UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76–5344
GENERAL MOTORS CORPORATION, CHEVROLET MOTOR DIVISION, RESPONDENT AND UNITED AUTOMOBILE, AEROSPACE, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AUTHORIZED EMPLOYEE REPRESENTATIVE

January 25, 1982

DECISION

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge George W. Otto is before the Commission for review 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 Otto affirmed three nonserious items alleging that General Motors Corporation (‘GMC’) violated several occupational safety and health standards for general industry. In his decision, the judge declined to consider certain affirmative defenses which GMC raised at the hearing. For the following reasons, we hold that the defenses should have been considered and, having considered them now, we affirm two of the three items as nonserious violations and the remaining item as a de minimis violation. We also deny a motion filed by GMC before the judge’s decision was filed with the Commission in which GMC asserts that the decision must be vacated because of lack of subject matter jurisdiction.

GMC asserts in its motion that the judge and the Commission were deprived of subject matter jurisdiction over this case when, while it was pending before Judge Otto, the Secretary of Labor (‘the Secretary’) gave ‘final’ approval to the occupational safety and health plan implemented by the State of Michigan. GMC relies on section 18 of the Act, 29 U.S.C. § 667.

On October 28, 1976, an Occupational Safety and Health Administration (‘OSHA’) compliance officer inspected GMC’s Warren, Michigan plant. On November 17, 1976, OSHA issued to GMC a nonserious citation, three items of which are at issue in this case. On December 9, 1976, GMC filed a notice of contest which, pursuant to section 10(c) of the Act, 29 U.S.C § 659(c), OSHA forwarded to the Commission so that a hearing could be held.

When these events occurred, Michigan was in the process of developing and implementing a state occupational safety and health plan pursuant to section 18 of the Act. Section 18 provides that any state may submit to the Secretary a state plan for the development and enforcement of occupational safety and health standards covering issues on which OSHA has developed standards. Section 18(b), 29 U.S.C. § 667(b). The Secretary must approve the plan if it meets certain criteria stated in section 18(c), 29 U.S.C. § 667(c). Michigan had submitted such a plan, which the Secretary approved under section 18(c). See 38 Fed. Reg. 27388 (1973).

After the Secretary approves a plan under section 18(c), he has discretion to continue to exercise his own enforcement authority under the Act in the state. Section 18(e), 29 U.S.C. § 667(e). However, after at least three years of discretionary enforcement, the Secretary may determine ‘that the criteria set forth in subsection (c) are being applied’ and, after making this determination, the Secretary’s enforcement authority in the state is substantially circumscribed:

Upon making the determination referred to in the preceding sentence, the provisions of section 5(a)(2), 8 (except for the purpose of carrying out subsection (f) of this section), 9, 10, 13, and 17, and standards promulgated under section 6 of the Act, shall not apply with respect to any occupational safety or health issues covered under the plan, but the Secretary may retain jurisdiction under the above provisions in any proceeding commenced under section 9 or 10 before the date of determination.

Section 18(e), 29 U.S.C. § 667(e). Basically, the Secretary may not initiate enforcement proceedings concerning issues covered by the state plan but he may ‘retain jurisdiction’ in enforcement proceedings initiated before he made the determination to which this part of section 18(e) refers.

GMC contends that, while this case was pending before Judge Otto, the Secretary made the ‘final’ determination with respect to the Michigan state plan and thereby triggered the jurisdictional limitation in section 18(e). GMC also contends that, because section 18(e) mentions only that ‘the Secretary may retain jurisdiction,’ it is plain that neither the Commission nor an administrative law judge retains jurisdiction. Therefore, GMC asserts that the judge’s decision must be vacated.

As the ‘final’ determination, GMC refers to the Secretary’s announcement on March 22, 1977, which stated that the Michigan plan became ‘operational’ as of January 6, 1977,[1] and that, therefore, OSHA and Michigan entered into an agreement limiting federal enforcement in the state. The announcement also stated that, in accordance with the agreement, 29 C.F.R. § 1952.262 was published concerning the level of federal enforcement under the Michigan plan.

Section 1952.262 provides that OSHA will not initiate enforcement proceedings concerning issues covered by standards in 29 C.F.R. Part 1910 and Part 1926 except to enforce subsequently promulgated OSHA standards until Michigan adopts ‘equivalent’ standards. Section 1952.262 also provides for OSHA investigations and inspections to evaluate the plan under sections 18(e) and (f) of the Act, 29 U.S.C. §§ 667(e) and (f), which provide for continuing evaluation of the state’s implementation of its plan.

The Secretary’s announcement and section 1952.262 do not at any point state that the Secretary has made the ‘final’ section 18(e) determination which limits his authority as a matter of law. Additionally, the determination of operational status is not the ‘final’ section 18(e) determination. The ‘Background’ statement in the announcement states:

Part 1954 of Title 29, Code of Federal Regulations, sets out procedures under section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 667) (hereinafter referred to as the Act) for the evaluation and monitoring of State plans which have been approved under section 18(c) of the Act and 29 CFR Part 1902. Section 1954.3 of this chapter provides guidelines and procedures for the exercise of discretionary concurrent Federal enforcement authority under section 18(e) of the Act with regard to Federal standards in issues covered under an approved State plan. In accordance with § 1954.3(b) of this chapter, Federal enforcement authority will not be exercised as to occupational safety and health issues covered under a State plan where a State is operational.

42 Fed. Reg. 15411 (emphasis added). Because section 1954.3 concerns the exercise of discretionary concurrent OSHA enforcement authority while a plan is being evaluated and monitored under section 18(e) subsequent to section 18(c) approval, the operational status accorded pursuant to section 1954.3(b) is no more than a step in development of the final state plan. See AFL-CIO v. Marshall, 570 F.2d 1030 (D.C. Cir. 1978). The status is not a determination that the plan has the ‘final’ approval of the Secretary. See 29 C.F.R § 1954.3.

