D.C. Pagers, Inc., d/b/a Superior Services

Plain-English summary

D.C. Pagers performed electrical contracting work at a site in St. Clairsville, Ohio. OSHA alleged that employees lacked safety training for live electrical work and did not use appropriate eye protection while checking an electrical panel or cutting PVC pipe. The judge found that OSHA had not proved an arc-blast hazard, flying-particle hazard, or other site condition that triggered the cited requirements. He also found that the compliance officer lacked a reliable factual or technical basis for the allegations. A third item was dismissed because OSHA cited a nonexistent standard, and all three citation items were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.21(b)(2) and 1926.102(a)(1); the third item cited a nonexistent standard that the decision does not identify.
• Outcome: All three citation items vacated.
• Key point: Training and protective-equipment citations require evidence that the underlying workplace hazard existed or was reasonably likely to arise.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v. Docket No. 01-0162
D. C. PAGERS, INC., d/b/a SUPERIOR
SERVICE,
Respondent.

Appearances: Paul Spanos, Esq.
Office of the Solicitor
U.S. Department of Labor
Cleveland, Ohio
For Complainant

                   Gerald P. Duff, Esq.
                   Hanlon, Duff, Estadt & McCormick
                   St. Clairsville, Ohio
                           For Respondent

BEFORE: MICHAEL H. SCHOENFELD,
Administrative Law Judge

                             DECISION AND ORDER

Background and Summary of Procedural History
This case arises under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678
(1970) (“the Act”). On December 19, 2000, a Compliance Officer (“CO”) from the U.S.
Occupational Safety and Health Administration (“OSHA”) visited Respondent’s work site in St.
Clairsville, Ohio. As a result of the inspection, OSHA issued a citation to Respondent on January
5, 2001, alleging three violations of construction safety standards appearing in Title 29 of the Code
of Federal Regulations (“CFR”). Respondent timely contested the citation. A hearing was held in
Pittsburgh, Pennsylvania on June 5, 2001. No affected employees sought party status. Both parties
have filed post-hearing briefs.1

Jurisdiction
It is alleged and undenied that at all relevant times Respondent has been an employer engaged
in electrical contracting. There is no dispute that Respondent uses goods or materials which have
moved in interstate commerce. I find as fact that Respondent is engaged in a business affecting
interstate commerce.
Based on the above finding, I conclude that Respondent is an employer within the meaning
of section 3(5) of the Act. Accordingly, the Occupational Safety and Health Review Commission
(“the Commission”) has jurisdiction over the parties and the subject matter.

Discussion
This is a case in which the two citation items remaining in contest2 are both vacated because

   1
       Complainant’s brief makes several arguments regarding an employer identified as

“Complete General.” While not a party to this case, it will be assumed that the brief, or portions
thereof, were excerpted from a similar document used in another case. Nonetheless, the substance
of the arguments made in behalf of this other employer have been considered as far as they are
relevant to this case.
2
Respondent’s motion to dismiss Item 3 of Citation 1 was granted at the hearing. (Tr. 9)
The Secretary’s brief falsely states that the Administrative Law Judge “sua sponte vacated
Citation 1, Item 3.....” (Sec. Brief, fn. 1 at p. 2).
The item was dismissed as a result of granting Respondent’s motion. In fact, Respondent
raised the issue of it having been cited under a non-existent standard as early as the informal
conferences at the OSHA area office. (Tr. 8) It sought dismissal or amendment of this item in
writing to the area director by letter dated January 23, 2001. In that letter, Respondent even
identified for OSHA the relevant sections of OSHA’s own Field Inspection Reference Manual
regarding withdrawal or amendment of the citation where an incorrect standard had been cited.
Respondent specifically moved to dismiss the item on March 12, 2001, in its Answer to the
complaint. Respondent’s Pretrial Statement of May 11, 2001, again noted that “Respondent has
moved to dismiss Citation 1, Item 3. It is believed that such motion still pends.” Finally, in his very
first opportunity to address the bench at the hearing, Respondent’s counsel stated, “[n]umber one,
we move to dismiss Citation [1, Item] Number 3, for the reasons set forth in the pleadings....This has
been raised repeatedly and has not been addressed by briefs from the government.” (Tr. 7-8). The

