Beverly Enterprises-Alabama, Inc.

Plain-English summary

Beverly Enterprises runs a nursing home in Fairhope, Alabama. During an OSHA inspection of its maintenance shop, the compliance officer found the circuit breakers in the panel box were not labeled to show what each one controlled. OSHA cited the company under the electrical standard requiring branch circuits to be marked, and classified it as a repeat violation based on an earlier uncontested citation at a Beverly facility in Pennsylvania. Beverly argued the breakers did not need labeling, that any violation was nonserious rather than repeat, and that OSHA had ignored its own field manual by relying on a distant facility. The judge affirmed the violation, holding personal knowledge of the wiring is no substitute for labels that let any worker cut power quickly in an emergency. The judge also upheld the repeat classification because both citations involved the same standard, the same hazard, and the same fix (labeling). The proposed $200 penalty was reduced to $100 as a low-gravity violation, and a second citation was withdrawn.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.303(f) (affirmed as repeat); 29 C.F.R. § 1910.212(a)(1) (Citation 3, withdrawn)
• Outcome: Citation 2, Item 1 affirmed as a repeat violation with the penalty reduced from $200 to $100; Citation 3 withdrawn by the Secretary.
• Key point: A violation is "repeat" when a prior final order involved the same specific standard and a substantially similar hazard and means of abatement, even at a geographically remote facility.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,

              v.                                       OSHRC Docket No. 00-1357 (EZ)

Beverly Enterprises - Alabama, Inc.,
Respondent.

Appearances:

      Marsha L. Semon, Esq.                            Gregory S. Narsh, Esq.
             Office of the Solicitor                           Pepper Hamilton, LLP
             U. S. Department of Labor                                 Harrisburg, Pennsylvania
             Birmingham, Alabama                                       For Respondent
                      For Complainant

Before: Administrative Law Judge Nancy J. Spies

                                    DECISION AND ORDER
      Beverly Enterprises – Alabama, Inc. d/b/a Beverly Healthcare Eastern Shore (Beverly), is a

multi-facility health care corporation providing for long-term care for residents. On June 13 - 14, 2000,
Occupational Safety and Health Administration (OSHA) Compliance Officer Michael Curry conducted
a programmed inspection of Beverly’s Fairhope, Alabama facility. As a result of this inspection, the
Secretary issued Beverly three citations on June 29, 2000.
Beverly and OSHA informally settled Citation No. 1. Beverly timely contested Citation Nos. 2
and 3. Prior to the hearing, the Secretary withdrew Citation No. 3.
The case was designated for E-Z trial procedures under § 2200.200, et seq. On November 1,
2000, a hearing was held in Mobile, Alabama, on the remaining item, the alleged repeat violation of §
1910.303(f). The Secretary asserts that Beverly failed to label the circuits in a breaker panel box located
in the maintenance building. Beverly denies that the failure to label violated § 1910.303(f), but asserts
that if a violation is found, it must be classified as nonserious rather than repeat. Beverly also contends
that OSHA acted in contradiction of its Field Inspection Reference Manual (FIRM) when it relied on
a citation from a geographically remote facility for a repeated classification.
For the reasons that follow, item 1 is affirmed as a low gravity repeat violation.

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                                           BACKGROUND
    Beverly operates a 130-bed nursing home in Fairhope, Alabama. Its facility has three buildings:

the main building and two smaller buildings. The maintenance shop, which is one of the smaller
buildings, measures approximately 12 feet by 24 feet (Tr. 65). The shop houses general maintenance
materials and tools, some hazardous materials (such as paint), storage lockers, a work bench, and a desk
(Tr. 67, 86). It serves as the work space for Kelly Davis, who has been the maintenance supervisor for
Beverly for the past six years (Tr. 60). Kelly is responsible for maintenance and the day-to-day
operations of the physical plant. At the time of the inspection, Davis had an assistant working with him
(Tr. 70).
Davis accompanied Curry during the inspection of the maintenance shop. Curry testified that
the door to the shop was not locked when they entered (Tr. 16). Curry inspected the circuit breaker
panel box located by the left-hand door of the shop and found that the circuit breakers were not labeled
(Exhs. C-1, C-2, Tr. 16). The breaker panel box controlled only the electricity for the maintenance shop.
The shop used electricity for lights, heating and air-conditioning, and to power equipment, such as drills,
saws, and sanders (Tr. 20, 69). Davis repaired furniture, small appliances, plumbing fixtures and
performed other general maintenance in the shop (Tr. 83). When Curry pointed out that there were no
labels by the circuit breakers in the panel box, Davis immediately labeled them (Tr. 20).
DISCUSSION
In order to establish a violation of an occupational safety or health standard, the
Secretary has the burden of proving: (a) the applicability of the cited standard, (b) the
employer’s noncompliance with the standard’s terms, (c) employee access to the
violative conditions, and (d) the employer’s actual or constructive knowledge of the
violation (i.e., the employer either knew, or with the exercise of reasonable diligence
could have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

                          Alleged Repeat Violation of § 1910.303(f)
    The Secretary asserts that Beverly violated the requirements of the second sentence of

§ 1910.303(f). The standard provides (emphasis added):
Identification of disconnecting means and circuits. Each disconnecting means required
by this subpart for motors and appliances shall be legibly marked to indicate its purpose,
unless located and arranged so the purpose is evidence. Each service, feeder, and branch

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   circuit, at its disconnecting means or overcurrent device, shall be legibly marked to
   indicate its purpose, unless located and arranged so the purpose is evident. These
   markings shall be of sufficient durability to withstand the environment involved.

