Modern Sales and Construction Company, Inc., d/b/a MOSACO
Three damaged-cord items affirmed
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This order from 1993 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
MOSACO was the general contractor for expansion of an industrial facility in Wilmington, Ohio. OSHA found energized extension cords with insulation cut deeply enough to expose copper conductors, a plug connection without proper strain relief, and a worn section of cord with secondary insulation exposed. The ALJ affirmed those three serious electrical items because the visible conditions could have been found through reasonable inspection and exposed employees to shock or electrocution. A fourth item concerned a GFCI with a loose grounding prong that failed some tests but worked when the prong was firmly seated. The judge vacated that item because the supervisor had used the device's built-in test before the inspection, the hidden defect was not apparent without removing and closely examining the GFCI, and the employer exercised reasonable diligence. Penalties of $3,000, $2,000, and $1,000 were assessed for the affirmed items, totaling $6,000.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.403(i)(2)(i), 1926.404(f)(6), 1926.405(g)(2)(iv), and 1926.416(e)(1)
- Outcome: Three serious damaged-cord and strain-relief items were affirmed with $6,000 in penalties; the GFCI grounding item was vacated.
- Key point: Visible cord damage supports constructive knowledge, but an intermittent internal defect may not when the employer performed the available functional test and had no reason to suspect a hidden problem.
Full text (OSHRC public release)
’ UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
Fig (202) 6o64050
Frs (202) 6o64050
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 924615
MOSACO AKA MODERN SALES & CONST. INC
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGES DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on June lt?, 1993. The decision of the Judge .
will become a final order of the Commission on July 12, 1993 unless a
Commission member directs review of the decision on or before that date. ANY .
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
June 30, 1993 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 8 .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO%
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
Date: June 10, 1993
DOCKET NO. 92-1615
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of .the Solicitor, U.S. DOH.
Room S4004
200 Constitution Ave., N.W.
Washington,D.C. 20210
William S. Kloepfer
Assoc. Re ‘onal Solicitor
Office of t%e Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Judy A. Gano, Esq.
Gano Law Offices
PO Box 508
Wilmington, OH 45177
Edwin G. Salyers
Administrative Law Jud e
Occupational Safety an f Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119
00102461324:05
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, ME., SUITE 240
ATLANTA, GEORGIA 30309-3119
FM:
cw(un)347-0113
m(uM)347-0113
..
SECRETARY OF LABOR, 0
.
Complainant,
V. OSHRC Docket No. 924615
0
MODERN SALEB AND CONSTRUCI’ION ;
COMPANY, INC., d/b/a MOSACO, 0
l
Respondent.
APPEARANCES:
Gary R Williams,Esquire Judy A Gano,Esquire
Office of the Solicitor Gano Law offices
U. S. Department of Labor Wilmington, Ohio
Cleveland, Ohio For Respondent
For Complainant
Before: Administrative Law Judge Edwin G. Myers
Respondent, Modem Sales and Construction Company, Inc. (MOSA~), is a
construction contractor with headquarters in Wilmington, Ohio. At the time in question, it
was engaged as the general contractor at a worksite located on the premises of the Randal
Company in Wilmin@on in connection with the reconstruction and expansion of that
industrial facility. Respondent concedes in its answer to the Secretary’s complaint that it is
subject to the jurisdiction of the Occupational Safety and Health Review Commission.
On April 8, 1992, pursuant to a random selection from the Dodge Reports,
Compliance Officer Steven B. Medlock conducted an inspection of respondent’s worksite
under the provisions of the Occupational Safety and Health Act (29 U.S.C. 6 651 el seq.).
Medlock was accompanies by Gary
Hibbs, respondent’s worksite supervisor, throughout his
inspection. As a result of this inspection, respondent was issued a serious citation consisting
of the following charges:
1
29 CFR 1926403(i)(2)(i): Live parts of electric equipment operating at 50
volts or more were not guarded against accidental contact by cabinets or other
forms of enclosures, or by any of the following means: (A)bylocation in a
room, vault, or similar enclosure that is accessl’bleonly to qualified person; (B)
by partitions or screens so arranged that only qualified persons will have
access to the space within reach of the live parts; (C)bylocation on a balcony,
gallery, or platform so elevated and arranged as to exclude unqualified
persons; @) by elevation of 8 feet or more above the floor or other working
surface and so installed as to exclude unqualified persons:
(a) On the exterior area of the building there was an orange
extension used which had the primary and secondary insulation
cut or torn exposing the energized cofiductors.
