Forrest Electrical Services

Plain-English summary

Forrest Electrical Services was an electrical subcontractor on a medical-clinic project in Spring, Texas. A temporary foreman brought an inadequately guarded floor fan to the site, where it was available for use in an area employees passed through. The ALJ affirmed the fan item as serious because the company's no-fan rule had not been shown to be adequately communicated to that foreman and there was no evidence of monitoring for violations; he assessed $200. The foreman also inserted bare lighting-cord wires directly into a receptacle, which violated the live-parts rule. Because ground-fault protection limited the likely current and the judge credited the owner's greater technical experience, that item was reclassified as nonserious with no penalty. A failure to post the required OSHA notice was affirmed as nonserious with a $100 penalty, while two hazard-communication items withdrawn at the hearing were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.212(a)(5), 1926.59(e)(1), 1926.59(h), 1926.403(i)(2)(i), and 1903.2(a)(1)
• Outcome: The fan item was affirmed as serious with $200, the live-wire item as nonserious with no penalty, and the posting item as nonserious with $100; two withdrawn items were vacated.
• Key point: An employee-misconduct defense requires proof that the relevant rule was communicated and monitored, not merely that the employer had an informal policy.

Full text (OSHRC public release)

 OCCUPATIONAL SAF~N~~~E~~~;c~EVIEW                                  COMMISSION
                                  One Lafayette Centre
                            1120 20th Street, N.W. - 9th Floor
                              Washington, DC 200364419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-3609
FOREST ELECTRICAL SERVICES
Respondent.

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

docketed with the Commission on June e, 1993. The decision of the Judge
will become a final order of the Comm&ion on July 7, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
June 28, 1993 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 8 .F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:

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

If a Direction for Review is issued by the Commission, then the Co lunsel for
Regional Trial Litigation will represent the Department of Labor. hY Party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.

                                          FOR THE COMMISSION

Date: June 7, 1993
DOCKET NO. 92-3609

NOTICE IS GIVEN TO THE FOILLOWING:

Daniel J. Mkk, Esq.
Counsel for Re 'onalTrial Liti ation
Office of the So%‘citor, U.S. DO%
Room S4OO4
200 Constitution Ave., N.W.
Washington, D.C. 20210

James E. White, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U S DOL
525 Griffin Square Blhg.,‘S;ite 501
:Z vT;;bStreets

Forrest Wallace
Forrest Electrical Services
10123 Tanner
Houston, TX 77041

Stanley M. Schwartz
Administrative Law Jud e
Occupational Safety an tf Health
Review Commission
Federal Building, Room 7l311
1100 Commerce Street
Dallas, TX 75242 0791

00109455261:06
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
ROOM 7811, FEDERAL BUILDING
1100 COMMERCE
DALLAS, TEXAS 75242-0731

PHONE. FAX:
COM (214)767-5271 CbM(214)767-Q~5c

FTs 7294271 m m-0350

                                                               ..

  SECRETARY              OF LABOR,                             ..
                                                                ..
                       Complainant,                              ..
                                                                 ..
            v.                                                    ..       OSHRC DOCKET NO. 92-3609-S
                                                                   ..
  FORREST            ELECTRICAL        SERVICES,                    ..
                                                                     ..
                        Respondent.                                   ..
                                                                       .

  APPEZARANCES:

             Robert A. Goldberg, Esquire                         Forrest M. Wallace
             Dallas, Texas                                       Houston, Texas
             For the Complainant.                                For the Respondent,pro se.

  Before:          Administrative   Law Judge Stanley M. Schwartz

                                           DECISION AND ORDER

             This is a proceeding brought before the Occupational                     Safety and Health Review
  Commission           (“the Commission”)    pursuant to section 10 of the Occupational                Safety and
  Health Act of 1970, 29 U.S.C. 5 651 et seq. (“the Act”).
             The Occupational         Safety and Health       Administration          (“OSHA”)      conducted        an
  inspection         of a one-story    medical clinic construction          project    in Spring,   Texas, where
  Respondent           was an electrical subcontractor, on August 6,1992; as a result of the inspection,
  Respondent           was issued a serious citation with four items and an “other” citation with one
  item.      Respondent       contested the citations, and a hearing was held on March 10, 1993.’




   ‘At the hearing, the Secretary withdrew items 2 and 3 of serious citation number 1, which alleged violations
   of 29 C.F.R. $8 1926.59(e)(l) and 1926.59(h), respectively.

