GEM, Inc.

Plain-English summary

GEM repaired an electrical power system at a county courthouse after lightning damage, and an arc blast occurred while its crew performed a polarity test on energized equipment. The judge found that replacing the damaged bus section was maintenance rather than construction, so the general industry standards applied. Four items involving housekeeping, lockout procedures, and conductor abrasion were vacated because the cited requirements did not apply or the proof was insufficient. Three serious items were affirmed because the crew lacked insulated gloves and face shields and used an uninsulated engine hoist near energized conductors. The judge rejected employee misconduct because vague staging instructions made the polarity test and the lack of specified protective equipment foreseeable, and assessed penalties totaling $7,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.22(a)(1); 29 C.F.R. § 1910.333(b)(2); 29 C.F.R. § 1910.333(b)(2)(i); 29 C.F.R. § 1910.305(b)(1); 29 C.F.R. § 1910.335(a)(1)(i); 29 C.F.R. § 1910.335(a)(1)(v); 29 C.F.R. § 1910.335(a)(2)(i)
• Outcome: Four items were vacated and three serious electrical-protection items were affirmed, with total penalties of $7,000.
• Key point: An employer cannot rely only on electricians' experience when its instructions make energized testing foreseeable and it does not specify or provide the protective equipment the task requires.

Full text (OSHRC public release)

                                          United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                           1924 Building - Room 2R90, 100 Alabama Street, SW
                                       Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 07-1552
GEM, Inc.,
Respondent.

Appearances:

      Mary L. Bradley, U. S. Department of Labor, Office of the Solicitor, Cleveland, Ohio
      For Complainant

      John T. Landwehr, Esq. And Lynn Luther, Esq., Toledo, Ohio,
      For Respondent

Before: Administrative Law Judge Nancy J. Spies

                                      DECISION AND ORDER

      GEM, Inc. (GEM), operates a specialty contracting firm in Toledo, Ohio, which employs the

major trades, such as boilermakers, ironworkers, pipefitters, electricians, and operating engineers
(Tr. 258). On August 24, 2006, lightning struck the Lucus County Family Court Center in Toledo,
Ohio, damaging its electrical power system. Lucas County contracted with GEM to return electrical
service to the building. While GEM was re-installing a repaired electrical bus on April 6, 2007, an
arc blast and fire occurred which injured workers and further damaged the work area. Occupational
Safety and Health Administration (OSHA) compliance officer Darin VonLehmden investigated the
incident from April 6 through 9, 2007. As a result of OSHA’s inspection, the Secretary issued a
citation to GEM on August 27, 2007, alleging seven serious violations of the Occupational Safety
and Health Act of 1970 (Act).
The Secretary initially cited violations of the general industry standards at 29 C.F.R.
Part 1910 because she concluded the work activities constituted “maintenance.” In response to
GEM’s claim that the work was actually “construction,” the Secretary moved in the alternative to
allege violations of the construction standards of 29 C.F.R. Part 1926. The amendment was granted
on May 18, 2008. The citation and amended items allege GEM violated the following:

    Item 1: § 1910.22(a)(1) or § 1926.25(a) (failing to keep work areas clear of tripping
    hazards);

    Item 2: § 1910.333(b)(2) or 1926.416(a) (failing to have the circuits feeding
    deenergized electrical equipment locked out and/or tagged out);

    Item 3: § 1910.333(b)(2)(i) or 1926.416(a)(3) (failing to have written lock-out-tag­
    out procedures available for employees and for inspection);

    Item 4: § 1910.306(b)(1) or 1926.405(b)(1) (failing to protect conductors entering
    cabinets from abrasions);

    Item 5a: § 1910.335(a)(1)(i) or 1926.416(a)(1) (failing to have employees working
    with potential electrical hazards wear appropriate personal protective equipment, i.e.,
    rubber gloves).

    Item 5b: § 1910.335(a)(1)(v) or 1926.95(a) (failing to have employees in danger of
    electrical arc injury to eyes or face wear eye or face protection); and

    Item 6: § 1910.335(a)(2)(i) or 1926.416(a)(1) (failing to use insulated tools and
    handling equipment near exposed energized conductors).

    GEM contends the general industry standards originally cited are inapplicable to the

construction work it performed at the Family Court Center. It further asserts that if a violation exists,
it was the result of employee misconduct. The undersigned held a hearing in this matter in Toledo,
Ohio, on June 11 through 13, 2008. The parties submitted post-hearing briefs, and the case is ready
for decision.
For the reasons discussed below, the work in question is governed by the general industry
standards, not the construction standards. The Secretary established violations of items 5a, 5b,
and 6. GEM did not meet its burden on the affirmative defense of employee misconduct for the
affirmed violations. The evidence does not support items 1, 2, 3, or 4.

                                              -2­
                                             Background
    The August 24, 2006, lightning strike at the Lucas County Courthouse knocked out the

electrical power. GEM was to provide temporary power and to repair the permanent electrical
system housed in the basement. The power system utilizes a series of industrial copper busways
(also referred to as “bus” or “buss,” “duct,” or “bus ducts”). Sections of busway correspond to the
electrical power capacity for various areas in the courthouse. After GEM inspected the lightning
damage to the power supply, it advised the County the damage was confined to discrete portions of
the busway system. As GEM explained (Exh. R-3, p.3):
[I]t seems the damage was confined to the tap box in the transformer vault, a small
section of duct [,] and to the 90 [degree] bend . . . [T]he remaining duct looked as
though it was not harmed by the [lightning].

