuant to 29 U.S.C. § 661(i).
Commissioner Moran would reverse Judge Chodes' finding of a violation of 29 U.S.C. § 654(a)(2) on the grounds: (1) that respondent's contention that 29 C.F.R. § 1910.179(g)(2)(i) does not apply to maintenance employees is meritorious, and (2) that the citation issued herein by complainant was not issued with reasonable promptress as required by 29 U.S.C. § 658(a). Secretary v. Concrete Construction Corporation, OSAHRC Docket No. 2490, April 8, 1976 (dissenting opinion), and the cases cited therein. Commissioner Cleary would affirm the citation for the reasons given in the Judge's decision. [*2]
Because the Commission members are equally divided, they can take no official action in review of the Judge's decision. 29 U.S.C. § 661(e). Accordingly, the Judge's decision becomes the final action of this Commission.
APPENDIX A
DECISION AND ORDER
Matthew J. Rieder, for the Secretary of Labor
John L. Kluttz, for the Respondent
John N. Santichen, for the Authorized Employee Representative
Chodes, Judge:
STATEMENT OF THE CASE
This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 659) in which the respondent is contesting two citations issued by the complainant under the authority vested in complainant by section 9(a) of the Act (29 U.S.C. § 658(a)). The citations alleged that on the basis of an inspection on July 24 and 25, 1974, of a place of employment located at the respondent's steelmaking plant at Johnstown, Pennsylvania, the respondent is alleged to have violated section 5(a)(2) of the Act (29 U.S.C. § 654(a)(2)) by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof (29 U.S.C. § 655) by publication in the Federal Register and [*3] codified in 29 C.F.R., Chapter XVII, Part 1910.
Specifically, the citations which were issued on August 19, 1974, charged respondent with one serious violation and ten nonserious violations. The respondent contested only item 7 of the nonserious citation which alleged that the respondent violated the standard set forth at 29 C.F.R. § 1910.179(g)(2)(i). n1 The standard, under the general heading of "Overhead and gantry cranes," provides:
(2) Equipment. (i) Electrical equipment shall be so located or enclosed that live parts will not be exposed to accidental contact under normal operating conditions.
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n1 A penalty of $55 was proposed for the violation of this standard.
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Inasmuch as the respondent did not contest the serious citation or items 1 through 6 and 8 through 10 of the nonserious citation, these violations became the final order of the Commission under the provisions of section 10(a) of the Act (29 U.S.C. § 659(a)).
Motion to Amend Denied
Complainant moved to amend the citation and complaint to allege, [*4] in the alternative, that respondent violated 29 U.S.C. § 1910.179(g)(4)(i). The motion was denied in an order dated February 25, 1975 on the grounds that the complainant sought to add a different standard from the standard respondent was initially charged with violating.
Stipulations
Complainant and respondent have stipulated in writing as follows:
1. The full and accurate legal name of the respondent is Bethlehem Steel Corporation and it is a Delaware corporation having its principal office in Bethlehem, Pennsylvania.
2. Respondent purchases and receives various goods and materials manufactured outside of the Commonwealth of Pennsylvania and ships goods in interstate commerce and is engaged in a business affecting commerce.
3. Respondent daily employs approximately 115,000 employees.
4. Respondent owns and exclusively controls crane number 502 in the Mold Yard and crane number 560 in the Pit Area which are the subject of item number 7 of the contested citation.
5. Only those conditions relating to resistor banks of crane number 502 and crane number 560 as described in subsections (a) and (b) of item number 7 in the citation are in issue and respondent does not contest [*5] any other portion of the citation.
6. The resistor banks on both crane number 502 and crane number 560 were not enclosed or in any other manner screened at the time of the inspection.
7. The proposed penalty of $55 for violation of item number 7 of the nonserious citation was assessed with proper regard to respondent's size, history of previous violations, good faith, and the gravity of the violation, and accordingly is appropriate.
Amendment
At the hearing, the name of the complainant was amended to reflect the fact that John T. Dunlop is now the Secretary of Labor (T-6).
Motion to Strike Posthearing Exhibits
At the close of the hearing, respondent was granted leave (with the consent of the complainant) to submit a certification from the American National Standards Committee B-30 (the source of the Overhead and Gantry Cranes standards that are the subject of the controversy in this case) of the action taken on the respondent's request for an interpretation of the standard involved herein which was derived from the Committee's Safety Code for Overhead and Gantry Cranes, ANSI B30.2.0-1967.
