ALLIED EQUIPMENT CO.

OSHRC Docket No. 15459

Occupational Safety and Health Review Commission

April 18, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

Fines F. Batchelor, Jr., for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed Judge's decision. Leone Constr. [*2] Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The citation should be vacated because it was not issued with reasonable promptness as required by 29 U.S.C. 658(a). Secretary v. Jack Conie & Sons Corp., OSAHRC Docket No. 6794, June 25, 1976. It is unfortunate that this case was ever brought to trial. In its response to complainant's request for admission respondent indicated that it had terminated its business on December 2, 1975, two months prior to the hearing, and liquidated its assets to pay off accumulated debts. Under these circumstances, continuation of enforcement proceedings served no purpose but to expend the taxpayers funds on a senseless endeavor.

Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges. Since my colleagues do not address any of the matters covered in Judge Brenton's [*3] decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Marigny A. Lanier, for the Secretary of Labor

Fines F. Batchelor, Jr., for the respondent

Brenton, Judge

STATEMENT OF THE CASE

On September 17, 1975, respondent was engaged in the business of manufacturing horse and stock trailers and in the repair of truck bodies and frames in Fort Smith, Arkansas. It had five employees. It purchased and used materials which were transported from Texas.

On this date an inspection of this facility pursuant to the Occupational Safety and Health Act of 1970 (29 USC 659) resulted in the issuance to respondent of two citations, 17 non serious violations and one serious violation, together with a $560.00 proposed penalty by complainant.

On October 22, 1975, complainant was notified by respondent that it intended to contest the citations and the proposed penalty. Whereupon a complaint and an answer were filed after which this case came on for hearing in Fort Smith, Arkansas, on February 5, 1976.

At the outset of the hearing complainant moved to withdraw his citation at item 3 of citation 1, which was granted. [*4]

The alleged violative conditions contested are described by complainant as follows:

Citation 1:

Item 1 "29 CFR 1910.25(d)(1)(i) Ladder was not maintained in good condition at all times; i.e., 6-foot wooden step ladder with improperly repaired leg."

Item 2 "29 CFR 1910.106(d)(3)(ii) Storage cabinets were not labeled in conspicuous lettering, "Flammable Keep Fire Away"; i.e., metal cabinet in the paint storage area."

Item 4 "29 CFR 1910.106(e)(2)(ii) Flammable or combustible liquids were not stored in closed containers; i.e., paint storage area contained (a) 5-gallon container of paint thinner; and (b) one gallon of paint."

Item 5 "29 CFR 1910.157(a)(1) Portable fire extinguishers were not maintained in a fully charged and operable condition; i.e., one Kidde extinguisher needed recharging."

Item 6 "29 CFR 1910.157(d)(3)(i) Fire extinguishers at the following locations had not been inspected within one year to determine need for maintenance; i.e., One Kidde extinguisher had no date on tag; (b) one was last checked 1972, (c) one Kidde last checked February, 1974; and (d) one Kidde last checked in October, 1973, all of which are located in the southeast corner of shop near paint [*5] storage area."

Item 7 "29 CFR 1910.212(a)(1) Machine guarding was not provided to protect personnel from the hazards of operation; i.e., (a) tubing saw bisc blade, nut and spindle; and (b) Batemen [sic] Bantam iron worker, SN 6189P12, had no guard over treadle."

Item 8 "29 CFR 1910.212(a)(3)(ii) The point of operation of machines whose operation exposed an employee to injury was not properly guarded; i.e., Bateman Bantam iron worker, SN 6189P12."

Item 9 "29 CFR 1910.215(a)(1) The workrests of the abrasive wheels were not adjusted closely to the wheel with maximum opening of 1/8 inch; i.e., Craftsman bench grinder."

Item 10 "29 CFR 1910.215(b)(9) On abrasive wheel machinery, the distance between the wheel periphery and the adjustable tongue or the end of the peripheral member at the top exceeded 1/4 inch; i.e., Craftsman bench grinder."