2

                    Citation 1 - Item 1 - 29 C.F.R. 6 1910.212(a)(5)

   The subject standard provides as follows:
   When the periphery of the blades of a fan is less than seven (7) feet above
   the floor or working level, the blades shall be guarded. The guard shall have
   openings no larger than one-half (l/2) inch.
   Juan Padron, the OSHA compliance officer who inspected the site, testified there was

an electric floor fan operating in the middle of the lobby area of the clinic that was
unguarded in back and whose front guard had openings about a square inch in size; G-2
depicts the fan, which had metal blades about 48 inches long. Padron discussed the fan with
Rick Stewart, Respondent’s foreman at the site, who indicated it belonged to the company;
Stewart also indicated the company had been on the job about thirty days and identified two
other workers at the site as his helpers. 2 Padron said the fan was hazardous because
employees of the company or the other contractors at the site would have walked by it when
entering or exiting the building, which could have resulted in contact with the blades and
serious injuries such as fractures or amputations.
Forrest Wallace, the owner and president of the company, testified the fan was not
his, that he did not allow fans on his jobsites, and that Stewart had called him after the
inspection and told him he had brought the fan from home that morning; Stewart also told
him he put the fan in the building about ten minutes before Padron arrived, and that it was
not running at that time. Wallace further testified that Stewart, a journeyman electrician,
had worked for him less than a month at the time of the inspection, and that he was
foreman that day because Terry Acker, the actual foreman, had been away. Wallace said
he had gone over safety basics with Stewart when he hired him, and that he holds safety
meetings with his employees every Friday when they pick up their checks; he discussed his
policy on fans around the time Stewart was hired, but did not remember if Stewart was
actually there. Wallace noted he had reprimanded Stewart and told him to get the fan off
the site, after which Stewart had disassembled it.

‘Although Respondent contends it has never employed one of the helpers identified by Stewart, there is no
dispute that Stewart and the other helper were working for the company on the day of the inspection.
 3
b
Based on the record, a serious violation of the standard has been established.
Padron’s testimony that the fan was running when he saw it is credited over Stewart’s
statement that it was not because Stewart did not appear at the hearing and Padron’s
testimony was credible and unequivocal. Moreover, even assuming the fan was not running
it was nevertheless available for use under established Commission precedent. Finally, that
the fan belonged to Stewart does not absolve the company of responsibility; Commission
precedent is well settled that an employer is liable for violative conditions to which its
employees are exposed, even if the employer did not create the conditions.
The testimony of Wallace indicates he believed the violation was due to
unpreventable employee misconduct. To prove this affirmative defense, an employer must
show it had established and adequately communicated work rules to prevent the violation,
and that it made efforts to detect violations and enforced the rules when it discovered
violations. Jensen Constr. Co., 7 BNA OSHC 1477, 1479, 1979 CCH OSHD 1 23,664,
p. 28,695 (No. 761538, 1979). Although Wallace had a rule prohiiiting fans on his jobs, he
related only one occasion in which he had communicated the rule and was unsure if Stewart
had been present. Moreover, while Stewart was reprimanded for having the fan at the site,
there was no evidence of efforts to detect violations of work rules. Based on the record, the
fan’s presence at the site was not the result of unpreventable employee misconduct.
Turning to the assessment of an appropriate penalty, I note the company’s small size
and Wallace’s testimony that in the twenty-one years he has owned his own business he has
had only one workers’ compensation claim. I note also the apparently short duration of the
condition, and that although Padron considered it to be of high gravity he acknowledged he
was unaware of any cases of injuries fkom unguarded fan blades; in my view, the likelihood
that employees walking by the fan would have accidentally contacted the blades and been
seriously injured was not great. After giving due consideration to all of these factors, it is
concluded that a penalty of $200.00 is appropriate for this item.
 4

                  Citation 1 - Item 4 - 29 C.F.R. § 1926.403~i)/2M”

   me subject standard provides, in pertinent paftr as follows:
   [IJive parts of electric equipment operating         at 50 volts or more shall be
   guarded against accidental contact....
   Juan P&on      testified a cord attached to a string of lights which provided illumination

