Orion Electric, Inc.

Plain-English summary

Two Orion journeyman electricians installed dimmer switches on an energized low-voltage circuit during restaurant renovation work, and one employee died from electrocution. Judge Ken S. Welsch held that the electrical-protection standard contains no low-voltage exception and that experience working on live circuits is not a substitute for de-energizing or other protection. The service manager supervised the work, so his knowledge was imputed to Orion. Orion's employee-misconduct defense failed because its general equipment rule was unclear for circuit work and the company did not show effective enforcement. The serious violation was affirmed and the proposed $1,500 penalty was reduced to $1,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.416(a)(1).
• Outcome: Serious energized-circuit violation affirmed; $1,000 penalty assessed.
• Key point: Low voltage can still cause fatal electric shock, and qualified electricians must be protected by de-energizing, grounding, guarding, insulation, or other means required by the standard.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 99-212

Orion Electric, Inc., EZ
Respondent.

APPEARANCES

           Channah S. Broyde, Esq.                               Ms. Tamara N. Thomas
           Office of the Solicitor                               Secretary/Treasurer
           U. S. Department of                                   Orion Electric, Inc.
           Atlanta, Georgia                                      Margate, Florida
                    For Complainant                                       For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                DECISION AND ORDER
   Orion Electric, Inc., (Orion) contests a serious citation issued December 30, 1998, by the

Occupational Safety and Health Administration (OSHA). The citation alleges that two
employees on July 2, 1998, were exposed to electric shock from unprotected energized electric
circuits while installing dimmer switches at a bar and restaurant, in violation of § 1926.416(a)(1).
The citation proposes a penalty of $1,500.
The E-Z Trial hearing was held on April 15, 1999 in Fort Lauderdale, Florida. The
parties stipulate jurisdiction and coverage (Tr. 7). Orion is represented pro se by Robert Thomas,
Orion’s president, and Tamara Thomas, secretary/treasurer. After the hearing, the parties filed
written statements of position.
 Orion argues the lack of a hazard and unpreventable employee misconduct.1 Orion’s
arguments are rejected. The standard cited makes no exception for exposure to low voltage
circuits and assumes a hazard. Also, the record fails to establish that a safety rule prohibiting the
activity was implemented and enforced. The violation is affirmed and a penalty of $1,000 is
assessed.
The Accident
Orion, a small employer in Margate, Florida, with less than 25 employees, is engaged in
the installation of electrical equipment primarily in new residential construction in South Florida
(Tr. 12, 13, 42). Orion was formed in 1989 by Robert Thomas, a master electrician. It maintains
approximately 13 crews in the field, which Thomas schedules and generally acts as a "traffic
cop" (Tr. 15). Orion employs approximately five journeyman electricians (Tr. 14, 48).
In 1996 Orion hired William Beckinger, a journeyman electrician (Tr. 28, 39, 41).
Thomas had worked with Beckinger for several years at another electric company. He
considered Beckinger an experienced electrician with good judgment and safe work habits.
Beckinger was also a personal friend (Tr. 25, 26-27, 29, 37).
With Beckinger’s persistence, Orion expanded its business to include service work which
involves installing electric equipment in pre-existing commercial and residential structures (Tr.
13, 41). According to Thomas, service work is more hazardous and requires more judgment than
work in new construction because the electrician deals with existing power (Tr. 41, 43).
Beckinger was allowed to develop and manage the service business. He was called "the service
manager." Beckinger and Marlon Singh, another journeyman electrician, performed all of the
service work for Orion (Tr. 13-14, 30-31, 45, 46).
In the evening of July 2, 1998, Beckinger and Marlon Singh were completing renovation
work on Mulligan’s Bar & Grill in Lauderdale-by-the-Sea (Tr. 96-97). The restaurant and bar
was scheduled to open the next day for the fourth of July weekend (Tr. 97). They arrived at 4:00
p.m. to finish some "loose ends," such as running cable TV lines and cables from the cash
register to the kitchen (Tr. 97). At approximately 8:00 p.m., there only remained four dimmer
switches to install (Tr. 49, 98). Installing a dimmer switch takes approximately 15 minutes and
was described as a "no-

     1
      In its written statement, it appears that Orion may no longer argue employee misconduct (Orion’s

Statement of Position, p. 7). Since it is unclear, the employee misconduct defense is discussed in this decision.

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brainer." For a qualified person, the job was not considered hazardous even on an energized
circuit (Tr. 32, 35, 103, 108).
Beckinger began installing the dimmer switch behind the bar. The 110-volt2 circuit was
not de-energized (Tr. 98, 104). It was a hot, muggy night and Singh speculates that Beckinger
was perspiring (Tr. 110, 146). While installing the dimmer switch, Beckinger was electrocuted.
The assistant medical examiner identified the cause of death "as a result of low voltage
electrocution" (Exh. R-8).
Compliance Safety and Health Officer Joe DeMartino initiated an OSHA investigation on
July 6, 1998 (Tr. 115, 164). He inspected the bar and visited Orion’s offices (Tr. 117, 119). He
testified that according to Thomas, journeyman electricians were allowed to work without de-
energizing the circuit (Tr. 120, 153). Thomas denied making the statement and testified that he
recommends employees to de-energize the circuit (Tr. 21).