    GEM removed the damaged bus section and sent it to the manufacturer, Siemens Energy &

Automation (Siemens), for repair or “duplication” (Exh. R-3, p.3). Siemens’s refurbishment of the
bus would take approximately 8 months and would cost over $50,000.00.
In the meantime, GEM provided temporary power to the County Courthouse. To do so GEM
ran approximately twenty-five temporary conductors (or cables)1 to bypass the damaged area
(Exh. R-3, p.3). GEM tied the ends of each cable directly into the power supplies in the adjacent
transformer vault and switchgear rooms (Exh. R-3). The temporary cables were energized at
120 volts to ground (280 volts phase to phase) and carried the substantial amperage of 1,800 amps
(Tr. 140-141). The temporary conductors ran on the floor between the rooms and through the
doorway.
During the months that Siemens duplicated the bus, GEM performed collateral work, such
as replacing the damaged tap box with an updated model and repairing the drywall GEM removed
to extract the damaged bus section (Exh. R-3, p. 4-5; Tr. 110, 137, 425-428). The employees worked
in the small adjacent rooms where GEM had coiled up and curved the energized temporary cables
on the floor (Exh. C-1A-D; Tr. 173).

1
Each temporary conductor or cable was manufactured from individual thin copper wires twisted into a heavy coil of
bundled wires and covered by a black nylon sheath (Exhs. R-19, R-20).

                                                   -3­
     Siemens repaired the bus and delivered it to the courthouse. The GEM crew, including

foreman Michael Linenkugel, Derek Notario, Tim Park, and Adam Taylor, returned to the site, this
time to stage the bus reinstallation and to complete the job. The crew understood GEM would
coordinate with Toldeo Edison to deenergize the power system before the crew would actually install
the bus, remove the temporary conductors, and tie the electrical system back together. After
addressing the issue of working on top of the temporary cables, the crew rigged the heavy
refurbished bus to an uninsulated hydraulic engine hoist. The crew maneuvered the hoist and
suspended the bus as close as possible to the area where it would be installed (Exh. C-1B, E; Tr. 74,
483).
On April 6, 2007, as the crew members began staging the final reinstallation, they realized
they were unsure of the polarity of parts of the electrical system. They wished to be assured the
phases of the bus at the switch gear room would match up with the phases at the prongs of the tap
box in the transformer room. The phases at the connection points were not labeled (Tr. 41-42).
Talking it over, the crew determined it should perform a polarity test (or “phase” test) before Toledo
Edison deenergized the equipment. The crew peeled back a small area of the insulating blankets at
the switchgear and at the energized bus (Exh. C-1; Tr. 112-113).2 Crew members Tim Park and
Adam Taylor stood beside Linenkugel, and Derek Notario stood nearby. During or immediately after
the polarity test, a significant arc blast occurred (Tr. 43-44). Adam Taylor described the resulting
explosion as “a volcano that didn’t stop” which continued “arcing and blowing sparks” and “kept
blowing [molten] copper” (Exh. C- 3).
As part of the OSHA investigation, VonLehmden interviewed the crew and other GEM
employees, took photographs, and reviewed documents GEM and Lucas County provided.

2
The crew apparently intended to push back the insulating blanket at the “vertical bus” and test with one probe, and
push back the blanket at the “horizontal bus” and test with the other probe(Tr. 44). It is unknown whether the
workers actually proceeded to the point where the second blanket was disturbed. It is also unknown what additional
polarity test the crew intended to conduct at the tap box. The issue is not what caused an accident, but whether the
cited standard was violated. Stein, Inc., 17 BNA OSHC 1741, 1746 (6 th Cir. 1995) (lack of causal relationship
between citation and accident is immaterial).

                                                     -4­
                                               Discussion
    The Secretary must prove each element of a violation.
    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., 19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Whether the Construction Standards or General Industry Standards Apply
As a covered employer, the general industry standards apply to GEM, unless its working
conditions are subject to OSHA’s industry-specific construction standards. The more specifically
applicable construction standards take precedence over generally applicable standards. If the work
is not “construction,” by default it is “maintenance,” to which the general industry standards apply.3
Although pleading both standards in the alternative, the Secretary primarily contends GEM’s work
was not construction, but maintenance, because it was repair or replacement in kind (Sec’ry Brief
p. 38). The first question is whether GEM was performing “construction work.”
GEM entered into what it called a “construction contract” rather than a “maintenance
agreement” to repair electrical power at the County Courthouse, and it paid its employees
accordingly (Tr. 272-274, 328). However, contract designations are private agreements; their terms
are not controlling. See Jimerson Under-Ground, Inc., 21 BNA OSHC 1459, 1460-1461 (Docket
No. 04-0970, 2006) (contract with city to “reline” sewer pipe was actually to replace and alter the
pipe, not to reline it).
GEM contends the work is “construction” because the tasks fit within the definitions at
29 C.F.R. § 1910.12. Pursuant to § 1910.12(a) construction standards apply to “every employment
and place of employment of every employee engaged in construction work.” Section 1910.12(b)
defines the term “construction work” as work for “construction, alteration, and/or repair, including

3
It has long been accepted that “maintenance work” is a non-construction activity governed by general industry
standards. The guidance of the Act’s predecessor statutes, one of which is the Davis-Bacon Act [40 U.S.C. 276a],
distinguishes construction “from manufacturing, furnishing of materials, or servicing and maintenance work”
(29 C.F.R. § 5.2(j) (emphasis added). Brock v. Cardinal Indus., Inc., 828 F.2d 373 (6th Cir. 1987).

