Tri-City Electrical Contractors, Inc.

Plain-English summary

Tri-City Electrical Contractors, Inc. was completing electrical work at a Builder's Square store in Fort Myers, Florida. OSHA found an unsecured and uncapped carbon-dioxide cylinder connected to an air gun, and an energized extension cord that was repeatedly run over by material-handling equipment and had a taped, twisted-wire splice. The judge found that the cylinder could become a projectile and that the electrical conditions could expose employees to shock or electrocution. Only one of the three alleged general-duty-clause instances was proved, but the cylinder item was still affirmed as serious. The two electrical items were also affirmed as serious, for a total penalty of $3,500.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1926.405(a)(2)(ii)(I); 29 C.F.R. § 1926.405(g)(2)(iii).
• Outcome: Affirmed. The serious compressed-gas item and both serious electrical items were affirmed with $3,500 in total penalties.
• Key point: A compressed-gas cylinder in use must be secured against falling, and flexible electrical cords must be protected from traffic and repaired with a compliant splice.

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 200364419

SECRETARY OF LABOR
complainant
v. OSHEK DOCKET
NO. 93-2723
TRI-CITY ELECTRICAL CONTRACTORS, INC
Respondent.

                NOTICE OF DOCKETING
          OF ADMINISTTWIWE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on February 9, 1995. The decision of the Judge
will become a m order of the Commission on March 13, 1995 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
March 1, P995 in order to ermit sufficrent time for its review. See
Commission Rule 91,29 c% . .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. 200363419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial LJti 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
having questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.

Date: February 9, 1995 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 93-2723
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mck, Esq.
Counsel for Regional Trial IAi ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Jay@ Fortney
Re onal Soliator
O&e of the Solicitor, U.S. DOL
Suite 339
1371 Peachtree Street, N.E.
Atlanta, GA 30309

James Powers, Safe Director
T&City Electrical dyontractors,
IILC
436 West Drive
Altamonte Springs, FL 32716

Nancy J. Spies
Admmistrative Law Jud e
Occupational Safety an d He&h
Review Commission
1365 Peachtree St., N. E.
Suite 240
Atlanta, GA 30309 3119

00109714261:04
 UNITED STATESOF AMERtCA
.
OCCUPATIGNAL SAFETY AND HEALTH REVIEWCOMMISSION
1365 PEACHTREE STREET, NE., SUITE 240
ATLANTA, GEORGIA 30309-3119

                                                                                           FAX:
                                                                                           COM (404) 34t-0113
                                                                                           Ffs (404) 347-0113




SECRETARY OF LABOR,
              Complainant

              v.                                              OSHRC       Docket Noe 93-2723
                                                      l
                                                      l




TRI-CITY ELECTRICAL
 CONTRACTORS, INC,
           Respondent.


APPEARANCES:

       Donald R McCoy,Esquire                                 Mr.JamesPowers
         office of the solicitor                                    SafetyDirector
         U. S. Departmentof Labor                                   m-cityElearicatconn~Inc
         Fort Laudexdak,Florida                                     Altamonte Springs, Florida
               For Complainant                                      For Respondent

Before:    Administrative   Law    Judge Narq     Je Spies

                                    DECISION AMP ORDER

       Tri-City Electrical Contractors, Ince (T&City), contests a citation      issued to it by the
Secretary on September 15,1993e The Secretary alleges in the citation that T&City violated
9 S(a)(l) (item 1); 0 1926405(a)(2)(ii)(I), (item 2a); and 8 1926e405(g)(2)(iii)(item 2b) of
the Occupational safety and Health Act of 1970 (Act). The Secretary classified the alleged
violations in the citation as serious. The citation arose from an inspection conducted on
June 16 and 17, 1993, by Occupational Safety and Health Administration (OSHA)
compliance officer James Wsley.
       At the time of Mley’s inspection, Tri-City was the electrical sub-contractor on a
construction project in Fort Myers, Florida. The project was a Builder’s Square store which
by June 16, 1993, was near completion.        When Mosley arrived at 890 a.me, employees of

Builder’s Square were moving in merchandise while several of the projects’ contractors were
finishing the construction work (Tr. 1618).