Moreover, Michigan and OSHA entered into an agreement to limit OSHA’s exercise of its discretionary enforcement authority and OSHA agreed not to initiate certain enforcement activity. OSHA continued to have discretionary enforcement authority and this determination of ‘operational status’ did not limit OSHA authority as a matter of law under section 18(e). See General Motors Corp., Central Foundry Division, 80 OSAHRC 42/A2, 8 BNA OSHC 1298, 1980 CCH OSHD ¶ 24,452 (No. 78–2696, 1980). In addition, in section 1952.262, OSHA stated that it may recommend resumption of its enforcement authority ‘under section 18(e)’ to assure occupational safety and health protection. Accordingly, because the Secretary had not made a ‘final’ section 18(e) determination respecting the Michigan plan, GMC’s basis for contending that we have been divested of jurisdiction is based on a misconception of the status of the Michigan plan.

However, even if the Secretary had given ‘final’ approval to that plan, we would still conclude that we retain jurisdiction over this case. Because section 18(e)’s reference to the Secretary’s retention of jurisdiction concerns proceedings commenced under sections 9 or 10, the discretion given to the Secretary by section 18(e) to ‘retain jurisdiction’ can only mean that the Secretary has the option of continuing with the proceedings in any case commenced under sections 9 or 10 before ‘final’ approval was given to a state plan. If the Secretary decides to continue prosecuting such a case, the Commission must retain jurisdiction, for otherwise the Secretary would have no forum in which the case could proceed. Accordingly, we would deny GMC’s motion even if the Secretary had given ‘final’ approval to the Michigan state plan.[2]

In its answer, GMC denied the Secretary’s alleged violations of crane inspection, housekeeping, and electrical standards (the three non-serious items at issue in this case) and pleaded, as the only ‘Affirmative Defense,’ that the Secretary’s complaint failed to state a claim upon which relief could be granted. At the hearing, GMC’s attorney stated, however, that GMC would rely on affirmative defenses that compliance with the housekeeping standard was impossible, that the electrical standards are vague, and that compliance with them would create a greater hazard. The Secretary’s attorney moved to strike these defenses. He argued that GMC waived them in its answer to the complaint and claimed prejudice because further discovery would be needed to meet them.

Judge Otto reserved ruling on the Secretary’s motion. During the hearing, evidence was presented on the defenses without objection by the Secretary. However, at the close of the hearing, the Secretary’s attorney reiterated the Secretary’s objections and asked for a continuance if GMC’s defenses were allowed.

In his decision, Judge Otto disallowed GMC’s impossibility and greater hazard defenses on the basis that they were raised too late in the proceedings. He reasoned that the Secretary is entitled to notice of affirmative defenses either in the answer or, at the latest, during a prehearing conference. However, Judge Otto additionally stated, ‘The stated affirmative defenses, if timely, would have failed to negate the . . . violation items. . . .’ He also discussed GMC’s vagueness defense on its merits and concluded that the electrical standards are not vague.

GMC argues on review that general notice of affirmative defenses was given in GMC’s answer, which included the plea of failure to state a claim upon which relief could be granted. GMC asserts that the Secretary could have used discovery to learn the specific nature of the affirmative defenses. In any event, GMC asserts, the judge should have granted a continuance rather than striking the defenses. The Secretary argues that affirmative defenses must be specifically pleaded in the answer and that the plea of failure to state a claim did not give notice of GMC’s affirmative defenses. However, the Secretary does not continue to claim prejudice.

Federal Rule of Civil Procedure 8(c)[3] requires a defendant to affirmatively plead in its answer any matter that is an affirmative defense under applicable law. See United States v. Demmon, 72 F.Supp. 336 (D. Montana, 1947); see generally 5 WRIGHT AND MILLER, FEDERAL PRACTICE AND PROCEDURE § 1271. By the time of the inspection in this case, the affirmative defenses of vagueness of a standard, impossibility of compliance, and greater hazard had been recognized by the Commission. See Brady-Hamilton Stevedore Co., 75 OSAHRC 5/D9, 3 BNA OSHC 1925, 1975–76 CCH OSHD ¶20,342 (No. 2265, 1976) (vagueness as a defense); River Terminal Railway Co., 75 OSAHRC 13/A2, 3 BNA OSHC 1808, 1975–76 CCH OSHD ¶20,215 (No. 4419, 1975) (an employer’s claim of vagueness must be raised sufficiently before the hearing to allow development of a record); Garrison & Associates, Inc., 75 OSAHRC 51/D5, 3 BNA OSHC 1110, 1974–75 CCH OSHD ¶19,550 (No. 4235, 1975) (lead and concurring opinions), and cases cited therein (impossibility as an affirmative defense); Lee Way Motor Freight, Inc., 75 OSAHRC 20/E12, 3 BNA OSHC 1843, 1975–76 CCH OSHD ¶20, 250 (No. 7674, 1975), and cases cited therein (greater hazard as an affirmative defense). Therefore, GMC was required to affirmatively plead these defenses.

GMC’s reliance on its plea of failure to state a claim for relief is misplaced. This plea only challenges the sufficiency of the Secretary’s complaint alleging the factual and legal basis of his claim. It does not raise any affirmative defenses except if the complaint alleges the facts of a defense along with the claim. See Pointer v. American Oil Co., 295 F.Supp. 573 (S.D. Indiana, 1969); see generally 5 WRIGHT AND MILLER, FEDERAL PRACTICE AND PROCEDURES §§ 1355, 1356, 1357 along with § 1202 on Federal Rule 8(a). Accordingly, GMC’s plea in its answer did not give notice of affirmative defenses.

Although GMC did not raise the defenses until the hearing, the answer can be amended to include them so long as the opposing party is not prejudiced. See Fed. R. Civ. P. 15(b); Texland Drilling Corp., 80 OSAHRC 106/C13, 9 BNA OSHC 1023, 1980 CCH OSHD ¶24,954 (No. 76–5307, 1980); Bill C. Carroll Co., 79 OSAHRC 47/C13, 7 BNA OSHC 1806, 1979 CCH OSHD ¶23,940 (No. 76–2748, 1979); see generally 5 WRIGHT AND MILLER, FEDERAL PRACTICE AND PROCEDURE § 1278. In this case, the affirmative defenses were raised at the outset of the hearing and, because the judge reserved ruling on the Secretary’s motion to strike, these issues were tried. Furthermore, the record reflects that at an informal conference between counsel prior to the hearing GMC advised the Secretary of its intention to raise certain affirmative defenses. As a result, the Secretary had notice that the defenses might be allowed and had an opportunity to explore the defenses with all witnesses. Moreover, although the Secretary claimed prejudice in his argument to the judge, there has been no showing of actual prejudice and the Secretary does not argue prejudice on review. Accordingly, we amend the answer to add the defenses and shall consider the merits of the defenses.