Respondent submitted (1) a letter dated April 1, 1975 from A. J. Morales, Secretary [*6] of the ANSI Committee describing the procedure the Committee follows in handling requests for interpretation of standards (2) a copy of the minutes of a meeting held on February 18, and 19, 1975, and (3) Attachment I to the minutes which is a copy of a letter dated February 19, 1975 from T. S. McKaskey, Chairman, ANSI B30 Committee interpreting Section 2-1.9.2(a) of the ANSI standard for Overhead and Gantry Cranes, from which the standard involved in the instant case, 29 C.F.R. § 1910.179(g)(2)(i) was derived.
Complainant moved to strike this material on the grounds that the letter from A. J. Morales, Secretary of the ANSI Committee was irrelevant since it does not pertain to the interpretation of the standard involved herein. With respect to the minutes of the meeting, complainant asserts that they should not be admitted in evidence because they were not certified as requested.
The information requested from the respondent was limited to a copy of the minutes of the meeting. Since the information supplied in the letter from Mr. Morales contains other information, it will not be received in evidence. While the minutes are not formally certified, they appear trustworthy and are [*7] vouched for by respondent's counsel. The minutes of the meeting including Attachment I will be admitted in evidence as Exhibit R-3.
Issue
The issue in this case is whether electrical equipment on two cranes (numbers 502 and 560) exposed live parts to accidental contact during normal operating conditions.
Summary of Evidence
The two cranes involved herein were in the Mold yard and the pit area of the respondent's Steelmaking Department, referred to as the Open Hearth, of the Johnstown Works. Crane numbers 502, located in the Mold yard, was a structural 35-ton crane approximately 35 to 45 feet off the ground with two trolleys, hoists attached to the trolleys, and a bridge. The crane was on a runway with tracks about 50 to 60 feet apart for a distance of approximately 300 yards. The crane picks up its electricity from main collector rails which are below the runway. From the main collector the electric current goes to all parts electrically connected with the crane (T-12-14).
There are two bridge walkways on opposite sides of the crane with clearances varying in width from 26 inches to 43 inches (T-174). There are obstacles on the walkways which interfere with walking, [*8] such as the bridge lineshaft, resistence racks, control cabinets and a huge motor in the middle of the walkway (T-15-17).
Along the bridge walkway there are resistor banks which work in conjunction with the control boards of the crane. They accelerate the power of the boards which in turn control the speed of the hoist, bridge or other operating part of the crane. There is a resistence bank for each of the crane's functions, that is, bridge, hoist and trolleys (T-36). The resistors are in boxes approximately 18 inches long and 6 to 10 inches high, made in a jagged shape with exposed electrical connections. The boxes are stacked in banks with perhaps 25 to 30 set one on top of another (T-15). One of the resistor banks had about 10 boxes across and was about 8 or 9 feet high. The resistor banks were not enclosed by protective covering (T-18).
When the crane is being operated the resistors are energized and this causes them to heat up, sometimes to the point of melting (T-18, 19). During a normal operating day, the resistors get hot enough so that touching without gloves could cause a burn (T-20).
Usually none of respondent's employees have any occasion to be on the walkway [*9] when the resistor banks are energized. However, the respondent's electrical maintenance man, John Pillock, when "trouble shooting" has to stand on the bridge walkway from where he can ask the operator if the control boards would go in and watch to see, for example, if there is any flashing or arcing, or loose connections (T-23). During this time the resistor banks are energized (T-24). Mr. Pillock is called to work on crane number 502 for one reason or another about every day it is in operation (T-39).
Crane number 502 is also used in the replacement of light bulbs. To do this, the bridge and trolley have to be moved to a position under the bulbs. When a bulb is being replaced, the craneman pulls the switch. When the change is completed, the switch is put back on and the crane moves to where the next bulb has to be replaced (T-28). In changing bulbs, Mr. Pillock has to pass the resistor banks while energized to get bulbs or to holler instructions down to the operator (T-29, 30).
For the operator of the crane to reach the cab of the crane, which is located below the span girders, he has to use the bridge walkway and go past the resistor banks (T-22). On occasions when a new [*10] operator is being broken in, it is necessary to leave two men on the crane at the same time, and Mr. Pillock has observed one of the men walking on the walkway while the crane was in operation (T-30, 31).
Respondent has a safety code which prohibits individuals from getting on a crane when it is in motion (T-32). Nevertheless Mr. Pillock testified that it does happen that employees, such as painters and pipefitters, are on the crane in violation of the rules when the crane is energized, but he could not say how often this occurred (T-33).