                                                   -5­

painting and decoration.” GEM was to “[r]epair electrical damage” to the building (Exh. R- 3, p.1),
which, it argues, by definition is “construction work.” Not all repair is construction, however. The
courts and the Review Commission recognize “repair” can encompass “maintenance” work.
Although “maintenance” is not defined by the standards, a common understanding of the word
includes keeping something in proper working condition or repair. See Gulf States Utilities
Company, 12 BNA OSHC 1544, 1546 (No. 82-807, 1985) (RC). In this case the damage was
limited, and “the remaining duct looked as though it was not harmed by the [lightning]” (Exh. R-3).
GEM and the County determined to repair the old electrical power system, rather than to create a
different system.
The U. S. Court of Appeals for the Sixth Circuit (the circuit to which this case may be
appealed) considered whether employees building modular housing units at an off-site assembly
facility were engaged in construction work. Brock v. Cardinal Indus., Inc., 828 F.2d 373, 375 (6th
Cir. 1987), rev’d on related grounds not affecting outcome, n. 4, Martin v. OSHRC (CF&I Steel
Corp.), 499 U.S. 144, n. 4 (1991). The ALJ who originally heard the matter classified the work as
“akin to manufacturing” under general industry standards. On appeal, the Review Commission
reversed. It concluded “the nature” of building houses was “identical to the kind of work that OSHA
intended [the construction standards] to cover.” Cardinal Indus. Inc., 12 BNA OSHC 1585, 1587
(No. 84-1157, 1985) (RC). In reversing the Review Commission, the Sixth Circuit held §§ 1910.12
and 1910.13 approved precedents under the Davis-Bacon Act which defined “construction” as
having a direct connection, proximity, or relationship with a physical construction site or structure.
Without an on-site nexus in Cardinal Indus., the work could not be construction. See also Cleveland
Elec. Illuminating Co., 910 F. 2d 1333, 1336 (6th Cir. 1990) (applicability of construction standards
requires on-site connection). As in Cardinal Indus., GEM’s work for the Lucas County Courthouse
has no connection to a construction site.
Although the Review Commission’s focus is less on a nexus to a physical site than on the
work activity itself, the results are the same here: the work is maintenance. In Gulf States Utilities
Company, supra, 12 BNA OSHC 1544, the Review Commission considered replacement of
damaged porcelain insulators with new epoxy insulators to be “maintenance” work. Even if the
epoxy insulators offered some improvement to the original porcelain (epoxy was less prone to

                                             -6­

damage), the epoxy insulators did not change the basic capacity or function in power generation. The
Utility did not replace all the porcelain insulators on a pole because they might be more susceptible
to damage, but only those which were actually damaged or worn out.
Likewise, Lucas County and GEM did not build a new power system. They had Siemens
refurbish the damaged bus section to replace it in the old system. GEM may have requested the bus
be waterproofed, may have repaired access holes created when removing the old bus, and may have
substituted and supported a new tap box, but the process did not significantly alter the area,
equipment, or structure. The equipment tolerances, insulating values, and hardware substantially
matched the previously undamaged equipment (Tr. 145, 605). Activities that are ancillary to
nonconstruction activities and which aid the primary nonconstruction function are not construction
work. Royal Logging Company, 7 BNA OSHC 1744, 1750 (No. 15169, 1979).
Nor was the work a part of a large-scale, more complex, or extensive project which might
turn isolated maintenance work into construction activities. See Jimerson Under-Ground, Inc.,
supra, 21 BNA OSHC at1460 (work was construction because inserting new pipe liner in discrete
area was integral part of replacing city’s entire sewer system); Active Oil Serv. Inc., 21 BNA
OSHC 1184, 1186 (Docket No. 00-0553, 2005) (work was construction because removal of oil tanks
was integral part of converting oil to gas heat, which also substantially disrupted surrounding
properties). The work is not construction but maintenance, and the general industry standards apply.
Item 1: § 1910.22(a)(1)
The Secretary asserts GEM violated § 1910.22(a)(1), which provides:
(a) Housekeeping. (1) All places of employment, passageways, storerooms, and
service rooms shall be kept clean and orderly and in a sanitary condition.

   To provide temporary power GEM installed some twenty-five temporary conductors or

cables and ran them across the floor between the attachment points at equipment in the adjacent
rooms of the transformer vault and the room with the switch gear. The cables converged and
completely filled the floor of the doorway between the two rooms. GEM did not shorten the cables
to equal the distance between the attachment points but allowed the excess cable to curve and coil
throughout the rooms (Tr. 45). The Secretary contends GEM failed to keep the area “orderly,”
exposing employees to tripping on the cables. The temporary cables were heavy and could not easily

                                             -7­

be moved about. The electricians walked and worked on or near these conductors and moved
equipment on top of them before they stopped the work to wait for Siemens to finish refurbishing
the damaged bus (Tr. 59, 131).
When GEM returned to the courthouse in late March 2007, foreman Linenkugel consulted
with a different supervisor who suggested building a walk platform over the cables. Two crew
members built the ramp over the cables at the doorway and into a portion of the rooms. The
walkway did not completely cover the temporary cables since the cables began to rise toward their
attachment points or the cables spread too widely to fit under the walkway (Exh C-1; Tr. 61, 91, 96).
Around the same time, on March 26, 2007, Linenkugel submitted a “Find-It-Fix-It” form to GEM.
He asserted an unsafe condition existed when the crew was “working around the [temporary
conductors]” with “a lack of working room in the transformer vault room” and informed GEM that
the crew built the walkway as a correction (Exh. R-15 p.1). Even though the crew continued to work
in areas where the platform had not covered the cables, it is unclear whether this condition could still
be considered a housekeeping violation.
In addition, although VonLehmden testified some work materials were pushed up to the walk
platform, he viewed the area after the explosion and fire fighting efforts. The citation does not
mention any housekeeping issue except for the cables. Bringing in tools to stage the work is not a
housekeeping violation. Finally, as discussed infra at item 6, the tripping hazard was not what most
concerned the electricians about the conductors on the floor. The employees worried they could
abrade the outer sheath of the cable and expose the internal copper wires, resulting in a severe
electrical shock. In any event, because the citation addresses the time after which GEM had imposed
some order on the work areas by building a walk platform over part of the cables, the proof is
insufficient to sustain a housekeeping violation for the cited time. Accordingly, Item 1 is vacated.
Item 2: § 1910.333(b)(2)
The Secretary asserts GEM violated §1910.333(b)(2), which provides (emphasis added):
While any employee is exposed to contact with parts of fixed electric equipment or
circuits which have been deenergized, the circuits energizing the parts shall be locked
out or tagged or both in accordance with the requirements of this paragraph. The
requirements shall be followed in the order in which they are presented (i.e.
paragraph (b)(2)(i) first, then paragraph (b)(2)(ii), etc.).