Item 11 "29 CFR 1910.219(b)(1) Adequate guards were not provided on the flywheels that were less than 7 feet above the floor level; i.e., Bateman Bantam iron worker, SN 6189P12."

Item 12 "29 CFR 1910.219(e)(3)(i) Vertical and inclined belts were not properly guarded; i.e., (a) Bateman Bantam iron worker, SN 6189P12; (b) shop-made tubing saw; and [*6] (c) Curtis air compressor."

Item 13 "29 CFR 1910.243(a)(1)(i) Portable, power-driven circular saw having a blade diameter greater than 2 inch was not equipped with guards above and below the base plate, i.e., Black & Decker saw had lower guard missing, SN 3037."

Item 14 "29 CFR 1910.252(a)(1)(ii) Acetylene was utilized at a pressure in excess of 15 psi page pressure; i.e., acetylene cylinder in use in wall shop."

Item 15 "National Electrical Code, NFPA 70-1971, Article 110-17(a), As adopted by 29 CFR 1910.309(a) Live parts of electric equipment were not guarded by approved cabinets or other forms of enclosures to prevent accidental contact; i.e., (a) switch on Curtis air compressor; (b) ends of wire not adequately guarded where light had been removed from Craftsman bench grinder; (c) receptacle on post in center of shop; and (d) ends of wire on motor switch not adequately covered on shop-made tubing saw."

Item 16 "National Electrical Code, NFPA 70-1971, Article 110-22, As adopted by 29 CFR 1910.309(a) Disconnecting means for motors and appliances were not legibly marked to indicate their purpose and purpose was not self-evident; i.e., (a) two disconnects on south part of west [*7] wall, and (b) one disconnect on south wall of welding shop."

Item 17 "National Electrical Code, NFPA 70-1971, Article 400-5, As adopted by 29 CFR 1910.309(a) Flexible cord was not in continuous lengths without approved splice or tap; i.e., Black & Decker saw SN 3037 attachment cord spliced."

Citation 2:

Item 1 "National Electrical Code, NFPA 70-1971, Article 250-45(d), As adopted by 29 CFR 1910.309(a) The exposed noncurrent-carrying metal parts of cord-and plug-connected equipment which was liable to become energized was not provided with ground; i.e., (a) Milwaukee hand grinder, SN 48-116824 had a 3-wire cord with a two-prong plug; (b) Milwaukee wire brush buffer with 3rd wire ground pin removed; (c) Skilshop drill model #1711 with groun pin removed; (d) Sioux honing drill SN 2097 with two-prong plug; (e) Milwaukee hand grinder, SN 0048157125 on work bench had three-wire cord with two-prong attachment plug; and (f) coke dispensing machine in the welding shop with two-wire cord."

The standards allegedly violated provide as follows:

Citation 1:

Item 1 "Section 1910.25-Portable Wood Ladders

(d) Care and use of ladders

(1) Care. To insure safety and serviceability the following [*8] precautions on the care of ladders shall be observed:

(i) Ladders shall be maintained in good condition at all times, the joint between the steps and side rails shall be tight, all hardware and fittings securely attached, and the movable parts shall operate freely without binding or undue play."

Item 2 "Section 1910.106-Flammable and Combustible Liquids

(d) Container and portable tank storage.

(3) Design, construction, and capacity of storage cabinets.

(ii) Fire resistance. Storage cabinets shall be designed and constructed to limit the internal temperature to not more than 325 degrees F. when subjected to a 10-minute fire test using the standard time-temperature curve as set forth in Standard Methods of Fire Tests of Building Construction and Materials. NFPA 251-1969. All joints and seams shall remain tight and the door shall remain securely closed during the fire test. Cabinets shall be labeled in conspicuous lettering, "Flammable-Keep Fire Away."

Item 4 "Section 1910.106-Flammable and Combustible Liquids

(e) Industrial plants.

(2) Incidental storage or use of flammable and combustible liquids.