(b) In the interior area of the building there was a flat yellow
extension cord used which had the insulation cut or tom away
exposing the energized conductors.
2
29 CFR 1926.404(f)(6): The path to ground from circuits, equipment, or
enclosures was not permanent and continuous:
(a) On the exterior area of the structure there was an
ungrounded ground fault circuit interupter [tic] powering
extension cords and Black & Decker drills.
3
29 CFR 1926.4OS(g)(2)(iv):Flexible cords were not connected to devices and
fittings so that strain relief is provided to prevent pull from being directly
transmitted to joints or terminal screws:
2
.
(a) On the exterior area of the bU1 ding there was an orange
extension cord used which had the primary insulation pulled
away from the strain relief at the female and exposing the
secondary insulated conductors.
4
29 CFR 1926.416(e)(l): Worn or frayed electric cords or cables were used:
(a) Located between the exterior areas of the building addition
and new building construction there was an orange extension
cord used which had the primary insulation damaged over an
approximate 10” area exposing the secondary insulated
conductors.
The foregoing citations were issued by the Secretary on May $1992, and were timely
contested by MOSACO. In its answer to the Secretary’s complaint, MOSACO filed a
general denial of the factual allegations contained in the complaint but did not specifically
plead any affirmative defenses.
Serious Citation No. 1. Item 1
During the course of his inspection, Medlock observed a series of extension cords,
plugged end to end, running from an energized receptacle located inside a building to a
work area outside where employees of respondent were using the cords to prtide power
to their tools. The first cord in the series which was plugged into the receptacle appeared
to be in good working condition and was fully insulated from end to end. The second and
third cords, however, bore gashes or cuts through the primary and secondary insulation
which exposed the copper wire conductor (E&s. C-2, C-3; Tr. 22,23,65,77). Theexistence
of this condition was conceded by respondent at the hearing (Tr. 5), and it is readily
apparent that such a condition creates a potential for electrical shock to employees working
in proximity to the cords. The serious nature of this condition was increased with respect
to one cord (referred to in the record as the %range cord’?, which bore two cuts and was
located near a puddle of water (Tr. 32,40, SO,77).
3
In its posthearing brief, respondent concedes a violation of the standard found at 29
C.F.R. 5 1926.403(i)(Z)(i) but argues that the Rsview Commission should consider certain
circumstances in arriving at a penalty determination for this item (Respondent’s Brief, pgs.
8-9). The thrust of this argument is that respondent is a small business which has not
established a “formal training program on detecting cuts in cords” but does have a policy
to guard against this condition based upon its oral instructions to supervisors that they must
regularly inspect extension cords to detect and remove defective cords. Respondent did not
plead or prove, however, a defense based upon “unpreventable employee misconduct.” No
showing was made that respondent had a clearly defined work rule to guard against the cited
condition or that this rule was effectively communicated and enforced. See ptide oil WU
Services, 15 BNA OSHC 1809, 1992 CCH OSHD lf 29,807 (No. 87-692, 1992). In this
particular instance, respondent maintains Hibbs did not have an opportunity to inspect the
cords prior to the discovery of the cuts and, therefore, lacked knowledge of the violative
condition. This approach is insufficient to establish a defense based upon lack of knowledge
since the condition was in plain view and could have been detected with the exercise of
reasonable diligence. Retimed @stem, Inc., 9 BNA OSHC 1864, 1981 CCH OSHD
1 25,358 (No. 16147, 1981).
In short, the Secretary has met his burden of proof with respect to this item, and
respondent has not established a viable defense. Accordingly, the charge will be affirmed.
Serious Citation No. 1, Item 2
This item charges respondent with a violation of 29 C.F.R 0 1926.404(f)(6)1for its
use of a ground-fault circuit interrupter (GFCI) which allegedly did not provide a permanent
and continuous ground. Medlock observed this GFCI in use between two of the cords
1 Section 1926.404(f)(6) provides:
(6) Gr~lrnclrirgpath. The path to ground from circuits, equipment,aM enclosuresshall be
permanent and continuous.
