Mass. Electric Construction Co.

Plain-English summary

Mass. Electric employees worked on an energized 480-volt distribution panel without effective insulation or other protection. An electrical flash burned the job foreman while he attempted to remove tape from energized busbars. The company argued that the foreman acted contrary to its safety rules and instructions. Judge Richard DeBenedetto rejected that defense because the foreman's supervisor left the work to his judgment and did not ensure that required protective equipment reached the site and was used. The supervisor could have prevented the violation through reasonable diligence, which established constructive knowledge. The serious citation was affirmed with a $1,300 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.416(a)(1).
• Outcome: Serious electrical-safety violation affirmed, with a $1,300 penalty.
• Key point: A company could not establish unpreventable employee misconduct when a supervisor allowed discretion to perform energized work and failed to ensure effective protective measures.

Full text (OSHRC public release)

                      UNITED STATES OF AMERICA
           OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION



                                                         :

SECRETARY OF LABOR, :
:
Complainant, : OSHRC
: Docket No. 96-0214
:
:
v. :
:
MASS. ELECTRIC CONSTRUCTION CO. :
:
Respondent. :
:

Appearances:

   Karin Froom, Esq.                      Kieran B. Meagher, Esq.
          Office of the Solicitor                City, Hayes, Meagher & Disette, P.C.
          U.S. Department of Labor               Boston, Massachusetts
                  For Complainant                              For Respondent

Before Administrative Law Judge Richard DeBenedetto

                             DECISION AND ORDER
   Mass. Electric Construction Co. (Mass. Electric) was cited on January 18, 1996, for serious

violation of the electrical safety standard at 29 C.F.R. § 1926.416(a)(1) which reads as follows:
(a) Protection of employees— (1) No employer shall permit an
employee to work in such proximity to any part of an electric power
circuit that the employee could contact the electric power circuit in
the course of work, unless the employee is protected against electric
shock by deenergizing the circuit and grounding it or by guarding it
effectively by insulation or other means.
Mass. Electric, a multistate electrical contractor, was engaged to install a neon sign on a
parking garage and related electrical work, including the installation of a new circuit
breaker in a panelboard which is the focal point of this case. It is undisputed that two of Mass.
Electric's employees, one a master electrician and job foreman, the other a journeyman electrician,
worked on the electric power circuit while it was energized and neither employee was protected
from electric shock by proper insulation or other means.
The OSHA inspection was triggered by an incident which occurred on November 22, 1995,
which caused the job foreman to suffer burns from an electric flash while working on the energized
circuit. Mass. Electric challenges the citation on the grounds of unpreventable employee
misconduct, claiming that “McCormick [the job foreman], by his own admission, acted against
established company safety policies known by him and the express instructions of a supervisor.”
Mass. Electric brief at 2.
The panelboard in question was a 480 volt main distribution panel which served the entire
parking garage. Mass. Electric's foreman, Michael McCormick, testified that approximately one
week before the November 22 accident, he removed the cover to look at the configuration of the
panelboard and determine exactly where the new circuit was to be placed. He saw that the “fingers”
of the busbars were wrapped with electrical tape, a condition not previously encountered by Mass.
Electric's employees.
Because the new circuit could not be added to the panelboard unless the tape was removed
from the busbars, foreman McCormick discussed the matter with his supervisor, Steven Smith, who
happened to visit the job site when the taped busbars were discovered. Both McCormick and Smith
assumed the panelboard was equipped with a main switch which would shut off the electric power
serving the entire garage. They agreed that Smith would contact the garage manager to schedule
a “shutdown.” On November 21, the day before the accident, Steven Smith telephoned McCormick
