Docket No. 44

SOMERSET TIRE SERVICE, INC.

OSHRC Docket No. 44

Occupational Safety and Health Review Commission

March 29, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners.

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: On June 12, 1972, Judge William E. Brennan issued his decision and order in the captioned case, affirming the Secretary's citation for serious violation, vacating the proposed penalty of $500, and assessing a penalty of $650.

On June 20, 1972, Chairman Moran directed that the decision of the Judge be reviewed by the Commission in accordance with Section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as "The Act").

The Commission has reviewed the entire record. We adopt the Judge's Findings of Fact and Conclusions of Law.

Accordingly, it is ORDERED that the Judge's decision is hereby affirmed in all respects.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: This is another one of those cases where the Secretary of Labor jumped the gun and cited an employer for a violation prior to the effective date of the occupational safety and health standards. Like so many other similar cases: there was an industrial accident, the Department conducted an investigation, and in an amazing display of hindsight, discovered that the accident resulted from the failure of the employer to keep a workplace that was free of recognized hazards as required by section 5(a)(1) of the Act. The employer-respondent disputed the citation, but the Judge ruled in favor of the Secretary of Labor-complainant and assessed a penalty of $650.00.

The case arose as a result of the electrocution of one of respondent's employees on July 31, 1971, at its Roselle Park, New Jersey, automotive service station. The employee, Marvin Feldman, received a fatal electric shock while at work in the station's service area. He was then in the process of connecting a male plug of a short electric cord which was affixed to an "Amermac" Tire Truing machine to the female receptacle of an extension cord which was plugged into a wall outlet of 220 volts.

In his decision, the Judge found a violation of Section 5(a)(1) of the Act because

(1) Upon removing a plastic cap from the male plug after the accident, loose strands of wire were observed which constituted a defect in that said strands were not securely affixed to the terminals therein and presented a condition by which they might make contact with the metal ring of the plug or, if the strands did not contact the metal ring, they could come so close that the 220 volt current could arc or jump from the strands to the ring. In either event, the result would be to energize the metal ring of the plug forming a pathway for electric current to reach the body of anyone touching the metal ring;

and

(2) The extension cord was defective since a post-accident test thereof revealed no measurable resistance between the prong and the metal ring. This was revealed by connecting one lead of an ohmmeter (an instrument designed to measure electric resistance) to the prongs of the male plug attached to the extension cord and the other lead of the meter to the metal ring on the female plug of this cord.

It was the Judge's conclusion that said loose strands of wire in the male plug and a defective extension cord which lacked proper electrical continuity were recognized hazards within the meaning of Section 5(a)(1) of the Act.

This, the Commission has affirmed without comment or explanation and without even attempting to distinguish a very similar case which it decided differently only three months ago. Secretary of Labor v. Mountain States Telephone & Telegraph Company, OSAHRC No. 355, January 3, 1973.

The substance of complainant's case as it deals with the extension cord is that the alleged hazard consisted of the failure of the cord to measure any resistance in a continuity test conducted with the use of an ohmmeter. This test result showed the cord to be defective. It is significant, however, that no witness could state what the actual defect was. Indeed, complainant's own electrical expert testified that he did not know what the defect was, that he would first have to take a measurement of resistance, and if a defect was indicated he would then have to take the plug apart and examine it.

Congress made it clear in enacting Section 5(a)(1), which it referred to as the Act's general duty requirement, that a defect which can only be detected with the use of special equipment was not to be a violation of that section. At the conclusion of Congressional debate on this Act, Representative William A. Steiger, one of its primary drafters, told the House of Representatives:

The conference bill takes the approach of this House to the general duty requirement that an employer maintain a safe and healthful working environment. The conference-reported bill recognizes the need for such a provision where there is no existing specific standard applicable to a given situation. However, this requirement is made realistic by its application only to situations where there are 'recognized hazards' which are likely to cause or are causing serious injury or death. Such hazards are the type that can readily be detected on the basis of the basic human senses. Hazards which require technical or testing devices to detect them are not intended to be within the scope of the general duty requirement. . . . 116 Cong. Rec. 11899 (Daily ed. December 17, 1970).

