The company is a structural fabricator of aluminum, steel, and metals used in water and wastewater plants across the United States. OSHA selected the facility from a random list for inspection pursuant to its National Emphasis Program (NEP) to minimize amputation hazards. Following the inspection on May 13, 2024, OSHA issued the facility a Citation and Notification of Penalty (Citation) alleging:
1) a serious violation of 29 C.F.R.§ 1910.305(g)(1)(iv)(A) for using flexible cords as a substitute for the fixed wiring of a structure;
and
2) other-than-serious violation of 29 C.F.R. § 1904.41(a)(1)(i) for failing to electronically submit the Summary of Work-Related Injuries and Illnesses (OSHA 300A form) by March 2, 2024. E
The Secretary proposed penalties of $6,222 and $2,074, respectively.
The facility timely contested the Citation and the proposed penalties, which brought the matter before the independent Occupational Safety and Health Review Commission (Commission). Both parties timely filed briefs. For the reasons discussed below, Citation 1, Item 1, alleging a flexible cord violation, is VACATED; and Citation 2, Item 1, alleging a recordkeeping violation, is AFFIRMED with a penalty of $2,074.
FINDINGS OF FACT
OSHA’s NEP inspection was focused on detecting amputation hazards, but it could identify other violations in plain view while on-site. OSHA assigned Compliance Safety and Health Officer (CO) Robert Soden to inspect the facility on May 13, 2024, and the facility CEO and Owner escorted CO Soden throughout the inspection.
During the inspection, CO Soden identified two instances of what he alleged were flexible cord violations involving a milling machine and a bending machine. CO Soden also identified one instance of a recordkeeping violation.
The Milling Machine
The milling machine was powered by an appropriately wired flexible cord that was attached to the machine and plugged directly into a wall outlet. The milling machine also had a four-gang box mounted on its right side. A foot-long braided cable extended from the four-gang box and was plugged into a yellow extension cord, which in turn was plugged into a 120-volt wall outlet. OSHA cited the facility for the “extra yellow cord” that “ran between the cable that attached to the appliance and the actual outlet.”
Two cords were plugged into the four-gang box; one cord powered the computer (digital readout) for the milling machine, and the other cord powered the drive for the horizontal mill table. The computer (digital readout) on the milling machine was portable and moved among milling machines. The milling machines moved from area to area depending on where they were needed.
The Bending Machine
The bending machine was powered by a hard-wired main flexible cord that was lying across the floor. The main flexible cord was plugged into a second flexible cord, which was coiled beneath a rolling ladder and connected to a wall outlet. The two cords powering the bending machine made a cord set, which is an extension cord set that has “ends on it” used for powering portable equipment. Together, a twist lock connected the cord set so that it could not come apart. The bending machine rotated on an axis and needed a flexible cord to be moved. Machines were frequently moved based on projects.
Fixed wiring was attached to multiple walls of the building. The fixed wiring on the facility’s walls appeared to be in use and actively working.
Recordkeeping
The facility employs between 120 and 130 employees and uses the primary North American Industry Classification System (NAICS) code of 332312. The facility completed and maintained the OSHA 300A forms for FY21 to FY23 on-site. CO Soden collected the OSHA 300A forms during the inspection. When CO Soden returned to his office, he checked OSHA’s records and discovered the facility did not electronically submit its OSHA 300A form for FY2023 by March 2, 2024.
Account Manager completed the OSHA forms. Mr. XXXX signed the OSHA forms but “never did it [submit the forms] before until this year” because he did not know it had to be submitted online by a specified date.
The two managers supervised an employee who may have submitted the OSHA 300A forms, but XXXXXX could not ask her since she left the facility in 2018. The facility had one injury listed on its FY2023 OSHA 300A form. The facility had a workplace safety committee. The facility’s third-party insurance provided monthly training and quarterly safety inspections focused on forklift operations and safety certification. It also provided safety surveys as part of a loss control program to renew the facility’s workplace safety certification.
