Hirsch Electric Company

Plain-English summary

Hirsch Electric installed energized wiring for operating rooms under construction at Hillcrest Hospital in Ohio. A flexible conduit containing 270-volt lines hung into the area where another contractor's employees were installing metal duct diffusers, and one worker received an electrical shock from an exposed live wire. The judge held that plastic scotch-lock caps were not effective guarding because they could be knocked off or the wire insulation could be damaged during the nearby sheet-metal work. Hirsch knew the diffusers had to be installed and could have secured the conduit tight to the structural deck before energizing the area. The violation was affirmed as serious because contact could cause burns, impact injuries, or electrocution. The judge reduced the proposed $3,500 penalty to $1,000 based on good faith shown by the company's capping policy and its effort to warn other contractors, and he dismissed the Secretary's alternative allegation.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.416(a)(1) and 1926.416(a)(3).
• Outcome: Modified. The serious energized-circuit item was affirmed, the alternative item was dismissed, and the penalty was reduced from $3,500 to $1,000.
• Key point: Electrical guarding must remain effective during the work actually being performed nearby; a cap that can be displaced by that work does not adequately isolate an energized conductor.

Full text (OSHRC public release)

                          UNITED STATES OF AMERICA
 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                           One Lafayette Centre
                     1120 20th Street, N.W. - 9th floor
                        Washington, DC 200364419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 94-0161
HIRSCH ELEX’IRIC COMPANY
Respondent.

                NOTICE OF DOCKETING
          OF ADMINISTIUTCVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on November 17, 1994. The decision of the Judge
will become a final order of the Commission on December 19,1994 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING RFMEW 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
December 7 1994 in order to ermit sufficient time for its review. See
Commission’Rule 91,29 C.F.l8 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. DOc
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Re@onal Trial Litigation will represent the Department of Labor. Any party
hamg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

                                  &       l!lia$+#PH

Date: November 17, 1994 ’ Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 94-0161
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial IX ation
Office of the Solicitor, U.S. DO%
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Benjamin T. Chinni
Associate Regional Solicitor
Office of the SolicitoF, U.S. DOL
Federal Office Buildmg, Room 881
1240 East Ninth Street
Cleveland, OH 44199

William B. Hirsch, Chairman
Hirsch Electric Company
5060 Corbin Drive
Cleveland, OH 44128

Robert A Yetman
AdministrativeLaw Jud e
Occupational Safety ancf Health
Remew Commission
McCormack Post Office and
Courthouse, Room 420
Boston, MA 02109 4501

00103510335:05
 UNITED STATES of AMERICA

                 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                          JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
                                            ROOM 420
                                 BOSTON, MASSACHUSETTS 02109401
                                            (617)   223-9746




                                                            ..

SECRETARY OF LABOR, ..
Complainant, ..
..
v. .. OSHRC
.. Docket No. 94-0161
HIRSCH ELECTRIC COMPANY, ..
Respondent, ..

Appearances:

             Heather A Joys, Esq.                                     William B. Hirsch, Chairman
                     Office of the Solicitor                                 Hirsch Electric Company
                     U.S. Department of Labor                                Bedford Heights, Ohio
                             For Complainant                                          For Respondent

Before: Administrative Law Judge Robert A. Yetman
DECISION AND ORDER
This proceeding arises under 8 10(c) of the Occupational Safety and Health Act of
1970, 29 U.S.C. 6 651. et. seq. (“the Act”) to review a citation issued by the Secretary of
Labor pursuant to 6 9(a) of the Act and a proposed assessment of penalty thereon issued
pursuant to 0 10(a) of the Act.
As a result of an inspection of respondent’s worksite located at the Hillcrest Hospital
during the period December 1 to December 9, 1993, the Secretary issued a Serious Citation
to respondent on December 14, 1993 alleging one serious violation of 29 C.F.R.
1926.416(a)(l) with a proposed penalty of $3,500. Respondent filed a timely notice of
contest and the Secretary filed a complaint with this Commission on February 3, 1994
amending the citation to plead in the alternative as follows:
29 CFR 1926.416(a)(l): Employees were permitted to work in
proximity to electric power circuits and were not protected
against electric shock by deenergizing and grounding the circuits
or effectively guarding the circuits by insulation or other means:
 On the site at 6780 Mayfield Road in Mayfield Heights, Ohio,
employees were permitted to work in proximity to electric
power circuits and were not protected against electric shock by
deenergizing and grounding the circuits or effectively guarding
the circuits by insulation or other means.

  or in the alternative:

          29 CFR 1926.416(a)(3): Before work is begun the employer
          shall ascertain by inquiry or direct observation             or by
          instruments, whether any part of an energized electric power
          circuit, exposed or concealed, is so located that the performance
          of the work may bring any person, tool, or machine into
          physical or electrical contact with the electric power circuit.
          The employer shall post and maintain proper warning signs
          where such a circuit exists.         The emplover shall advise
          employees of the location of such lines, the hazards involved,
          and the protective measures to be taken.