Clearly, then, the alleged defect in the extension cord, whatever it may have been, cannot be classified as a "recognized hazard" since it could only be detected by the use of an ohmmeter.

With respect to the male plug attached to the tire truing machine, the Judge found that the condition of the plug, i.e., the loose wires, constituted a hazard. He ruled that this hazard was "recognized" because the plug was not in compliance with a standard promulgated by the American National Standards Institute (hereinafter ANSI). n1 This conclusion is inconsistent with the purposes of the Act, as well as with both the spirit and plain meaniig of Section 6 thereof.

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n1 ANSI is a private, voluntary, nonprofit organization created some 50 years ago for the purpose of establishing "a series of national safety standards to supplant the vast number of legal requirements, regulations, and recommended practices that were confusing the accident prevention picture."

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Section 2(b) states that the Act's purpose is to provide safe and healthful working conditions, and subsection (9) states that this purpose is to be effected "by providing for the development and promulgation of occupational safety and health standards." Section 6 provides an elaborate means by which the Secretary may adopt occupational safety and health standards. For the Commission to permit the Secretary to use section 5(a)(1) as a means to enforce an ANSI standard would circumvent all of the elaborate procedures set forth in section 6, would be inconsistent with the overall purpose of the Act, and give a wider effect to the Act's general duty requirement than Congress intended.

Furthermore, even assuming arguendo that the existence of an ANSI standard is evidence that the code of conduct specified therein is recognized as the proper modus operandi, there must be an additional element of proof which is not present here -- that the failure to comply with such ANSI standard is recognized as likely to cause death or serious physical harm.

It is noted, however, that the ANSI includes the following specific disclaimer with each of its standards:

An American National Standard is intended as a guide to aid the manufacturer, the consumer, and the general public. The existence of an American National Standard does not in any respect preclude anyone, whether he has approved the standard or not, from the manufacturing, marketing, purchasing, chasing, or using products, processes, or procedures not conforming to the standard.

The facts of this case and the evidence introduced at the hearing are insufficient to establish a violation of the general duty requirement. In addition, the "law" made by the Commission only 3 months ago in the Mountain States case, Supra, has not been followed here. Decisions such as these only confuse those who want to know what must be done to assure safe and healthful workplaces which conform with the mandates of this Act.

[The Judge's decision referred to herein follows]

BRENNAN, JUDGE, OSAHRC: This is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, Pub. Law 91-596; 29 U.S.C. 651 et seq.; (hereinafter the Act), to review a Citation for Serious Violation issued by the Secretary of Labor, (hereinafter Secretary) pursuant to Section 9(a) of the Act and a penalty based upon the alleged violation proposed by the Secretary pursuant to Section 10(a) of the Act.

The record of this case reflects the following matters:

1. On August 20, 1971 the Secretary, pursuant to Section 9(a) of the Act, through the Newark, New Jersey Acting Area Director of the Occupational Safety and Health Administration, issued a Citation for Serious Violations to Somerset Tire Service, Inc., (hereinafter Respondent), alleging a violation of Section 5(a)(1) of the Act in that the Respondent failed to furnish to each of its employees employment and a place of employment which was free from recognized hazards that was causing or was likely to cause death or serious physical harm to said employees in that at one of its work places located at Westfield and Locust Avenues, Roselle Park, New Jersey (hereinafter workplace) there existed "Two Defective Electrical Plugs -- one connected to extension cord and the other connected to 'Amermac' Tire Truing Machine. This equipment is located in the Service Area" (R. p. 1). n1

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n1 References are to pages in Commission Docket File No. 44, to the transcript of the hearing held herein (Tr. ) and to exhibits in evidence (Exh. ).

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2. By his Notification of Proposed Penalty also dated August 20, 1971, the Secretary pursuant to Section 10(a) of the act, notified the Respondent of his intention to propose a penalty in the amount of $500.00 for the violation alleged in the citation identified supra (R. p. 2).