DISCUSSION
To prove a violation of an OSHA standard, the Secretary must show by a preponderance of the evidence that:
(1) the cited standard applies;
(2) the employer failed to comply with the terms of the cited standard;
(3) employees had access to the violative condition; and
(4) the cited employer either knew or could have known with the exercise of reasonable diligence of the violative condition.
Citation 1, Item 1 (Flexible Cord)
Citation 1, Item 1, alleges a serious violation of 29 C.F.R. § 1910.305(g)(1)(iv)(A) as follows:
Flexible cords were used as a substitute for fixed wiring of a structure:
A ) milling machine: on or about 5/15/24, employees were exposed to shock hazards while operating the milling machine due to an extension cord being used to power a 4 gang outlet box attached to the machine.
B ) bending area: on or about 5/15/24, employees were exposed to shock hazards while working and walking through the bending area due to an electrical cord being [sic] supplying power from an outlet to the permanent cord used to power a rotating pipe bending machine.
The cited standard provides:
Unless specifically permitted otherwise in paragraph (g)(1)(ii) of this section, flexible cords and cables may not be used . . . [a]s a substitute for the fixed wiring of a structure. 29 C.F.R. § 1910.305(g)(1)(iv)(A).
Relevant here, section 1910.305(g)(1)(ii) permits the use of flexible cords and cables for the “[c]onnection of stationary equipment to facilitate their frequent interchange.” 29 C.F.R. § 1910.305(g)(1)(ii)(G).
Applicability
“The test for the applicability of any statutory or regulatory provision looks first to the text and structure of the statute or regulations where applicability is questioned.” The cited standard is within Subpart S, which addresses electrical safety requirements. 29 C.F.R. § 1910.301. The title of 29 C.F.R. § 1910.305 is “wiring methods, components, and equipment for general use,” and paragraph (g)(1) applies generally to “flexible cords and cables.” There is no dispute that PMWI used flexible cords to power both machines.3 Accordingly, the standard applied to PMWI’s use of those flexible cords.
Compliance
As noted above, section 1910.305(g)(1)(iv)(A) prohibits the use of “flexible cords and cables” “[a]s a substitute for the fixed wiring of a structure.” 29 C.F.R. § 1910.305(g)(1)(iv)(A). There is no question that the facility was using flexible cords. To prove the alleged violation of the standard, the Secretary must show that the facility used the flexible cords as a “substitute” for the “fixed wiring” of a “structure” in the cited instances. The analysis therefore hinges on what is considered “fixed wiring” and what is considered a “structure” under the standard.
Neither party contested the definition of “fixed wiring,” and CO Soden testified “So fixed wiring is just what it is. It’s fixed wiring.” OSHA has not defined “structure” for the purposes of the electrical standard. 29 C.F.R. § 1910.399. The facility contends the cited standard was not violated because the flexible cords here were being used to power machines, and machines are not “structures.” The facility argues that the term “structure” refers to a building and not a machine. The Secretary argues that the term “structure” should be interpreted to include machines. “It is axiomatic that OSHA standards must be interpreted in accordance with the natural and plain meaning of their words.”
“When determining the meaning of a standard, the Commission first looks to its text and structure,” and “[i]f the wording is unambiguous, the plain language of the standard will govern.” “Structure” – when used as a noun – means “something (such as a building) that is constructed,” or “something arranged in a definite pattern of organization.” Structure, Merriam-Webster.com,
Although electrical standard 1910 Subpart S does not define “structure,” it defines “building” as “[a] structure that stands alone or is cut off from adjoining structures by fire walls with all openings therein protected by approved fire doors.” 29 C.F.R. § 1910.399. In this context, a structure therefore can be a building or a building can be a type of structure.