                                              -8­
   Specifically, the Secretary asserts GEM did not ensure the busway and switch gear were

locked and/or tagged out prior to the employees working on the busways. Subpart S contains
electrical standards for the general industry. Division (b) of Subpart S covers “safety related work
practices” (§§ 1910.331 through 1910.360). Section 1910.333 seeks to prevent electrical shock from
electrical circuits. Subsection (a)(2) requires employees to follow safe work practices while working
on live parts which must remain energized. In contrast, the cited subsection (b)(2) applies to times
when employees work on deenergized parts and, because of residual electricity, accidental
energization, or other dangers, the circuits must be locked and tagged out (LOTO). The evidence
is compelling that GEM conducted a polarity test on energized equipment because the equipment
had to be energized in order to perform the test. The employees knew the equipment was energized
and that Toledo Edison would soon deenergize the circuits. The standard is not applicable to the
conditions cited because the circuits and equipment were not yet deenergized. Item 2 is vacated.
Item 3: § 1910.333(b)(2)(i)
The Secretary asserts GEM violated § 1910.333(b)(2)(i), which provides:
Procedures. The employer shall maintain a written copy of the procedures outlined
in paragraph (b)(2) and shall make it available for inspection by employees and by
the Assistant Secretary of Labor and his or her authorized representatives.

   NOTE: The written procedures may be in the form of a copy of paragraph (b) of this section.



   The Secretary alleges GEM violated the standard in either of two ways. First, she asserts

GEM did not have written LOTO procedures available for its employees or OSHA at the worksite
during the inspection. Secondly, the Secretary contends GEM’s LOTO program omits a description
of the potential hazards of electric shock, arc flash, and arc blast (Tr. 202).
Although VonLehmden asked GEM for its LOTO procedures at the time of his on-site
inspection, GEM did not provide them to OSHA until a couple of months later. Had they been
available, VonLehmden could have reviewed the procedures on-site to determine compliance. It
appears, however, GEM had procedures in existence at the time of the inspection at the off-site
office. GEM contends each employee has a copy of its general LOTO procedures, which they may
keep on-site and that they are trained on the LOTO procedures at orientation (Exh. R-12; Tr. 87).

                                                  -9­
    The purpose of the standard is to assure that employees have access to written procedures and

that OSHA can compare them to determine whether procedures cover the hazards employees may
likely encounter.
VonLehmden believes LOTO procedures must have a greater level of specificity than the
standard requires. Both the responses of GEM’s employees to VonLehmden’s LOTO questions and
GEM’s delay in providing the information may relate to these elevated expectations. The standard
does not require detailed procedures on how to accomplish LOTO for each specific job. It notes
having “a copy of paragraph (b)” complies with its requirements.
The Secretary established the crew was confused on part of the LOTO sequence (Tr. 202­
203).4 Nevertheless, although GEM may prudently provide more detail in its LOTO directions in
the future, the evidence does not establish a specific deficiency in the program which supports a
violation of the cited standard. Item 3, the alleged violation of § 1910.333(b)(2)(i), is vacated.
Item 4: § 1910.305(b)(1)
The Secretary asserts GEM violated § 1910.305(b)(1), which provides:
(b) Cabinets, boxes, and fittings – (1) Conductors entering boxes, cabinets, or fittings
shall also be protected from abrasion, and openings through which conductors enter
shall be effectively closed. Unused openings in cabinets, boxes, and fittings shall be
effectively closed.

    The Secretary’s citation contends the temporary conductors which entered the switch gear

and lay on the floor were not adequately protected from abrasion. As the cables entered the switch
gear, they passed over a small concrete ledge and then the metal portion of the switch box where the
face plate would later rest (Exh. C-1E; Tr. 64, 208). There was no showing how the conductors,
which ran vertically upward at the concrete and metal lip, would be abraded by these structures.
Considering the type of nylon covering which sheathed the internal copper wires, the upward angle
at which the conductors ran into the cabinet, and the surfaces of the concrete and the metal lip, the
Secretary presented insufficient proof to establish the violation.

4
For example, according to GEM, Toledo Edison was to deenergize the transformer, verbally notify the GEM crew
that deenergization was complete, show the crew the pulled fuses, and place Toledo Edison locks on the transformer.
The GEM crew was then to tag the system to notify others they were working on the deenergized system (Tr. 396­
399, 403, 429-431). Apparantly unaware of his role in this last procedure, Linkerfield believed Toledo Edison
placed the tags, which GEM was not authorized to do (Tr. 80).

                                                   -10­
   As to the conductors lying on the floor, even if it is correct that employees who pushed

equipment over, and walked on and over the conductors to perform their work, could abrade the
cables, the standard explicitly applies to the conductors at the point they are “entering boxes,
cabinets, or fittings.” The word “entering” limits the area of consideration and is not applicable to
the cables before they were raised towards the cabinet. Item 4 is vacated.
Items 5a and 5b: §§ 1910.335(a)(1)(i) and 1910.335(a)(1)(v)
The Secretary asserts GEM violated §§ 1910.335(a)(1)(i) and 1910.335(a)(1)(v) because the
crew worked on the energized electrical system without wearing rubber gloves and face and eye
protection. Section 1910.335(a)(1)(i) (item 5a) requires the Secretary to prove the existence of a
potential hazard requiring hand protection. The standard provides:
(a) Use of protective equipment – (1) Personal protective equipment. (i) Employees
working in areas where there are potential electrical hazards shall be provided with, and shall
use, electrical protective equipment that is appropriate for the specific parts of the body to
be protected and for the work to be performed.

