Keco Industries, Inc.

Plain-English summary

Keco used an unapproved light-socket “pigtail” holding a fuse inside a telephone switch-gear circuit-breaker box. The judge affirmed a serious violation and assessed $320. The Commission agreed that using unapproved equipment technically violated section 1910.303(a), but found the possible fire or shock injury too remote to justify abatement or a penalty: the device functioned satisfactorily, the alleged installation defects were not shown, and access to live parts was limited. It reclassified the violation as de minimis and removed the penalty. Commissioner Cleary would have classified it as nonserious.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.303(a) (approval of electrical equipment).
• Outcome: Violation affirmed but reclassified from serious to de minimis; $320 penalty vacated.
• Key point: Technical use of unapproved electrical equipment is de minimis when the departure has only a negligible relationship to employee safety and no meaningful abatement need is shown.

Full text (OSHRC public release)

Docket No. 81-1976

SECRETARY OF LABOR,

Complainant,

v.

KECO Industries, INC.,

Respondent.

INTERNATIONAL ASSOCIATION OF

MACHINIST AND AEROSPACE WORKERS, AFL-CIO, LOCAL LODGE NO. 162,

DISTRICT LODGE NO. 34,

Authorized

Employee

Representative.

OSHRC Docket No. 81-1976

DECISION

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

BY THE COMMISSION:

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

I

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

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

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

II

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

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

Keco presented no evidence that the pigtail was "approved."  
Andrews, Keco's president, and Cicchiani, Keco's plant manager, testified that the pigtail
was no longer in use because a new telephone system, including a new power supply, with a
separate circuit breaker, had been installed within a month after the inspection.  
They also testified that there was a disconnect switch for the entire electric department,
which included the box at issue.

III

In response to the judge's decision affirming the citation item and assessing a $320
penalty, Keco argues that the use of the pigtail did not pose a hazard to Keco's employees
because there was a disconnect switch for the box, albeit not on the box itself, and the
possibility of an electrical maintenance employee sticking a finger through the opening in
the box's cover or touching live parts when the cover was off was exceedingly remote.
  Keco notes that the plant electrician who removed the box's cover and pulled the
pigtail out by hand at the request of the compliance officers during the inspection
suffered no injury.

The Secretary contends that he proved that Keco failed to comply with the
cited standard because the use of the pigtail was not "approved."  He notes
that, under section 1910.399(a)(7), see supra note 1, in order for equipment to be
"approved" it must be "acceptable" to the authority enforcing the
subpart, who is the Assistant Secretary of Labor for Occupational Safety and Health. The
Secretary notes that, in turn, "acceptable" is defined in section
1910.399(a)(1), see supra note 1, as meaning certified as safe for its intended use
by a nationally recognized testing laboratory, another governmental agency, or the
manufacturer of custom-made equipment.  According to the Secretary, because no such
certification was received, the pigtail was not "approved." The Secretary notes
that at no time did Keco attempt to rebut the Secretary's showing that the pigtail was not
"approved."  With regard to Keco's contention that there was no violation
because of the disconnect, the Secretary notes that the cited standard does not permit
alternative methods of compliance.

IV

It is undisputed that the pigtail in Keco's telephone switch gear circuit breaker box was
not "approved" within the meaning of the cited standard.  The parties
disagree, however, about the degree to which the unapproved pigtail endangered Keco's
employees. Keco argues that the pigtail presented no hazard to its employees.  The
Secretary asserts that Keco's argument impermissibly challenges the wisdom of the standard
because the standard presumes that unapproved electrical equipment is hazardous.  The
Secretary further argues that the pigtail presented serious hazards of fire and electrical
shock to Keco's employees.

Under the Act, violations are classified in three levels of severity:  
serious, nonserious, and de minimis .  A serious violation is one for
which there is a substantial probability of death or serious harm to employees.  
Section 17(k) of the Act, 29 U.S.C. � 666(j).  A de minimis violation
is one in which there is technical noncompliance with a standard but the departure from
the standard bears such a negligible relationship to employee safety or health as to
render inappropriate the assessment of a penalty or the entry of an abatement order. 
E.g ., Bechtel Power Corp ., 82 OSAHRC 49/B8, 10 BNA OSHC 2003, 1982 CCH OSHD
� 26,261 (No. 77-3222, 1982), appeal dismissed , No. 82-3498 (3rd Cir.
January 24, 1983).  A nonserious violation is one where the hazard is not negligible,
but there is not a substantial probability of death or serious harm.  The dispute
between the parties reduces to how the violation should be classified.  The Secretary
argues that the violation was serious.  In contending that the pigtail presented no
hazard, Keco is essentially arguing for a de minimis classification.

