OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA
|In the Matter of the Appeal
ONTARIO RESIDENTIAL MANOR
|Docket No. 96-R6D2-1260
The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code, and having granted the petition for reconsideration filed in the above-entitled proceeding by the Division of Occupational Safety and Health (The Division), makes the following decision after reconsideration.
On August 17, 1995, a representative of the Division conducted an accident investigation at a place of employment maintained by Ontario Residential Manor (Employer) at 1031 North Euclid Avenue, Ontario, California (the site). On November 14, 1995, the Division issued to Employer Citation No. 2, alleging a serious violation of section 2500.9(a) [spliced electrical cords], and Citation No. 3, alleging a serious violation of section 2510.58(a) [grounding poles on flexible cord attachment plugs]. Separate civil penalties of $1,000 were proposed for each citation.
Employer filed timely appeals. At hearing, Employer contested only the reasonableness of the civil penalties, and in particular, the reasonableness of assessing separate penalties for Citation Nos. 2 and 3.
After a hearing before an administrative law judge (ALJ) of the Board a decision was issued on August 20, 1997, denying Employer's appeal, except that the civil penalty for Citation No. 3 was reduced to zero.
On September 24, 1997, the Division petitioned the Board for reconsideration of the ALJs decision. On October 27, 1997, the Board granted the Divisions petition and stayed the ALJs decision pending reconsideration. Employer did not file an answer.
Did the ALJ appropriately set aside the civil penalty for Citation No. 3 because the violation found could be abated by the same action that would abate Citation No. 2?
The Board has taken no new evidence and relies upon its independent review of the record, including the tape recording of the hearing and the exhibits in making this decision. The "Summary of Evidence" on page three of the ALJs decision is incorporated here by reference.
FINDINGS AND REASONS
DECISION AFTER RECONSIDERATION
The Divisions inspection disclosed flexible electrical cords that had been spliced were in use. The Division cited Employer under section 2500.9(a), which prohibits the use of flexible cords that have been spliced or taped. The Division issued Citation No. 2 for cords on two vacuum cleaners, one used on the second floor, the other in the laundry room, with a proposed penalty of $1,000. One of the same vacuum cleaner cords was also missing a grounding pole, as was a cord on a food mixer in use in the kitchen, in violation of section 2510.58(a). The Division issued Citation No. 3 to Employer for the grounding pole violations, proposing a separate $1,000 civil penalty.
Employer did not contest the existence of either violation, and the ALJ found that violations of both sections 2500.9(a) and 2510.58(a) had been established. The ALJ held that this combination of violations could only be abated by a single action, the replacement of the entire spliced cords with cords with permanently attached plug units. The ALJ cited Strong Tie Structures for the holding where two violations can be corrected by a single means of abatement, assessment of a separate penalty for each violation is unreasonable.
The Divisions petition contends that Strong Tie Structures is distinguishable. The Division argues that in Strong Tie, four citations were issued relating to a "single incident or condition," the absence of fall protection on a building roof. Each of the four sections cited by the Division in Strong Tie required a different form of abatement, each one an exclusive alternative to all of the others. The Division argues that in this case, Citation No. 2 and Citation No. 3 address different conditions, presenting the same shock hazard but in different forms. Spliced cords present a shock hazard to employees who walk on them or otherwise touch them. Lack of grounding may cause pieces of electrical equipment to become energized, resulting in a shock hazard to employees using or touching them.
The ALJ noted that as to the violation of section 2500.9(a) in Citation No. 2, prohibition of spliced or taped flexible cords, the only means of abating the violation is by replacing the damaged cords. The ALJ further noted that attachment plugs could not be replaced without taping or splicing new plugs on the ends of the cords, prohibited by section 2500.9(a). The ALJ concluded that the only appropriate means of abating either or both of the citations was to replace the entire cord and attachment plug as a unit.
The Board agrees with the ALJ that the section 2500.9(a) violation could only be abated by replacing the spliced cords with cords that did not have attachment plugs that were taped or spliced onto the cord. However, new electrical cords may be obtained that have two contact prongs but are still lacking a grounding pole. Such a combination would abate the violation of section 2500.9(a), but not the violation of section 2500.58(a).
The Board has repeatedly refused to eliminate civil penalties under Strong Tie Structures where the hazards involved different pieces of equipment in different locations, even where the generic hazard the employees were exposed to was the same. Here, one spliced cord was in use in a vacuum on the second floor, a second spliced cord also missing a grounding pole was in use on a vacuum in the first floor laundry, and a third cord with no grounding pole was in use on a food mixer in the kitchen.
The Board therefore reverses the ALJs decision setting aside the separate civil penalty for Citation No. 3.
DECISION AFTER RECONSIDERATION
The ALJs decision setting aside the civil penalty for Citation No. 3 is reversed. A civil penalty of $1,000 is assessed for Citation No. 3.
BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - June 30, 2000