   Section 1910.335(a)(1)(v) (item 5b) requires the Secretary to prove an electrical hazard could

cause injury to the face and eyes. The standard provides:
(a) Use of protective equipment – (1) Personal protective equipment. . . (v)
Employees shall wear protective equipment for the eyes or face wherever there is
danger of injury to the eyes or face from electric arcs or flashes or from flying objects
resulting from electrical explosions.

              Protection from the Hazard Required Gloves and Face Shields
   The Secretary identifies the hazard as the potential for an electrical arc blast, flash, or

explosion. Without the protection of rubber gloves (“electrical protective equipment”) for the hands
and face shields for the face and eyes, an arc blast could burn or cause molten metal to strike those
parts of the body (Tr. 213-215, 521). An arc blast injured the face and hands of the crew.
Linenkugel’s face “looked like a burnt marshmallow” (Exh. C-3). According to crew member Park
“[l]ooking at it now, it should have been a face shield at minimum and gloves . . .” (Tr. 486).
Hindsight is not the appropriate analysis, however. The crew contemporaneously knew the test area
was energized. When the employees peeled back portion(s) of the rubber blankets hung to insulate
them from the live equipment, they became exposed to the hazard. Their exposure would increase

                                             -11­

when they took the two prongs of the Fluke meter and placed them at different areas of the energized
equipment.
The temporary conductors were wired directly into the electrical power system at the area
where the insulating blanket was pushed aside. The crew members knew there was no mechanism
to interrupt the flow of current, such as a ground fault circuit interrupter or other method to
automatically disconnect the power in the event of a short. They also knew the amperage of the
system was high.5 Between voltage and amperage, amperage is the element which can cause death
and is of most concern to electricians (Tr. 520-522, 541). Amperage “in an arc flash situation is
basically like gasoline, like fuel,” since the greater the amperage, “the bigger the arc flash” (Tr. 536).
Personal protective equipment (PPE) should be appropriate to the magnitude of the electrical
hazard. Richard Hayes, GEM’s technical advisor, recommends face shields when the amperage is
significantly high (Tr. 590). When employees began the polarity test on the courthouse electrical
system, they knew a large, prolonged electrical arc flash or blast was a realistic possibility. They
should have used face shields and insulated gloves.
Disputing the need for insulated gloves in these circumstances, GEM points to two OSHA
interpretative letters (attached to GEM’s post hearing brief). The July 28, 2006, letter pertains to
work on deenergized circuits which are locked and tagged out, and it is not germane here. The
May 20, 1996, interpretation letter is not a model of clarity. It notes OSHA has no unwavering
requirement that qualified electricians wear rubber gloves when performing live work with insulated
hand tools. Yet, it states gloves “may be appropriate for a particular work situation.” The
interpretive letter does not purport to cover all factual scenarios. Here, the potential electrical hazard
is an arc blast, rather than an electrical shock. The hazard is not negated by the fact a part of the
Fluke meter may be insulated, while the tip of the probe is not (Tr. 138).
Failure to use the protective equipment of rubber gloves and face shields during the polarity
test exposed employees to the hazard and violated the terms of the standards.

5
Kenneth Mastrullo, the Secretary’s technical advisor, estimated the potential available energy was 35,000 amps for
a 2,000 amp service (Tr. 537). Linenkugel recalled the amp service was actually 1,800. W hile Mastrullo’s estimate
may be somewhat overstated, the amperage was substantial

                                                    -12­
                                  Knowledge of the Violations
   Linenkugel scheduled and supervised the crew’s work. He carried the job title of “foreman”

and received the foreman’s pay. He communicated with his supervisor and was the liaison with the
customer for the crew. Linenkugel had authority to correct unsafe conditions, enforce safety rules,
and to stop unsafe actions (Tr. 24, 28-30, 33, 303-305). GEM delegated to Linenkugel the authority
to control the actions of the crew.
Linenkugel knew that not only he, but the other three crew members, two of whom stood
beside him, did not wear rubber gloves or face shields to conduct a polarity test on energized
equipment. One of the men, Adam Taylor, was also a foreman for GEM (Tr. 139, 279). No crew
member opposed performing the task or voiced concern about the lack of protective gear (Tr. 552).
GEM was required to instruct its employees on necessary safety precautions, and it must
make an effort to understand what dangers its job may present. It is not enough to rely on the
experience of its electrician employees. If the Secretary shows GEM should reasonably have
obtained knowledge of the hazard and failed to protect against it, Linenkugel’s knowledge of his own
and his subordinates’ conduct in not wearing the required protective equipment may be imputed to
GEM. Danis Shook Joint Venture, 19 BNA OSHC 1497, 1501 (Docket No. 98-1192, 2002), aff’d
319 F.3d 805 (6th Cir. 2003); Kokosing Constr. Co., Inc., 21 BNA OSHC 1629 (Docket No. 04-1665,
2007) (RC), aff’d, 232 FedAppx 510 (6th Cir. 2007).

              Issues of Foreseeability: Was the polarity test foreseeable?
               Was failure to use specified safety equipment foreseeable?
             Was the conduct of the foreman unforseeable and idiosyncratic?