to inform him that a power shutdown was arranged for the following morning. Before leaving the
garage at the end of the day, McCormick took another look at the panelboard to review what
needed to be done the following morning when the electric power was to be shut down. It was then
that he discovered that there was no main switch to deenergize the electric power. He immediately
telephoned Steven Smith to inform him of the problem (Tr. 239-50).
 The foregoing narrative essentially reflects the way both parties view the events that took
place up to the time of the telephone conversation between McCormick and Smith on the eve of
the accident. Conflicting accounts of that conversation were presented by the witnesses.
The compliance officer testified that when McCormick related his phone conversation with
Steven Smith during an interview on December 1, 1995, he stated that the absence of a main switch
in the garage's electrical system was a surprise to both men. They discussed their options, including
the need to have the electrical utility company deenergize the power (Tr. 48-52):
Q: Did you ask Mr. McCormick if he was told anything by
Mr. Smith?
A: Yes. He told me that the way it was left was that Steven
Smith told him to go in the next morning, open up the panel, take a
look at it and if he felt comfortable installing the breakers hot, then to
go ahead and install them. If not, then to call back to the office.
Q: And Mr. McCormick told you — did he specifically say
he felt comfortable?
A: Oh, I'm sorry. No, that was somebody else said that.
Mr. McCormick told me that to open — that Steven Smith
told him to open up the panel and take a look and see what they could
do about installing this breaker hot, without an extended shutdown.
Q: Did Mr. McCormick indicate to you whether he felt that
he had any discretion in what to do the next day?
A: Yeah. He said, after the conversation, it was basically left
— it was left to his discretion on whether to go ahead and install the
breaker hot. If not, he was to call Steven Smith back and Mr. Smith
would contact the power company and shut the power down.
Q: Did Mr. McCormick and Mr. Steven Smith — I'm sorry
if you already said this, because I may have missed it, did they have
any discussion about personal protective equipment?
A: I don't believe they did.
Q: Do you remember if Mr. McCormick said anything to you
at that time about it?
A: I believe he said that Steven Smith told him if he needed
anything, to give him a call.
 The compliance officer went on to testify what McCormick said concerning his use of
materials at hand to reduce exposure to the electrical hazard. As Mass. Electric acknowledges: “He
attempted to insulate his tools with tape, and wrapped cardboard around the fingers of the bus for
insulation. TR, 261. He did not use insulated gloves, properly insulated tools, a face shield, or a
rubber mat. TR, 261.” Mass. Electric's brief at 5.
The compliance officer's interview with McCormick on December 1, 1995, regarding the
accident was tape recorded (Exh. C-5). The compliance officer also obtained a signed written
statement from McCormick during that same interview (Exh. C-8).
Appearing as a witness for Mass. Electric, Michael McCormick gave a different version of
his conversation with Steven Smith. Citing the hearing transcript, Mass. Electric provides us with
a capsule of McCormick's testimony — testimony which forms the basis of the employee
misconduct defense:
Smith instructed McCormick to inspect the circuit panel the
following morning. TR, 253. Smith told McCormick that, after
McCormick looked at the panel, if he determined he would be
comfortable working on the panel while it was energized, he was to
call Smith and tell him what protective equipment he would need. TR,
255. If he was not comfortable working on the energized panel, he
was to call Smith and they would make arrangements to shut off the
power for the building at the source. TR, 255. Either way,
McCormick was instructed to call Smith before taking any action.
Either way, McCormick was not to work on an energized panel
without protective equipment. TR, 255. McCormick understood this
instruction. TR, 254-55.
Mass. Electric's brief at 4-5.1
Steven Smith, called by Mass. Electric to testify, corroborated McCormick's testimony (Tr.
307-08):
A: Mike started off the conversation with, you know our
planned shutdown for tomorrow morning?
And I said, yes.
He says, are you aware there is no main breaker?
And I say, no, I'm not. I says, what are you talking about?