4
described previously which were supplying power from an inside receptacle to power tools
utilized by respondent’s emplovees
d working outside the building. Medlock separated the
GFCI from one of the cords and noted the grounding pin was loose, so loose, in fact, that
it could be moved in and out of its seat with minimumeffort pr. 23). Using a testing device
(either an Etcon and/or a Green Leaf circuit tester), he determined the GFCI did not
ground as it was supposed to do (Tr. 30). He then detached the GFCI and took it inside
the building where he plugged it into a permanent receptacle for another test which also
reflected it did not ground. He could, however, by manipulating the grounding prong (Le.,
“pulled it back out and pulled the prong out a little bit, and kind of held it sidewaysand
jimmed it on in there a little bit”), cause the GFCI to properly ground (Tr. 31). He also
tested the cords to which the GFCI had been attached and determined they were properly
grounded which lead him to conclude the GFCI, and not the cords, was the cause of the
problem. Id
Respondent does not dispute that the ground pin in the GFCI was loose. This
condition was noted by Hiibs at the time the conditionwas discovered by Medlock. Hiibs
testified, however, that he tested the GFCI by using the testing device built into the GFCI
prior to and at the time Medlock conducted his test, and the results of both tests indicated
a proper ground (Tr. 84). Hi%bs also testified that Medlock activated the built-in tester on
the GFCI just prior to testing the device with the Etcon tester, and the built-in tester
reflected the GFCI was properly grounded (Tr. 88). Paul Hannah, respondent’s project
manager, tested the GFCI after it had been removed fkom service using both the built-in
tester and a tester “similar” to the one used by Me&&. He testified both of these tests
reflected the GFCI was properly grounded at the time he performed the tests (Tr. 118).
Two points emerge from the evidence presented on this issue. It is obvious that the
loose grounding prong on the GFCI created the potential for malfunction if the prong was
not firmly seated. On the other hand, if the GFCI were tightly plugged into its receptacle,
the prong would make contact with the ground and would function normally. This later
condition appears to have been the situation when Hiibs tested the GFCI prior to the tests
conducted by Mecllock. The loose prong was not in plain view. The loose prong could only
be detected by actually removing the GFCI from its receptacle and examining it carefully
5
as Medlock did in this case. The court fully credits the testimony of Hl%bson this point and
finds as a fact that he used the built-in tester on the GFCI to test the device before it was
examined by Medlock. As a result of this test, Hit&s reasonably believed the GFCI was in
proper working order. Based upon this finding, the court concludes that MOSACO lacked
the requisite knowledge of the violative condition and had exercised reasonable diligence
under the foregoing circumstances. This item will be vacated.
Serious Citation No. 1. Item 3
This item charges respondent with a violation of 29 C.F.R. 6 1926.405(g)(2)(iv)*for
its alleged failure to provide appropriate strain relief on an extension cord in use at the
worksite. Once again, the focus of the charge relates to the series of cords observed by
Medlock and previously descriid. One of these cords (the orange cord) was attached to
another cord by means of a female plug. Medlock observed that the primary insulation had
been pulled back or separated Tom the female plug, thereby exposing the secondary
insulated conductors which were directly attached to terminal screw inside the plug (I%.
C-4; Tr. 23,24,34-36)). Medl&k testified this condition violated the standard since any pull
on the cord would be directly transmitted to the terminal screws causing the conductors to
separate and creating the potential for electrical shock or electrocution (Tr. 35, 36).
Medlock explained that the primary insulation surrounding the conductors nmning into the
plug protects the conductors fr-omstress placed upon
a a
the cord and serves as a strain relief
device since the primary insulation is locked into the plug. Id. See HamiltonF&we, slip op.
dated April 20, 1993 (No. 88-1720), in which the Review Commission affirmed a violation
of the cited standard under similar circumstances.
Hiibs admitted during his testimony that he had replaced the female plug on the cord
.
m question sometime prior to the Secretary’s inspection. In doing so he was unable to force
- Section 1926.405(g)(2)(iv) provides:
(iv) strainI&$ ~exiiile cords sbti be COM~CWJto devices and fittings so that Strain relief is provided which will prevent pull from being directly transmitted to joints or terminal SCEWS. 6the primary insulation through the opening into the plug (Tr. 94). This circumstance left an
opening between the conductors and the plug and failed to provide support to the
conductors which were connected directly to the terminal screws (Tr. 100~102). In the event
the cord was pulled or yanked, a strain would result and be transmitted directly to the
terminal screws in contravention of the cited standard. This item will be affirmed.Serious Citation No. 1, Item 4 While inspectingthe cords previously described, Medlock observed and photographed(Exh. C-5) a lainch section of one cord which he considered to be “worn or frayed” in
contravention of 8 1926.416(e)(1).3 He noted that the primary insulation was “damaged or
tom,” thereby exposing the secondary insulation which covered the conductors (Tr. 24).