Mr. Pillock testified that he has been shocked by a resistor bank between 20 and 25 times during the last year, but did not recall whether he had ever been shocked on crane number 502 (T-34).
Crane number 560 is one of the largest cranes, 240 tons with a main hoist and a small hoist. Structurally it is the same as crane number 502. It has two bridge walkways 6 to 7 feet wide which are impeded by a line-shaft, motors, gear boxes and pedestal bearings, leaving a couple of feet that can be utilized for walking purposes (T-41, 42). Resistor banks are mounted on the east side of the bridge walkway where the walkway is 32 inches wide (T-42, 174). [*11]
Mr. Pillock testified that during the past year he has worked on crane number 560 only about a half-dozen times as he is now doing general maintenance work all over the Steelmaking Department. He has done "trouble shooting" on the crane and he has done this work while the crane was performing its regular lifting functions. To do the work he had to be very close to the resistor banks, but he couldn't recall whether he had ever been shocked by the resistor banks (T-44-46).
He has been on the crane troubleshooting when the craneman did not take it out of power, even though this was a violation of the safety rules (T-51). Employees have been disciplined for safety rule violations (T-51).
The 560 crane is not used to change light bulbs, but it is used by riggers who work from the crane to fix the runway rails. Whenever the riggers work on the crane it is totally immobilized (T-45).
James W. Stanley, Assistant to the Monroeville, Pennsylvania Area Director of the Occupational Safety and Health Administration, testified that on the basis of information furnished and recommendations made by Mr. Molovich, the Compliance Officer, he determined on August 18, 1974, that a citation against [*12] the respondent should be issued. The matter was referred to the Area Director who signed the citation on August 19, 1974 (T-109, 111).
Charles D. Johnson, vice-president and general manager of Marine Service Corporation which is engaged in the business of inspecting, designing and redesigning cranes was a witness for the complainant. He testified that when a crane is being inspected it is performing its regular work (T-143). Mr. Johnson also testified that a medium-sized resistor stays hot for 20 minutes after it is closed down and a very heavy element could stay warm enough to burn the skin for up to 45 minutes (T-134).
Blair W. Richey, respondent's electrical foreman in the Steelmaking Department, testified that he had responsibility for maintaining the two cranes involved herein (T-165). Inspections are made monthly on crane number 502 and weekly on crane number 560 (T-165). When a crane is not of service a flag is displayed with the legend "I am broke down. Don't bump me. I have men working on there." (T-167). Employees are not permitted on the bridge walkway of either crane when they are performing the material-handling functions unless specifically authorized by the [*13] foreman (T-170, 171). There are occasions when the maintenance man will be on the walkway observing how the crane is operating, but he puts himself in a safe position (T-203). For example, it is is necessary for the maintenance man to "trouble shoot" all switches except the function being tested will be pulled. When the problem is corrected, the maintenance man would observe the operation from a "safe clear spot" before releasing the crane back into service (T-206). When troubleshooting or other types of maintenance work is done on the walkways there are usually two men to do the work. During this time the resistor banks could be energized, but there is ample room for the men to work safely (T-174, 175, 180).
When someone is hurt it is investigated and disciplinary action (warnings and suspensions) is taken when appropriate (T-170). Mr. Ritchie who has worked in the Steelmaking Department for about seven years never heard of anyone having been shocked or burned by resistor banks (T-165, 166, 169).
Reasonable Promptness Defense Stricken
Complainant moved to strike respondent's first defense which alleged that complainant failed to issue the citation with "reasonable promptness" [*14] as provided in section 9(a) of the Act (29 U.S.C. § 658(a)). The motion was granted on the grounds that this was an affirmative defense and respondent had not presented evidence which supported its assertion that there was an unreasonable delay in issuing the citation (T-217-219).
Discussion
The decision in this case turns on the question whether employees of the respondent were exposed to contact with energized unenclosed resistor banks "under normal operating conditions."
There is evidence in the record which establishes that employees of the respondent are exposed to the hazard of accidental contact with the resistor banks while the cranes are performing their normal functions. Mr. Pillock testified that when he is "trouble shooting" he is on the bridge walkway while the crane is performing normally and during this time he is close to the resistor banks. Mr. Johnson, who is in the business of inspecting cranes, testified that cranes can perform as usual during maintenance inspections. When a new operator is being broken in, there are two operators in the cab and one of the operators could use the walkway to get in and out of the cab while the crane is operating and the [*15] resistor banks energized.
On occasion employees, other than maintenance personnel, such as riggers, painters and pipefitters are on the bridge walkway, but when this occurs the crane is immobilized or the employees are on the walkway contrary to the respondent's safety rules.