                                  Exhiiits JD-1 and JD-3

    At the May 24, 1994, hearing held in this matter, the Secretary’s Request for

Admissions and T-City’s Answer to Request were entered into the record as Exhibits JD-1
and JD-2 respectively (Tr. 11). Tri-City’s answer to the Secretary’s interrogatory No. 3 was
also read into the record (Tr. 8). The following narrative is taken from those two documents
and answer to the interrogatory:
On June 16,1993, Tri-City had seven employees employed at 13711 S. Tamiami Trail,
Fort Myers, Florida. OSHA compliance officer Mosley invited employee Mike LaSanska
to walk around with him while Mosley conducted his inspection of the workplace. LaSanska
declined to accompany Mosley. On June 17, 1993, Mosley held a closing conference with
T&City’s &ety director, Lou Pietrobono.
On June 16, 1993, there was a carbon dioxide tank standing upright outside of the
electric room of the workplace, north of the electric room entry door. The pressure of the
tank ranged Tom 750 to 850 pounds per square inch (p.s.i.). The carbon dioxide tank did
not have a valve protection cap in place.
Tri-City was using the tank to provide pressure for an air gun. The air gun was being
used to blow a “mouse” tied to a filament through electrical conduits so that electrical lines
could later be passed through these conduits. The air gun was not equipped with a pressure
regulator. The working pressure of the air gun’s hose was 250 p.s.i.
Also on June 16,1993, Tri-City was using a round 14 gauge AWS extension cord at
the cash register aisle on the west side of the worksite. Mosley observed a hand-operated
fork lift carrying a box of materials or equipment run over the extension cord. He also
observed T-city’s scissor lift run over the extension cord.
The exte&on cord had been spliced by twisting the conductors together. The splice
was wrapped with black PVC electrical tape.
On June 1% 1993, T&City employee Jim Hendershot worked at or near the location
of the carbon dioxide tank Mike LaSanska worked with the air gun.

                       I




                                             2

Item 1: The General Dutv Clause

      The Secrew      charges T&City with a serious violation of 5 S(a)(l), the general duty

clause. Section S(a)(l) requires that:

      (a)      Each employer -
               (1) shall furnish to each of his employees employment and a
               place of employment which are f&e from recognized hazards
               that are causing or are likely to cause death or serious physical
               harm to his employees.

      The citation alleges that T-city’s       “employees were exposed to the hazard of being

struck by the unregulated release of carbon dioxide and/or the related equipment used with
it.”
The citation asserts three instances in which 9 S(a)(l) was violated. Instance (a)
states that “the cylinder of carbon dioxide was standing upright and unsecured from falling
over. The cylinder did not have a valve protection cap in place which posed the problem
of [the] cylinder (with 1800 p.s.i. or more inside), becoming a projectile, on or about
6/16/93.”
T-City does not dispute most of the general facts alleged by the Secretary. T-City
admits that the carbon dioxide tank was standing upright and was unsecured. The company
also admits that the tank’s valve protection cap was not in place (E&s. C-l, C-2). T&City
does dispute, however, the Secretary’s contention that the tank’s pressure was 1800 p.s.i. or
more.
Mosley attempted to measure the pressure by firing the air gun into his gauge, which
had the capacity to measure up to 100 p.s.i. The pressure measured up to the full 100 p.s.i
(Tr. 38). The only conclusion that can be drawn from this is that the tank’s pressure
exceeded 100 p.s.i. Mosley explained how he arrived at the figure of 1800 p.s.i. (T’r.5849):

      When I questioned Mike [Lasanska] and I also spoke to Mr. Hendershot, no
      one could really tell me what the pressure was. But, that particular pressure
      rating on those cylinders,   l   [t]he ratings for those tanks are 2,500 p.s.i
                                       l   l




      normally. That’s what they can go up ‘to, up to &200, . . .

