J.A.M. Builders, Inc.

Plain-English summary

J.A.M. Builders was a construction subcontractor placing reinforcing steel for a concrete floor in Miami Beach, Florida. Employees handled rebar up to 20 feet long on a 17-foot-wide deck beneath energized, uninsulated 7,620-volt power lines. One employee died when the rebar he was holding contacted an energized line. Judge Stephen J. Simko, Jr. found that J.A.M. knew about the hazard before the incident but did not deenergize, reroute, insulate, or otherwise guard the lines. He affirmed the electrical citation as willful and assessed $35,000. The judge also approved a settlement affirming three other items with penalties totaling $2,550.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.416(a)(1); 29 C.F.R. § 1926.1053(a)(1)(ii); 29 C.F.R. § 1926.501(b)(1); 29 C.F.R. § 1904.8.
• Outcome: The willful electrical item was affirmed for $35,000, and three settled items were affirmed for another $2,550.
• Key point: Moving long rebar to another side of a narrow deck did not protect employees when energized power lines remained within reach throughout the work area.

Full text (OSHRC public release)

Secretary of Labor, :
Complainant, :
:
v. : OSHRC Docket No. 98-0823
:
J.A.M. Builders, Inc., :
Respondent. :

Appearances:

      Frances B. Schleicher, Esquire                     Charles S. Caukins, Esquire
          Office of the Solicitor                                     Fisher & Phillips, L.L.P.
          U. S. Department of Labor                           Fort Lauderdale, Florida
          Atlanta, Georgia                                         For Respondent
               For Complainant

Before: Administrative Law Judge Stephen J. Simko, Jr.

                                       DECISION AND ORDER

      J.A.M. Builders, Inc. (J.A.M.), is a corporation engaged in construction contracting. The

Occupational Safety and Health Administration (OSHA) conducted an inspection and investigation
of J.A.M.’s jobsite in Miami Beach, Florida, as a result of an incident that occurred on November
7, 1997. As a result of that investigation, respondent was issued a citation. Respondent filed a
timely notice contesting the citation and proposed penalty. A hearing was held in Miami, Florida,
on November 4, 1998. The parties settled Citation No. 1, items 1, 2 and 3, and Citation No. 3, item
1, and agreed to penalties totaling $2,550.00 for those items. The written settlement agreement
submitted after the hearing is hereby approved. The only unresolved alleged violation remaining
is Citation No. 2, item 1.
For the reasons that follow, the alleged violation in Citation No. 2, item 1, is affirmed as a
willful violation and a penalty of $35,000 is assessed.

                                            Background

      J.A.M. was subcontracted by Brodson Construction in 1997 to complete the shell of the

building for XS Fitness in Miami Beach, Florida. Steel reinforcing bars (rebar) were incorporated

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into the concrete floors and columns. To construct the floors, or decks, a wood frame consisting
of a plywood bottom and perimeter edge was built to act as a form into which concrete could be
poured after the rebar was tied slightly above the plywood. After the concrete hardened, the wood
was removed. The structure was three stories, including a concrete roof deck. During the period
November 5 to November 7, 1997, work progressed on what would have been the floor of the third
story. On November 7, 1997, one of respondent’s employees was electrocuted when rebar that he
was holding contacted an energized electric power line. As a result of this incident, OSHA
conducted an inspection and investigation of this jobsite.

                                        Discussion

                                  Citation No. 2, Item 1
                 Alleged Willful Violation of 29 C.F.R. § 1926.416(a)(1)

   In Citation No. 2, item 1, the Secretary alleges that:
   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 or about 11/07/97 employees were not protected against electric chock while
   they worked in close proximity to a power line energized to 7620 volts.

   The standard at 29 C.F.R. § 1926.416(a)(1) provides:
   (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.



