Renewal Arts Contracting Corp. (ALJ decision, July 19, 1993)

Plain-English summary

Renewal Arts Contracting was performing construction work in the Bronx, New York. An employee used a drill and extension cord with missing grounding pins, and the company's project manager knew about the defective equipment. The ALJ affirmed a serious violation because the missing continuous ground exposed the employee to electrical shock and burns. He reduced that item's proposed penalty from $2,000 to $500 because the condition was promptly corrected, the work area was dry, one employee was exposed, and there was no prior violation of that standard. The company also failed to use a ground-fault circuit interrupter or an assured equipment-grounding-conductor program, and even the replacement ground-fault box was defective. Because Renewal Arts had previously violated the same or an equivalent requirement, that item was affirmed as repeated with the proposed $4,000 penalty, for a total of $4,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.404(f)(6) and 1926.404(b)(1)(i)
• Outcome: Both electrical items were affirmed; the serious-item penalty was reduced to $500 and the repeated-item penalty remained $4,000.
• Key point: Obvious defects in grounding equipment support employer knowledge when routine inspection would have revealed them to site supervision.

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

FAX:
COM (202) 6o66050 f=rS (202) 6o66050

SECRETARY
OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-1907
RENEWAL ARTS CONTRACTING
CORP.
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on June 17, 1993. The decision of the Judge will become a final order of the Commission on July 19, 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 etition should be received by the Executive Secretary on or before
July 7, 19B3 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.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. DO5
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
hav-mg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date: June 17, 1993
DOCKET NO. 924907
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO%
Room S4004
200 Constitution Ave., N.W.
Washington, DC. 202 10

Patricia Rodenhausen, E=l.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
201 Varick, Room 70?
New York, NY 10014

.
Brain M. Limmer, Es we
1808 W. Merrick Roa 8
Merrick, NY 11566

Irvin Sommer
Chie f Administrative Law Judge
Occupational Safety and Health
Review Cornmisslon
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00102780293:02
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
..

Complainant,

Docket No. 924907

RENEWAL ARTS CONTRACTING
CORPORATION,
..
Respondent.
..
.
.

Appearances: William G. Staton, Esq.
U.S. Department of Labor
New York, New York

For the Complainant

Brian M. Limmer, Esq.
Merrick, New York

For the Respondent

Before: Administrative Law Judge Irving Sommer

This is a pr;-7fxPtj,i
::lgunder Section 10(c) of the Occupa- tional Safety and Health .kt,of 1970, 29 U.S.C. section 651 & sea.3 ("the Act"), tcl :-view citations issued by the Secretary
.

of Labor pursuant to w~~~~: on 9(a) of the Act, and the proposed
assessment of penalties ++rein issued, pursuant to section 10(a)
of the Act.
 - 2-

            Respondent                 is a     corporation engaged                          in construction,

contracting, and related activities. On April 1, 1992, Renewal Arts Contracting's worksite at 21-33 Daly Avenue in Bronx, New
York'was inspected by an
OSHA compliance officer.
Subsequently, on May 8, 1992, the company received two citations resulting from this inspection. Respondent was cited for an alleged serious
violat.ion of 29 C.F.R. section 1926404(f)(6) with a proposed penalty of $2,000. Respondent was also cited for an alleged repeat violation of 29 C.F.R. section 1926.404(b)(l)(i) with a proposed penalty of $4,000. Respondent filed a timely notice of contest to the citations and penalties. A hearing was held on ’ December 10, 1992, in New York, New York. Both parties were represented at the hearing and neither party filed a post-hearing brief. No jurisdictional issues are in dispute. The matter is now before the undersigned for a decision on the merits.

.
.
ion of 29 C.F.R. seotun 1926.404(fH6)_
Serious Citation 1, item 1 alleges:

The path to ground from circuits, equipment, or enclosures was not permanent and continuous.

                At     the hearing              0n December                10, 1992,              the compliance

officer, Maureen Smith, testified that during the inspection she
had observed a drill being used by Respondent’s employee with a
grounding pin missing. Similarly, she had examined an extension cord being utilized by Respondent’s employee and found the grounding pin missing. The Respondent’s project manager, Mr. Rivera acknowledged that he also had become aware of the deiective equipment prior to the inspection. Mr. Espejo, the Respondent’s superintendent knew or should have known of such
defects. When told of the problems which existed with the
 - 3-

equipment, he sent for other equipment. Undisputed evidence demonstrates that the equipment being used lacked a cant inuous and permanent ground, andshock presented
hazard to a
Respondent's employees. The evidence further demonstrates that
the Respondent either knew or should have known crf the hazard,
i.e. an inspection of the equipment would have shown its defect
and the project manager
had knowledge of the condition.
Respondent's non-compliance with the standard was proven.
. Use of
the ungrounded equipment could result in shock and burns to the employees. Accordingly, a serious violation has been
established.
l

Repeat Citation 2, item 1 alleges:

Employer did not use either ground fault circuit
interrupters as
specified in paragraph
(b)(l)(ii) of this section, or an assured equipment grounding conductor program
.
as specified in paragraph (b)(l)(iii) of this section to protect employees on construction sites.

            The    compliance        officer        testified         that   Respondent       failed

to use a ground fault circuit interrupter (GFCI) or an assured equipment grounding conductor program. She testified that a GFCI was not being used by the employee operating a drill. Upon being informed of this, Mr. Espejo, Respondent's superintendent, sent for a ground fault box which on arrival was similarly defective.

            The      lack     of     the         GFCI     or     an       equipment      grounding

conductor program was known to the superintendent or should have been known considering t,he employee was working with electrical equipment which shouicl have been inspected. Such inspection would have shown the obvious defect. The violation has been
 - 4-

established l The lack of the GFCI presented a shock hazard to the employee with possible burns or other serious injury. The Respondent was previously cited for failing to colnply with this standard or an equivalent one. Accordingly , the violation is
.
established as a repeat violation. See PoUtxh Corm- 7 3 BNA OSHC 1061, 1063, 1979 CCH OSHD para. 23,294, p. 28,171 (No. 16183., 1979).

                As         to        the         serious            violation              of      29          C.F.R.            section             ’

1826.404( f )( 6)) the record shows that the Respondent immediately abated the hazard by supplying. its employee with equipment which had a continuous or a permanent ground (the new tool had the grounding pin). Additionally, the compliance officer reported that the work was being performed in a dry area thus not exacerbating the shock hazard. Considering these factors, with only one employee at risk and no prior history of a violation of this standard, the gravity of the offense is moderate and a penalty of $500 is appropriate. As to the repeat violation of 29 C.F.R. section 1926.404(b)(l)(i), a review of all the relevant factors, the hearing transcript, and the official case record fully establishes that the penalty of $4,000 is appropriate.

                All        findings                of    fact         and conclusions                      of         law       relevant

and necessary to a determination of the contested issues have been found specifically and appear herein. See Rule 52(a) of the Federal Rules of Civil Procedure. Proposed Findings of Fact or Conclusions of Law inconsistent with this decision are denied.
 - 5-

Based upon the Findings of Fact, Conclusions of Law, and the
entire record, it is hereby ordered:

1. Citation 1, item 1, alleging a serious violation of 29
   C.F.R. section 1926.404(f)(6), is affirmed and a penalty of $500
   is assessed.

2. Citation 2, item 1, alleging a repeat violation of 29 C.F.R.
   section 1926.404(b)(l)(i), is affirmed and a penalty of $4,000 is ’
   assessed.

                                         Judge                 .
   

   DATED: JUN 1 6 \m
   Washington, D.C.