   Proof of constructive knowledge requires analysis of the foreseeability of the conduct of the

foreman and crew on April 6, 2007. Foreseeability is also an aspect of GEM’s defense of employee
misconduct.
Project manager Charles Korotnayi was Linenkugel’s direct supervisor. Although
Linenkugel had authority to carry out the assigned tasks, project manager Korotnayi directed what
work would be done and which crew would do the specific tasks in light of the contract and the
working environment. The courthouse project was one of approximately a dozen jobs Korotnayi

                                             -13­

supervised at that time. Korotnayi delegated considerable discretion to the foreman on how to
complete the assigned tasks. According to Linenkugel, the courthouse job lacked the planning that
might occur under a different supervisor (Tr. 32, 60, 388). As previously noted, until late in the
project the employees worked around and on top of energized temporary conductors. Linenkugal
and the crew were uneasy about the project, even after the walk platform was built. It is rare to
request fire retardant Nomex suits on commercial jobs. Linenkugel did not specifically ask for help,
but he hoped his unusual request for Nomex suits would alert the safety personnel so they would
provide assistance (Tr. 51, 144).
To Stage the Work
Korotnayi instructed the crew to stage the work for the final installation (Tr. 65):
We were supposed to go – the way it was told to me, we were supposed to go as far
as we could go to stage equipment and cut down on down time. Basically, that was
it; get everything in to as close proximity as we could go so when there was a
shutdown, we would not have to fumble . . . .
GEM clearly instructed that the final tie-ins of the bus and tap box and removal of the
temporary conductors would be made after Toledo Edison deenergized the system around 1:00 p.m.
that day. The instruction to “stage” the work, however, was vague in light of the work that remained
to be completed. To Linenkugal, Korotnayi’s instruction to “stage” meant “we needed to do what
we needed to do” (Tr. 152). It meant putting the replacement bus on the engine hoist and pushing
the hoist and bus to the installation point, ready to be swung into place. It also meant solving the
problem of how to line up the phases to tie the bus and the tap box into the permanent power system.
The Polarity Test
All witnesses agree on the absolute necessity of matching the phases in a multi-phase
installation. Failure to do so before Toledo Edison re-energized the system could cause an explosion
and would cause all the multi-phase motors to run backwards. For example, every motor which
pumped water into the building would begin pumping water out of the building and vice versa
(Tr. 42, 526).
The Lucas County Courthouse, typical of many commercial buildings, has a three-phase feed
(Phase A, Phase B, and Phase C). Phase A at one end must match Phase A at the other end and,
likewise B to B and C to C (Tr. 41-42). The phases had not been labeled at the new tap box or where

                                            -14­

the temporary conductors were installed. Since the present crew had not performed that work, they
had no personal knowledge of its polarity. Linenkugel explained the crew’s dilemma (Tr. 43-44):
Adam Taylor asked the question, “How am I going to know [the polarity]?” because
his job was going to be in the transformer room with Derek Notario. They were
going to do the stripping of the [temporary conductor] wires off the transformer,
secondary side, and reconnecting the transformer secondary side to the tap box.
Well, the tap box was not marked [as Phases] A, B, C. We had no idea what was
what. Did it go left to right? Right to left? Front to back? The only way to
determine that is to do a polarity test to find out where it starts and how it’s going to
end.

   So Tim said – Tim Park said, “We can easily do that by doing a polarity test.”

   “Okay, how do you suggest we do that?”

   “Well, all you’ve got to do . . . you would be able to tell by doing the same phase;
   A to A, B to B, C to C.”

   I said, “Okay, is that what we’re going to do?” We were all in agreement that this
   was what we were going to do. So, I held the Fluke meter, Tim Park was on my left.
   He held the one probe to the vertical side of the bus where the temporary
   [conductors] came in, and Adam had the other probe going to the gear where it came
   out of the bus at the switch gear, and going to the correct phase.

   At the end of the test, the crew would be “able to determine and mark the phases in the tap

box” (Tr. 44). At the hearing Linenkugel remained convinced the polarity test was the appropriate
means to determine the alignment of the phases and that the test had to be conducted on energized
equipment. This was the only way Linenkugel had ever conducted a polarity test (Tr. 115, 142). He
reiterated on cross-examination (Tr. 122):
Like I stated before, the tap box had a different configuration. Once the power —
once that piece of bus was connecting points, we had to go back to the switch gear
and go to the transformer room and reconnect all three phases to the prongs coming
down. How am I going to know what phase that red wire goes on or blue wire if I
don’t know the correct phasing of those lugs coming out of the tap box? The only
way you’re going to know that is by performing a polarity test so you can ID those
prongs.

                                             -15­
    In one fashion or another, Korotnayi knew his electricians needed to determine the correct

polarity of the phases for the final installations. Korotnayi believed a continuity test (after the shut­
down), not a polarity test, would have been sufficient to verify the neutral and ground for the new
bus section and for the new tap box. Linenkugel did not believe the continuity test would provide
the information the crew needed. At the hearing many of the witnesses presented conflicting
testimony concerning polarity tests and continuity tests and the propriety of each in the
circumstances.
Polarity tests and continuity tests do not have the same purpose. As noted, a polarity test is
designed to determine whether the phases of two unknown pieces of the circuit are the same phase
(Tr. 122). On the other hand, a continuity test is designed to determine whether two distant lines are
connected or whether there is a break in the line (Tr. 46, 449, 525). The difficulty in this case was
that the crew was not sure of the polarity for either the tap box or the area where the repaired bus
would be installed. Kenneth Mastrullo, a master electrician who taught electrical safety with various
professional organizations and was the lead writer of the NFPA 70E,6 testified polarity tests
provided assurance the phases were correctly aligned. In his 37 years in the industry, Mastrullo had
always seen polarity testing conducted on energized equipment. It was a common test. Indeed,
according to Mastrullo, when he worked as a facilities engineer, he always double checked the
polarity to make sure that it was read correctly because of the severe consequences of mixing the
phases (Tr. 561-562).
The evidence is persuasive that the polarity test conducted on April 6, 2007, is a common
method by which electricians determine phase alignment. GEM must acknowledge that the polarity
test was, at the least, one common type of test utilized to identify whether the phases would
correspond. Moreover, when Linenkugel understood he was to get everything as ready as possible
so there would be no fumbling in temporary lighting, it was foreseeable the crew would perform the
polarity test in good lightning while the power was still on. The polarity test would answer the
questions of how the phases of the existing circuits were installed and thus how the new equipment

6
NFPA 70E is the American National Standards Institute (ANSI) certified standard work for electrical safe work
practices (Tr. 516).