in the building had no male plug, and that its bare wires had been inserted into a 11~volt
multiple receptacle outlet in the lobby area, as shown in G-l; Stewart indicated he had’
inserted the wires into the outlet, and that the condition had existed for a day. Padron s&d.
the condition was a serious hazard because contacting the wires could have caused severe
shock or electrocution. He also said the receptacle outlet was the only power source in the
building, and that employees of the other contractors could have used it. Padron noted.
Stewart immediately abated the hazard by putting a plug on the cord.
Padron further testified that the receptacle outlet was powered by a two-outlet
temporary power pole outside the building; Padron tested the outlets on the pole and found
that both of them were protected by ground fault circuit interrupters (“GFCI’s”). He agreed
the GFCI’s would have interrupted the power in the event of a 5-milliamp difference in
current, but said an employee contacting the wires would still have been hurt before the
power was cut off; he described a shock under such circumstances as “normal” rather than
severe, and did not recall if he had taken the GFCI’s into account when assessing the hazard
of the condition.
Forrest Wallace testified Stewart told him he had set up the lighting with the cord the
previous day; Stewart also told him the cord had not had a male plug, and that he had
bought one but had not had time to put it on before Padron arrived. Wallace said the cord
should have had a plug, but that in his opinion it was not a serious hazard because of the
GFCI’s on the power pole his company had set up. He explained that a GFCI operates by
measuring current and cutting it off very quickly in the event of a 5-milliamp fluctuation, and
that contacting the wires would not have resulted in an injury; he described the sensation
an employee would have felt from 5 milliamps as a “tingle.” Wallace noted the cord’s
ground wire not being connected to the outlet had no effect on the operation of the GFCI
because GFCI’s work off neutral wires.
 Although it is clear from the record that the cord violated the standard, the Secretary,
to establish a serious violation, must show that it represented a substantial likelihood of
serious injury or death. Padron’s initial testimony that it did appears not to have considered
the presence of the GFCI’s, which, as he himself later acknowledged, reduced the severity
of the hazard. Moreover, Padron and Wallace agreed that the maximum amperage to which
an employee contacting the wires would have been subjected before the GFCI cut off the
current would have been 5 milliamps. Padron’s opinion was that this amount of current
would have injured an employee; Wallace, however, descriied what an employee would have
felt from contacting the wires as a “tingle.”
In considering the foregoing, the undersigned notes that while both witnesses were
sincere, Wallace exhibited a higher degree of understanding of GFCI’s which is undoubtedly
the result of his many years of experience in the electrical business.3 Based on his more
extensive experience the opinion of Wallace is given greater weight, and it is found that
although the cord was a hazard it was not a serious hazard within the meaning of the Act.
This citation item is accordingly affirmed as a nonserious violation, and no penalty is
assessed.

                            Citation 2 - 29 C.F.R. 6 1903.2(aM’l)

       The subject standard provides, in pertinent part, as follows:
       Each employer shall post and keep posted a notice or notices ... informing
       employees of the protections and obligations provided for in the Act....Such
       notice or notices shall be posted by the employer in each establishment in a
       conspicuous place or places where notices to employees are customarily
       posted.                                                            .

       Juan Padron testified there was no OSHA notice posted at the site, and that even the

general contractor did not have one, He further testified that the standard applies to all
employers, but that he usually looks first to the general contractor for this requirement.
Padron said he provided an OSHA notice to the general contractor, who indicated he would
post it.

3Wallace has been in the electrical business for over 20 years and has been licensed as a master electrician
in Houston, Dallas and other cities in Texas for a number of years.
 6

    me foregoing, which was not rebutted by Respondent,              establishes a violation of the

standard. Although the violation is nonserious, the Act requires the assessment of a penalty
of not more than $l,OOO.OOfor each violation of a posting requirement. See 29 U.S.C. 0
666(i). Based on the facts of this case, a penalty of $100.00 is appropriate for this &at-ion
item.

                                      Conclusions of Law

    1.    Respondent,     Forrest   Electrical     Services, is engaged       in a business affecting

commerce and has employees within the meaning of section 3(S) of the Act. The
Commission has jurisdiction of the parties and of the subject matter of the proceeding.
2. Respondent was in serious violation of 29 C.F.R. 0 1910.212(a)(S).
3. Respondent was not in violation of 29 C.F.R. $5 1926.59(e)(l) and 1926.59(h).
3. Respondent was in nonserious violation of 29 C.F.R. 56 1926.403(i)(2)(i) and
1903.2(a)( 1).

                                                 Order

    On the basis of the foregoing           Findings of Fact and Conclusions            of Law, it is

ORDERED that:
1. Item 1 of citation number 1 is AFFIRMED as a serious violation, and a penalty
of $200.00 is assessed.
2. Items 2 and 3 of citation number 1 are VACATED.
3. Item 4 of citation number 1 is AFFIRMED as a nonserious violation, and no
penalty is assessed.
4. Item 1 of citation number 2 is AFFIRMED as a nonserious violation, and a
penalty of $100.00 is assessed.

                                                      4
                                                       J&h                .
                                                         Stanley M.)Schw
                                                         Administrative Law Judge

Date:JUN -1 1993