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the Secretary has failed to show, by a preponderance of the evidence, that particular hazards which
would trigger the requirements of the cited standards were present or likely to be present at the work
site. In each instance, the investigating Compliance Officer lacked experience, accurate information
or any basis, other than speculation, upon which to base his conclusion that hazards arose or were
likely to arise out of the operations being performed.
In general, to prove a violation of a standard, the Secretary must demonstrate by a
preponderance of the evidence (1) that the cited standard applies, (2) noncompliance with the terms
of the standard, (3) employee exposure or access to the hazard created by the noncompliance, and
(4) the employer knew, or with the exercise of reasonable diligence could have known, of the condi-
tion. Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981); Dun-Par
Engineered Form Co., 12 BNA OSHC 1949 (No. 79-2553), rev'd & remanded on other grounds,
843 F.2d 1135 (8th Cir. 1988), decision on remand, 13 BNA OSHC 2147 (1989). Where the
allegation is that Respondent failed to train employees in recognizing and avoiding dangerous
circumstances at the particular site (Item 1) or that its employees at the site failed to use eye
protection appropriate for the working conditions with which they were actually confronted, (Item
2), the Commission looks to the language of the cited standard in determining whether it applies to
the facts of a case. Unarco Commercial Prod., 16 BNA OSHC 1499, 1502 (No. 88-1555, 1993).

Citation 1, Item 1
29 CFR § 1926.21(b)(2)3
The Commission has long been acquainted with the standard cited in Item 1. Its decisions
interpreting this standard have their genesis in the opinion of the United States Court of Appeals for
the Sixth Circuit in H.C. Nutting Company v. OSHRC, 615 F.2d 1360 (6th Cir. 1980). There, faced

Secretary was afforded yet another opportunity to reply to the motion. After both parties were heard
in the issue, Respondent’s motion was granted.
3
The cited standard provides:
(2) The employer shall instruct each employee in the recognition and
avoidance of unsafe conditions and the regulations applicable to his
work environment to control or eliminate any hazards or other
exposure to illness or injury.

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with the argument that the standard was vague, the court said:
Fairly read, the regulation requires that an employer inform
employees of safety hazards which would be known to a reasonably
prudent employer or are which are addressed by specific OSHA
standards.
For example, the Commission said in its recent decision in Capform, Inc. , 19 BNA OSHC 1374,
1376 (No.99-0322, 2001)(“Capform”);
Under § 1926.21(b)(2), an employer must instruct its employees in
the recognition and avoidance of those hazards of which a reasonably
prudent employer would have been aware. [T]o prove a violation of
§ 1926.21(b)(2)...the Secretary must show that [the] employer failed
to provide the instructions which a reasonably prudent employer
would have given in the same circumstances. Employees must be
given instructions on (1) how to recognize and avoid the unsafe
conditions which they may encounter on the job, and (2) the
regulations applicable to those hazardous conditions. An employer's
instructions must be "specific enough to advise employees of the
hazards associated with their work and the ways to avoid them" and
modeled on any applicable standards.
(Citations omitted.)
In this case, for the reasons which follow, I find that the Secretary has established neither
the presence of hazards nor the existence of another regulation applicable to such hazards which
would require a reasonably prudent employer to take the actions which Respondent has been cited
for failing to take.
The citation alleged that Respondent did not comply with the cited standard because “[O]n
the site, training of the procedures for safety related work practices when working on live electrical
was not provided.”. He testified that he based this alleged violation on his belief that employees
were not using required eye protection while testing an electrical panel or while cutting plastic pipe
(“PVC”).
Under Capform, where there is an alleged failure of an employer to properly instruct
employees regarding hazards at their particular work site, it is incumbent on the Secretary to show
that certain hazards existed or could reasonably be anticipated to occur at the site and that the
employees’ training failed to properly deal with those hazards. Here, the CO, in a general statement,
correctly opined that the standard requires that “employees be trained (about) specific hazards which