                                                  -16­

should be installed. Finding that answer would comport with instructions to “[g]o as far as you can
to cut down time” (Tr. 67). It is instructive that as the crew members readied for the final
installations, they had the bus already suspended so close to the installation point that it could simply
be swung into place. That degree of preparation would also lead the crew to try to determine how
to align the phases for the new installations, so they could quickly tie in the equipment after Toledo
Edison shut down the power. With only the vague instructions to stage the work, the crew’s choice
to conduct a polarity test was foreseeable.
In reaching this conclusion, the undersigned carefully observed the demeanor and considered
the testimony of the crew member witnesses. GEM knew Linenkugel to be a long-term, well-liked
employee and considered him a good, qualified electrician (Tr. 294, 298). Linenkugel’s more
extensive testimony was knowledgeable and his responses were not defensive. His explanations
were consistent and coherent. Crew member Timothy Park’s testimony was not as straight forward,
and at times his responses appeared evasive and in conflict with established facts. Park testified
there was no need to check polarity on energized circuits and that while polarity had to be
determined, it could also be checked after deenergization (Tr. 473-474). Linenkugel testified it was
Park who suggested that the crew conduct the polarity test and assisted with the test at the vertical
side of the busway. Both Park and Adam Taylor stood beside Linenkugel. Foreman Linenkugel’s
recounting of events was also supported, in part, by the Secretary’s technical advisor Mastrullo, who
testified that due to the limitations on the size of the tester, two people could be required to assist
in the polarity test (Tr. 562). When questioned on his activities, Park could not recall whether he
suggested the polarity test or even whether he assisted Linenkugel in conducting the test. He had
no problem recalling other details of that day, including how Linenkugel conducted the polarity test
and where Linenkugel was looking when the arc occurred (Tr. 477-479). Park’s memory suffered
only in regard to his role in an activity which could result in employer discipline. In weighing the
conflicting evidence, Park’s testimony cannot be fully credited.
Failure to Use Required Personal Protective Equipment
GEM expected its experienced employees to fill in details of job planning, and GEM believed
it was their responsibility to determine what protective equipment to wear. The foreman were to
secure the necessary equipment at the site, but the responsibility to decide to use it rested with the

                                              -17­

employees (Tr. 213-215). After Linenkugel’s additional request, GEM had available at the job:
leather palm gloves, Nomex suits, earplugs, hard hats, and eye goggles. Like Korotnayi, Linenkugel
left it up to the individual crew member to determine what safety protection each wanted to wear.
On April 6, 2007, each crew member made different choices from among the available protective
gear (Tr. 66-67, 73, 114). Permitting such discretion made it foreseeable that employees would fail
to wear insulated gloves and face shields to perform the polarity test. GEM did not provide the
insulated gloves and face shields and did not instruct the crew that they should be worn.
GEM reasonably should have known the crew would conduct the polarity test and conduct
it without proper PPE. Linenkugel’s knowledge is imputed to GEM. GEM had constructive
knowledge of the violation.
The severity of the injuries to Linenkugel’s hand, face and neck demonstrate the degree of
the potential injury. The Secretary established the elements of a serious violation. Unless GEM
meets its burden to prove the defense of employee misconduct, the violation will be affirmed.
Employee Misconduct Defense
GEM contends the polarity test conducted by Linenkugel and the crew constituted
unpreventable employee misconduct. To establish the affirmative defense, the employer must show
it had safety rules which addressed the hazard, and that the rules were adequately enforced and
effectively communicated to the employees. GEM enforces safety through written disciplinary
procedures (Exh. R-2) and disciplined Linenkugel with a 5-day suspension for working on the
energized equipment ( Exh. R-14; Tr. 292-295). No other crew member was disciplined.
The Secretary argues GEM’s safety rules and GEM’s communication of them to the
employees were inadequate. On the other hand, GEM describes its efforts to further safety on the
job. GEM introduced its safety program and handbook. Within those documents GEM has one rule
which generally prohibits work on energized circuits, but the rule is directed to all trades (Exh. R-6,
p. 1). It is unclear whether the rule applies to the electricians, who are expected to perform live work
(Tr. 41, 55, 591). It is unnecessary to resolve the adequacy of GEM’s safety program.
In addition to proof of its safety plans and procedures, an employer must establish the
violative conduct was idiosyncratic and unforeseeable. L.E. Myers Co, 16 BNA OSHC 1037, 1040
(No. 90-945, 1993). When the alleged misconduct is that of a supervisor, the proof of unpreventable

                                             -18­

employee misconduct is more rigorous and the defense is more difficult to establish since it is the
supervisor’s duty to protect the safety of employees under his supervision. Archer-Western
Contractors Lt. 15 BNA OSHC 1013, 1017 (No. 87-1067, 1991), petition for review denied, 978
F.2d 744 (D.C. Cir. 1992). In such an instance, the employer must also establish that it took feasible
steps to prevent the incident, including adequate instruction and supervision of its supervisory
employee. Id.
As discussed in detail supra, GEM’s instruction to stage the work in preparation for the
power shut-off was vague in light of the work which was to follow. At that point, the crew was to
install the bus and tie in the tap box. However, the information on polarity which the crew needed
to complete the tasks was unknown. The information was commonly secured through a polarity test
on energized equipment. Before the power was shut off, it was foreseeable the crew would conduct
the polarity test in order to identity the phases. Also as discussed, it was foreseeable the crew would
not utilize the appropriate PPE. These actions were not idiosyncratic or unforeseeable. Accordingly,
GEM’s employee misconduct defense fails.
Item 6: § 1910.335(a)(2)(i)
Item 6 alleges that GEM violated 29 C.F.R.§ 1910.335(a)(2)(i) on the grounds that GEM:
failed to ensure employees were protected with insulated handling equipment used
to install a section of the I-T-5000A XL-X Busway (S/N 79). Employees were using
a blue engine hoist (#220-050-002) to suspend the section of the busway to be
installed on the switch gear located in the lowest level of the Lucas County Family
Courts Building.