(ii) Containers. Flammable or combustible liquids shall be stored in tanks [*9] or closed containers.

(a) Except as provided in subdivisions (b) and (c) of this subdivision, all storage shall comply with paragraph (d)(3) or (4) of this section.

(b) The quantity of liquid that may be located outside of an inside storage room or storage cabinet in a building or in any one fire area of a building shall not exceed:

(1) 25 gallons of Class IA liquids in contianers.

(2) 120 gallongs of Class IB, IC, II, or III liquids in containers.

(3) 660 gallons of Class IB, IC, II, or III liquids in a single portable tank.

(c) Where large quantities of flammable or combustible liquids are necessary, storage may be in tanks which shall comply with the applicable requirements of paragraph (b) of this section."

Item 5 "Section 1910.157-Portable Fire Extinguishers

(a) General requirements.

(1) Operable condition. Portable extinguishers shall be maintained in a fully charged and operable condition, and kept in their designated places at all times when they are not being used."

Item 6 "Section 1910.157-Portable Fire Extinguishers

(d) Inspection, maintenance, and hydrostatic tests.

(3) Maintenance.

(i) At regular intervals, not more than 1 year apart, or when specifically [*10] indicated by an inspection, extinguishers shall be thoroughly examined and/or recharged or repaired to insure operability and safety; or replaced as needed."

Item 7 "Section 1910.212-General Requirements for all Machines

(a) Machine guarding.

(1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are-barrier guards, two-hand tripping devices, electronic safety devices, etc."

Item 8 "Section 1910.212-General Requirements for all Machines

(a) Machine guarding.

(3) Point of operation guarding.

(ii) The point of operation of machines whose operation exposes an employee to injury shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific

Item 9 "Section 1910.215-Abrasive Wheel Machinery

(a) General requirements.

(4) Work rests. On offhand grinding machines, work rests shall be used to support the work. They shall be of rigid construction and designed to [*11] be adjustable to compensate for wheel wear. Work rests shall be kept adjusted closely to the wheel with a maximum opening of one-eighth inch to prevent the work from being jammed between the wheel and the rest, which may cause wheel breakage. The work rest shall be securely clamped after each adjustment. The adjustment shall not be made with the wheel in motion."

Item 10 "Section 1910.215-Abrasive Wheel Machinery

(b) Guarding of abrasive wheel machinery.

(9) Exposure adjustment. Safety guards of the types described in subparagraphs (3) and (4) of this paragraph, where the operator stands in front of the opening, shall be constructed so that the peripheral protecting member can be adjusted to the constantly decreasing diameter of the wheel. The maximum angular exposure above the horizontal plane of the wheel spindle as specified in subparagraphs (3) and (4) of this paragraph shall never be exceeded, and the distance between the wheel periphery and the adjustable tongue or the end of the peripheral member at the top shall never exceed one-fourth inch."

Item 11 "Section 1910.219-Mechanical Power-Transmission Apparatus

(b) Prime-mover guards.

(1) Flywheels. Flywheels located [*12] so that any part is seven (7) feet or less above floor or platfrom shall be guarded in accordance with the requirements of this subparagraph:

(i) With an enclosure of sheet, perforated, or expanded metal, or woven wire;

(ii) With guard rails placed not less than fifteen (15) inches nor more than twenty (20) inches from rim. When flywheel extends into pit or is within 12 inches of floor, a standard toeboard shall also be provided;

(iii) When the upper rim of flywheel protrudes through a working floor, it shall be entirely enclosed or surrounded by a guardrail and toeboard.

(iv) For flywheels with smooth rims five (5) feet or less in diameter, where the preceding methods cannot be applied, the following may be used: A disk attached to the flywheel in such manner as to cover the spokes of the wheel on the exposed side and present a smooth surface and edge, at the same time providing means for periodic inspection. An open space, not exceeding four (4) inches in width, may be left between the outside edge of the disk and the rim of the wheel if desired, to facilitate turning the wheel over. Where a disk is used, the keys or other dangerous projections not covered by disk shall be [*13] cut off or covered. This subdivision does not apply to flywheels with solid centers.