   Construction of the floor of the third story of the XS Fitness Center addition during the

week of November 3, 1997, primarily involved placing and tying rebar in preparation for pouring
a concrete slab. This level was referred to during the hearing as the deck. The east side of the deck
was 85 feet long and faced the street. The north side of the deck was 17 feet wide and also faced
a street. The south and west sides of the deck abutted walls of existing buildings. The deck was

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19 feet 10 inches above the ground level. Energized rubber insulated 120-volt electrical service
lines were located 19 inches from the deck at about deck level. These lines ran parallel to the deck
along the entire length of the east side. Energized insulated service lines also were located on the
north side of the deck. Three energized non-insulated high voltage primary conductor power lines
carrying 7,620 volts of electricity were 10 feet directly above and parallel to the entire length of the
east edge of the deck. A neutral line ran 7 feet above the deck along the east edge.
On November 5, 1997, respondent’s employees were moving rebar from ground level to the
working deck through a 4-foot by 4-foot hole on the east side of the plywood floor of the deck.
The rebar lengths ranged from 16 feet to 20 feet. Employees angled the rebar away from the power
lines as they passed them from the east side ground level through the hole onto the deck. The hole
was covered over the next day. After the deck hole was covered on November 6, 1997, Mr. James
Stowe, respondent’s working foreman, and his crew were passing rebar to the deck through a
19-inch space between the wood at the edge of the east wall and service wires, 10 feet directly
below the non-insulated 7,620-volt power lines. An electrician told Mr. Stowe about the voltage
of electricity in these lines and warned him that he could be killed. Mr. Stowe testified that he had
been told to pass the rebar to the deck in this manner by Carlos Diaz, respondent’s job foreman.
Mr. Stowe further testified that he stopped all work on the deck when warned by the electrician.
Representatives of respondent’s management met with Mr. Stowe and union representatives
concerning the work stoppage and methods that might be used to move rebar to the deck from the
ground level. All witnesses who were parties to this conversation testified that an agreement was
reached regarding the method to be used to move the rebar. The testimony, however, is conflicting
as to what method was to be used. Mr. Stowe and Mr. David Gornewicz, president of Ironworkers
Local 272, testified that Mr. William Mack, respondent’s vice-president and co-owner, agreed to
cut a new hole in the rebar. Mr. Mack and Mr. Diaz testified there was no agreement regarding a
new hole. They testified that the parties agreed that all steel rebars would be passed from the
ground to the deck on the north side of the addition. Mr. Gornewicz testified in rebuttal that there
was no such agreement to pass rebar up on the north side. Mr. Stowe was ordered by J.A.M.
to finish work on this site on November 6, 1997. He was replaced the next day by another working
foreman, Mr. Larry Williams.

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On November 7, 1997, Mr. Williams and his crew were passing rebar to the deck from the
ground on the east side of the addition. Mr. Williams was on the deck receiving the rebar from
below when the 16-foot 9-inch long steel reinforcing bar he was holding contacted the energized
line directly above him. Mr. Williams died as a result of thermal burns from electrocution.
The Secretary has the burden of proving the 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., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

   The standard is clearly applicable to the working conditions at respondent’s construction

site. Energized lines were located directly above construction work performed by respondent’s
employees. Three primary conductor lines 10 feet above the working deck level carried 7,620 volts
of electricity. The 120-volt service lines, while insulated, were only 19 inches from the east edge
of the deck. Similar service lines were located on the north end of the deck.
Employees had access to the electric power lines while working on the deck. They could
easily contact the power circuit in the course of their work from any point on the deck which was
only 17 feet wide and 10 feet below the 7,260-volt primary conductors. Respondent’s employees
lifted 16- to 20-foot long rebars to the deck level on each of the three days discussed above. On
November 5, 1997, they lifted rebar through a 4-foot by 4-foot hole east of the center point of the
deck. This hole was, therefore, less than 10 feet from the east edge of the deck and less than 12 feet
from the 120-volt service lines. Mr. Diaz, J.A.M.’S job foreman, testified that the wires nearest the
hole were 16 to 17 feet away. If the hole was 10 feet from the deck edge and the east deck edge
was 10 feet directly below the high power line, simple geometry dictates that the hole was less than
15 feet from the three uninsulated primary conductors. Employees were raising 16- to 20-foot
rebars to this level. Even though the workers were angling the steel away from the power lines, this
alone was insufficient to protect against accidental contact with the nearby electrical circuit.
Respondent failed to comply with the terms of the standard during the three-day period

