Finnegan Construction Co. (Commission decision, April 12, 1978)

Plain-English summary

Finnegan was the carpentry subcontractor on an apartment construction project in Newark, Delaware. An OSHA compliance officer inspected the site and the company was cited for several items. Administrative Law Judge David H. Harris vacated three of them, and the Commission took up only those three. The judge had affirmed part of the splice item and a number of other citations, and neither side excepted to those parts, so they were not on review.

The first two items turned on who has to prove an exception. Finnegan's employees were running two portable circular saws whose three-prong grounding plugs were connected to two-prong extension cords, so the saws were not grounded in use. The same cords had been spliced in several places and covered with friction tape. The judge vacated the grounding item because, in his view, the Secretary had to prove both that the saws were ungrounded and that they were not the double-insulated type that need not be grounded. He vacated most of the splice item on the same reasoning. The Commission reversed. It held, consistent with Griffin and Brand of McAllen, Inc. and Stephenson Enterprises, Inc., that when a standard contains an exception to its general requirement, the party claiming the benefit of the exception carries the burden of proving it applies. Finnegan did not show the saws were double insulated or that the splices were molded or vulcanized. The Commission also noted evidence pointing the other way: the saws carried three-prong plugs, which suggests the manufacturer meant them to be grounded, and they lacked the marking that 1926.401(a)(2) requires on double-insulated tools.

The third item was about proof of distance. Employees used a portable wooden ladder to reach a roof, and the standard requires the side rails to extend at least 36 inches above the landing. The compliance officer did not measure the extension but estimated twelve inches, and two employees estimated about eighteen inches. The judge vacated the item because no actual measurement was taken. The Commission again reversed, holding that estimates of distance based on observation are admissible and may be dispositive when nothing contradicts them. Three witnesses put the extension well under 36 inches, and no evidence pointed the other way.

The Commission modified the judge's decision to affirm all three items and assessed the penalties the Secretary had proposed for two of them: $50 for the saw grounding violation and $0 for the ladder violation. For the splices, it kept the $25 the judge had assessed for the single exposed-wire instance, reasoning that because the remaining splices were covered with friction tape, the gravity of the full violation is not significantly higher than what the judge had found.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.401(a)(1), 29 C.F.R. § 1926.402(a)(5), 29 C.F.R. § 1926.450(a)(9)
• Outcome: The judge's decision was modified to affirm the saw grounding and ladder items and to affirm the cord splice item in full. Penalties of $50, $0 and $25 were assessed for the three violations.
• Key point: When a standard states an exception to its general requirement, the burden of proving the exception lies with the party claiming its benefit, not with the Secretary. Observation-based estimates of distance are admissible and can carry the Secretary's burden when no contrary evidence is offered.

Full text (OSHRC public release)

Docket No. 14536

FINNEGAN CONSTRUCTION CO.
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OSHRC Docket No. 14536

Occupational Safety and Health Review Commission

April 12, 1978

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Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Robert Jacobs, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

The issues before us are whether Administrative Law Judge David H. Harris erred in (1) vacating a citation item alleging that Respondent (Finnegan) violated 29 C.F.R. 1926.401(a)(1) by failing to ground two portable saws; (2) vacating in part an item alleging Finnegan violated 29 C.F.R. 1926.402(a)(5) by using electrical cords containing improper splices; and (3) vacating an item alleging that Finnegan violated 29 C.F.R. 1926.450(a)(9) by providing a ladder containing side rails which did not extend at least 36 inches above the landing to which the ladder led.
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We conclude that the Judge erred in his disposition of these items. n1

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n1 The Judge affirmed in part the alleged violation of 29 C.F.R. 1926.402(a)(5) and also affirmed a number of other citations.
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Neither party has taken exception to these aspects of the Judge's decision, and they are therefore not before us on review.

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Finnegan was the carpentry subcontractor on an apartment construction project in Newark, Delaware.
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At the time the project was inspected by an OSHA compliance officer, Finnegan's employees were using two portable circular saws with "three-prong" or grounding plugs. The plugs, however, were connected to "two-prong" extension cords, which were in turn connected to a source of electricity.
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The saws were therefore not grounded while they were in use.

The extension cords to which the saws were attached had been spliced in a number of places, and the splices were covered with friction tape. On one splice, the tape did not completely cover the splice, leaving exposed wire. n2 The other splices, however, were completely covered with tape.

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n2 This single instance in which the wires of the splice were partially exposed formed the basis of the Judge's partial affirmance of this alleged violation.

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Finnegan's employees used a portable wooden ladder [*3]
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to reach the roof level of one of the buildings.
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The compliance officer did not measure the amount the siderails extended above the roof, but estimated this distance to be twelve inches.
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Two of Finnegan's employees who had worked on the project testified that they thought the ladder extended about eighteen inches above the roof.