(v) Adjustable guard to be used for starting engine or for running adjustment may be provided at the flywheel of gas or oil engines. A slot opening for jack bar will be permitted.

(vi) Wherever flywheels are above working areas, guards shall be installed having sufficient strength to hold the weight of the flywheel in the event of a shaft or wheel mounting failure."

Item 12 "Section 1910.219-Mechanical Power-Transmission Apparatus

(e) Belt, rope, and chain drives.

(3) Vertical and inclined belts.

(i) Vertical and inclined belts shall be enclosed by a guard conforming to standards is paragraphs (m) and (o) of this section."

Item 13 "Section 1910.243-Guarding of Portable Powered Tools

(a) Portable powered tools.

(1) Portable circular saws.

(i) All portable, powered-driven circular saws having a blade diameter greater than 2 inches shall be equipped with guards above and below the base plate or shoe. The upper guard shall cover the saw to the depth of the teeth, except for the minimum arc required to permit the base to be tilted for bevel cuts. The lower guard shall cover the saw to the [*14] depth of the teeth, except for the minimum arc required to allow proper retraction and contact with the work. When the tool is withdrawn from the work, the lower guard shall automatically and instantly return to covering position."

Item 14 "Section 1910.252-Welding, Cutting, and Brazing

(a) Installation and operation of oxygen-fuel gas systems for welding and cutting.

(1) General requirements.

(ii) Maximum pressure. Under no condition shall acetylene be generated, piped (except in approved cylinder manifolds) or utilized at a pressure in excess of 15 p.s.i. gage pressure or 30 p.s.i. absolute pressure. (The 30 p.s.i. absolute pressure limit is intended to prevent unsafe use of acetylene in pressurized chambers such as caissons, underground excavations or tunnel construction.) This requirement is not intended to apply to storage of acetylene dissolved in a suitable solvent in cylinders manufactured and maintained according to U.S. Department of Transportation requirements, or to acetylene for chemical use. The use of liquid acetylene shall be prohibited."

Item 15 "NEC, Article 110-17. Guarding of Live Parts (Not more than 600 Volts)

(a) Except as elsewhere required or permitted [*15] by this code, live parts of electrical equipment operating at 50 volts or more shall be guarded against accidental contact by approved cabinets or other forms of approved enclosures, or any of the following means:

(1) By location in a room, vault, or similar enclosure which is accessible only to qualified persons.

(2) By suitable permanent, substantial partitions or screens so arranged that only qualified persons will have access to the space within reach of the live parts. Any openings in such partitions or screens shall be so sized and located that persons are not likely to come into accidental contact with the live parts or to bring conducting objects into contact with them.

(3) By location on a suitable balcony, gallery, or platform so elevated and arranged as to exclude unqualified persons.

(4) By elevation at least 8 feet above the floor or other working surface."

Item 16 "NEC, Article 110-22. Identification. Each disconnecting means required by this Code for motors and appliances, and each service, feeder or branch circuit at the point where it originates, shall be legibly marked to indicate its purpose unless located and arranged so the purpose in evident. The marking [*16] shall be of sufficient durability to withstand the environment involved."

Item 17 "NEC, Article 400-5. Splices. Flexible cord shall be used only in continuous lengths without splice or tap."

Citation 2.

Item 1 "NEC, Article 250-45. Equipment Connected by Cord and Plug. Under any of the following conditions, exposed noncurrent carrying metal parts of cord-and plug-connected equipment, which are liable to become energized, shall be grounded:

(d) In other than residential occupancies, (1) refrigerators, freezers, air conditions, and (2) clothes-washing, clothes-drying and dish-washing machines, sump pumps and (3) portable, hand-held, motor-operated tools and appliances of the following types: drills, hedge clippers, lawn mowers, wet scrubbers, sanders and saws, and (4) cord- and plug-connected appliances used in damp or wet locations, or by persons standing on the ground or on metal floors or working inside of metal tanks or boilers, and (5) portable tools which are likely to be used in wet and conductive locations.