   The purpose of the circuit breakers was not obvious from their location on the panel box. Davis

testified that although the circuit breakers were not labeled, he personally knew which breakers
controlled which circuits (Tr. 70). Personal knowledge is not a substitute for the written identification
required to facilitate quick and correct disconnects in the event of an emergency or if a repair must be
made. Davis was not the only employee who might have to disconnect an electrical circuit at the panel
box. At the time of the inspection, both Davis and his assistant worked in the shop and had access to
the panel (Tr. 21, 70). Davis described a time when he took a sabbatical. Others may have come into
the shop or been made responsible for repairing the equipment. Finally, the only person who knew
which breakers went to which circuits may have been the one injured and the one in need of an
immediate disconnect from the electricity. The purpose of the circuit breakers should have been
immediately evident through labeling or location, and they were not.
It is not significant that there was an additional disconnecting means at the primary feeder in the
main facility about 30 feet from the shop (Tr. 81). The quickest and closest location to cut the power
to anything in the shop was the shop breaker panel (Tr. 83-84). To avoid confusion and mistake the
standard requires that all, not merely one, of the disconnecting means for electrical current be labeled.
The fact that the circuits were unlabeled was obvious. The knowledge of maintenance supervisor Davis
that they were unlabeled is properly imputed to Beverly. Superior Electric Co., 17 BNA OSHC 1635,
1637 (No. 91-1597, 1996).
The violation of § 1910.303(f) is affirmed.
Repeat Classification
Under the Commission’s long stated test, a repeat violation under § 17(a) of the Act occurs if
the Secretary shows “a Commission final order against the same employer for a substantially similar
violation.” Potlatch Corporation, 7 BNA OSHC 1061, 1063 (NO. 16183, 1979). On February 23,
1999, the Secretary issued Beverly Enterprises – Pennsylvania, Inc., in Uniontown, Pennsylvania, a one-
item, other-than-serious citation, for violation of § 1910.303(f) (Exh. C-3). The Secretary submitted
the signed abatement document which sufficiently establishes that Beverly did not contest the violation

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and that it is a final order of the Commission (Exh. C-3, p. 7). For purposes of this case, Beverly does
not assert that the two facilities are other than the same employer.
Were the violations substantially similar? When the violated standard is specific rather than
general, the Secretary may establish a prima facie case of substantial similarity if the final order alleged
a failure to comply with the same standard. Beverly is incorrect in its suggestion that § 1910.303(f) is
a general standard because it may apply to different types of disconnecting means and circuits. The
breath of a standard’s application does not determine whether it is general or specific. A standard is
considered specific when it contains “explicit, unambiguous safety precautions that employers must take
in specific situations.” Corbesco Inc. v. Dole, 926 F.2d 422, 427 (5th Cir. 1991). Section 1910.303(f)
is a specific standard, and Beverly violated that standard twice. The Secretary established her prima
facie case of substantial similarity.
The burden shifts to the employer to rebut that showing. Monitor Constr. Co. 16 BNA
OSHC 1589, 1594 (No. 91-1807, 1994) (citing Potlatch) (even though the two standards addressed
falls into openings, falling into a manhole when its cover breaks differs from the hazard of stumbling into
a beam). The courts do not limit the concept of repeated violations to factually identical occurrences,
however. J. L. Foti Construction v. OSHRC, 687 F. 2d 853, 856 (6th Cir. 1982). Similarity includes
consideration of factors such as the obviousness of the hazard, the abatement required, and the actual
hazard posed. Such things as “geographical proximity of the violations, the commonality of supervisory
control over the violative condition, and the time lapse between the violations bear only on the size of
the penalty to be assessed, not on the ‘repeated’ character of the infractions.” Id. at 875.
The Eleventh Circuit found a violation to be repeated “if (1) the same standard has been violated
more than once and (2) there is a ‘substantial similarity of violative elements’ between the current and
prior violations.” D & S Grading Co., Inc. v. Secretary of Labor, 899 F. 2d 1145 (11th Cir. 1990)
(repeat violations supported by same violative elements in the nature of conditions and hazards of cave-
ins). The Commission holds that the “principal factor to be considered in determining whether a
violation is repeated is whether the prior and instant violations resulted in substantially similar hazards.”
Stone Container Corp., 14 BNA OSHC 1757, 1762 (No. 88-310, 1990) (citations which involved the
same standard and applied to similar conditions of exposure and similar falls are repeat); Hudson Wood