      Without a gauge on it to tell us what the pressure was, we were doing a best
      guess until we knew for sure.

                                                 3

In effect, Mosley admitted that he did not know what the tank’s pressure was.
T&City contends the tank’s pressure was between 750 to 850 p.s.i. The Secretary
offered no real rebuttal to Tri-City’s claim. It is concluded that Tri-City is in a better
position to know the pressure of its tank, The carbon dioxide tank’s pressure was between
750 and 850 p.s.i. However, Mosley testified that even at the 750 to 850 p.s.i. the hazards
presented by the carbon dioxide tank would be the same (Tr. 60).

                                       Instance (a)

    In instance (a), the hazard that the Secretary is concerned with is that the unsecured,

uncapped carbon dioxide tank could fall or be knocked over, and become a projectile
through the release of gas. Mosley testified as to this hazard (Tr. 51):

    [IIf the tank had fallen over and it was in a flat room and there was nothing
    but the hose connected to it, the likelihood [of the tank becoming a projectile]
    is not that great. But, it had a steel pipe attached to it, which caused the
    protrudence [sic], which, if it fell on a pipe, it would absolutely transfer that
    energy to the brass valve.

    T&City denies that its use of the carbon dioxide tank was a hazard.          In its defense,

it submitted a videotape (Exh. R-5) which showed, among other things, that when carbon
dioxide is released from a tank, it eventually freezes up and no more carbon dioxide can be
released. However, the videotape shows that several seconds elapse before the carbon
dioxide freezes. There Was sufficient time before the tank froze during which it could have
become a projectile. Mosley stated that a damaged cylinder pressurized at 2,200 p.s.i. could
reach a speed of 30 miles per hour in one l/100 of a second. A tank-turned-projectile can
go through a cinder block wall at 200 feet (Tr. 56). Mosley stated that even at 750 to
850 p.s.i., a tank could inflict serious injuries to anyone that it hit (Tr. 56-57).
Both the Secretary and Tri-Ciq’ refer to a pamphlet issued by the Compressed Gas
Association (Exh. C-5) to bolster their arguments.
Section 3.6 of the pamphlet is captioned “Connecting Container and Withdrawing
Content.” The Secretary references paragraph 3.6.4, ‘Secure Conkiner,” which provides
ph. c-5, p. 9):
 The user shall secure containers while connected to a portable welding,
cutting, brazing or heating appliance or other portable utilization equipment
to prevent them from being knocked over.

   The hose and air gun attached to the carbon dioxide tank constitute “other portable

utilization equipment” (Tr. 63).
T&City references paragraph 3.5.8 of the pamphlet. Section 3.5 is captioned “Storing
Containers.” T&City cites the following in support of its argument that its carbon dioxide
container did not need to be secured (Exh. C-5, p. 9):

   3.5.8. Somge and Use of &~iners.       All compressed gas containers in service
   or in storage shall be stored standing upright where they are not likely to be
   knocked over, or the containers shall be secured (emphasis added).

   ‘K-City focuses on the part of the paragraph         which states that compressed        gas

containers should be located “where they are not likely to be knocked over.” Tri-City claims
that the carbon dioxide tank which was standing next to an electrical panel, was located in
an area where it was not likely to be knocked over. T-City is ignoring, however, that the
cited paragraph refers to cylinders in storage. It describes how compressed gas containers
“shall be stored.” It is undisputed that Tri-City was using the carbon dioxide tank to provide
pressure for an air gun being used to blow a “mouse” through electrical conduits. The
Review Commission has consistently held that “cylinders are not ‘in storage’ if they are
located in an area where they are used intermittently.” MCC of Florida, Inc., 9 BNA
OSHC 1895,198l CCH OSHD 1c25,420, p. 31,681 (No. 15757,198l); See also, Gr-n
Steel & Aluminum Cop., 6 BNA OSHC 2020, 1978 CCH OSHD 123,097 (No. 76-239,
1978); Annour Food Co., 14 BNA OSHC 1817, 1990 CCH OSHD ll29,088 (No. 86-247,
1990). The carbon dioxide tank was in use and not in storage.