          On the site at 6780 Mayfield Road in Mayfield Heights, Ohio,
          the employer failed to post and maintain proper warning signs
          where an energized electric power circuit was so located that
          persons came in contact with it; and the employer failed to
          advise employees of the location of the electric power circuit,
          the hazard involved and the protective measure to be taken
          under the circumstances.
   Respondent’s    Chairman,   William Hirsch filed a response      to the complaint    on

February 7, 1994. Mr. Hirsch is a non lawyer and his response is accepted as a general -
denial of the averments in the complaint. A hearing was conducted on June 8, 1994 at
which time two written stipulations were filed by the parties. The stipulations are as follows:

                  1. Jurisdiction of this action is conferred upon this
           Occupational Safety and Health Review Commission by section
           10(c) of the Act.

                  2. Respondent is subject to the provisions of the
           Occupational Safety and Health Act (29 U.S.C. 651, et seq.)
           and its implementing regulations.

                 3. Respondent maintained a worksite at 6780 Mayfield
           Road, Hillcrest Hospital, in Mayfield Heights, Ohio on or about
           November 29, 1993.


                                           2

4 Respondent was responsible for installation of
electrical wiring at the worksite referenced in paragraph 3,
above.

    5. Respondent was issued, and received Citation No. 1,

Inspection No. 103510335 on December 14, 1993.

    6. On or about November 29, 1993, Respondent’s

employees installed and energized electrical wiring in an
operating room at the worksite referenced in paragraph 3,
above.

    7. On or about November 29, 1993, Respondent was

aware that employees of Duct Fabricators were installing
defusers in the operating room referenced in paragraph 6,
above.

    8. On or about November 29, 1993, Respondent was

aware that its employees had installed and energized electrical
wiring in the operating room referenced in paragraph 6, above,
prior to the installation of defusers by employees of Duct
Fabricators.

    9. On or about November 29, 1993, Respondent was

aware that one flexible conduit remained energized while the
employees of Duct Fabricators installed the defusers in the
operating room referenced in paragraph 6, above.

    10. Respondent was responsible for the installation,

energizing, de-energizing, and guarding of all electrical circuits
and/or wires at the worksite referenced in paragraph 6, above.

Second Stipulation

     1  Respondent’s worksite at 6780 Mayfield Road,

Hillcrest Hospital in Mayfield Heights, Ohio is covered by the
standard at 29 CFR 1926.416.

   2. Respondent’s worksite referenced in paragraph 1,

above, was inspected by Mike Pappas on December 1, 1993
through December 9, 1993.

    3. Complainant’s inspection of Respondent’s worksite

referenced in paragraph 1, above, was initiated in response to

                             3

an employee complaint filed with the Cleveland Occupational
Safety and Health Administration office.

                    4. At the worksite referenced in paragraph 1, above,
            Duct Fabricator employees worked in proximity to live parts of
            an electric power circuit.

                   5. Respondent employed approximately 30 employees
            at the worksite referenced in paragraph 1, above.

                   6. Respondent was aware that live parts of electric
            power circuits were located at the worksite referenced in
            paragraph 1, above.
   According to the evidence presented at the hearing, Respondent’s          employees were

responsible for installing electrical circuits and lighting systems at the Hillcrest Hospital,
including the operating rooms, (Tr. 72). On November 28, 1993, a number of contractors
were working in the operating rooms simultaneously and it was necessary to provide energy
and lights to those contractors. Accordingly, perimeter lighting was installed and energized
by respondent to provide lighting to the other craftsmen. The center bank of lights could
not be installed, however, until the sheet metal duct diffusers’ were installed. The wiring
for the center lights had been installed and was hanging from the opening in the middle of
the ceiling in a configuration known as a “greenfield” (tr. 74). The greenfield is flexible
conduit approximately six feet long extending from an electrical box attached to the concrete
structural ceiling (tr. 75) and contained six wires. These wires were exposed at the end of
the greenfield hanging below the ceiling. Two of the wires were energized and carried 270
volts. The neutral wire also had the potential to become energized. The other three wires
were “switch” wires and not energized (Tr. 77, 78, 79). According to respondent, the two
energized lines and the neutral wire had scotch locks2 on them to protect employees from
accidental contact (Tr. 26, 79). Respondent intended to install the center lights after the
diffusers had been installed (Tr. 72).

‘Diffusers are approximately 2’x 4‘in dimension (Tr. 18).

Scotch locks are plastic caps that are screwed onto the exposed ends of electrical wiring to
prevent contact with the wire.

