This case makes two (2) decisions that on the surface appear to be a step backwards – but readers should not read anything into these decisions! The refrigerator in the power strip was lost merely because the CSHO did NOT document the power pull the refrigerator was putting on the power strip. So before we go thinking that we can plug our refrigerators into power strips SAFELY or use zip ties to fasten our power stips to the building – think TWICE.
Complainant alleged a serious violation of the Act in Citation 1, Item 2 as follows:
29 CFR 1910.303(b)(2): Listed or labeled electrical equipment was not used or installed in accordance with instructions included in the listing or labeling:
a) Kitchen area: On June 3, 2013 and at times prior, employees were exposed to fire and shock hazards from overloading a relocatable power tap used to energize a “True Manufacturing” food preparation table/refrigerator. Relocatable power taps are only listed to be used for low ampere devices such as computers and their peripherals.
The cited standard provides:
Installation and use. Listed or labeled equipment shall be installed and used in accordance with any instructions included in the listing or labeling.
29 C.F.R. § 1910.303(b)(2).
As he made his way through the kitchen, CSHO observed a refrigerator/prep station plugged into a power strip (also known as a relocatable power tap, or RPT) that was zip-tied to part of a food preparation station. According to the CSHO, the RPT was neither installed nor used in accordance with the instructions included in the RPT’s listing or labeling, because the power load of the refrigerator exceeded the capacity of the RPT. He concluded that Respondent violated the standard. The terms “listed” and “labeled” are defined in the following manner:
Labeled. Equipment is “labeled” if there is attached to it a label, symbol, or other identifying mark of a nationally recognized laboratory:
(1) That makes periodic inspections of the production of such equipment, and
(2) Whose labeling indicates compliance with nationally recognized standards or tests to determine safe use in a specified manner.
Listed. Equipment is “listed” if it is of a kind mentioned in a list that:
(1) Is published by a nationally recognized laboratory that makes periodic inspection of the production of such equipment, and
(2) States that such equipment meets nationally recognized standards or has been tested and found safe for use in a specified manner.
29 C.F.R. § 1910.399. The RPT at issue is labeled and listed by Underwriters Laboratories (“UL”), which is a nationally recognized testing laboratory. CSHO testified that the RPT was rated for 250 V AC or less, and 20 amps or less; however, he said that he did not know what the power load of the refrigerator was.
In support of its allegations, Complainant introduced into evidence the 2008 Guide Information for Electrical Equipment, also known as the White Book. According to the White Book, an RPT rated similarly to the one at issue is “intended for indoor use as relocatable multiple outlet extensions of a single branch circuit to supply laboratory equipment, home workshops, home movie lighting controls, musical instrumentation, and to provide outlet receptacles for computers, audio and video equipment, and other equipment.” The White Book also states that RPTs are “not intended to be permanently secured to building structures, tables, work benches, or similar structures…” (Id.).
Complainant also introduced an interpretive letter, dated November 18, 2002, which states:
Power strips are designed for use with a number of low-powered loads, such as computers, peripherals, or audio/video components. Power loads are addressed by 29 CFR § 1910.304(b)(2), Outlet devices: “Outlet devices shall have an ampere rating not less than the load to be served.” Power strips are not designed for high power loads such as space heaters, refrigerators, and microwave ovens, which can easily exceed the recommended ampere ratings on many power strips.
With respect to this document, Complainant places significant emphasis on the last sentence, which states that RPTs are not designed for high power loads, such as a refrigerator, because such equipment can “easily exceed” the recommended ampere rating on many, but not all, power strips. Although the foregoing gives the impression that the RPT was not being used in accordance with the instructions included in the labeling or listing, the Court is not convinced Complainant has proved a violation of the standard.
The White Book does not specifically say that a refrigerator cannot be plugged into an RPT. In fact, although it lists a number of pieces of equipment that a 250V, 20 amp rated RPT is intended for, that list is not exhaustive, as it also includes the non-specific term “other equipment”. Thus, Complainant’s conclusion rests almost entirely upon the interpretive letter’s statement that RPTs are not designed for refrigerators. The problem, however, is that very little evidence was introduced regarding the refrigerator itself. Complainant failed to introduce evidence establishing the power load of this refrigerator, which is an essential component of the equation. Complainant’s conclusion rests on the presumption that the power load of this refrigerator exceeded the maximum capacity of the RPT. This presumption, in turn, is predicated on a statement in an interpretive letter issued 12 years ago, which only states that refrigerators and the like can exceed the ampere ratings on “many” power strips, not all of them. With one minor exception, which will be discussed infra, Complainant’s argument is that the RPT was not used in accordance with its labeling or listing instructions because the refrigerator exceeded the power load of the RPT. Without knowing the power load of this particular refrigerator, the Court is not willing to make the same presumption as Complainant. Accordingly, he Court finds Complainant did not prove Respondent failed to comply with the terms of the standard.
In addition, Complainant also alleges Respondent violated the standard by permanently affixing the RPT to the food prep station with a zip tie, which the CSHO testified could only be removed with a tool, in violation of Section 8.1 of the UL 1363 Standard for Safety. Again, the Court is not convinced. First, although it is likely that a person would simply use scissors or the like to remove the zip tie, it has not been clearly established one is required. Not all zip ties are single use, and some can be undone without resorting to the use of a cutting tool. It is unclear to the Court whether the zip tie in question required a tool for removal. Secondly, and for essentially the same reason, the Court does not find that the use of a zip tie constitutes a “permanent” fixture.
Based on the foregoing, the Court finds Complainant failed to prove its prima facie case. Accordingly, Citation 1, Item 3 is VACATED.
Source: http://www.oshrc.gov/decisions/html_2014/13-1774.htm