  To prove that an employer violated Q S(a)(l), the Secretary must show:
  (1) that a condition or activity in the employer’s workplace presented a hmd
  to employees; (2) that the cited employer or the employer’s industry
  recognized the hazard; (3) that the hazard was likely to cause death or serious
  physical harm; and (4) that feasible means existed to eliminate or materially
  reduce the hazard. Uti        S&W Steel Carp, 12 BNA OSHC 1692,1697-98,
  1986-8’7 CCH OSHD 127,517, p. 35,669 (No. 79-1998,1986).



                                            5

Coke I-&, Inc., 14 BNA OSHC 1%1,1%3,1991 CCH OSHD 129,200 (No. 84-546,
1991).

       (1)           A Conditionin the Wodpiizce Besewed tz H-d      to Employees.The Secretary

has established that the unsecured, uncapped tank of carbon dioxide presented a hazard to
employees. The tank was connected to a hose, that was connected to an air gun, which was
in use. The tank could have been knocked over by someone near it or it could have been
pulled over by someone using it. If the tank had been knocked or pulled over, it could have
become a projectile due to the unregulated release of compressed gas.
(2) l%e Elktribal Consbu~tibnIkdkby Recognizesthe H&an& ‘Iii-City claims
that the hazard of being struck by a compressed gas cylinder that has become a projectile
is not recognized in its industry. The Secretary’s proof on this issue is convincing. In
addition to the pamphlet put out by the Compressed Air Association, the Secretary
introduced into evidence Exhibit C-6, a publication of the Union Carbide Company. The
publication shows a diagram of a cylinder and refers to the cylinder as “The Sleeping Giant.”
The text of the publication provides in pertinent part:

   I AM A HIGH PRESSURE,                    COMPRESSED GAS CYLINDER
   l    l   l   l




   I am too frequently left standing alone on my small base without other vi&le
   means of support - my cap removed and lost by an unthinking workman,

   I am ready to be toppled over - when my naked valve can be damaged or
   even snapped off - and all of my power unleashed through an opening no
   longer than a lead pencil.

   I am proud of my capabilities - here are a few of them:
   - I have on rare occasions been known to jetaway - faster than any dragster.
   - I might smash my day through brick walls,
   -        I tight even fly thrOUgh the air.
   -        I may spin, ricochet, crash and slash through anything in my path.

   You can be my master only under these terms:
   - Full or empty - scx to it that my hap is on straight and snug,
   - Never - repeat - never leave me standing alOne. Secure me so that I
   cannot fan.

T&City’s use of the carbon dioxide cylinder on the Builder’s Square job was not a
rare occurrence, It is the method T&City routinely uses to prepare the electrical conduits
for the installation of electrical lines. Anyone who uses a compressed gas cylinder should
be aware that it should be secured when in use to prevent it Tom becoming a projectile
should it be knocked over. Both Exhibits C-5 and C-6 make it clear that an unsecured
compressed gas cylinder is a recognized haZarde
(3) l%e Hazard was Like& to Cause Death or Sbious PhysicalHam The
Secretary established that the hazard of using an unsecured compressed gas cylinder could
cause death or serious physical harm if the cylinder became a projectile due to the
unregulated release Of gaSe

   (4)      Feasible Means Ekkted to Eliminate odfiztetillj                    Reduce the Hazatd Mosley

suggested several means of securing the tank Upright. Tri-City could have put an anchor
bolt into the drywall behind the tank and secure it to the wall with a wire, rope or chain
(Tr. 71). Or T&City could have purchased a moveable cart specifically designed to secure
a cylinder with chains or straps (Tre 72073)e
The Secretary has established that T-City committed a serious violation of 0 5(a)(l)
with regard to instance (a) of item 1 of the citation.