                                             4

The project superintendent, Michael Picciano, an employee of Batia Construction
Company, testified that he held weekly safety meetings attended by the foremen for each
subcontractor at the site (Tr. 86). Respondent maintains that its representative at these
meetings warned the other contractors that electrical lines were energized and if any
contractor was required to work close to exposed energized lines, that the contractor should
contact an electrician to “take care of it properly” (Tr. 27, 28). The foreman for Duct
Fabricators, David Owen, attended the safety meetings but he did not recall being informed
at those meetings to call an electrician if his crew was required to work close to energized
line (‘I?. 36). However, he works around energized lines “all the time” (Tr. 35) and he knew
the lines were energized in the operating room because the perimeter lights were on in that
room (Tr. 35).
On November 28, 1993, Brian Yacso, an employee of Duct Fabricators was installing
metal duct diffusers in the operating room with his foreman, David Owen (Tr. 10, 11).
While standing on a ladder installing a diffuser in the ceiling, he received an electrical shock.
He noticed the greenfield hanging from the ceiling and “a couple of scotch locks on it” prior
to the installation (Tr. 13). Mr. Yacso maintains that the scotch locks were on the wrong
wires (Tr. 17). Respondent asserts that a scotch lock had been knocked off during
installation of the diffuser (Tr. 84). Both parties agree that the electrical shock received by
Mr. Yacso resulted from an exposed live wire. Based upon the evidence the Secretary
asserts that respondent violated the provisions of 29 C.F. R. 1926.416(a)(l).
In order to establish that respondent failed to comply with the standard, the Secretary
must prove that (1) the standard applies; (2) the employer failed to comply with the terms
of the standard; (3) employees had access to the cited condition; and (4) the employer knew,
or with the exercise of reasonable diligence, could have known of the violative condition
Astra Pharmaceutical Products, Inc. 1981 CCH OSHD 7 25,578 Aff’d 681 F.2d 69 (1st Cir.

1982); Gary Concrete prods. 15 BNA OSHC 1051, 1052, 1991-93 CCH OSHD 7 29,344, P.
39,449 (1991). Respondent acknowledges that the standard applies to its work activities.
(Second Stipulation ll 1). However, respondent maintains that it had complied fully with the
standard during all times alleged in the citation and complaint. Under the conditions
present at the worksite, it was not possrble to deenergize the electrical lines because other

                                                5

crafts needed lights and power to perform their work activities (Tr. 29). Respondent also
knew that diffusers has to be installed prior to placing the center bank of lights in the ceiling
(Tr. 26), and that the sheet metal components of the diffuser has sharp edges (Tr. 29). In
respondent’s view, it acted in a reasonable and prudent manner under these circumstances
by placing scotch locks at the ends of the energized lines and notifying other crafts during
the weekly safety meetings to contact one of its electricians if any employees of other crafts
were required to work in close proximity to energized line (Tr. 27). Upon being so notified,
respondent intended to move the energized line away from the work area (Tr. 32). Thus,
respondent placed the responsibility upon the employees of other crafts to notify respondent
each time work was to be preformed in close proximity to energized lines. However, the
injured employee, Brian Yacso, stated that he was not told to contact an electrician when
he was required to work in close proximity to energized line (Tr. 18).
The standard cited requires employers to deenergize and ground electrical circuits
when employees are exposed to those circuits. Alternatively, employers must effectively
guard the circuit from contact. In this case, it was not practical for respondent to deenergize
the lines because of work activities of other contractors. Therefor, respondent “guarded”
the lines by placing scotch guards at the exposed ends of the lines. The issue then, is
whether the guard placed upon the lines was “effective” within the meaning of the standard.
The term “guarded” is defined at 29 C.F.R. 1926.449 as follows:
Guarded. Covered, shielded, fenced, enclosed, or otherwise
protected by means of suitable covers, casings, barriers, rails,
screens, mats, or platforms to remove the likelihood of
approach to a point of danger or contact by persons or objects.
There is agreement between the parties that Mr. Yacso received an electrical shock from
the greenfield suspended from the ceiling. Although there is disputed testimony relating to
the placement of scotch guards on the wires, respondent’s general foreman acknowledges
that a properly installed scotch guard could have been knocked off during the installation
of the diffuser or the insulation covering the wires could have been “pinched” (Tr. 84). In
view of the work activity of the employees of Duct Fabricators, the sharp edges of the
materials being installed as well as the close proximity of the electrical lines, it is concluded