III

Judge Otto affirmed item 1 of the nonserious citation, in which the Secretary alleged that ‘[f]requent inspections of the cranes and lifting equipment [were] not performed and recorded as required’ by 29 C.F.R. § 1910.179(j)(2).[4] Judge Otto found that GMC’s crane records were three or four months behind and that during three months no crane inspections were made other than daily visual inspections of upper limit switches. On review, GMC contends that these findings have insufficient support and do not show a violation.

We have reviewed the record in light of GMC’s arguments, which are basically the same as made to Judge Otto. We conclude that the factual findings are supported by a preponderance of the evidence, and that the item was properly affirmed. Accordingly, we affirm the judge’s decision on this item. See Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD ¶22,737 (No. 14281, 1977).

Judge Otto affirmed item 10, which alleged that GMC failed to comply with 29 C.F.R. § 1910.22(a)(1)[5] because the floor of the ‘hy-bay basement’ was ‘covered’ with ‘metal scrap and deep puddles of oil.’ The hy-bay basement is a 1000-foot by 150-foot area through which a main scrap conveyor and several feed conveyors carry metal scrap to the outside from the ground level plant floor, where metal forming presses are located. Service employees, including millwrights, electricians, pipefitters, and machine repairmen, generally pass through or work in the basement on a daily basis. When the conveyors are operating properly, they are adequate to convey most of the scrap out of the basement. However, GMC additionally employs clean-up crews, consisting of four or five employees per shift for three shifts, to clean up any metal scrap that falls from the conveyors onto the basement floor and to hose away accumulations of oil. During a 24-hour period, the three clean-up crews can generally clean the entire basement.

About once a month, one or more conveyors may break down. Because the presses on the ground floor continue to operate, metal scrap falls from the conveyors onto the basement floor in more than usual amounts. Additional employees may be assigned as needed to assist the clean-up crews to stack the scrap in piles and rows. Also, the clean-up crews will clean any area of the basement in which an employee has to work if the employee makes a request.

The judge found that there was metal scrap and oil on the hy-bay basement floor at the time of the inspection and that service employees had access to the poor housekeeping conditions. He also found that larger clean-up crews could have reduced the scrap and oil build-up.

On review, GMC argues that no employees were exposed except the clean-up crews and that the floor was not unreasonably unclean, disorderly or unsanitary. We conclude that the judge’s factual findings on employee access to noncomplying conditions and on the possibility of more effective clean-up are supported by a preponderance of the evidence. Because GMC did not show that compliance would prevent performance of required work or that compliance would be functionally impossible, GMC has not established an impossibility defense. See Frank Swidzinski Co., 81 OSAHRC 4/E14, 9 BNA OSHC 1230, 1981 CCH OSHD ¶25,129 (No. 76–4327, 1981); cf. Marinas of the Future, Inc., 77 OSAHRC 201/B1, 6 BNA OSHC 1120, 1977–78 CCH OSHD ¶22,406 (No. 13507, 1977) (section 1910.22(a)(1) citation vacated because the record established that the materials and tools on the floor at the time of the inspection were not in excess of those required to accomplish the work being performed). However, because the safety and health of employees was not substantially diminished, we conclude that the violation was de minimis. See General Motors Corp., Rochester Products Division, 81 OSAHRC 30/E13, 9 BNA OSHC 1575, 1981 CCH OSHD ¶25,279 (No. 78–2894, 1981), and cases cited therein.[6] Accordingly, we assess no penalty and do not require additional abatement measures.

Judge Otto affirmed item 13, which alleged that, because the ‘electrical disconnects controlling the conveyors throughout the plant had overcurrent devices located over 12 feet in the air,’ the overcurrent devices were not ‘readily accessible’ as required by the National Electrical Code (‘NEC’). The Secretary alleged that GMC violated section 240–16[7] of the NEC and 29 C.F.R. §1910.309(a).[8] The Secretary also alleged that GMC violated section 430–107[9]9 of the NEC and 29 C.F.R. § 1910.309(b).[10] GMC contends that the judge’s decision was in error in several respects, which we consider in turn.

Sections 1910.309(a) and (b) are in ‘Subpart S—Electrical’ of Part 1910. The first provisions in this subpart, 29 C.F.R. §§ 1910.308(a) and (b), state the following:

(a) General. Section 1910.309 adopts as a national consensus standard the National Electrical Code NFPA 70–1971; ANSI C1–1971 (Rev. of C1–1968), which is incorporated by reference in this subpart.

(b) Purpose of the National Electrical Code. (1) The purpose of the National Electrical Code is the practical safeguarding of any persons and of buildings and their contents from hazards arising from the use of electricity for light, heat, power, radio, signaling, and for other purposes. The standards contained therein are occupational safety and health standards to the extent that they safeguard any person who is an employee of an employer.

(2) The National Electrical Code contains basic minimum provisions considered necessary for safety.

Because section 1910.308(b)(1) says that the NEC standards are occupational safety and health standards ‘to the extent that they safeguard any person who is an employee of an employer,’ GMC contends that the Secretary adopted only a part of the NEC, that is, the NEC provisions affecting the safety of employees. Because the Secretary has not stated which NEC standards have this effect and are therefore adopted, GMC contends that the Secretary’s adoption of the NEC standards was improper and the Secretary’s electrical standards are impermissibly vague. Judge Otto rejected these contentions on the basis that the cited NEC standards cover employees. We agree that the contentions must be rejected and add the following comments.