The citation alleged that the ungrounded saws violated 29 C.F.R. 1926.401(a)(1), n3 that the splices violated 1926.402(a)(5), n4 and that the ladder violated 1926.450(a)(9). n5 The Judge found that the saws were not grounded but nonetheless vacated that item, stating that in order to prove a violation, the Secretary must establish both that "the portable saws were not properly grounded and that they were not that type of saw which need not be grounded" (emphasis supplied).
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Similarly, he concluded that the Secretary had not proven that the splices (with the one exception discussed above) violated 1926.402(a)(5) because he had not shown that the splices failed to fall within the exceptions permitted by that standard.
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Finally, he vacated the ladder charge because the compliance officer did not make an actual measurement to prove that the ladder violated [*4]
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the standard.

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n3 Section 1926.401(a) provides:

(a) Portable and/or cord and plug-connected equipment.

(1) The noncurrent-carrying metal parts of portable and/or plug-connected equipment shall be grounded.

(2) Portable tools and appliances protected by an approved system of double insulation, or its equivalent, need not be grounded. Where such an approved system is employed, the equipment shall be distinctively marked.

n4 Section 1926.402(a)(5) provides:

Flexible cord shall be used only in continuous lengths without splice, except suitable molded or vulcanized splices may be used where properly made, and the insulation shall be equal to the cable being spliced and wire connections soldered.

n5 Section 1926.450(a)(9) provides:

The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

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We conclude that the Judge erred in his disposition of these items.
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As [*5]
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to the saws and spliced electrical cords, the Judge placed on the Secretary the burden of proving that the equipment did not fall within exceptions allowed by the respective standards. n6 We have consistently held, however, that when a standard contains an exception to its general requirement, the burden of proving that the exception applies lies with the party claiming the benefit of the exception.
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Griffin and Brand of McAllen, Inc., 76 OSAHRC 148/A10, 4 BNA OSHC 1900, 1976-77 CCH OSHD para. 21,388 (No. 4415, 1976); Stephenson Enterprises, Inc., 76 OSAHRC 122/A2, 4 BNA OSHC 1702, 1976-77 CCH OSHD para. 21,120 (No. 5873, 1976), pet. for review filed, No. 76-4163 (5the Cir., Nov. 19, 1976).
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Accordingly, Finnegan has the burden of establishing that the saws were double insulated and that the splices were molded or vulcanized. Finnegan has not carried this burden and shown that its equipment comes within the exceptions permitted by the standards. n7 As the evidence shows that the equipment failed to comply with the general requirements of the standards, we conclude that Finnegan violated the standards.

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n6 Clearly 1926.402(a)(5) provides an exception.
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The same is true of 1926.401(a)(2) even though the word "except" is not used.
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That standard's purpose is to exempt from or take out of the requirements of 1926.401(a)(1), certain portable tools and appliances. Accordingly this provision is an exception.
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U.S. v. Clifford, 137 F.2d 565, 560 (3rd Cir, 1943); See also, Black's Law Dictionary, "Exception," p.668 (Revised Fourth Edition 1968).

n7 Indeed, there is evidence indicating the contrary.
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The fact that the saws were equipped with three-prong plugs indicates that their manufacturer intended they should be grounded. As grounding of double-insulated tools is not required, we infer that the saws were not double insulated. We also note that the saws were not equipped with markings indicating they were double insulated, as required by 1926.401(a)(2).

As to the splices, the testimony of the compliance officer is that they were not proper, i.e. molded or vulcanized, and that the insulation around the splices was not equal to the cable being spliced.

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We also conclude that the
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preponderance of the evidence establishes that the ladder failed to comply with 1926.450(a)(9).
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In Stephenson Enterprises, Inc., the Commission stated, "(e)stimations of distance based on observations are admissible and may be dispositive in the absence of proof to the contrary.
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Fed. R. Evidence 701" 76 OSAHRC 122/A2 at p.4, 4 BNA OSHC at 1703, 1976-77 CCH OSHD at p. 25,428. Here, the standard requires that the side rails extend at least 36 inches above the landing. Three witnesses estimated that the actual extension was well below this distance. In the absence of any evidence to the contrary, this evidence is sufficient to prove the violation as alleged.

With respect to the assessment of penalties, the Secretary proposed a penalty of $50 for the saw grounding violation and $0 for the ladder violation.
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Having considered the gravity of the violations together with Finnegan's size, good faith, and prior history, we conclude that these penalties are appropriate.
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As to the indadequate splices, the Judge assessed $25 for the one instance of violation involving a bare wire which he found.
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Since the other splices were covered with friction tape, the gravity is not significantly [*8]
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higher than that of the violation as found by the Judge.
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We therefore conclude that the $25 penalty he assessed is appropriate.

Accordingly, the Judge's decision is modified to affirm the citation items alleging violations of 29 C.F.R. 1926.401(a)(1), and 1926.450(a)(9), and to affirm in full the item alleging violation of 1926.402(a)(5).
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Penalties of $50, $0 and $25 respectively for these three violations are assessed.