Exception No. 1: Portable tools which are likely to be used in wet and conductive locations need not be grounded where supplied through an insulating transformer [*17] with ungrounded secondary of not over 50 volts.

Exception No. 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. Where conditions of maintenance and supervision assure that proper grounding of tools or appliances will be maintained (as, for example, on some factory production lines) it is recommended that grounded-type tools and appliances be used.

It is recommended that the frames of all portable motors which operate at more than 50 volts to ground be grounded."

Ladder

A ladder with a broken side rail which was spliced on one side was observed near the front door of respondent's plant by the compliance officer, Paul Hansen. Respondent's evidence shows this ladder was brought into the plant on the day immediately preceding the inspection by its owner, an employee, who had parked it where observed and had left it overnight in his endeavor to take it to his home. Further, it had never been used by an employee.

Mr. Hansen made the assumption that it could have been used by the employees to reach something they [*18] couldn't reach. This, of course, it an obvious assumption but this assumption begs the question because it assumes the truth of the fact of a need to use this ladder in order to accomplish the work to be performed in respondent's plant. Here there was no other ladder within the plant. No evidence was adduced showing that a ladder was or would ever be needed to perform any part of the work or even the possible utility thereof for any work related purpose in respondent's plant. Moreover, at the time the ladder was observed and discussed, during the inspection, Mr. Hansen testified, that "He [Wayne Kaylor, respondent's president] seemed not sure why it was there, . . . ." Thus, it is reasonable to infer that respondent had no knowledge of the presence of this ladder until the moment of inspection and thereafter upon inquery learned its source and reason for being there. Therefore, it is concluded that respondent had no knowledge of the presence of this ladder nor its alleged violative condition.

Furthermore, 29 CFR 1910.25(d)(2)(viii) is a particular standard which is specifically applicable to the condition, a broken side rail, and therefore prevails over the different general [*19] standard alleged which might otherwise be applicable. See 29 CFR 1910.5(c).

Complainant failed to make a case for violation of 29 CFR 1910.25(d)(1)(i) because (1) no actual nor potential exposure, (2) no knowledge of the violation which is an essential element, and (3) specific standard prevails over the general which was not alleged.

Paint Storage

The evidence shows respondent maintained cabinets where it stored flammable liquid which was paint. These cabinets were not labeled "Flammable-Keep Fire Away" which is a requirement of 29 CFR 1910.106(d)(3)(ii). Respondent admitted that this label was absent at the time of the inspection.

During the hearing it appeared rather obvious that complainant had proved up a violation of this standard. This tribunal so found on the record. It is now observed that 29 CFR 1910.106(d)(1)(ii) (c) excepts paints when not kept for a period in excess of 30 days. It would appear that this exception would be an affirmative defense. It was neither pleaded nor proved.

The undisputed evidence also shows that respondent failed to keep covers on two containers of flammable liquids in violation of 29 CFR 1910.106(e)(2)(ii).

Fire Extinguishers [*20]

The undisputed evidence further shows that one protable fire extinguisher was not maintained in a fully operable and charged condition in violation of 29 CFR 1910.157(a)(1). Also, that three other extinguishers had not been regularly maintained on a yearly basis as required by 29 CFR 1910.157(d)(3)(i).

Bateman Bantam Iron Worker

This is a machine used to cut iron and steel. It was equipped with a foot treadle for starting and stopping the operating cycle of the machine when in use. This treadle was not equipped with a guard to prevent an inadvertent operation. The hazard, according to Mr. Hansen, would be to an employee who might have some part of his body within the point of operation or metal within this point could be deflected onto an employee. This arguable hazard cannot be digested in view of the fact that if the point of operation is properly guarded the hazard doesn't exist. Moreover, 29 CFR 1910.212(a)(1) appears to have no application to the facts developed in relation to hazards created by point of operation, ingoing nip points, rotating parts or flying chips or sparks.