3. The Respondent pursuant to Section 10(c) of the Act, through a letter from its counsel dated September 7, 1971, gave notice of its intention to contest both the citation and penalty proposed thereon (R. p. 3).

4. Pursuant to Section 10(c) of the Act, this case was thereafter referred to the Occupational Safety and Health Review Commission, (hereinafter Commission) for hearing. Notice of receipt of this case was given to the parties of record by the Commission's notice dated September 20, 1971, (R. p. 4), and this case was assigned to the undersigned for hearing, notice of which being given the said parties by the Commission's Notice dated October 22, 1971 (R. p. 5).

5. By notice dated November 3, 1971 the hearing in this matter was scheduled to commerce on December 7, 1971 at Newark, New Jersey, (R. p. H-4), which date, upon Respondent's counsels request, (R. p. H-10) was changed to December 9, 1971 (R. p. H-11).

6. The hearing was held as rescheduled, and, after an extension of time upon the Secretary's request was granted, (R. p. H-14, H-17), the Secretary through the New York Regional Solicitor's office filed proposed Findings of Fact, Conclusions and a Brief in support thereof on March 7, 1972 (R. p. H-19). Through a possible misunderstanding, Respondent's counsel did not receive the transcript of this hearing when it was first available (R. p. H-15, H-16, H-18). This record does indicate however that counsel did pay the reporting company for a copy of this transcript on or about March 10, 1972 (R. p. H-21, H-22). Preparation of this report was delayed pending receipt of the Respondent's proposed Findings, Conclusions and Brief. To date no such submittals have been received.

Having considered the entire record herein, the stipulations (Tr. 4-16), representations and admissionis of the parties, the transcript of testimony and exhibits, it is concluded that the substantial evidence on the record considered as a whole, supports the following:

FINDINGS OF FACT

1. No affected employees or authorized representative of affected employees sought to participate in these proceedings as a party of record (Tr. 3).

2. The Respondent herein, Somerest Tire Service, Inc., at all times involved in this case, was a corporation incorporated in the State of New Jersey, having its home office located in Boundbrook, New Jersey, and branch stores in various locations, one of which is located at Westfield and Locust Avenues, Roselle Park, New Jersey, the workplace involved herein (Tr. 5, 11).

3. At the Roselle Park Branch location, (hereinafter workplace) the Respondent was engaged in the business of maintaining an automotive service station including the selling and servicing of automobile and truck tires (Tr. 198, 220). In the conduct of such a business it is reasonable to conclude that goods and materials, i.e., gasoline, oil, tires and equipment have moved in interstate commerce prior to being sold at this work place, and such goods and material move in commerce after sale thereof at Respondent's workplace. Therefore Respondent is engaged in a business affecting commerce (Tr. 5).

4. The net worth of Respondent for the calendar year 1970 was $817,600. On December 1, 1971 Respondent employed 125 employees company-wide, with 10 full time and 10 part time employees located at the Roselle Park workplace (Tr. 5, 240).

5. On July 31, 1971 at Respondent's Roselle Park workplace, there was located in the service area thereof, a piece of equipment known as an "Amermac" Tire Truing machine (hereinafter machine), which was owned by and under the control of the Respondent, being used on a trial basis having been supplied by the manufacturer, Amarack, Inc. of Americus, Georgia (Tr. 5).

6. When this machine was initially delivered to Respondent's workplace approximately one month prior to July 31, 1971, there was attached to it a short length of rubber insulated electric cord connected to the machine at one end, with bare wires at the other. Respondent's Roselle Park Branch Manager, Mr. Howardson, removed a three pronged male plug from a welding machine used at this work place and installed it on the short electric cord affixed to the machine. Thereafter the machine was taken to another location for approximately two weeks, and upon its return to the Roselle Park workplace, for reasons not clear in this record, Mr. Howardson removed the male plug from the short electric cord and had a new male plug installed thereon by one of Respondent's employees, Marvin Feldman (Tr. 81-83, 251-253).