                                             Instance fb)

   Instance (b) of item 1 alleges that “the pressure in the red rubber, SpeedAire hose

was not regulated. The hose was deformed and in danger of rupturing. The working
pressure of the air hose is 250 p.s.i. l l l” As noted, although the citation wrongly assumed
the carbon dioxide in the cylinder WAS 1800 p.s.i., it was actually between 750 and 850 pie

   The hose was visibly swollen(Exh. C-l, C-2; Tr.                  4647).           Mosley stated that a hose

rated for a higher pressure should have been de Hoses rated for pressures between 750
to 850 p.s.ieare readily available (Tre 75). It may be assumed that manufacturers rate a hose
to alert use= to the pressures which will be accepted by the hoSee A prudent user would
comply with a product’s reWictions. Leaving aside the issue of hazard recognition, however,
and even accepting that a lack of a restrictor on the hose noble (see instance (c) below)
may heighten the possrbility of an accident, there is insufficient evidence that any resultant

                                                  7

injury could be classified a~ SeriOuSe Mosley testified that the hose could rupture and injure
Ul employee (Tre 50):

   You could have injection of air into the            could have foreign matter
                                                    body.        YOU


   on the skin injected through openings in the body, you could have damage to
   several internal OrgallS.

   Mosley’s conclusion is considered speculative.                 There was no showing that there was

anything in the air hose line which, ifit ruptured, would puncture the Skbe The 750 and 800
p.s.i. pressure in a ruptured hog would dissipate rapidlye Even if air pressure injected dirt
or other foreign matter into areas where the employee was not clothed, it is difkult to
understand how this could damage internal organs. The injury anticipated by the hazard is
too remote and speculative to be classified as Seniouse

   The Secretary has failed to establish a 0 5(a)(l) violation with respect to instance (b)

of item 1 of the citation,

                                           Instance k]

   The Secretary alleges in instance (c) that “the blow gun was unrestricted                      with a

nozzle pressure in excess of 100 pes& on or about 6/16/‘93.”
Mosley testified that the nozzle of the air gun had no safety device on it regulating
the release of the carbon dioxide (Tr. 77). He recommended the use of a “metered” noxzle
that would meter out a certain amount of compressed gaSe He also recommended the use
of a pin, called a “safety detent,” which is contained in the handle and which must be
removed in order to activate the device (Tr. 7&79)e T&City’s employee manually turned
the valve on and Offe
The Secretary failed to adduce evidence demonstrating how the air gun’s unregulated
no&e could gauze death or serious physical h-e Morley stated that a safety devia would
keep the air gun “from accidentally being stepped OII, pushed or anything else” (Tre 78).
The Secretary does not explain why stepping on or pushing the air gun would cause death
or serious physical harm. .
The Secretary has failed to establish that T&City violated 5 5(a)(l) with respect to
instance (c) of item 1 of the citation

                                                8

Item 2a: 4 1926.405(a)(2)(ii)~

               The      Secretary   alleges     that     Tri-City   committed   a   serious     violation   of

Q 1926.405(a)(2)@)(1), which provides:

               Flexible cords and cables shall be protected from damage. Sharp comers and
               projections shall be avoided. Flexible cords and cables may pass through
               doorways or other pinch points, if protection is provided to avoid damage.

               Exhibit C-7 shows a flexible extension cord lying in an aisleway where the cash

registers were to be located. The extension cord, which was approximately 50 feet long,
belonged to T&City (Tr. 86). The cord was energized, with no operating ground fault circuit
interrupter (GFCI) (Tr. 8&89)e Tri-City had been using it with the scissor lift for a drill
(Tr. 89)e Black tape was wrapped around one end of the extension cord. Mosley had
LaSanska unplug the cord and unwrap the black tape, revealing that the cord had been
spliced (Tre 90).