Furthermore, complainant charged specifically the failure to guard the point of operation. [*21] Thus it would seem that compliance with 29 CFR 1910.212(a)(3)(ii) in and of itself eliminates any possible hazard that could result from a failure to barricade the foot treadle. And, the evidence is conclusive that this machine was used daily with the guard at the point of operation removed which, of course, is a violation of the latter standard.

The evidence is also conclusive that the two flywheels of this machine which were located less than seven feet above the floor were not completely enclosed as charged at item 11 of citation 1. Thus, there was a violation of 29 CFR 1910.219(b)(1).

Apparently this machine was equipped with a belt that is properly described as an incline belt. Here again the evidence is conclusive that this belt was not completely enclosed by a guard as required by 29 CFR 1910.219(e)(3)(i). Thus, a violation as charged.

Tubing Saw and Curtis Air Compressor

Exhibit C-1 shows that failure to guard disc blade, nut, and spindle of respondent's tubing saw. This machine was used daily in this condition. Thus, there is a violation of 29 CFR 1910.212(a)(1) because of the chance of injury from rotating parts, flying chips or possibly sparks.

This machine [*22] was equipped with an incline belt which was not completely enclosed with a guard in accordance with 29 CFR 1910.219(e)(3)(i), therefore, another violation of this standard.

Likewise the Curtis Air Compressor, Exhibit C-3, was equipped with an inclined belt which was not completely guarded, thus a third violation of this same standard.

Craftsman Bench Grinder

The evidence is uncontroverted that this grinder was equipped with a work rest and safety guard. Further, that the work rest was used with the machine adjusted with an opening in excess of one-eighth inch to its abrasive wheel. This condition is a violation of 29 CFR 1910.215(a)(4). Also, that this machine was used with the distance between the wheel periphery and the adjustable tongue of the guarding device in excess of one-fourth inch. Thus, this condition is violative of 29 CFR 1910.215(b)(9).

Portable Powered Circular Saw

The evidence shows that this tool came equipped with guards in compliance with 29 CFR 1910.243(a)(1)(i). At the time of the inspection, however, it was equipped with a proper upper guard, however, it was missing the lower guard and was determined to have been used in this condition. The [*23] president of respondent's corporation stated he was unaware of its removal. But there is no evidence that he had given instructions to maintain this guard at all times or if he had that such an instruction was deliberately disobeyed. Therefore, it must be concluded that respondent was in violation of this standard.

Acetylene Pressure

It is abundantly clear from the evidence that respondent permitted the use of its acetylene welding equipment with 18 p.s.i. gage pressure which makes a case for violation of 29 CFR 1910.252(a)(1)(ii).

Electrical Operations

The facts in the record show the following items operated at 50 volts or more and that:

Wires of electrical cord attached to Curtis air compressor were exposed at its connection to the terminals of the motor, where apparently the cover at this location had been removed;

Wires of light fixture attached to the bench grinder had been removed from the light. The resulting exposed ends had been wrapped with electrical tape. Mr. Hansen was of the opinion that the tape was an inadequate enclosure to prevent accidental contact because an employee could remove the tape, it could wear out, or the tape might not be adequate [*24] to prevent contact with live parts;

Wires inside an electrical receptacle which was mounted on a post were exposed because its cover was absent; and

Wire connections at junction box on tubing saw had been taped. Again Mr. Hansen was of the opinion that the tape was not equal to the original insulation.

There were three electrical disconnect boxes, the purpose of each circuit within each box not being evident, that were not marked to indicate each purpose.

A flexible cord attached to a Black & Decker saw was spliced and had been used to service the saw with power while in this condition.

The foregoing findings indicate violations of the National Electrical Code as charged at items 15, 16, and 17 of citation 1.