7. On July 31, 1971, at Respondent's Roselle Park workplace there was also located in the service area a rubber insulated three strand extension cord approximately 41 feet in length (hereinafter extension cord) to which was affixed at one end a three hole female plug and at the other end a three pronged male plug. This extension cord, owned by Respondent, was approximately 3 to 4 years old, and had been used primarily by the Branch Manager to connect a portable welding machine to electric outlets for intermittent welding operations. When not in use, this cord was stored in a cabinet in the pit area of the service area (Tr. 5, 21-24, 204, 213, and 258).

8. On July 31, 1971 in the service area of Respondent's Roselle Park workplace, Respondent's employee Marvin Feldman received a fatal electric shock while connecting the male plug of the short electric cord affixed to the tire truing machine to the female plug of the extension cord, the extension cord at the time, being plugged into a wall outlet of 220 volts (Tr. 5, 6, 88, 200, 219-222; Exhs. G-1, G-2, G-3).

9. On the day of and immediately prior to the accident, July 31, 1971, the deceased had been outside pumping gasoline at Respondent's work place. It had rained during the day and, although the evidence is not conclusive, the deceased and/or his clothing may have been wet or damp from this inclement weather at the time of the accident (Tr. 219-200, Exh. 3 p. 2 Howardson statement).

10. On July 31, 1971, immediately after the accident, two officers of the Roselle Park Police Department, responding to a call, made an investigation at the Respondent's workplace, during which they obtained the short electric cord from the Tire Truing machine and the extension cord involved in the accident. The officers affixed evidence tags to these cords and brought them to police headquarters. These two cords were brought to the hearing held herein by the Chief of the Roselle Park Police Department and were on display throughout the hearing (Tr. 17-27; Exh. G-3).

11. On August 11, 1971 a Mr. George Van Houten, an inspector for the New Jersey Manufacturers Insurance Company, one of Respondent's insurance carriers, picked up the two electric cords in question from the Roselle Park police headquarters and took them to his home. Mr. Van Houten, who appeared as a witness for the Secretary, tested the extension cord in his home workshop by connecting one lead of an ohm meter (an instrument designed to measure electrical resistance) to the prongs of the male plug attached to the extension cord and the other lead of the meter to the metal ring on the female plug of this cord. This test revealed no measurable resistance between the prong and the metal ring which represented a defect in this extension cord in that, if this cord were in proper operating condition, electrical resistance should have been measured on the meter. This witness conducted an additional test on the short electric cord which had been affixed to the machine by removing the plastic cap from the male plug, exposing the wires within this plug. He observed loose strands of wire within this plug and photographed this condition, see Exh. G-4. These loose strands of wire inside this plug constituted a defect in this plug in that said stands were not securely affixed to the terminals therein, and presented a condition by which the loose strands might make contact with the metal ring of the plug, or if the strands did not contact the metal ring, they could come so close to touching this ring that the 220 volt current could arc or jump from the strands to the ring. In either event, the result would be to energize the metal ring of the plug which would form a pathway for electric current to reach the body of any one touching the metal ring (Tr. 46-61, 86-89, 91, 168; Exh. G-4).

12. On August 13, 1971 two of the Secretary's Compliance officers, Messers Schindler and Rufolo made an investigation at Respondent's workplace. Mr. Schindler, who appeared as a witness (Tr. 77), over the past 12 years has been engaged full time in the field of industrial safety in such capacities as a safety engineer, safety professional for a number of insurance companies and as a safety consultant and national superintendent of loss prevention which position included the administration of 250 engineers throughout the United States. In this latter capacity he conducted safety inspections of employer's premises, made safety surveys, evaluated safety programs, investigated accidents and developed and administered safety training programs.

During this investigation of Respondent's workplace, Mr. Van Houten arrived with the two electrical cords in question. In the presence of Respondent's Branch Manager, Mr. Van Houten discussed at length the tests which he had conducted with these electrical cords, pointing out the defects he had discovered thereby, including pointing out a charred spot on the female plug of the extension cord.