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Recycling, Inc., 17 BNA OSHC 1635 (No. 91-1597, 1996) (prior violation for failure to have midrail
was substantially similar to failure to have guardrail).
Beverly emphasizes that § 1910.303(f) contains two sentences and that the previous and current
violations were predicated on different sentences. The prior Pennsylvania violation applied to the first
sentence, which requires an employer to mark the disconnecting means for motors and appliances. The
Secretary found that Beverly had not marked three disconnect boxes for exhaust fans and appliances in
the kitchen area (Exh R-2). The three disconnect boxes were next to each other on the wall, with
nothing to indicate which box controlled which equipment. The current Alabama violation referred to
the second sentence requiring an employer to mark the branch circuits at the disconnecting means or the
breaker panel in the maintenance shop. The panel box contained four 215- to 230-volt circuits and
three 110-volt circuit breakers (Exh. C-2; Tr. 69, 82, 76). Even if all the breakers were not active,
someone unfamiliar with the wiring in the shop would not know this.
Both sentences of the standard require labels to identify the purpose of the disconnecting means.
Both violative conditions relate to the electrical hazard in the same way, i.e., employees will not know
which cutoff devices control which circuits, thus delaying disconnects from the electricity in case of
emergency or for maintenance. For example, an employee could be injured while repairing equipment,
an employee might restart a machine that was being repaired, or a helper might mistake which circuit
controlled the equipment that was to be repaired. Despite Beverly’s argument that a disconnect box and
a circuit breaker panel are not identical, they both perform the same function of disconnecting electrical
power from specific circuits.
Violations of either sentence of the standard could result in employee exposure to shock,
electrocution, burns or other injury. Employees must be able to see the exact method to disconnect the
electricity in order to lessen or avoid these hazards. Regardless of the location of the disconnecting
means, kitchen area disconnect boxes or maintenance shop circuit breakers, the two hazards are
substantially similar.
In addition to similar hazards, these two violations have the same means of abatement: labeling
the disconnect. See Centex-Rooney Construction Co., 16 BNA OSHC 2127 (No. 92-0851, 1994)
(hazards and means of abatement were the same in both citations and violations were repeated). The

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similarity of the hazard and the identity of the means of abatement support the conclusion that the
present violation is repeated.
Field Inspection Reference Manual
Beverly contends that Curry did not follow the FIRM because the FIRM provides that a repeat
violation only applies to a multi-facility employer if the repeated violation recurred within the same
OSHA area office jurisdiction. However, that section of the FIRM begins with the statement that
“(w)here a national inspection history has not been obtained, the following criteria regarding
geographical limitations shall apply.” (FIRM Chapter III.C.2.f.(4)(c); Exh. R-1). In this case, Curry
obtained Beverly’s national inspection history. Curry testified that he routinely checked an employer’s
nationwide inspection history on all of his cases (Tr. 41). This procedure is recommended by the FIRM.
It requires OSHA to obtain a nationwide inspection history of an employer were high gravity serious
violations are to be cited; it encourages OSHA to obtain a nationwide inspection history for lesser
gravity violations. (FIRM Chapter III.C.2.f.(4)(a) and (b); Exh. R-1). Moreover, the FIRM does not
have the force of law. It provides guidance to assist inspectors in the uniform enforcement of the Act.
Beverly’s contention that OSHA did not follow the FIRM is without merit.
The violation of § 1910.303(f) is affirmed as repeat.
PENALTY ASSESSMENT
The Commission is the final arbiter of penalties in all contested cases. Section 17(j) of the Act
requires that when assessing penalties, the Commission must give “due consideration” to the size of the
employer’s business, the gravity of the violation, the good faith of the employer, and the prior history
of violations. 29 U. S. C. § 666(j). Generally, the gravity of the violation is the primary consideration
in assessing penalties. Trinity Industries, Inc., 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992).
Considerations of gravity include the nature of the violation, the number of employees exposed, the
duration of exposure, and the likelihood that any injury would result from the hazard. Although Davis
used electrical tools and equipment throughout the workday, the gravity of this violation is low. The
maintenance supervisor was knowledgeable and kept the shop area in notable order. The small number
of breakers and the ease with which the breaker panel could be accessed would permit someone, even
without knowledge of the wiring, to disconnect all the circuits in a relatively short time. As an
enterprise, Beverly has 900 employees and has 120 to 130 employees in the facility (Tr. 42). It is given

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no credit for size. Beverly is credited for good faith. It has an active safety program, was cooperative
throughout the inspection, and immediately abated the violation. Based on all of the above, the
proposed penalty of $200 is reduced to $100.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance with
Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED that:
1. Citation 2, Item 1, alleging a repeat violation of § 1910.303(f), is affirmed as repeat and
a penalty of $100 is assessed.
2. Citation 3, Item 1, alleging a violation of § 1910.212(a)(1), is withdrawn by the
Secretary.
/s/

                                                     NANCY J. SPIES
                                                     Judge

Date: December 15, 2000

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