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could be encountered during working on electrical equipment.” (Tr. 24) He was less than clear,
however, in attempting to identify any particular hazards which could occur at this site and for which
employees were not appropriately instructed.
The CO testified that according to his interviews, the employees
had not had training in safety-related work practices in regard to arc
blast zones or working on live electrical in determining what hazards
or what personal protective equipment would be suitable for that
particular work.
(Tr. 24-5). Based on this statement, the CO apparently believed that two hazards existed at the site
for which the employees had not been trained, i.e., “determining where the arc blast zone was, or
what type of equipment would be suitable for working on the energized equipment at that particular
site.” (Tr. 25, 29).4 I conclude, however, that the Secretary failed to show that Respondent’s
employees were required to receive training about arc blasts. I further conclude that the employees
did, in fact, receive the required training about general electrical hazards.
First, the CO’s testimony as to his interviews of Respondent’s employees at the site gives
little confidence to the conclusions he reached. According to the CO, he interviewed Mr. Dillon at
the site. The CO stated that Dillon described himself as “a foreman” [for Respondent]. (Tr. 16). The
CO, however, could not even identify the other employee he supposedly interviewed at the site, (Tr.
17), and based upon his demeanor and behavior at the hearing and his propensity to give evasive
or incomplete answers, his testimony is found to be generally lacking in credibility.
Second, no arc blast occurred and the record does not support the CO’s assumption that there
was a reasonable expectation that there could be an arc blast at this site. It is less than clear from his
testimony that the CO even understood the nature of arc blasts. His statements in this regard were
gelogenic. They were neither elucidating nor did were they accompanied by any indicia of
reliability. (Tr. 19-20) In addition, the evidence does not show that he had any expertise, education
or experience in electrical equipment or circuits. (Tr. 12-3). On the other hand, the testimony of Roy
Dutcher is far more probative and reliable. Even taking into account his stake in the proceedings and
possible bias, I find Dutcher’s testimony more credible than that of the CO. His demeanor at the

    4
     At other times during his testimony, the CO seemed to identify a lack of training in dealing

with electrical hazards more generally. (Tr. 25-26).

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hearing was indicative of a forthright and candid witness. Further, his understanding of the nature
of arc blasts and his opinion as to the likelihood of them occurring under the circumstances at the
site was far more reliable in that it was based on significant and relevant experience and established
credentials to offer such an opinion. (Tr. 41-42, 48-49, 57-60) Additionally, the reliability of his
opinion was bolstered during cross-examination. (Tr. 51-56) Considering the testimony of these two
witnesses, the CO’s reliance on the possibility of an arc blast to conclude that Respondent’s
employees lacked appropriate training is rejected. In the absence of a reasonable expectation that
an arc blast could occur on the site,5 Respondent cannot be found in violation of the cited standard
for not instructing its employees in how to deal with such an event.
Third, even if the CO’s testimony were interpreted to mean that Respondent lacked a
reasonable safety program or failed to provide safety training in general, (e.g., Tr. 25-6) his testimony
is rejected. The CO did not have a copy of Respondent’s safety program or training materials at the
time the citations were issued, but he did have an employee statement that such a materials in fact
existed. (Tr. 23) There is no claim or evidence that the CO made any requests of more senior
company officials for these materials and he did not receive a copy of such materials until the
informal conference. (Tr. 28-9). The CO thus had little or no basis on which to fairly evaluate the
nature, extent or content of Respondent’s training when he issued the citation. Without such a basis,
his determination lacks merit.6
For the above reasons, I conclude that the record in this case does not show by a
preponderance of the reliable evidence that Respondent failed in its responsibility to instruct or train
employees as alleged in Item 1 of the Citation. Accordingly, the Item is VACATED.

Citation 1, Item 2

    5
        Moreover, there is no substantial evidence that an arc blast hazard should be known to

Respondent by virtue of a specific OSHA standard. The CO conceded that the hazard of an arc blast
is not included in the “417 standard, which is safety-related work practices” (presumably relating to
electrical hazards.)
6
There is also credible testimony that both of Respondent’s employees at the site had
received training appropriate to the cited standards. (Tr. 46- 47; Ex. R-1,2)

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29 CFR § 1926.102(a)(1)7
This item alleges that Respondent’s employees did not use appropriate eye and face
protection while performing electrical work at the site as required by the cited standard.
For reasons similar to those stated above, I find that the Secretary has failed to show the
existence or likelihood of an “operation (that) present(ed) potential eye or face injury” under the
circumstances of this case.
The Commission has held that the personal protective equipment general industry standard
requiring eye protection in almost the same language 8 “applies when an employee is ‘exposed to eye
or face hazards from flying particles.’ " Nordam Group, 2001 OSHARC LEXIS 37, (No. 99-0954,
May 18, 2001). The CO testified that there were two bases for his issuance of this Item. The first was
that employees were testing an electrical panel which if energized, could create an arc blast causing
injury to the employees’ eyes or face. The second was that in cutting PVC pipe, the employees were
exposed to potential eye injury from fragments of the pipe. (Tr. 19).
As discussed above, the record in this case does not show that an arc blast hazard existed or
could reasonably be anticipated at the site.9 By itself, this is a sufficient reason to reject the CO’s
theory. There is, however, a matter of factual testimony warranting resolution.
There is some dispute as to whether Dillon was testing the electrical panel or merely
observing the labels on the breakers within the panel. The CO initially testified that he observed an