It was the opinion of this witness, and it is hereby found, that the defect found in the male plug of the short electric cord, and the defect found in the extension cord (See Finding No. 11 supra ) each constituted a recognized hazard, which hazards, with the exercise of reasonable diligence, could have been detected by the Respondent.

The defect found in the male plug attached to the short electric cord, i.e. loose strands of wire, could have been detected by opening the plug and visually inspecting it.

The defect found in the extension cord, i.e. the lack of continuity, could have been detected by the use of a continuity tester such as an ohm meter used by Mr. Van Houten.

In work places such as Respondent's, where employees utilize electrical equipment, including the use of 220-volt current, employers have the responsibility and it is recommended to the industry, to periodically examine and test such equipment, including the inspection of electric plugs to assure proper installation as well as the proper functioning of extension cords, including subjecting such cords to continuity tests (Tr. 76-79, 83-88, 91-100, 102, 123-127).

13. The hazards found to exist in the electrical equipment at Respondent's workplace supra have been recognized as hazards in the electrical industry for some time. See Exhs. G-5, the 1971 Edition of the National Electrical Code, an American National Standard-C1-1971, Article 110-14(a) and Exh. G-6, American National Standard, C33.49-1969, March 6, 1969, as published by the Underwriters' Laboratories, Inc. (U.L. 45-1969), para 111, p. 25, (Tr. 130-143, 162-167, Exhs. G-5, G-6).

14. The Secretary's last witness was Compliance Officer Bynoe, a qualified graduate electrical engineer with approximately 12 years experience as such at the Naval Applied Science Laboratory, Brooklyn, New York and with the Naval Electronics Systems Command.

This witness confirmed that the defects found in the male plug attached to the short electrical cord, and the defect found in the extension cord, constitute recognized hazards, which the Respondent could have detected with the exercise of reasonable diligence. This witness further testified that in work areas where damp or wet conditions may prevail at times depending upon weather conditions, and electric equipment is to be used in such areas, special precautions should be taken such as providing employees with rubber gloves or rubber boots, or providing insulating rubber mats so that employees do not form a ground between an electric energy source and the ground. He additionally voiced the opinion that where equipment is to utilize 220 volts, such equipment should be wired to the clectric source by ordinary metallic conduit and that extension cords should not be used, even if such equipment is to be used temporarily because such voltage represents a high hazard (Tr. 158-183, Exhs. G-5, G-6).

15. Although not presenting any evidence to directly rebut the existence of the hazardous conditions found by the Secretary, i.e., the defective electrical equipment, the Respondent argues that the fatal accident occurred perhaps because the deceased either caught a finger inadvertently between the two plugs when he made the connection of the male plug on the short electric cord to the female plug on the extension cord, or that perhaps his wet shirt or even a metal tire gauge which the deceased might have had in his shirt pocket, may have become caught in making this connection, and thus, inferentially, neither piece of electrical equipment had any defects.

As to the first argument, the deceased evidently did have a known "slight tremor" in his hands (Tr. 199). However, this tremor, in the opinion of Respondent's Roselle Park Branch manager, although it may have slowed the deceased down slightly in his work, it made ". . . him more careful and more precise" in his work, and he was found to be a conscientious and "good" employee who worked without supervision (Tr. 199-200). In addition, it was demonstrated conclusively at the hearing, with the electrical equipment herein involved, that it was a physical impossibility to have a finger or thumb caught between these two plugs when connecting them together due to the fact that by the time the prongs on the male plug make contact with the terminals within the female plug, the intervening space between the two plugs was too small to accommodate a finger or thumb.

As to Respondent's second argument, there is no reliable evidence that the deceased's wet shirt was caught between the two plugs in question, nor any creditable evidence that if the deceased had any metal objects such as a tire gauge in his shirt pocket at the time of the accident it was caught between the plugs. Additionally, although the autopsy report does list the existence of burns on both of the deceased's hands, it makes no mention whatever of any burns on the deceased's chest. If electric current sufficient to cause a fatal shock had entered the deceased's body at his chest, it is reasonable to conclude that some evidence thereof in the form of burns would have been present on the chest and recorded in the rather complete autopsy report (Tr. 115, 117-120, 199-200, 223, 271-275, Exh. G-2, p. 2).