   The cited standard provides:
   1910.335(a)(2) General protective equipment and tools. (i) When working near
   exposed energized conductors or circuit parts, each employee shall use insulated
   tools or handling equipment if the tools or handling equipment might make contact
   with such conductors or parts. If the insulating capability of insulated tools or
   handling equipment is subject to damage, the insulating material shall be protected.

   The term in the standard, “might make contact” is understood, not as “might possibly,” but

as “reasonably could be expected to make contact.” Because the repaired bus was so heavy, the crew
located a hydraulic engine hoist, which was not electrically insulated (Tr. 74). The crew members
suspended the bus from the hoist with a C-clamp and nylon sling. They pushed the hoist and bus

                                             -19­

into the switch gear room and maneuvered them as close as possible to where the crew would install
the bus. VonLehmden estimated this distance as approximately18 inches from the energized
equipment. The crew wanted to be able to swing the suspended bus into place after Toledo Edison
shut off the power.
The crew used wooden blocks to further elevate the hoist. The sling on the hoist was taut
and was suspending the heavy bus. Given the proximity of the hoist to the live equipment during
the polarity test and the tight working conditions, a force such as a push or pull, reasonably could
be expected to slide or dislodge the hoist dangerously close to the energized busway (Exh. C-1E;
Tr. 74, 96, 220-221). The uninsulated handling equipment could itself become energized and create
a severe shock or fire situation for the employees.
Additionally, as discussed at item 1, the uninsulated hoist was used close to the energized
temporary conductors on the floor. The walk platform did not extend to the area (Exh. C-1E; Tr. 63­
64, 81). As Linenkugel described it, employees could abrade the cables with small stones in their
shoes or by dropping a screwdriver, knife or other tool. The temporary cables were not designed to
be laid on the floor but rather were designed to be installed in a wall or protected in a “raceway.”
The nylon sheath covering these cables, even if stronger than coverings for smaller cables, cannot
be considered sufficient to protect the energized internal wires from damage as employees work,
bring equipment, and walk over and around the conductors (Exh. R-20; Tr. 148-149, 538-540). The
evidence does not warrant any other conclusion. It was in recognition of this danger that Linenkugel
ordered the Noxem suits, “so if anything did happen or somebody did drop their tools on wire and
it did short out for some reason, we at least had a fighting chance to get out of the room because
there was only one door in and one door out” (Tr. 143). Even if the crew had not conducted a
polarity test, use of the uninsulated handling equipment near the temporary conductors violated the
standard.
On the same basis as discussed in items 5a and 5b, above, GEM had at least constructive
knowledge of the violation. Also, project manager Korotnayi was aware the crew was using the
uninsulated engine hoist in close proximity to energized equipment and that temporary conductors
lay on the floor outside the walk platform (Tr. 457). GEM thus knew of the existence of the
violative conditions and did not address the hazard or prohibit use the uninsulated handling

                                            -20­

equipment. Based on a similar analysis at items 5a and 5b, the employee misconduct defense fails.
Item 6, a violation of § 1910.335(a)(2)(i), is affirmed as serious.
Appropriate Penalties
In assessing appropriate penalties, the Commission must give due consideration to the
employer’s prior history and good faith, the size of the employer’s business, and the gravity of the
cited violations. S&G Packaging Co., 19 BNA OSHC 1503, 1509 (No. 98-1107, 2001). GEM is
a large employer related to the Rudolph Libbe companies (Tr. 259, 326). It has no previous history
of serious OSHA violations within the past 3 years. The amperage was high and the power could
not quickly be interrupted in the event of a fault, making a large arc event more likely. Four
employees worked in close proximity to the hazards. The period during which the insulating
blankets were lifted for the polarity test was relatively short. The period of time the crew members
worked around the energized temporary cables was prolonged. Additional credit is afforded for good
faith. GEM has a safety program, even if it may not be specific for all trades. GEM empowered
employees to “call safety,” and it quickly responded to Linenkugel’s request for safety equipment.
GEM cooperated with the inspection (Tr. 451). A combined penalty of $4,000.00 is assessed for
grouped items 5a and 5b. For item 6 a penalty of $3,000.00 is assessed.

               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.

                                            -21­
                                            ORDER
     Based upon the foregoing decision, it is ORDERED that the cited standards be disposed of

as follows:

                                           Citation No. 1
 Item            Standard                            Disposition             Penalty
 1               § 1910.22(a)(1)                     Vacated                 $0.00
 2               § 1910.333(b)(2)                    Vacated                 $0.00
 3               § 1910.333(b)(2)(i)                 Vacated                 $0.00
 4               § 1910.305(b)(1)                    Vacated                 $0.00
 5a &            § 1910.335(a)(1)(i) and             Affirmed as Serious     $4,000.00
 5b              § 1910.335(a)(1)(v)
 6               § 1910.335(a)(2)(i)                 Affirmed as Serious     $3,000.00
                                                     TOTAL PENALTY           $7,000.00


     SO ORDERED.


                                                            /s/
                                                            Nancy J. Spies
                                                            Judge, OSHRC

Dated: June 19, 2009
Atlanta, Georgia

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