Consistent with the plain meaning of the terms and definitions above, CO Soden admitted on cross-examination that “[a] structure is a building.” The facility’s witness, Vice President of Manufacturing, agreed and testified that “[a] structure is made up of members that do not move and they’re used for carrying loads. A machine has moving parts and is used for creating items. So they’re not the same…” As such, the cited standard must be interpreted as “flexible cords and cables may not be used . . . [a]s a substitute for the fixed wiring of a [building].”
The next question is whether the facility was using each of the cited flexible cords “as a substitute for the fixed wiring of a [building].”
Fixed wiring is attached to the walls of the building. The fixed wiring on the walls of the building appeared to be in use and actively working. None of the photographs shows that the flexible cords were being used “as a substitute” for any of the fixed wiring on the walls of the building. At most, the photos show the flexible cords were used in addition to the fixed wiring on the walls, to power a computer mounted on the milling machine and to extend the length of the bending machine’s permanent cord, but not as a substitute for any of the fixed wiring on the wall of the building. A closer examination of the two cited instances further indicates that the Secretary’s evidence does not demonstrate a violation of the cited standard.
Regarding the milling machine, OSHA asserted that a yellow “extension cord” was impermissibly “being used to power a 4-gang outlet box attached to the machine.” While it is undisputed that the yellow extension cord was being used to power the four-gang outlet box attached to the milling machine, the standard does not prohibit the use of an extension cord to power a four-gang outlet. OSHA did not explain how using the yellow extension cord to power the four-gang outlet box amounts to using it “as a substitute” for the “fixed wiring” on the wall of the building. Moreover, the attached four-gang outlet box was powering the computer (digital readout) and horizontal mill table, not the milling machine itself.
Regarding the bending machine, according to the Citation, OSHA was concerned with the second “electrical cord” that was “supplying power from an outlet to the permanent cord used to power a rotating pipe bending machine.” Ex. J-1. CO Soden testified that to fix the violation, one could “do a drop pendant” or “simply rewire the outlet on the wall and plug the machine directly into that outlet rather than use a second cord.” In other words, OSHA was concerned that the machine’s “permanent cord” was not directly plugged into the outlet on the wall but was instead plugged into a second flexible cord that acted as an extension cord, which was plugged into the outlet on the wall of the building. OSHA did not explain how using the second flexible extension cord to connect the bending machine’s permanent cord into the wall outlet amounts to using it “as a substitute” for the “fixed wiring” on the wall of the building. The extension cord was used to extend the bending machine’s permanent hard-wired cord with the cord set. Tr. 141. The evidence does not show that the extension cord was being used “as a substitute” for the “fixed wiring” on the “building.”
The Secretary further asserts that the flexible cords were used in a permanent manner and that such use violated the standard. When asked to explain the standard and “what it requires,” CO Soden answered that the milling machine was in place for at least six months, “that’s a long time,” and “[t]hat is no longer a temporary installation for that kind of machine.” For the bending machine, CO Soden answered that the flexible extension cord could not be used for “an extended period of time” and that “[t]hose cords are designed and are meant to be for temporary use only.”
On questioning, however, CO Soden did not explain how the prolonged use of the flexible cords constituted a violation. The cited standard does not prohibit the use of flexible cords to exceed a specified length of time. 29 C.F.R. § 1910.305. The only period of time quantified in the standard limits the use of cords for Christmas decorative lighting, carnivals, and similar purposes to no more than 90 days. 29 C.F.R. § 1910.305(a)(2)(i)(B).
Given this, I disagree with the Secretary’s contention that the flexible cords’ prolonged use proves they were a substitute for a structure’s fixed wiring. Based on the foregoing, I conclude that the preponderance of the evidence does not establish a violation of the cited standard. The Secretary failed to prove that the flexible cords were used as a substitute for the “fixed wiring” of a “structure.”
Accordingly, Citation 1, Item 1, is VACATED.
Source: https://www.oshrc.gov/wp-content/uploads/24-1103-Pleasant-Mount-Welding-Inc.-ALJ-Decision.pdf