   7
       The cited standard states:
            (1) Employees shall be provided with eye and face protection
            equipment when machines or operations present potential eye or face
            injury from physical, chemical, or radiation agents.
   8
       The standard at 29 CFR § 1910.133(a)(1) provides;
             Eye and face protection. (a) General Requirements. (1) The employer
            shall ensure that each affected employee uses appropriate eye or face
            protection when exposed to eye or face hazards from flying particles,
            molten metal, liquid chemicals, acids or caustic liquids, chemical
            gases or vapors, or potentially injurious light radiation.
   9
           On cross-examination, the CO later opined that “eye protection is needed anytime

you’re working on any kind of electrical.” Indeed, the CO further expanded his theoretical universe
of safety stating that eye protection would be needed “anytime you’re on the site.” (Tr. 35).

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employee of Respondent testing a circuit at an electrical panel. (Tr. 15) He later used more
ambiguous terms, testifying that his interview with Dillon “indicated” that Dillon was doing testing
and that he was “right up at the panel.” (Tr. 21, 38) The second of Respondent’s employees at the
site, Mr. Thalman, who is also a qualified electrician (Tr. 63-4), testified that he was “standing right
behind” Dillon when Dillon was “checking the markers on the breakers to match the receptacles.”
(Tr. 66) Thalman had turned off the power to the box at two points. (Tr. 66-67) The record shows
that Respondent’s employees routinely carry electrical testers with them and that it is considered
“standard procedure” “to check the voltage coming in (to a panel)” with a tester. (Tr. 68-69.)
Although Thalman conceded that he did not know if Dillon actually tested the panel in question, (Tr.
68), Dillon clearly had a tester with him at the box and testing the box would have conformed to
their “standard procedure.” It is thus reasonable to infer that Dillon tested the panel before
proceeding to check the markings. And were it determinative, I would find that Dillon used his tester
to make sure there was no voltage to the box before proceeding to do anything else, whether
checking labels or other work. Such a finding does not, however, make the Secretary’s case.10 There
is still no substantial, reliable evidence that if the panel were energized or if Dillon used a tester at
the panel, or both, there was a reasonable expectation that such conditions would, in the words of
the standard, “present potential eye or face injury....”
Finally, the CO’s rationale for asserting that a condition raising potential injury arose from
the cutting of PVC pipe at the site is rejected. On this record, the CO’s conclusion is highly
speculative, at best. He did not observe any cutting of PVC pipe during inspection. (Tr. 32). In fact,
he admitted that he had never experienced anyone having an eye injury resulting from the cutting of
PVC pipe with a hack saw. (Tr 32-33.) Neither had any of Respondent’s employees been aware of
any injuries arising from the operation they were performing. (Tr. 48; 66). Dutcher explained why
an injury of the type speculated by the CO was unlikely. (Tr. 56-56). Thus, there was no condition
of “flying particles” as asserted by the Secretary. (Sec Brief, p. 2). For the reasons previously set
forth, Dutcher’s testimony as to conditions arising from the cutting of PVC pipe with a hand -held
hack saw, as in this case, is given far more probative weight than that of the CO. Accordingly, it

    10
        The failure of either party to call Dillon as a witness raises no inference as to the nature

of the factual testimony he would have given.

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is found that the Secretary has not shown that the cutting of PVC pipe with a hack saw created a
condition under which eye protection was required by the cited standard.
Accordingly, Item 2 of the Citation is VACATED.

                                 FINDINGS OF FACT
     All findings of fact necessary for a determination of all relevant issues have been made

above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with
this decision are hereby denied.

                               CONCLUSIONS OF LAW


     1. Respondent was, at all times pertinent hereto, an employer within the meaning of section

3(5) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651- 678 (1970).
2. The Occupational Safety and Health Review Commission has jurisdiction over the parties
and the subject matter.
3. Respondent was in not violation of section 5(a)(2) of the Act in that it did not fail to
comply with the construction safety standards as alleged in Citation 1, Items 1, 2 and 3.

                                         ORDER


     1. Citation 1, Items 1, 2 and 3, are VACATED.




                                                                 /s/
                                                   Michael H. Schoenfeld
                                                   Judge, OSHRC

Dated: 8/13/01
Washington, D.C.

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