16. On July 31, 1971 and prior thereto, the Respondent had a limited safety program company-wide. Compliance officer Schindler was advised by company officers at the corporate headquarters in Boundbrook, New Jersey that the various branch managers were responsible for safety at their respective branches. This limited safety program consisted primarily of the posting of various unidentified safety posters and safety literature which Respondent received from its insurance carrier, and the receipt of some unspecified safety assistance from this carrier. Reportedly, new employees were given some unspecified verbal safety instructions when first employed which had not been reduced to writing. The Respondent did not have in its employ a full-time safety professional, but had one of its engineers whose office was located at the corporate headquarters assume over-all safety responsibility as one of his duties with the company. This company official had no formal training in industrial safety. He made periodic visits to Respondent's branch locations. There appeared to be no periodic testing of electrical equipment located at Respondent's branch locations. Respondent's Roselle Park branch manager testified to meetings of managers held at differing frequencies, from once a month to once every two to three months, at corporate headquarters, which meetings appeared to be a combination sales meeting and a meeting for the exchange of ideas. According to this witness, the managers would discuss any problems that they had experienced at these meetings. He further testified that the safety posters he received were posted at his branch in the combination locker and men's room, and were changed weekly. He acknowledged his responsibility for safety at the Roselle Park branch. He further testified that he did not periodically examine electric plugs for defects in his branch but would and had changed any electrical plug which did not "look right," (Tr. 226), or which was coviously defective, or which any employee told him was not in proper functional order. He further acknowledged that the extension cord in question had never been tested for continuity by him, as he did not have a continuity meter, and had no recollection of its being subjected to such a test by anyone, although the Respondent did have such test equipment at it's headquarters office. He had physically examined this cord for obvious defects periodically when he had used it. He acknowledged that if he had removed the cap of the male plug on the short electric cord and if there was a defect such as loose strands of wire he could have detected it.

The Respondent's Corporate Secretary, Mr. Desnoyers, who was the official with over-all safety responsibility, testified that he had an electric continuity testing meter, and on the average, used this meter once every two weeks or so on ". . . some electrical problem throughout the company" (Tr. 265). He testified to having casually inspected the electric plugs in question, but had never examined them internally prior to July 31, 1971, nor had he ever tested the extension cord in question (Tr. 143-156, 191, 214-219, 226, 237-248, 261-262, 264, 277-279).

17. The Secretary proposed a $500.00 penalty based upon the serious violation herein found to exist at Respondent's workplace (R.p. 2). Compliance Officer Schindler testified that the maximum civil penalty under Section 17(b) of the Act of $1000, was reduced 20% based upon Respondent's good faith which involved consideration of the employer's safety program and safety attitude, was further reduced another 20% based upon a lack of any history of previous violations, and further reduced an additional 10% based upon the number of employees. Thus, the maximum penalty of $1000, was reduced 50% resulting in the proposed penalty of $500.00 (Tr. 11, 188-191).

Based upon the evidence of this record it is concluded that there is insufficient evidence to support the 20% reduction of penalty based upon the Respondent's safety program and safety attitude as proposed by the Secretary. This evidence reflects that at best, Respondent had a very limited safety program. It was the opinion of compliance officer Schindler, an individual with considerable experience in evaluating such programs, and it is hereby found, that Respondent's safety program was not a good or adequate one (Tr. 191). Therefore, the proposed 20% reduction of penalty based upon this factor is disallowed.

18. The Citation and Notice of Proposed Penalty issued herein were properly served upon this Respondent and the Citation and Notice of time and place of hearing was posted by Respondent consistent with Section 9(b) of the Act and the regulations promulgated thereunder (Tr. 5, 6, 12).

19. The violation herein found to exist at Respondent's Roselle Park workplace was abated immediately on July 31, 1971 by investigating police officers taking from Respondent's premises the two defective electric cords. Since that time the tire trueing machine has been permanently attached to an electric source (Tr. 25-27, 205).