Respondent contends that the standard involved is for the protection of the crane operator only and does not apply to inspectors or maintenance personnel. In support of its position, the respondent has obtained an interpretation of the standard involved from the ANSI Committee that originally developed the standards from which the standard allegedly violated was derived (Exhibit R-2B). Pertinent parts of the interpretation are quoted below:
This section (referring to the standard involved herein) applies only to electrical equipment that might accidentally be contacted by the operator or assistant in the normal performance of the crane functions. This would prohibit open knife switches, open face-plate controllers, open terminal, etc., in the vicinity of the operator or his assistant during normal operation. Although not specifically stated in the above section, it is assumed that it will be possible to [*16] de-energize any exposed electrical equipment if it is necessary for the operator to pass that equipment for access or egress to the cab. Therefore, whenever any maintenance personnel board a crane, this crane is no longer operating or performing functions within the scope of its intended original design.
Taken literally, it would appear that maintenance personnel are completely denied the protection of the standard regardless of the circumstances under which such personnel are exposed to the hazard contemplated by the standard. However, such an interpretation would not be in keeping with the broad objectives of the Act n2 "to assure so far as possible every working man and women in the nation safe and healthful working condition."
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n2 29 U.S.C. § 651.
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The interpretation of the standard by the ANSI Committee is entitled to and did receive careful consideration in the adjudication of this case. However, it is not controlling, particularly under the facts established in the record. For example, the interpretation [*17] states that "it is assumed that it will be possible to de-energize any exposed electrical equipment if it is necessary for the operator to pass that equipment for access or egress to the cab." The evidence shows that there are occasions when an operator uses the bridge walkway when the crane is operating and the resistor banks are energized. Moreover, to limit the effectiveness of the standard to crane operators is contrary to the plain language of the standard which does not identify the type of employee who should not be exposed to live electrical parts. The only limitation in the standard is directed to the operating condition of the crane.
Respondent cited the case of Secretary v. Grayson, 3 OSAHRC 541, which held that where only maintenance personnel were affected by a failure to guard exposed mechanical transmission apparatus a violation was not established. Commissioner Van Namee noted that if guards were erected maintenance operations could not be performed on the apparatus. Such is not the situation in the instant case. Except for work on the resistors, all of the necessary inspection and maintenance work would be performed with the resistor banks covered. [*18]
Also cited by respondent was Secretary v. Jersey Steel Drum Manufacturing Corp., 15 OSAHRC 773, wherein the Commission held that no guarding was necessary to protect maintenance personnel "since maintenance work may require the circumventing of the safety guarding." As pointed out enclosing the resistor banks would not interfere with inspection and maintenance, with the exception of course of the resistor banks.
Respondent produced evidence indicating that it has no record of any employees having been shocked or burned by resistor banks. This is somewhat at variance with Mr. Pillock's testimony that he has been shocked 20 to 25 times in the last year. In any case, the absence of an injury due to the violation of a standard does not absolve respondent from complying. Secretary v. Lebanon Lumber Co., 2 OSAHRC 924; Secretary v. Texaco, Inc., 5 OSAHRC 102, 115.
FINDINGS OF FACT
On the basis of the citation, notice of proposed penalty, notice of contest, pleadings, stipulations, the testimony adduced at the hearing and the representations of the parties, it is concluded that on the basis of the record as a whole, a preponderance of the evidence supports [*19] the following findings of fact:
1. Paragraphs 1 through 7 of the Stipulations are incorporated herein as findings of fact.
2. On July 24, 1974, at the worksite involved herein, electrical equipment, specifically resistor banks, on overhead cranes numbered 502 and 560, were not so located or enclosed that live parts would not expose employees of the respondent to accidental contact under normal operating conditions.
3. By reason of the facts set forth in paragraph 2 above, employees of the respondent were exposed to the hazard or shocks and burns from contact with the unenclosed resistor banks.
CONCLUSIONS OF LAW
1. The respondent at all times material hereto was engaged in business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.
2. The respondent at all times material hereto was subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.
3. Respondent violated the occupational safety and health standards set forth at 29 C.F.R. § 1910.179(g)(2)(i) and is assessed a penalty of [*20] $55.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record it is
ORDERED that the citation issued on August 19, 1974, for violation of the standard set forth at 29 C.F.R. § 1910.179(g)(2)(i) and the proposed penalty in the amount of $55 are hereby affirmed.
JOSEPH CHODES, Judge, OSAHRC
Dated: July 9, 1975
Hyattsville, Maryland