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November 5, 1997, through November 7, 1997. It is undisputed that the 7,620-volt primary
conductors were energized and were not insulated. The 120-volt service lines on the east and north
sides of the deck were also energized. There is also no dispute that respondent did not attempt to
deenergize and ground the lines or effectively guard them by insulation.
On November 5, 1997, respondent directed and permitted its employees to lift the rebar to
the 17-foot wide deck through a hole in the deck floor. Its employees raised the rebar to the deck
between the east edge and 120-volt service lines on November 6, 1997. Respondent’s working
foreman, Mr. Stowe, stopped this procedure when warned of the high voltage hazard by an
electrician.
Mr. William Mack, respondent’s co-owner, testified that after the work stopped on
November 6, 1997, the union and management representatives agreed to move the rebar to the deck
on the north side of the building. While there is conflicting testimony on this point, allowing
employees to use this procedure violates the terms of the standard. Employees handling 16- to 20-
foot rebar anywhere on the 17-foot wide deck could contact the electric power circuit 10 feet above
the surface of that deck. Respondent’s decision to require rebar to be lifted on the north side did
not eliminate the hazard. It merely changed the location of the exposure to the violative condition.
It is undisputed that respondent knew its employees used the deck hole to move the rebar
to the top level on November 5, 1997. It also knew that its employees were passing rebar between
the east deck edge and the electrical service lines on November 6, 1997. Mr. Stowe, the working
foreman, testified that the job foreman, Mr. Diaz, told him to pass the rebar in this manner. Union
and management representatives met on November 6, 1997, to discuss alternative methods of
raising the rebar to the deck in light of Mr. Stowe’s concerns about the energized power lines near
the deck. Respondent’s job foreman and vice-president knew the location of the power lines in
relation to the deck, knew the length of the rebar being placed, and knew that the lines were
energized and not guarded by insulation or other means. Even after this discussion, respondent
allowed employees to handle this rebar on this narrow deck in close proximity to the power lines.
It took no action to deenergize, insulate, or otherwise guard the lines from contact by its workers
during the three-day period of November 5, 1997, through November 7, 1997. Employees could
still contact unguarded energized power lines while raising the rebar to the deck on the north side

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as suggested by the testimony of Mr. Mack and Mr. Diaz.
Mr. Mack testified that on November 6, 1997, the union and management representatives
agreed to raise the rebar to the deck on November 7, 1997, on the north side of the deck.
Respondent characterizes this decision as a safety rule. It argues that Mr. Williams, a replacement
working foreman, violated its safety rule on November 7, 1997, by raising rebar to the deck on the
east side rather than on the north side. It further argues that this constituted employee misconduct.
To establish its defense of employee misconduct, respondent must prove:
(1) it has established work rules designed to prevent the violation; (2) it has
adequately communicated those rules to its employees; (3) it has taken steps to
discover violations; and (4) it has effectively enforced the rules when violations have
been discovered. Secretary of Labor v. GEM Industrial, Inc., 17 OSHC 1861, 1863
(1996).

   At no time prior to or during the period from November 5, 1997, through November 7,

1997, did the respondent establish work rules designed to prevent the violation. By allowing
employees to raise 16- to 20-foot long rebar to the deck, even on the north side of this narrow deck,
respondent permitted its employees to work in such proximity to the electric power lines that they
could contact the circuit in the course of their work. There is conflicting testimony as to whether,
on November 6, 1997, respondent agreed to cut a new hole in the deck or whether it agreed to raise
the rebar on the north side. Respondent asserts that it agreed to, and ordered the steel to be
brought, to the deck on the north side. Even if this assertion is accepted, such order does not
constitute a safety or work rule designed to prevent the violation. As stated above, such order
merely relocates the exposure to the violation. Employees moving the long steel to the deck in this
manner would continue to work in such proximity to the high voltage lines that they could contact
them with the rebar in the normal course of raising and positioning rebar on the deck level. Prior
to the conversation on November 6, 1997, respondent had no work rule that even arguably
addressed the violative condition.
J.A.M. has no written safety program. Respondent offered no evidence demonstrating that
it had a work rule which specifically prohibited its employees from working in proximity to electric
wires. It admitted at the hearing, and in its brief, that prior to November 6, 1997, employees had
been instructed to pass rebar through a hole in the deck. Respondent asserts that the ironworkers