Hibbs acknowledgedthe existence of this condition in his testimony (Tr. %), and respondent
appears to concede the point in its posthearing brief (Respondent’s Brief, pg. 7). This item
will be affirmed.
It is noted in passing, however, that the serious nature of the cited condition is
somewhat diminishedunder the circumstances of this case. It is undisputed that the frayed
condition of the primary insulation on the cord in question did not extend into the secondary
insulation. Medlcxkconceded there were no bare wires on this cord and that the conductors
were still protected by the secondary insulation (Tr. 36). He further acknowledged that this
condition presented no immediate danger unless or until the secondary insulation was
breached exposingthe conductors (Tr. 37). This aspect bears upon the gravity factor and
will be considered in assessing an appropriate penalty.
3 Section1926.416(e)(l)provides:
(e) Cords ud c&is. (1) Worn or frayyedelectric cords or cables shall not be used.
7
Characterization of Violations
Section 17(k) of the Act defines a serious violation as a condition which may result
in death or serious injury to employees. The Review Commission has held that it is not
necessary to prove a substantial probability that an accident will occur. It is sufficient to
prove that an accident is possible and that death or serious injury could result. Draw Carp,,
7 BNA OSHC 2095, 1980 CCH OSHD li 24,158 (No. 16317, 1980). Each of the three
remaining items of the Secretary’s citations presents a substantial probability that employees
exposed to the cited hazards may experience electrical shock or electrocution with resultant
serious harm or death. Accordingly, these items are properly classified as serious violations.
Respondent does not question the serious classification assigned to item 1 of the
Secretary’s citation but asserts that items 3 (no strain relief) and 4 (frayed cord) should be
classified as de minimis with no penalties assessed. Section 9(a) of the Act provides the
Secretary with discretion to “prescribe procedures for the issuance of a notice in lieu of a
citation with respect to de minimisviolations which have no direct or immediaterekatiomhip
to safetyand health (emphasis supplied). Such a classification is appropriate when the
nature of a violation is trifling, e.g., a minor breach of a toilet partitioning standard. J. F??
Black Lumber Co., 3 BNA OSHC 1678, 1975-76CCH OSHD lI 20,114 (No. 4734, 1975), or
failure to provide a receptacle for disposable cups. R H. Bishop Co., 1 BNA OSHC 1767,
1973-74 CCH OSHD ll 17,930 (No. 637, 1974). A classification of de minimis has no
application, however, to a situation where, as here, the potential consequences of an accident
would expose employees to electrical shock or electrocution.
Penalties
The Secretary proposes in this case a $3,000 penalty for each of the cited items. The
compliance officer computed these penalties in accordance with standard agency procedures.
He allowed a 40 percent reduction in view of the small size of the employer’s business.
8
The Review Commission is the final arbiter of the appropriateness of penalties in all
contested cases. Secretary v. OSAHIRC and hterstnte Glass Co., 487 F.2d 438 (8th Cir. 1973).
Under section 17(j) of the Act, the Commission is required to find and give “due
consideration” to the size of the employer’s business, the gravity of the violation, the good
faith of the employer, and the history of previous violations in determining the appropriate
penalty. The gravity of the offense is the principal factor to be considered. Nacirema
Operatiltg Co., 1 BNA OSHC 1001, 1971-73 CCH OSHD 7 15,032 (No. 4, 1972).
In assessing the gravity factor, this court sees a distinction between the three
remaining cited items. It is apparent that item 1, dealing with an exposed copper conductor,
presents a high gravity for potential harm to employees. Accordingly, the $3,000 proposed
for this violation is considered appropriate. Item 3 of the citation presents a gravity of
somewhat lesser degree and a penalty of $2,000 will be assessed for this violation. Item 4
of the citation presents a lesser degree of gravity than that proposed for item 3 and a
penalty of $1,000 will be assessed for this charge.
ORDER
Based on the foregoing, it is hereby ORDERED:
(1) Serious Citation No. 1, item 1, is affirmed and a penalty of $3,000 is assessed.
(2) Serious Citation No. 1, item 2, is vacated.
(3) Serious Citation No. 1, item 3, is affirmed and a penalty of $2,000 is assessed.
(4) Serious Citation No. 1, item 4, is affirmed and a penalty of $1,000 is assessed.
Is/ Edwin G. Salvers
EDWIN G. SALYERS
Judge
Date: June 1, 1993
9
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