Serious Citation

Respondent maintained and used five portable, hand-held, motor-operated tools each of which was connected by a cord and plus without any one of them being grounded. Likewise the cord and plug connecting a coke machine was not grounded.

These facts are undisputed on the record, therefore, Article 250-45(d) of the N.E.C. was violated in six separate instances.

Penalty

Complainant proposed a $35.00 penalty for the non-serious saw guarding violation [*25] at item 13 and a $25.00 penalty for the non-serious electrical exposure violations at item 15 of citation 1. No penalties were proposed for the remaining non-serious violations.

The proposed penalty for the serious violation of the electrical code of regulations is $500.00.

The evidence, factual and circumstantial, clearly indicates respondent knew or should have known of the six separate violations pertaining to ungrounded cord and plug attachments. Also it shows there was a substantial probability that any one of these violations could cause death or serious physical harm, albeit very unlikely. It is therefore a serious violation, however, the proposed penalty is inappropriate because the duration of exposure was not shown. Work was performed on dry concrete floor. There was no evidence of an employee even receiving an electrical tingle. Thus, the gravity of the violation is extremely low. Respondent's size as a business enterprise was relatively small. It had no history of previous violations. Its good faith was manifest and it shut down immediately after the inspection and corrected all alleged violations before resuming work. Moreover, respondent ceased business operations [*26] on December 2, 1975, as its physical assets were sold at auction and applied to satisfy a lien of Internal Revenue Service. Respondent is still indebted to IRS in the sum of $9,135.00 and has no assets.

Under these facts and circumstances a penalty in any amount will serve no useful purpose and would be inappropriate. Secretary v. Recreational Components, 9 OSAHRC 958. But section 17(b) of the Act mandates a penalty assessment of up to $1,000 for each serious violation, thus a one cent (1 ) penalty is deemed appropriate here.

The same factual criteria and circumstances have application to the two non-serious proposed penalties. Therefore, since a penalty is not mandated for a non-serious violation a zero penalty for all non-serious violations is appropriate.

CONCLUSIONS OF LAW

1. The Review Commission has jurisdiction to hear and decide this case.

2. An employer can not be held to have non-seriously violated the Act where the violative condition complained of exists statically, an employee ladder with broken side rail at rest, its presence is unknown to the employer, and there is no evidence of its use or that there ever would come a time when it would serve [*27] any userul work related purpose.

3. A specifically applicable standard prevails over a general standard otherwise applicable, such as 29 CFR 1910.25(d)(2)(viii) over 29 CFR 1910.25(d)(1)(i).

4. Respondent non-seriously violated section 5(a)(2) of the Act as charged at items 2, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17 of citation 1.

5. Six separate and concurrent failures to ground electrical equipment in violation of Article 250-45(d) of the National Electrical Code collectively constitute a serious violation.

6. Where an employer is forced to cease business 60 days after inspection because of foreclosure of an IRS lien and there are no forseeable assets of any kind, penalty assessments for violations are inappropriat because no useful purpose will be served thereby.

7. Respondent did not violate 29 CFR 1910.212(a)(1) as charged with respect to treadle of Bateman Bantam iron worker at item 7, citation 1, however, it was in violation of this standard as charged with respect to the tubing saw at this item of this citation.

ORDER

That:

Item 3 of citation 1 be and it hereby is, withdrawn and striken from this citation.

Item 1 of citation 1 be and it hereby is, [*28] vacated.

Part (a) (tubing saw) of item 7, citation 1 be and it hereby is, affirmed.

Part (b) (Bateman Bantam iron worker) of item 7, citation 1 be and it hereby is, vacated.

Items 2, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17 of citation 1 be and each hereby is, affirmed.

Citation 2 be and it hereby is, affirmed.

Proposed penalty totaling $60.00 for non-serious violations, citation 1, be and it hereby is, vacated.

A penalty in the sum of one cent (1 ) for the serious violation, citation 2, be and it hereby is, assessed.

So Ordered.

J. Paul Brenton, Judge

Date: April 26, 1976

Dallas, Texas