   1
     It is noteworthy that Mass. Electric's counsel stated during the hearing that he represented

Mass. Electric's employees as well as the company itself (Tr. 278).
 He says, there is no main breaker. He asked me, what do you
want to do?
I said, Mike, I says, I wasn't aware there wasn't a main
breaker. I don't know how we both missed that. I said, you're going
to have to look at that tomorrow morning and let me know what you
want to do. If you can get in there and work on that safely, call me
back and [tell me] what you want for safety equipment to get in there.
Q: What did he say?
A: He says, okay. I'll get back to you tomorrow morning.
Q: In any form of words, Mr. Smith, did you tell Mr.
McCormick or authorize Mr. McCormick to proceed to work on the
panel the next day without getting back to you?
A: Absolutely not.
Mass. Electric's employee misconduct defense is seriously undermined by several factors.
To establish the defense of unpreventable employee misconduct, the employer must show that it
had: “established work rules designed to prevent the violation; adequately communicated those
work rules to its employees (including supervisors); taken reasonable steps to discover violations
of those work rules; and effectively enforced those work rules when they were violated.” Pride Oil
Well Svc., 15 BNA OSHC at 1815, 1991-93 CCD OSHD at p. 40,585.
First, McCormick's testimony is starkly at odds with the prior statements made at the time
he was interviewed by the compliance officer. The tape-recorded interview contains the following
relevant exchange (Exh. C-5):
Q: ...so you told Steven Smith about the problem that there
was no main switch and then what happened after that?
A: That's correct. Well, we discussed, you know, what our
options would be...
* * * *
Q: Ok...So you talked...you didn't know what kind of notice
the utility company would need and how long the power would be
down...
A: So basically what we agreed upon was that the next
morning that I would take a look at the panel, to see what could be
done, as far as inside the panel. Typically, mounting a breaker in a hot
panel is a very common thing that we do. I've done it many times, so
that you don't interrupt the power on a building.
 * * * *
Q: So when you had made this agreement the afternoon
before, you said you would look at...you know, take the covers off
and look and see, and then...was the agreement that you would call
Steve and tell him what you saw? Or was it just that you would look
and if you thought...?
A: Yeah, I mean, basically, you know, I would look at it and
see what my opinion was, at that point, what he...you know, what I
thought I could do with it.
Q: Ok. Did he say that, to call me and let me know before
you do anything, or was it basically left up to your judgement?
A: I think it was left up to my judgement.
Q: Ok. So after you popped the covers off, what did you do
then?
A: Well, I surveyed the situation, and basically, I knew that
the tape was the only thing that was stopping us from installing the
breaker. At this point I decided that I would see if I could get the tape
off, and see what kind of job that would be.
Q: Ok. So you decided to see if you could get the tape off?
A: That's correct.
McCormick gave a matching account in his signed written statement (Exh. C-8):
When we agreed that I would look at the panel that morning, it was
left up to my judgement, I believe, on what I would do. I knew that
the tape was the only thing that was stopping us from installing the
breaker. I decided to see if I could get the tape off...
Second, in contrast to his testimony, Steven Smith's statements to the compliance officer
during the tape-recorded interview were somewhat less assertive and clear as to preconditions that
McCormick had to fulfill before proceeding with his work on the energized circuit (Exh. C-6):
Q: So...tell me about the conversation you had with Mike the
night before.
A: Conversation went...Do you realize there's no main
breaker; I said, no I didn't realize that; he said “What do you wanna...”
he asked me what you wanna do? I says, “Well Mike, I can either call
Larry...” I says take a look at it; I said if you're comfortable with
installing that hot, I says you do...use your own discretion, and let me
know what you're gonna do. I says if you're not comfortable, I said we
have to shut down and call Narragansett. ...I said you call me and tell
me what you need, you know, what
 ever you want for equipment, safety gear, whatever, let me know and
I'll get it there. ...And that was it.
Q: And he never called back?
A: Never called back.
* * * *
Q: Ok...so you told him basically that if he felt comfortable
to use your [sic] own judgement?
* * * *
A: I says if you're comfortable enough...you know, I said, we
install stuff hot before.
Q: Ok. So the understanding...
A: ...it's not out of the ordinary. You tell me if you're
comfortable with it, I said you do it. I said if you're not comfortable
with it get back to me and let me know. Let me know what you need
to do it, if you're comfortable, you wanna do it like that...
Q: So if he felt comfortable doing it like that and he
wasn't...didn't need to get back to you he could just go...
A: Use your own judgment.
The third factor undermining Mass. Electric's defense is Steven Smith's laissez-faire attitude
concerning the equipment McCormick would need in order to install the circuit while it was
energized. The standard calls for “effective” guarding by insulation or other means. It is undisputed
that McCormick's efforts to insulate his tools and guard the busbars were not appropriate as
effective protection against the electrical hazard that existed.
William Coffin, OSHA's assistant area director and licensed journeyman electrician, testified
that having chosen to work on an energized circuit, McCormick and his co-worker (Dennis Smith)
were required to use protective equipment consisting of insulation blanket [or rubber matting], face
shield, insulated gloves, and insulated tools (Tr. 132). Coffin's testimony was not disputed. In fact,
Mass. Electric's safety officer, John Schlittler, testified that Mass. Electric's safety policy for
working on a live circuit requires employees to use the “proper personal protective equipment”
specified by William Coffin (Tr. 319-20, 327).
Steven Smith acknowledged that he had observed the condition of the taped busbars shortly
before the accident (Tr. 304). He knew or should have known precisely what protective
equipment McCormick and his co-worker were required to use if they were to remove the tape
from the busbars and install the new circuit while the electric power was energized.
An employer does not have recourse to the defense of unpreventable employee misconduct
where, as in the instant case, it has a safety program but does not enforce it by insisting upon safe
methods and practices at all times. This is particularly true in the business of electrical construction
where the stakes are high when events go wrong. As McCormick's first-line supervisor, Steven
Smith had the responsibility to make a reasonable effort in assuring that McCormick did not work
on the energized circuit before all the required protective equipment was delivered to the site and
that such equipment was in fact used. When he addressed the safety issue during his telephone
conversation with McCormick on the eve of the accident, Smith clearly did not measure up to that
responsibility by merely stating: “Let me know what [safety equipment] you need to do it.”2
Mass Electric's contention that it had no actual or constructive knowledge of McCormick's
violation because it was contrary to both the established work rules and the express instructions of
Steven Smith, has no merit. Constructive knowledge has been established because supervisor
Steven Smith could have prevented the violation with the exercise of reasonable diligence.
Reasonable diligence includes an employer's obligation to anticipate hazards to which employees
may be exposed and to take measures to prevent the occurrence. Pride Oil, supra, 15 BNA OSHC
at 1814.3