In several places, the electrical standards straightforwardly indicate that the whole NEC was adopted. Section 1910.308(a) states, ‘Section 1910.309 adopts . . . the National Electrical Code . . . which is incorporated by reference in this subpart.’ Section 1910.309(a), note 8 supra, concerns the broad class of ‘all electrical installations and utilization equipment,’ no matter when it was installed, and lists the NEC provisions which apply to all such equipment. Section 1910.309(b), note 10 supra, pertains to a subclass of such equipment—equipment installed or repairs and improvements made after March 15, 1972—and states that the installation, repair, or improvement ‘shall be in accordance with the provisions of the 1971 National Electrical Code. . . .’ These provisions imply that in time the whole NEC is to apply to all electrical installations and utilization equipment.

Section 1910.308(b)(1), on which GMC relies, does not necessarily indicate the contrary. It states that the NEC’s purpose is the protection of people, as well as buildings and their contents. Therefore, the statement that NEC standards are OSHA standards ‘to the extent that they safeguard any person who is an employee . . .’ simply indicates that ‘people’ includes ‘employees’ present on the site of electrical equipment.[11] Essentially, then, section 1910.308(b)(1) indicates that the whole NEC is adopted because it protects employees.

Since Subpart S states that the whole NEC is adopted and specifies which NEC standards apply depending on when the electrical equipment was installed, repaired, or improved, adequate notice of the requirements was given. Accordingly, we reject GMC’s arguments of vagueness and improper adoption.

We turn now to the alleged violation. GMC uses many electrically-powered conveyors to transport parts. Several hundred employees work along the conveyors removing and replacing parts in connection with tasks they perform. The compliance officer observed these conveyors and became concerned that, if an employee became entangled in a conveyor, it might not be stopped in time to prevent injury. Each conveyor has several sets of stop-start buttons located at operator stations along the conveyor. Each conveyor also has a disconnect switch in an electrical equipment box containing an overcurrent device—a fuse—located fourteen to sixteen feet above the production floor where the conveyors are located. A ladder would be required (and would have to be brought to the area) to reach the disconnect switch. The compliance officer’s concern was with the lack of ready access to the disconnect switch if the stop-start buttons should fail.

Accordingly, the Secretary charged GMC with violating sections 240–16 and 430–107 of NEC. Section 240–16 requires, in pertinent part, ‘Overcurrent devices shall be located where they will be: (a) Readily accessible. . . .’ Section 430–107 requires, ‘One of the disconnecting means shall be readily accessible.’ In Article 100, the NEC defines ‘readily accessible:’ ‘Capable of being reached quickly, for operation, renewal, or inspection, without requiring those to whom ready access is requisite to climb over or remove obstacles or to resort to portable ladders, chairs, etc.’

Because GMC contends that lack of ready access did not present any hazards to the production employees and that abatement would expose them to greater hazards, the main issue between the parties has been the nature of the hazard presented by the lack of ready access to the disconnect switch located adjacent to the overcurrent device. GMC argues and the evidence shows that its disconnect switches are not designed to be opened ‘under load,’ that is, while the electrical circuit is complete. Accordingly, GMC argues, the switches are not intended for use as a secondary disconnecting means, that is, a stop switch, in an emergency.

Examination of the NEC indicates that disconnect switches associated with overcurrent devices are normally not intended for use as stop switches. See sections 240–18, 430–101, 430–107 through 430–109, along with definitions of ‘disconnecting means’ and ‘isolating switch’ in Article 100. Further, a GMC electrical engineer testified that a disconnect switch’s purpose is to ‘isolate’ or ‘lock-out’ a circuit while an electrician or millwright works on associated electrical equipment. A GMC electrician who testified on behalf of the Secretary gave similar testimony, although he also asserted that the disconnect switch must be readily accessible for use as a stop switch. Because the NEC indicates that the purpose is isolation of the circuit, see section 240–18, we conclude that lack of ready access presents a hazard to electricians and millwrights from their possible failure to isolate the circuit before working on associated equipment.

The record shows that electricians and millwrights did not have ready access to the overcurrent devices and disconnect switches. Accordingly, the record shows noncompliance with section 240–16 and, because GMC agrees that the stop-start buttons are not a ‘disconnecting means’ under the NEC and does not argue that other disconnecting means were readily accessible, noncompliance with section 430–107 has also been shown.[12] GMC argues that ready access to the disconnect switches will present a greater hazard in that there can be an arcing or explosion hazard if the production employees use the disconnect switches as secondary stop switches. However, section 501–6(b)(1) of the NEC indicates that such hazards can be eliminated if switches used to interrupt current are contained within proper enclosures. If the switch is not intended to be used to interrupt current, then the NEC suggests it should be labelled that it must not be opened under load. Compare section 501–6(b)(1) with section 430–109. Thus, compliance with the NEC should eliminate the hazards of arcing and explosion that concern GMC. Accordingly, we reject GMC’s greater hazard defense and affirm the citation. See Ed Cheff d/b/a Ed Cheff Logging, 81 OSAHRC 60/A2, 9 BNA OSHC 1883, 1981 CCH OSHD ¶25,431 (No. 77–2778, 1981), appeal filed, No. 81–7493 (9th Cir. July 27, 1981); Duncanson-Harrelson Co., 81 OSAHRC 28/A2, 9 BNA OSHC 1539, 1981 CCH OSHD ¶25,296 (No. 76–1567, 1981).

Judge Otto required abatement of this violation in one year. GMC takes exception to this requirement but does not argue how it is unreasonable. Abatement involves moving the overcurrent devices and disconnect switches to the production floor. Because this equipment is in an equipment box, abatement essentially involves moving the boxes. This matter of altering the electrical wiring will have to be performed on each conveyor. The record does not show how many conveyors are involved, but one year appears to be sufficient time for the task involved. Accordingly, we affirm the judge’s requirement of abatement in one year.

Judge Otto assessed no penalty for items 1 and 13 which we affirm as nonserious violations. Having considered the factors stated in section 17(j), 29 U.S.C. § 666(i), we agree that no penalty should be assessed.