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were experienced specialists in their trade and that J.A.M. was not required to provide
extraordinarily close supervision. While these employees may be experienced ironworkers, they are
not necessarily experienced in work near power lines and electricity. Respondent’s reliance on the
experience of ironworkers to protect themselves from electrical hazards is misplaced. Respondent
failed to prove that it had established work rules designed to prevent the violation at any time prior
to or during the period from November 5, 1997, through November 7, 1997. There is no need to
consider the remaining elements of its employee misconduct defense. I find no employee
misconduct that would relieve respondent of its responsibility under the Act.

                                         Willfulness

   The Secretary contends that J.A.M.’s violation of § 1926.416(a)(1) was willful.
   A willful violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§
   651-678 (“the Act”), is one committed with an “intentional, knowing or voluntary
   disregard for the requirements of the Act or with plain indifference to employee
   safety.” L. E. Myers, 16 BNA OSHC 1037, 1046, 1993-95 CCH OSHD ¶ 30,016,
   pp. 41,123, 41,132 (quoting Williams Enterp., 13 BNA OSHC 1249, 1256, 1986-
   87 CCH OSHD ¶ 27,893, p. 36,589 (No. 85-355, 1987). “It is differentiated from
   other types of violations by a heightened awareness--of the illegality of the conduct
   or conditions--and by a state of mind--conscious disregard or plain indifference.”
   General Motors Corp., Electro-Motive Div., 14 BNA OSHC 2064, 2068, 1991-93
   CCH OSHD ¶ 29,240, p. 39,168 (No. 82-630, 1991) (consolidated).

   Mr. John Jacob, a claims agent for Florida Power and Light Company, was on J.A.M.’s

jobsite on November 7, 1997, investigating the electrocution of Mr. Williams for the electric utility.
He was accompanied by the utility’s service planner, Mr. Diego Borges. Mr. Jacob and the
compliance officer, Mr. Lobean, testified that Mr. Borges stated he had warned respondent about
moving these power lines prior to the electrocution on November 7, 1997.
On October 31, 1997, Brian Axelrod, J.A.M.’s project manager, wrote a letter to Barry
Brodsky with Brodson Construction Company, the general contractor, which reads as follows:
Dear Mr. Brodsky,

           This is in regards to the power lines behind the building known as XS Fitness
   Center. An FPL representative has contacted our supervisor on the job and noted
   to him that the job will be shut down until these lines are moved. It is imperative


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that you coordinate with FPL to have these lines moved. It is in our best interest to
see this matter rectified as soon as possible.

           Please notify my office as soon as arrangements are made. Time is of the
    essence. (Exh. C-7)

    This letter was written seven days before the fatal incident. The Secretary’s compliance