   2
      With respect to the issue of effective enforcement of the safety rules it should further be

observed that while we may agree with Mass. Electric for not taking disciplinary action against
McCormick because of the injuries that he sustained, Mass. Electric failed to present any evidence
to indicate whether McCormick's co-worker, Dennis Smith, was disciplined for not following the
safety rules (Tr. 372).
3
Mass Electric also alleges that McCormick's violation was an isolated act; however,
McCormick's statements made to the compliance officer concerning the use of protective equipment
suggest otherwise (Tr. 51).
 It is difficult to discern the relevancy of Mass. Electric's argument regarding the “unique”
situation of having to remove tape from the panelboard's busbars. The argument is best summarized
by Mass. Electric's responses to certain interrogations which Secretary's counsel cited during the
hearing in an effort to clarify the issue of Mass. Electric's safety policy when working on live
circuits (Tr. 321-22):
MS. FROOM: We have to go back an interrogatory to get the
frame for it, so I'm going to read interrogatory No.6. Please describe
with particularity each and every fact upon which you base the third
affirmative defense that the accident and condition arose out of
employee error tantamount to misconduct.
Response. When Mr. McCormick discovered that the fingers
of the bus were taped, a condition unique in the experience of Mass.
Electric and all its personnel, he should have contacted John Badessa
for instructions on how to proceed. Those instructions would have
been to deenergize the circuit. Mr. McCormick should not have
attempted to scrape the tape with his knife. And a statement to OSHA
admits that he erred in working on the energized circuit under the
conditions he observed.
Interrogatory No. 7. With respect to Interrogatory No. 6,
describe with particularity, any company policy or rule which the
employee allegedly violated.
And the response. Because the circumstance encountered by
Mr. McCormick is to Mass. Electric's knowledge unprecedented,
there is no company policy or rule covering the precise situation.
However, it is a fundamental tenant of Mass. Electric's safety policy
communicated to employees that when in doubt, stop. Employees are
constantly informed not to proceed where they do not know the
necessary details of an unusual circumstance or uncertain as to the
proper way to proceed.

   This line of defense--with the omission of Jan Badessa as the person to be contacted and

with only slight variations here and there-- was vigorously pursued by Mass. Electric during the
hearing, and in its posthearing brief at 3-4. One cannot help but remark upon the obvious
disconnectedness in the logice of Mass. Electric’s defensive position. The response to the
Secretary’s interrogatory No. 6 identifies John Badessa as the authoritative person McCormick
should have consulted before any work was done on the circuit. The circumstances of Badessa
having such a key role in this case does not fit the context of the hearing record. trouble with this
argument is that we would have to ignore the obvious and fundamental facts of the case: that Mass.
Electric's employees were assigned to work on an electric power circuit; and that both the OSHA
standard and Mass. Electric's own safety policy prohibited such work unless the circuit was
deenergized or effectively guarded. Whether that work involved removing tape from busbars or
some other specific type of work does not alter the fundamental equation. The notion that
McCormick or any other electrician directly involved in the project was in a state of uncertainty
after that final phone conversation and required further instructions in what needed to be done in
order to safely install the new circuit while the electrical power remained energized, has no
evidentiary foundation and is sharply at odds with Mass. Electric's own arguments regarding the
quality of its training program and the reliability of McCormick's skills as an experienced master
electrician.
Mass. Electric has renewed its motion to strike the compliance officer's rebuttal testimony
concerning statements alleged to have been made by Dennis Smith, McCormick's co-worker. Mass.
Electric's brief at 19-20. Inasmuch as the rebuttal testimony was not material to the disposition of
this case, Mass. Electric's motion is denied for being moot. Other matters which Mass. Electric has
argued in its brief have not been overlooked, but are without substance or merit and require no
further comment.
The hazardous conditions for which Mass. Electric was cited posed a substantial threat of
death or serious physical harm to its employees and therefore, the characterization of the violation
as serious was justified. Applying the penalty criteria of 29 U.S.C. § 666(j), a penalty of $1,300,
as proposed by the Secretary, is appropriate.
Based upon the foregoing findings and conclusions, it is
ORDERED that the citation is affirmed and a penalty of $1,300 is assessed.

                                            Richard DeBenedetto, OSHRC Judge

Date:
Boston, Massachusetts

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