               Mosley observed forklifts and hand trucks (pallet jacks) being used to move pallets

of merchandise (Tre 90-91). Exhibit C-8 shows a pallet jack running over the extension cord
(Tr. 92)e

               The Secretary alleges that the extension cord was not protected from damage because

it was exposed to being run over by the forklifts and pallet jacks. T&City argues that it is
commonplace on construction sites to have equipment run over extension cords (Tr. 224225,
260-261).

               The cited standard          requires that flexible cords “be protected         from damage.”

Exposing an extension cord to heavy traffic is not protecting it from damage. When forklifts
or pallet jacks continually run over a cord, damage can occur, though it may not be vi&lee
Mosley explained the h-d (Tre 157).

               [AJll the conductors are on the inside. There is separate insulation on the
               inside. When you take a piece of copper, which is round, multi-strand, and
               you flatten it, you go through a form of eXtIXSiOneAny extrusion makes the
               piece that extruded harder, less capable of bending. And, that’s why you have
               multi-strands so it’s flexible cord You run over it, you continue to run over
               it, you flatten thOse wires on the inside.


                                                             9

Damage to the cord could cause an electrical shock or electrocution to an employee
wing the cord (Tr. 1020103). The Secretary has proven a serious violation of
5 1926.405(2)(@(I).

                                Item 2b: 8 1926.405(g)(2)(ii.Q

   The Secretary alleges that Tri-City violated 5 1926e405(g)(2)(iii), which provides:

   Flexible cords shall be used only in continuous lengths without splice or                tape


   Hard ~emiceflexible cords        12 or larger may be repaired if spliced so that
                                      Noe


   the splice retains the insulation, outer sheath properties, and usage
   characteristics of the cord being spliced.

   TrimCityadmits that the cord at issue in item 2a was spliced but claims that the cord

WZIS not in violation of the cited standard by virtue of 8 1926.402(a). sections 1926.402
through 1926,449 are contained in "Subpart K - Electrical” of the construction standardse

Section 1926.402 is captioned “Applicability.” Section 1926.402(a) contains a Note, which
provides:

   NOTE: If the electrical installation is made in accordance with the National
   Electrical Code ANSuNFpA 704984, exclusive of Formal Interpretations and
   Tentative Interim Amendments, it will be deemed to be in compliance with
   55 1926.403 through         1926.408, except for 05 1926e404@)(1)        and
   1~6e~~(a)(2)(ii)o~,(G),(G),      and (J)e

   Tri-City cites Article 400-9 of the National Electric Code (NEC) in support of its

argument that it was in compliance with OSHA regulations. Article 400-9 provides:

   Splicese Flexible cord shall be used only in continuous lengths without splice
   or tap when initially insmed in applications permitted by Section 400-7(a).
   The repair of hard-service cord (see Column 1, Table 400-4) Nos. 14 and
   larger shall be permitted if conductors are spliced in accordance with
   Section 110-14(b) and the completed splice retains the insulation, outer sheath
   properties, and usage characteristics of the cord being spliced.

   Therefore, in order for the splice to be permissible, the splice would have to be made

in accordance with Article 110-14(b) of the NEC, which provides:

   Splices. Conductors shall be spliced or joined with splicing devices identified
   for the use or by brazing, welding, or soldering with a fusible metal or allow.