Accordingly, we deny GMC’s motion to vacate the judge’s decision; we affirm items 1 and 13 as nonserious violations but we assess no penalty for either item, and require abatement of item 13 in one year; we affirm item 10 as a de minimis violation for which abatement is not required. SO ORDERED.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: JAN 25, 1982

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76–5344
GENERAL MOTORS CORPORATION, CHEVROLET MOTOR DIVISION, RESPONDENT AND UNITED AUTOMOBILE, AEROSPACE, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AUTHORIZED EMPLOYEE REPRESENTATIVE

May 2, 1978

DECISION AND ORDER

Appearances:

Karl C. Overman, Esq., for Complainant.

Wallet B. Rogers, Esq., for Respondent.

Jerome Eichbauer, Health and Safety Representative, UAW Local 909.

Judge Otto

This is a proceeding under the Occupational Safety and Health Act of 1970 (Act).[13] Following inspection of respondent’s Warren, Ohio plant on October 28, 1976, complainant issued one citation November 17, 1976 containing 13 items of alleged nonserious violation, fixing abatement dates and proposing related penalties. Respondent duly contested the citation. Local 909 UAW, authorized representative of affected Warren plant employees, elected to participate as a party.

Hearing was held in Detroit, Michigan on December 13, 1977, at which time respondent withdrew its contest of all cited items except items 1, 10 and 13 (T 1, 2, 3).

CITATION NUMBER 1—Item #1[14]

Description: Frequent inspections of the cranes and lifting equipment was not performed and recorded as required. Abatement date November 24, 1976. No proposed penalty (original $30 amended to zero).

29 CFR 1910.179(j): (2) Frequent inspection. The following items shall be inspected for defects at intervals as defined in subparagraph (1)(ii) of this paragraph or as specifically indicated, including observation during operation for any defects which might appear between regular inspections. All deficiencies such as listed shall be carefully examined and determination made as to whether they constitute a safety hazard:

(i) All functional operating mechanisms for maladjustment interfering with proper operation. Daily.

(ii) Deterioration of leakage in lines, tanks, valves, drain pumps, and other parts of air or hydraulic systems. Daily.

(iii) Hooks with deformation or cracks. Visual inspection daily; monthly inspection with signed reports. For hooks with cracks or having more than 15 percent in excess of normal throat opening or more than 10°-twist from the plane of the unbent hook refer to paragraph (1)(3)(iii)(a) of this section.

(iv) Hoist chains, including end connections, for excessive wear, twist, distorted links interfering with proper function or stretch beyond manufacturer’s recommendations. Visual inspection daily; monthly inspection with signed report.

(v) (Revoked).

(vi) All functional operating mechanisms for excessive wear of components.

(vii) Rope reeving for noncompliance with manufacturer’s recommendations.

Crane records were three to four months behind, due to vacations and increased workload. Signed reports were three months old for hoist chains; there was no record of chain hoist inspections. No crane inspections were made in June, July, August 1976, beyond crane operators checking the upper limit switches mornings before using cranes. Maximum period with no inspection was four months.

The cited standard requires ‘frequent inspection,’ defined in 29 CFR 1910.179(j)(1)(ii)(a) as ‘Daily to monthly intervals.’ Respondent failed to comply with the requirements of subparagraphs (2)(i)(ii)(iv)(vi). Reasons contended by respondent do not justify the failure to comply with the standard. Abatement date at time of citation issuance was reasonable. A zero penalty was ultimately proposed by complainant. Considering statutory factors, no penalty is assessed.

CITATION NUMBER 1—Item #10[15]

Description: Places of employment were not kept clean and orderly, or in a sanitary condition: In the hy-bay basement where metal scrap and deep puddles of oil covered the floor. Abatement date November 24, 1976; no proposed penalty.

29 CFR 1910.22(a)(1): All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

Respondent admits the floor of the hy-bay basement was not in a clean and orderly or sanitary condition, (that) the floor of the hy-bay basement was littered with metal scrap and approximately 25 to 30 percent of the floor area was oily (Request for Admissions #24 and #25, C–3 and C–4).

The cited area is under the ground level plant floor where about 12 large and 100 smaller presses are located, forming sheets of metal and continuously generating scraps which are conveyed to the basement for continued removal to the outside. The area is about 1000 feet long and 150 feet wide, with a main scrap conveyor and several feeder conveyors. There was a clean-up crew on each shift and cleaning up the basement was their sole responsibility. Oil was hosed down with steam hoses. According to respondent, there were five employees on the first and second shifts and about four on the third shift. According to the authorized employee representative, there were three employees on the first two shifts and two or three on the third shift. The compliance officer saw three or four cleaning up, and observed oil puddles one to two inches deep and scrap laying about. During the walkaround respondent’s safety director saw three employees and testified about 40 to 45 percent of the basement had been cleaned, that three to five employees could clean about 50 to 100 feet in eight hours.

Scrap fell off the conveyors—chutes could jam, get holes and scrap shavings fall through overhead roller conveyor cracks. Oil accumulated on the floor; an employee was injured June 6, 1976 when a ladder slipped on oil. Respondent has disciplined employees for refusing to work in the hy-bay basement. The employee representative testified he had to walk on a fire hose on Friday before hearing, to prevent stepping in oil.

Although the basement is not a production area, all the first floor service is distributed out of the basement. Service employees—millwrights, electricians, pipefitters, machine repairman—work in the basement as service needs require, on a daily basis although a given employee may not be required to enter the basement every day. Employees other than members of the clean-up crews used the basement daily and were exposed to the hazards caused by the failure of respondent to keep the inspected basement reasonably clean and orderly.

The abatement date in relation to the date of citation issuance is reasonable and no penalty is assessed.

At the hearing, respondent alleged as affirmative defenses lack of employee access to the hazard and impossibility of compliance. The allegation was not timely and complainant’s objection is sustained (T 1, 2, 3).[16] Complainant has proven access and exposure; compliance was possible and readily available.

CITATION NUMBER 1—Item #13[17]

Description[18]: The electrical disconnects controlling the conveyors throughout the plant had the over-current devices located over 12 feet in the air and were not immediately accesible (sic). (29 CFR 1910.309(a) 240–16: Section 240–16, National Electric (sic) Code; as adopted by 29 CFR 1910.309(a): Section 430–107 as adopted by 29 CFR 1910.309(b).