CONCLUSIONS OF LAW

1. Jurisdiction of this action is conferred upon the Commission by Section 10(c) of the Act.

2. At all times involved in this case, Respondent herein was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

3. At all times involved in this case, Respondent furnished employment to its employees at a workplace located at Roselle Park, New Jersey, and the Act is applicable to such employment within the meaning of Section 4(a) of the Act.

4. On August 20, 1971, the Secretary, pursuant to the provisions of Sections 9(a) and 10(a) of the Act, issued to this Respondent a Citation for Serious Violation of Section 5(a)(1) of the Act and a Notification of Proposed Penalty thereon in the amount of $500.00.

On September 7, 1971, pursuant to the provisions of Section 10(c) of the Act, this Respondent timely filed with the Secretary its notification of intent to contest this Citation and proposed penalty.

The Secretary thereupon transmitted this case to the Commission which, pursuant to provisions of Section 10(c) of the Act, has jurisdiction of the parties and of the subject matter herein.

5. On July 31, 1971, at Respondent's Roselle Park branch location, Respondent owned and provided to its employees two defective electrical plugs, one connected to an extension cord and the other connected to an "Amermac" Tire Trueing machine. On that date these items of defective electrical equipment were used by one of Respondent's employees, who, because of said defects, received a fatal electrical shock.

6. On July 31, 1971 this Respondent violated Section 5(a)(1) of the Act in that it failed to furnish to each of its employees employment and a place of employment which was free from recognized hazards that were likely to cause death or serious physical harm to its employees.

7. The hazards found to exist at Respondent's Roselle Park workplace on July 31, 1971, to wit, loose strands of wire in the male plug attached to a short electric cord affixed to the "Amermac" Tire Trueing machine, and a defective extension cord which lacked proper electrical continuity, which cord was used to connect the tire machine to a 220 volt electric outlet, were recognized hazards with the meaning of Section 5(a)(1) of the Act. Respondent could have detected these hazards by disassembling the male plug and visually examining its interior, and by testing the extension cord with a continuity meter, which it owned. Both such tests are recommended and conducted by knowledgeable safety professionals. This Respondent, in order to discharge its responsibility under the Act to provide its employees with a workplace which is free from recognized hazards, had a duty to periodically examine and test the electric equipment in issue. The existence of these defects in this electrical equipment presented a condition which, when the electrical equipment was used, allowed electric current to enter the body of the employee connecting the equipment.

A condition which allows electric current to enter or pass through a person's body is a recognized hazard within the meaning of Section 5(a)(1) of the Act.

8. The violation herein found to exist at Respondent's Roselle Park work place on July 31, 1971, was a serious violation within the meaning of Section 17(k) of the Act in that there was a substantial probability that death or serious physical harm could result from the conditions found to exist, and this Respondent could, with the exercise of reasonable diligence, have known of the presence of said violation.

9. Due consideration having been given to the provisions of Section 17(j) of the Act, and the criteria set forth by the Commission in Nacirema Operating Company, Inc.,

The gravity of this serious violation is severe in that death was very likely due to this violation. The Secretary properly reduced the maximum statutory penalty based upon the Respondent's lack of any history of previous violations and its size. However, the proposed 20% reduction based upon Respondent's good faith is not supported by the evidence of record. This reduction is disallowed and a 5% reduction is considered appropriate in view of the facts of record.

Based upon the foregoing findings, conclusions and determinations, and pursuant to the provisions of Section 10(c) of the Act, it is hereby,

ORDERED:

1. That the Citation for Serious Violation dated August 20, 1971 directed to the Respondent herein as issued by the Secretary is hereby AFFIRMED.

2. That the appropriate penalty based upon the Serious Violation herein found to have existed at Respondents Roselle Park workplace on July 31, 1971 is $650.00.

3. Respondent herein is hereby directed to pay the said civil penalty in the amount of $650.00 to the Secretary within 15 days from the date of entry of the final order herein.