The Secretary bases his argument for a serious characterization on several
alleged hazards described at the hearing.  On close examination, however, the facts
do not support the Secretary's contention that the unapproved pigtail presented a hazard.
  The evidence does not show that there was any general defect in the design or
manufacture of the pigtail.  Washam testified that the pigtail was designed to
provide temporary lighting, and there was no indication that the pigtail was not
satisfactory for that purpose. Further, both Washam and Bland, the Secretary's witnesses,
agreed that the pigtail with the fuse would function satisfactorily as an overcurrent
protection device.  Rather than concerning the approval or lack thereof of the
pigtail, the Secretary's arguments as to why the violation should be classified as serious
relate to the manner in which the pigtail or fuse in it was installed at Keco's plant.

Bland testified that there would be a fire hazard if the fuse was not screwed
in tightly.  However, there was no evidence in the record that Keco's employees did
not know how to install a fuse properly or that the fuse in the cited pigtail was not
screwed in tightly.  With regard to the alleged hazard of electric shock with the
cover on the box, it appears from the record that the chance of an employee being injured
from contacting live parts is negligible.  See Daniel Construction Co. ,
81 OSAHRC 107/D2, 10 BNA OSHC 1254, 1982 CCH OSHD � 25,840 (No. 80-1224, 1981), aff'd ,
692 F.2d 818 (1st Cir. 1982).  Concerning the alleged hazard of electric shock with
the cover off the box, there is no evidence that Keco's employees had taken or would take
inadequate precautions when taking off the cover or in servicing the circuit breaker box.
  We further note that the Secretary's standards contemplate that "qualified
persons" have access to live parts.  See , e.g ., 29 C.F.R. ��
1910.399(a)(100) ("[q]ualified person" is "[o]ne familiar with the
construction and operation of the equipment and hazards involved"); � 1910.303
(g)(2)(B) (partitions or screens must be "so arranged that only qualified persons
will have access to the space within reach of the live parts"); � 1910.303 (h)(2)(i)
("exposed live parts shall be accessible to qualified persons only"; and �
1910.308(a)(3)(ii) ("[e]nclosures and metal cabinets shall be locked so that only
authorized qualified persons have access" to live parts).  Furthermore, with the
cover off the box, live parts would be accessible even if the pigtail was not there.

Accordingly, we conclude that the possibility of injury as a result of the
use of the unapproved pigtail was too remote to warrant an abatement requirement or a
penalty assessment.  Therefore, we hold that the violation was de minimis
[[2]].  We note that the evidence established that the pigtail is no longer in use
because, within a month after the inspection, a new telephone system was installed.

We thus modify the decision of Judge Sparks in that we affirm the citation item insofar as
it alleged a violation of section 1910.303(a) but classify the violation as de minimis ,
therefore assessing no penalty.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED:  FEB 29 1984

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected]
), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] Section 1910.303(a) provides

Approval .  The conductors and equipment required or permitted by
this subpart shall be acceptable only if approved.

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

Acceptable to the authority enforcing this subpart.  The authority
enforcing this subpart is the Assistant Secretary of Labor for Occupational Safety and
Health.  The definition of "acceptable" indicates what is acceptable to the
Assistant Secretary of Labor, and therefore approved within the meaning of this Subpart.

Section 1910.399(a)(l) defines "acceptable" as follows:

An installation or equipment is acceptable to the Assistant Secretary of
Labor, and approved within the meaning of this Subpart S: (i) If it is accepted, or
certified, or listed, or labeled, or otherwise determined to be safe by a nationally
recognized testing laboratory, such as, but not limited to, Underwriters' Laboratories,
Inc. and Factory Mutual Engineering Corp.; or (ii) with respect to an installation or
equipment of a kind which no nationally recognized testing laboratory accepts, certifies,
lists, labels, or determines to be safe, if it is inspected or tested by another Federal
agency, or by a State, municipal, or other local authority responsible for enforcing
occupational safety provisions of the National Electrical Code, and found in compliance
with the provisions of the National Electrical Code as applied in this Subpart; or (iii)
with respect to custom-made equipment or related installations which are designed,
fabricated for, and intended for use by a particular customer, if it is determined to be
safe for its intended use by its manufacturer on the basis of test data which the employer
keeps and makes available for inspection to the Assistant Secretary and his authorized
representatives.

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

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

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

Whether the cited equipment was installed properly is irrelevant to
the question of whether lack of laboratory testing poses more than a negligible hazard.
  To characterize this violation as de minimis because there is no
proof that the equipment was improperly installed both misperceives the standard
and gives the employer carte blanche to use unapproved equipment in the future.