Abatement date November 17, 1977. No penalty.

29 CFR 1910.309—National Electrical Code

(a) The requirements contained in the following articles and sections of the National Electrical Code, NFPA No. 70–1971; ANSI C1–1971 (Rev. of C1–1968) shall apply to all electrical installations and utilization equipment: . . . 240–16(a), (b), (c), and (d) Location in Premises (for Overcurrent Protection Devices).

(b) Every new electrical installation and all new utilization equipment installed after March 15, 1972, and every replacement, modification, or repair or rehabilitation, after March 15, 1972, of any part of any electrical installation or utilization equipment installed before March 15, 1972, shall be installed or made, and maintained, in accordance with the Provisions of the 1971 National Electrical Code, NFPA No. 70–1971; ANSI C1–1971 (Rev. of C1–1968).

29 CFR 1910.308—Subpart S—Electrical—Application

(a) General. Section 1910.309 adopts as a national consensus standard the National Electrical Code NFPA No. 70–1971; ANSI C1–1971 (Rev. of C1–1968), which is incorporated by reference in this support.

(b) Purpose of the National Electrical Code.

(1) The purpose of the National Electrical Code is the practical safeguarding of any persons and of buildings and their contents from hazards arising from the use of electricity for light, heat, power, radio, signaling, and for other purposes. The standards contained therein are occupational safety and health standards to the extent that they safeguard any person who is an employee of an employer.

(2) The National Electrical Code contains basic minimum provisions considered necessary for safety.

240–16. Location in Premises. Overcurrent devices shall be located where they will be:

(a) Readily accessible, except as provided in Sections 230–91 and 230–92 for service equipment and Section 364–11 for busways.

(b) Not exposed to physical damage.

(d) Occupant to Have Ready Access. Each occupant shall have ready access to all overcurrent devices protecting the conductors supplying his occupancy . . .

National Electrical Code (NEC), Chapter 1. General—Article 100—Definitions.

Accessible: (As applied to wiring methods). Capable of being removed or exposed without damaging the building structure or finish, or not permanently closed in by the structure or finish of the building. (See ‘Concealed’ and ‘Exposed’). page 70–4.

Accessible: (As applied to equipment). Admitting close approach because not guarded by locked doors, elevation or other effective means. (See ‘Readily Accessible’). 70–4.

Readily Accessible: Capable of being reached quickly, for operation, renewal, or inspections, without requiring those to whom ready access is requisite to climb over or remove obstacles or to resort to portable ladders, chairs, etc. (See ‘accessible’). 70–10.

430–101. General. The provisions of Part H are intended to require disconnecting means capable of disconnecting motors and controllers from the circuit.[19]

430–107. Readily Accessible. One of the disconnecting means shall be readily accessible.

Circuit boxes containing overcurrent protection devices and disconnect switches are located from 14 to 16 feet above floor level, at millwright drive locations for overhead monorail conveyors. Stop/start switch buttons are accessible to employees working at or adjacent to the conveyors. The millwright stations have a screenguard on the bottom and a 30‘ screenguard around the perimeter. To service these circuit boxes, access can be gained only by using an extension ladder and climbing over the screenguard enclosure.[20]

The stop/start buttons are tied in series; in the event the switch shorts out or otherwise fails, there is no other means of shutting off the conveyor. Many of the conveyors have 4 to 7 buttons in series (T. 22, 74, 75). If an employee became entangled in the conveyor system and the switch buttons failed, there is no way to readily stop it.

The amended description of this item states the electrical disconnects controlling the conveyors were not ‘immediately’ accessible, rather than ‘readily’ accessible. The distinction, if any, is not misleading or prejudicial.

Respondent in his brief challenges the constitutionality of 29 CFR 1910.308 and .308(b)(1), that there was no exposure to a hazard, that NEC 240–16 does not apply to the facts, that sections 240–4 through 240–30 apply only to overcurrent protection for conductors, not equipment, that the stop/start button is a disconnecting means within the meaning of NEC 430–107, that there was no hazard, that compliance would be more hazardous than noncompliance.

The union representative for affected employees points out that the overcurrent devices must be readily accessible and capable of being reached quickly for operation, renewal or inspection, without requiring those to whom ready access is requisite to climb over or remove obstacles or to resort to portable ladders, chairs, etc., that the purpose of overcurrent protection is not limited to conductors, as contended by respondent. He refers to NEC 240–2 and 240–3.[21]

In evaluating this record,[22] it is clear the cited standards do not require more than one overcurrent device. There is but one, located in the circuit box and not readily accessible. The 110 volt stop/start switch is not an overcurrent device; the circuitry contained in the box, on the source side of 440 volts, is an overcurrent device, and in performing its function interrupts and disconnects the main power source from the equipment in question. (T 160–163, 183).

If an employee became entangled in the conveyor and buttons were inoperative, there was no means readily available for shutting off the power (T 42). The hazard is inherent in the standard alleged. As distinguished from the general duty clause, section 654(a)(1), a cited standard presupposes the existence of a hazard when its terms are not met. Del-Cook Lumber Company, Docket #16093, February 2, 1978.

Respondent’s challenge to the National Electrical Code caused by the Secretary’s ‘failure’ to interpret and declare which sections and portions apply to employees, is without merit. The NEC provisions hereinbefore set forth include worksites, and worksites contain employees.

The cited standards were violated. Complainant moved to amend the abatement date for item 13 to November 17, 1977. (T 106, 107); the citation was issued November 17, 1976. The abatement date shall be 12 months from the effective date of this decision and order. No penalty was proposed and no penalty is assessed, considering statutory factors.