                                            6

that merely placing scotch locks at the exposed ends of the energized lines did not constitute
“effective guarding” of those lines from employee contact.
Moreover, respondent, upon notification from Mr. Yacso or Mr. Owen, intended to
move the greenfield “out of the way” of the work performed by those employees (Tr. 107,
108). In addition, the project superintendent testified that the greenfield could have been
secured “up tight to the deck” (Tr. 98) when it was installed. Thus, in view of the fact that
respondent knew that diffusers were to be installed, the electrical lines should have been
removed from that area at the time that the wiring was installed. Accordingly, the violation
is affirmed. See: Brennan v. OSHRC (Underhill Construction Cop.), 5 13 F.2d 1032 (26 Cir.
1975), followed ill, Grossman Steel & Aluminum Corp., 1975 CCH OSHD ll 19,982 (No.
12775, 1975); and Alzrting-Johnson Co., 1973-74 CCH OSHD lI 17,725 (No. 4409, 1974).
Section 17(k) of the Act provides that a violation is “serious” if there is “a substantial
probability that death or serious physical harm could result” from the violation. Pack River
Lumber Co. 2 BNA OSHC 1614,1615,1974-75 CCH OSHD ll 19,323 p. 23,097 (1975). The
Secretary need not establish that an accident is likely to occur in order to prove that the
violation is serious. Rather, he must show that “an accident is possible and there is
substantial probability that death or serious physical harm could result from the accident.”
Consolidated Freightways Corp., 15 BNA OSHC 1317, 1324, 1991 CCH OSHD II 29,500 p.

39,813 (No. 86-351, 1991); see Super Excavators, Inc., 15 BNA OSHC 1313,1317,1991 CCH
OSHD ll 29,498, p. 39,804 (No. 89-2253, 1991); Natkin & Co., 1 BNA OSHC 1204, 1205,
1971-73 CCH OSHD ll 15,679, pp. 20,967.68 (No. 4OlJ973); see also Bunge Corp. v.
Secretary of Labor, 638 F.2d 831,834 (5th Cir. Unit A 1981); Califiomia Stevedore and Ballast
Co. v. OSHRC, 517 F.2d 986, 988 (9th Cir. 1975).
In this case, employees were exposed to 270 volts of electricity. The Compliance
Officer determined that the exposure could result in bums, impact injuries from shock
reaction or electrocution (Tr. 54). Although Mr. Yacso was not seriously injured, the
probability of serious injury by contacting a line carrying 270 volts is substantial.
Accordingly, the violation is affirmed as a serious violation.
 Section 17(j) of the Act requires that due consideration must be given to four criteria
in assessing penalties: the size of the employer’s business, gravity of the violation, good faith
and prior history of violations. In Secretary of Labor v. JA. Jortes Construction Company, 15
BNi OSHC 2201 (1993), the Commission stated:
These factors are not necessarily accorded equal weight;
generally speaking, the gravity of a violation is the primary
element in the penalty assessment. TtiGty hdus., Inc., 15 BNA
OSHC 1481, 1483, 1992 CCH OSHD Il29,582, p. 40,033 (No.
88-2691, 1992); Astra Pharmaceutical Pro&., h~c., 10 BNA
OSHC 2070 (No. 78,6247), 1982). The gravity of a particular
violation, moreover, depends upon such matters as the number
of employees exposed, the duration of the exposure, the
precautions taken against injury, and the likelihood that any
injury would result. Kks-Twn Builders, hc., 10 BNA OSHC
1128, 1132, 1981 CCH OSHD ll25,738, p.32,107 (No. 76-2644,
1981).
The Secretary proposed a penalty in the amount of $3,500 for the violation. This is based
in large part upon “the severity of the possible potential injury” (Tr. 54). This is amount
proposed after reducing the original penalty for size of the company and past history. No
reduction was given for good faith (Tr. 55, 56). In this case it is clear that the policy of this
company was to guard live wires by placing scotch locks on the wires. Moreover, there is
evidence that respondent attempted to warn employees ‘of other contractors not to work
close to energized lines without informing an electrician. Accordingly, a reduction in the
penalty for good faith is appropriate. A penalty in the amount of $1,000 is assessed for the
violation.
Since it is concluded that respondent violated 29 C.F.R. 1926.416(a)(l) .as alleged,
there is no need to consider complainant’s alternative pleading. Accordingly, the alleged
violation of 29 C.F.R. 1926.416(a)(3) is dismissed.
FINDINGS OF FACT
Findings of fact relevant and necessary to a determination of all issues have been
made above. Federal Rules of Civil Procedure 52(a). All proposed findings of fact
inconsistent with this decision are hereby denied.
CONCLUSIONS OF LAW

                                             8

1. Respondent is engaged in a business affecting commerce and has employees
within the meaning of Section S(5) of the Act.
2. Respondent, at all times material to this proceeding was subject to the
requirements of the Act and the standards promulgated there under. The Commission has
jurisdiction of the parties and of the subject matter of this proceeding.
3 At the time and place alleged, respondent was in Serious violation of 29 C.F.R.
19264&a)(l).

                                        ORDER
     Serious Citation No. 1, Item NO. 1 is aGrmed and a penalty of $1,000 is assessed.

Dated:
Boston, Massachusetts