Renewal Arts Contracting Corp.

Plain-English summary

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

Decision snapshot

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

Full text (OSHRC public release)

                                UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

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

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

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

docketed with the Commission on June 17, 1993. The decision of the Judge
will become a final order of the Commission on July 19, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
July 7, 19B3 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:

                          Executive Secretary
                          Occupational Safety and Health
                           Review Commission
                          1120 20th St. N.W., Suite 980
                          Washington, D.C. 20036-3419

Petitioning parties shall also mail a copy to:

                          Daniel J. Mick, Esq.
                          Counsel for Regional Trial Liti ation
                          Office of the Solicitor, U.S. DO5
                          Room S4004
                          200 Constitution Avenue, N.W.
                          Washington, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
hav-mg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.

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

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

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

                    .

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

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

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

Complainant,

                                                  Docket No.    924907

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

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

                           For the Complainant


                   Brian M. Limmer, Esq.
                   Merrick, New York

                           For the Respondent

Before: Administrative Law Judge Irving Sommer

      This is a pr;-7fxPtj,i
                       ::lgunder Section 10(c) of the Occupa-

tional Safety and Health .kt,of 1970, 29 U.S.C. section 651 &
sea.3 ("the Act"), tcl :-view citations issued by the Secretary .

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

            Respondent                 is a     corporation engaged                          in construction,

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

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


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


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

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

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

Repeat Citation 2, item 1 alleges:

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


            The    compliance        officer        testified         that   Respondent       failed

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

            The      lack     of     the         GFCI     or     an       equipment      grounding

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

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

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

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

                All        findings                of    fact         and conclusions                      of         law       relevant

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

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

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

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

                                         Judge                 .
   

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