Respondent is not entitled to consideration of affirmative defenses if raised for the first time at hearing, but contends the Complainant was duly apprised in the Answer to the Complaint. The Answer included as an Affirmative Defense, ‘Respondent states that the Complaint herein fails to state a cause of action upon which relief can be granted.’ This is sufficient and timely, according to respondent, by authority of Rule 12(b), Federal Rules of Civil Procedure, that it is under no obligation to disclose to complainant in any detail the specific factual bases of such defense, except in response to properly framed, permissible discovery. The specific affirmative defenses contended at time of hearing, for both citation item #10 and #13, were not asserted prior thereto. Counsel met informally at some period prior to hearing and respondent claims there was affirmative defense specificity at that time; such occasion was not a pre-hearing conference pursuant to Commission Rule 51 and no prehearing motion for amended answer was filed, and no order upon this subject was requested or issued. Parties are encouraged to meet informally to expedite or settle proceedings, or to simplify issues and presentation of testimony, but such activity cannot serve as a substitute for or amendment of required formal pleadings. Complainant was entitled to know the specific affirmative defenses upon which respondent relied. Information for that purpose was available and could have been timely provided prior to hearing. Complainant is not required to guess as to which of many affirmative defenses respondent might elect to develop to negate a violation—compliance prevents work, compliance impossible or not feasible, violation not foreseeable, lack of knowledge, employee fault, increased hazard, isolated occurrence, alternative protection, company rules and safety program, industry practice, quality or production affected, no or few injuries, removal from exposure, employee experience. These and many other affirmative defenses are reflected in Commission decisions.[23]

FINDINGS OF FACT

Item #1:

1. Crane records were 3 to 4 months late.

2. Chain hoist inspections were not recorded.

3. Adequate crane inspections were not made in June, July or August, 1976.

item #10:

4. The hy-bay basement area contained metal scrap fallen from conveyors, with the floor containing puddles of oil.

5. Service employees used this basement and were exposed to contact with scrap and oil.

6. The floor was not in a clean and orderly or sanitary condition at time of inspection.

7. The floor conditions inspected were not unusual, nor isolated in time.

8. Clean-up crews were insufficient in number to adequately reduce the amount of scrap and oil on the floor.

9. Larger clean-up crews, adequately equipped, could materially reduce accumulation and could accelerate removal of scrap and oil.

Item #13:

10. Provisions of the NEC incorporated by reference and relevant to the cited standards were included as national consensus standards and duly promulgated by rule as occupational safety or health standards, pursuant to Section 655(a) of the Act.

11. The cited standards apply to respondent employees.

12. The applicable and cited provisions of the NEC indicate what constitutes compliant behavior, without specific or interpretive notice.

13. Section 240–16, NEC, applies to overcurrent protection for conductors and equipment.

14. The start/stop switch buttons were not disconnect devices, within the meaning of the cited standards.

15. Start/stop switch buttons were readily accessible to employees working at or adjacent to conveyors.

16. Overcurrent protection is required for the conductors and equipment comprising respondent’s conveyor electrical system.

17. Circuit boxes containing overcurrent protection devices and disconnect switches were located from about 14 to 16 feet above floor level, and could be reached only by use of an extension ladder and climbing over a screenguard at millwright stations.

18. The circuit boxes contained overcurrent or disconnect devices, within the meaning of the cited standards.

19. The inspected and cited overcurrent devices were not readily accessible.

20. Employees were exposed to hazard caused by respondent’s failure to locate the overcurrent devices at levels readily accessible to employees.

21. The violation is other than serious, with no substantial probability that death or serious physical harm could result.

22. A 12-month period, commencing from the effective date of this decision and order, is a reasonable time for abatement of this violation.

CONCLUSIONS OF LAW

1. Respondent failed to comply with occupational safety and health standard 29 CFR 1910.179(j)(2).

2. Respondent failed to comply with occupational safety and health standard 29 CFR 1910.22(a)(1).

3. Respondent failed to comply with occupational safety and health standard 29 CFR 1910.309(a) 240–16, National Electrical Code; 29 CFR 1910.309(b), Section 240–107, National Electrical Code.

ORDER

The citation issued November 17, 1976, as amended, is hereby affirmed. No penalty is assessed.

George W. Otto

Judge, OSHRC

Dated: May 2, 1978

[1] GMC also refers to a determination effective December 6, 1977. However, GMC does not show where this was published and we have not found it in the Federal Register. We accordingly conclude that only the March 22, 1977 determination is in question.

[2] GMC argues that it would be inequitable to subject it to two sets of standards, federal and state, which could contain ‘inconsistent obligations.’ However, GMC has not shown any conflict between state and federal requirements relevant to the alleged violations in this case. Accordingly, we need not address this potential problem of the concurrent authority contemplated by section 18(e).

[3] Unless the Commission adopts a different rule, its proceedings are governed by the Federal Rules of Civil Procedure (‘Federal Rules’). Section 12(g), 29 U.S.C. § 661(f).

In pertinent part, Federal Rule 8(c) provides, “In pleading to a preceeding pleading, a party shall set forth affirmatively . . . any other matter constituting an avoidance or affirmative defense.”

[4] The standard provides:

§ 1910.179 Overhead and gantry cranes.

(j) Inspection—

(2) Frequent inspection. The following items shall be inspected for defects at intervals as defined in paragraph (j)(1)(ii) of this section [which states that frequent inspection means inspection at daily to monthly intervals] or as specifically indicated, including observation during operation for any defects which might appear between regular inspections. All deficiencies such as listed shall be carefully examined and determination made as to whether they constitute a safety hazard:

(i) All functional operating mechanisms for maladjustment interfering with proper operation. Daily.

(ii) Deterioration or leaking in lines, tanks, valves, drain pumps, and other parts of air or hydraulic systems. Daily.

(iii) Hooks with deformation or cracks. Visual inspection daily; monthly inspection with signed reports. For hooks with cracks or having more than 15 percent in excess of normal throat opening or more than 10° twist from the plane of the unbent hook refer to paragraph (1)(3)(iii)(a) of this section.

(iv) Hoist chains, including end connections, for excessive wear, twist, distorted links interfering with proper function, or stretch beyond manufacturer’s recommendations. Visual inspection daily; monthly inspection with signed report.

(v) [Reserved]

(vi) All functional operating mechanisms for excessive wear of components.

(vii) Rope reeving for noncompliance with manufacturer’s recommendations.

[5] The standard provides:

§ 1910.22 General requirements.