                                                   10

Soldered splices shall first be so spliced or joined as to be mechanically and
electrically secure without solder and then soldered. All and joints and splices

   the f&e ends of conductors shall be covered with an insulation equivalent to
   that of the conductors or with an insulating device identified for that                                              PWpOSe




   The extension cord at issue had been spliced by twisting the wires together (Tr. 97)e

It was not spliced or joined with a splicing device, nor was it brazed, welded, or soldered.
The black electrical tape wrapped around the cord did not have the same mechanical
strength of the original cord (Tr. 100). The splice that T&City made did not meet the
requirements for splices under Article 11@14(b)e Therefore, because the cord does not
comply with the NEC, it is covered by 5 1926e405@)(2)(iii), with which it also does not
complye T&City’s extension cord was spliced in violation of the cited standard.
Mosley explained why the splice was hmdous (Tr. 101):

   When you knot something the way these were, they have a tendency to
   stretch. Fourteen gauge is fragile for construction site anyway. What would
   happen or potentially what could happen is that it could be pulled apart. The
   energized wire, after our examination showed that there was GFCI and the
   energized wire could make contact with personnel or with equipment,
   potentially water,

   ?&happen   to get some sweat or whatever as you’re pulling the cord through
   YOURhands or on your body, yes, it can make mntacte

   The violation was           SeIiOUSe




   Section 17(j) of the Act, 29 UeSeCe 5 666(j), requires that when assessing
   penalties, the Commission mst give “due consideration” to four criteria: the
   size of the employer’s business; gravity of the violation; good f&h; and prior
   h.i~tO~Ofviolations~              J.A.   J~wcotrrft.                      Co.9     15 BNAOSHC2201,2213-14,
   1993 CCH OSHD 129,964, pe 41,032                                   (NO.          8702059,1993).          These factors are
   not necessarily accorded equal weight. Generally speaking, the gravity of a
   violation is the primary element in the penalty assessment. Sz@                                                          Indrrs.,


   15 BNA OSHC 1481, 1483, 1992 CCH OSED I29,582,                          40,033                                  pe


   (NO.  8%2691,1992). The gravity of a particular violation depends upon such
   matters as the number of employees exposed, the duration of the exposure,
   the precautions taken against injury,and the likelihood that any injury would
   result. JI A. JO-   15 BNA OSHC at 2214,1993 CCH OSHD at               41,032                                   pe




                                                                  11

Hem Iron Works,Inc., 16 BNA OSHC 1247,1994 CCH OSHD ll30,155 (No. 88-1962,1994).
T&City employs approximately 700 employees (Tr. 106). Tri-City had previous
serious violations within the past three years (Exh. C-10; Tr. 115). Tri-City showed good
faith during the inspection.
In instance (a) of item 1, the unsecured carbon dioxide cylinder, the gravity of the
violation is severe. The severity of the possible injury would be high -- death or serious
physical injury. The probability of an accident occurring is not high. Although employees
were in the area, the cylinder was not located in an area of heavy traffic. Further, only one
of the three alleged instances of 8 5(a)(l) violation was proven. Based upon these factors,
it is determined that a penalty of $2,000.00 is appropriate.
The gravity of items 2a and 2b is high. The hazardous condition presented by the
extension cord was electrocution or electrical shock. The probability of this happening was
also high. The extension cord was exposed to heavy traffic and was routinely run over. The
splice was crudely done. It is determined that the appropriate penalty for items 2a and 2b
together is $1,500.00.

              FINDINGS OF FACT AND CONCLUSIONS                       OF LAW

   The foregoing decision constitutes        the findings of fact and conclusions       of law in

accordance with Federal Rule of Civil Procedure 52(a).

                                        ORDER

   Based upon the foregoing decision, it is hereby ORDERED:
   1.      That item 1 of citation     No. 1, alleging a serious violation        of 0 5(a)(l)   is

affirmed, and a penalty of $ 2,OOO.OO
is assessed; and
20 That items 2a and 2b of citation No. 1, alleging violations of
30 1926.405(a)(2)(ii)(I) and (g)(2)@) respectively, are affirmed, and a penalty of $l,SOO.OO
is assessed,
/s/ Nancv J. SDies
NANCY Je SPIES
Judge
Date: February 2, 1995

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