officer testified that while the project was still at ground level, respondent’s officials, Mr. Bullis and
Mr. Mack verbally requested the general contractor to reroute the power lines.
At the hearing, John Bullis, one of respondent’s owners, testified that he participated in the
drafting of the October 31, 1997, letter to Brodson discussed above. He further testified that
Florida Power and Light Company (FP&L) had not contacted respondent about the job, but he
wanted to include some language to blame FP&L so it would not look like J.A.M. would be
stopping the job after the third deck. After reviewing this testimony, observing the witness’s
demeanor and considering the totality of evidence, I find this testimony lacks credibility. Even if
this letter was written for the reasons stated by Mr. Bullis, the fact that it was written seven days
before the fatality and five days before the period in question establishes that respondent knew its
employees would be working close to energized power lines in the course of their work long before
actual exposure.
Mr. Bullis testified that employees worked on the building addition after the letter was
written. On November 5, 1997, respondent passed 16- to 20-foot long rebars through a hole in the
deck. On November 6, 1997, respondent directed its employees to pass the same length rebar
through a 19-inch space between the building and electrical service lines, 10 feet directly below
energized, non-insulated power lines carrying 7,620 volts of electricity. This activity stopped only
when the working foreman, Mr. Stowe, was warned of possible electrocution by an electrician. Mr.
Diaz, J.A.M.’s job foreman, was angry with the working foreman for stopping the work, and
demanded that he leave the jobsite. Union and management considered the electrical hazard during
a discussion on November 6, 1997. Even after that conversation, respondent took no action to
deenergize, reroute, or otherwise guard the power lines to avoid contact. It relied on the experience
of ironworkers to avoid this hazard. Considering the testimony of respondent’s witnesses in a light
most favorable to J.A.M., it is obvious that respondent merely changed the location of the violation

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on November 7, 1997, by ordering the steel to be lifted to the deck on the north side rather than the
east side of the building.
The deck was only 17 feet wide. The rebar was up to 20 feet long. The high voltage lines
were 10 feet above the deck. Electrical service lines were located 19 inches from the east edge of
the perimeter at deck level. These lines were also located on the north side. Walls of adjacent
buildings abutted the west and south sides of the deck. Rebar lifted to the deck would, of necessity,
come close to energized lines. Respondent knew this long before the period of November 5, 1997,
through November 7, 1997. It took no action to eliminate the hazard or guard the energized lines.
It continued to allow its employees to work in close proximity to this hazardous condition
throughout this three-day period until one employee finally contacted the high voltage lines with
rebar in the course of his work.
Respondent had a heightened awareness of the hazardous conditions created by high voltage
lines close to the activities being performed by its employees in this cramped and confined work
area. It showed this awareness by its verbal warnings to the general contractor while the job was
at ground level and by its letter five days before the time period at issue. Its working foreman was
warned of the hazard of electrocution. He stopped the work and was fired for his efforts. Lengthy
discussions regarding these conditions were held between respondent’s management and union
representatives. Respondent continued to allow its employees to work without adequate protection.
Allowing employees to continue to work from November 5, 1997, through November 7,
1997, with this heightened awareness clearly indicates respondent’s conscious disregard for the
requirements of the Act and plain indifference to the safety of its employees. Given this ongoing
conscious disregard and plain indifference, I conclude that this violation is willful.

                                           Penalty

    Under § 17(j) of the Act, in determining the appropriate penalty, the Commission must give

due consideration to the size of the employer’s business, the gravity of the violation, the good faith
of the employer, and the history of previous violations.
During the period of November 5, 1997, through November 7, 1997, respondent had fewer
than ten employees on this jobsite. This violation was of high gravity. If workers contacted the

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high voltage power lines with rebar, the likely result would be death or serious physical injury. The
classification of the violation mitigates against a finding of good faith. J.A.M. has no history of
previous violations.

                                 FINDINGS OF FACT AND
                                 CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in accordance

with Federal Rule of Civil Procedure 52(a).

                                          ORDER

   Based upon the foregoing decision, it is hereby ORDERED:
   (1)     Citation No. 2, item 1, a willful violation of 29 C.F.R. § 1926.416(a)(1), is affirmed

and a penalty of $35,000 is assessed.
(2) Pursuant to the settlement agreement between the parties:
(a) Citation No. 1, item 1, a serious violation of 29 C.F.R. § 1926.1053(a)(1)(ii), is
affirmed and a penalty of $600 is assessed.
(b) Citation No. 1, item 2, a serious violation of 29 C.F.R. § 1926.501(b)(1), is affirmed
and a penalty of $700 is assessed.
(c) Citation No. 3, item 1, an “other” violation of 29 C.F.R. § 1904.8, is affirmed and
a penalty of $1,250 is assessed.

                                           STEPHEN J. SIMKO, JR.
                                           Judge

Date: March 29, 1999

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