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

[6] Under Commission precedent a violation is properly classified as de minimis only where the relationship of the violation to employee safety and health is so remote as to be negligible. General Motors Corp., Rochester Products Division, supra (lead and dissenting opinions); Continental Oil Co., 79 OSAHRC 42/C3, 7 BNA OSHC 1432, 1979 CCH OSHD ¶23,626 (No. 13750, 1979). Commissioner Cottine concludes that, because this violation has a direct and immediate relationship to employee safety and health, it is nonserious rather than de minimis. See Gallo Mechanical Contractors, Inc., 80 OSAHRC 122/A2, 9 BNA OSHC 1178, 1981 CCH OSHD ¶25,008 (No. 76–4371, 1980); Southwestern Electric Power Co., 80 OSAHRC 81/C7, 8 BNA OSHC 1974, 1980 CCH OSHD ¶74, 732 (No. 77–3890, 1980) (dissenting opinion).

In Commissioner Cottine’s view, the Secretary has established the existence of conditions presenting fall hazards from either tripping or slipping. GMC has not shown that these conditions have been rendered insignificant by efforts made to control accumulations of scrap and oil. In addition, employees are exposed to the hazards on a regular basis and the injury that could result from the fall hazards associated with tripping or slipping cannot be viewed as negligible. A fall against structural supports located in the basement, onto metal scrap littering the floor, or even onto the concrete floor itself could result in injury. See Gallo Mechanical Contractors, Inc., supra.

[7] The cited provision of the NEC provides:

Article 240—Overcurrent Protection

240–16. Location in Premises. Overcurrent devices shall be located where they will be:

(a) Readily accessible, except as provided in sections 230–91 and 230–92 for service equipment and section 364–11 for busways.

(b) Not exposed to physical damage.

(d) Occupant shall have Ready Access. Each occupant shall have ready access to all overcurrent devices protecting the conductors supplying his occupancy.

Exception: In a multiple-occupancy building where electric service and electrical maintenance are provided by the building management and where these are under continuous building management supervision, the service overcurrent devices and feeder overcurrent devices supplying more than one occupancy may be accessible to authorized management personnel only.

[8]The standard provides, in pertinent part:

§ 1910.309 National Electrical Code.

(a) The requirements contained in the following articles and sections of the National Electrical Code, NFPA 70–1971; ANSI C1–1971 (Rev. of C1–1968) shall apply to all electrical installations and utilization equipment:

Sections

240–16(a), (b), (c), and (d). Location in Premises (for Overcurrent Protection Devices).

[9] The cited provision of the NEC provides:

Article 430—Motors, Motor Circuits and Controllers

H. Disconnecting Means

430–107. Readily Accessible. One of the disconnecting means shall be readily accessible.

[10]The standard provides:

§ 1910.309 National Electrical Code.

(b) Every new electrical installation and all new utilization equipment installed after March 15, 1972, and every replacement, modification, or repair or rehabilitation, after March 15, 1972, of any part of any electrical installation or utilization installed before March 15, 1972, shall be installed or made, and maintained, in accordance with the provisions of the 1971 National Electrical Code, NFPA 70–1971; ANSI C1–1971 (Rev. of C1–1968).

[11] The NEC provisions cited in this case were not deleted as occupational safety and health standards in the Secretary’s new electrical standards, 29 C.F.R. §§ 1910.301–1910.399. See § 1910.304(e)(1)(iv), (v); § 1910.305(j)(4)(ii)(A), (E), and (F). It therefore appears that the Secretary did not consider that the cited provisions were only directed to the protection of buildings. See also Power Systems Div., United Technologies Corp., 81 OSAHRC 40/C13, 9 BNA OSHC 1813, 1981 CCH OSHD ¶25,350 (No. 79–1552, 1981) (the Secretary’s proposed rulemaking does not demonstrate that portions of the NEC ‘are unintelligible or . . . irrelevant to occupational safety and health’ and the Secretary’s recognition that a revision would make the NEC provisions easier to understand does not mean that the standards are unenforceably vague as written.)

[12] GMC argues that the lack of ready access to the disconnect switches presented no hazard to production employees because there was little, if any, likelihood that a secondary stop switch would be needed. However, because the lack of ready access affects the electricians and millwrights rather than the production employees, we do not need to reach this argument. We note that the lack of ready access to the disconnect switches has more than a negligible relationship to the safety and health of the affected employees and therefore we could not conclude that the violation is de minimis. See Gallo Mechanical Contractors, Inc., supra note 6, and cases cited therein.

[13] 29 U.S.C. 651 et seq., 84 Stat. 1590.

[14] T 17, 18, 19, 26, 28, 29, 30, 51, 52, 53, 129, 130, 131.

[15] T. 2, 3, 26, 27, 31–35, 53–57, 108–127, 131, 136, c–3, c–4, r–2—r–6.

[16] See further discussion, item #13, pages 11, 12, infra.

[17] T 20–25, 36–47, 60–107, 137–199, C–1–C–4, C–5(a)(b)(c), C–6–C–9.

[18] Stipulation July 1, 1977, amending complainant’s amended complaint.

[19] NEC Article 430—Motors, Motor Circuits and Controllers—Part H. Disconnecting Means.

[20] T 13, 20, 43, 67, 68, 71–74, 142–144, 155, 161, 181, 183, C–3(D), C–6(#11).

[21] NEC 240–2. Purpose of Overcurrent Protection. Overcurrent protection for conductors and equipment is provided for the purpose of opening the electric circuit if the current reaches a value which will cause an excessive or dangerous temperature in the conductor or conductor insulation.

NEC 240–3. Protection of Equipment. Equipment shall be protected against overcurrent as specified in the references in the following list . . . Motors, Motor Circuits and Controllers, Article No. 430.

[22] Respondent filed a posthearing ‘motion to correct record,’ to change the testimony of its witness on page 154, line 19. Complainant objects. There is no contention the transcript does not accurately reflect what was stated by this witness, as recorded on page 154, line 19. Respondent’s motion is denied.

[23] The stated affirmative defenses, if timely, would have failed to negate the effect of violation items #10 and #13.