                                                Discussion
     The Secretary has the burden of proving 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., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

                                Alleged Violation of § 1926.416(a)(1)
     Section 1926.416(a)(1) provides that:
              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




     2
      The record identifies the circuit as 110-volt or 120-volt (Tr. 31, 35, 73, 108). The citation refers to

115/120 VAC. For the purpose of the decision, it is referred to as 110-volt circuit. There is no dispute that it is low
voltage (Exh. R-8; Tr. 97).

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grounding it or by guarding it effectively by insulation or other means.

   There is no dispute that the standard applies to the electric work performed by Beckinger

and Singh. The installation of dimmer switches was part of the renovation work on the bar (Tr.
22, 39, 49). Orion does not dispute that Beckinger and Singh were working on a "live" circuit
which was not de-energized (Exh. C-1A; Tr. 98, 104). Also, the employees were not protected
from shock by insulation or other means. The two employees were exposed to 110-volts and
Beckinger was electrocuted. Installing the dimmer switch enabled Beckinger to contact the
energized circuit. Thus, the application and terms of § 1926.416(a)(1) were violated and
employees were exposed to the energized circuit.
In order to establish an employer’s knowledge of a violation, the Secretary must show
that the employer knew or, with the exercise of reasonable diligence, could have known of a
hazardous condition. Orion argues that it had no knowledge of Beckinger’s work on an
energized circuit. Although he knew the work involved installing dimmer switches, Thomas was
not consulted about the work (Tr. 35, 39).
Orion concedes that Beckinger was a supervisory employee (Orion’s Statement of
Position, p. 2). He was in charge and responsible for Orion’s service work. He obtained the jobs
and supervised the other journeyman electricians. He was paid a salary (Tr. 30-31, 37, 41, 46).
When Beckinger and Singh decided to install the dimmer switches without de-energizing the
circuits, Beckinger acted on behalf of Orion. His knowledge and activity is imputed to Orion.
When a supervisory employee has actual or constructive knowledge of the violative
conditions, his knowledge is imputed to the employer. Dover Elevator Co., 16 BNA OSHC
1281, 1286 (No. 91-862, 1993). “Because corporate employers can only obtain knowledge
through their agents, the actions and knowledge of supervisory personnel are generally imputed
to their employers, and the Secretary can make a prima facie showing of knowledge by proving
that a supervisory employee knew of or was responsible for the violation.” Todd Shipyards
Corp.,11 BNA OSHC 2177, 2179 (No. 77-1598, 1984).

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Orion’s Argument
Orion argues that there is no hazard when working on energized low voltage circuits such
as 110-volts because its journeymen electricians are licensed, trained and experienced.
Beckinger was a journeyman electrician for 15 years, which he maintained with 16 hours of
continuing education every two years (Tr. 30). Beckinger was considered an excellent electrician
with good judgment and safe work habits (Tr. 25, 27, 37, 108).
Orion asserts that an energized 110-volt circuit is not hazardous in most circumstances.
“[C]hanging out a switch or any other device ‘live’ is a rather common trade practice on a 120-
volt system, which, in 20 years in the trade, I’ve seen countless times. I’ve done it, and I have
talked to quite a few Electricians and Electrical Inspectors after Bill’s death, who wouldn’t think
twice about doing it.” Other than receiving a possible shock, Orion argues that for 110 volts to
be fatal, the person would have to be “unable to break contact with the ‘live part’ or ‘ground’ by
virtue of a physical condition, or by becoming part of a completed circuit” (Orion’s Statement of
Position, p. 3; Tr. 31).
Section 1926.416(a)(1), however, does not provide an exception for electrical work on
low voltage circuits. The safety standard assumes a hazard. In deciding the seriousness of the
hazard, “the issue is not whether an accident is likely to occur; it is rather, whether the result
would likely be death or serious harm if an accident should occur.'' Whiting-Turner Contracting
Co., 13 BNA OSHC 2155, 2157, (No. 87-1238, 1989). An employer’s failure to perceive the
violative conditions as hazardous is not a defense to the citation. When a standard prescribes
specific means of enhancing employee safety, such as de-energizing the circuit, the Review
Commission has long presumed that a hazard exists if the terms of the standard are violated.
Clifford B. Hannay & Son, Inc., 6 BNA OSHC 1335, 1337 (No. 15983, 1978).
As the accident here demonstrates, the practice of working on energized circuits,
including low voltage circuits, can cause injury and even death. As noted by the Associate
Medical Examiner for Broward County, Florida:
Because many people have sustained shocks with no apparent ill
effects, they reason that it is not harmful. The term low voltage is
misleading because the voltage is largely unimportant in
electrocutions. Most “low voltage” circuits in a house have a
current between 15 and 30 amps. The heart may be stopped or sent
into a lethal irregular rhythm by less than 1 amp. Non-fatal shocks,
for

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whatever reason (grounding, resistance, attenuation, direction, etc.)
either do not carry sufficient amperage or do not pass through the
heart or brain which are most susceptible to electric shock. But
under the correct set of conditions, ordinary house current can be
quite deadly, usually without leaving any burns or other injuries.
This is apparently what happened to Mr. Beckinger. In this county,
there are about a half dozen electrocutions a year. On average, half
are low voltage and half are classified as occupational.

     “Experience in working under hazardous conditions cannot be considered a substitute for

physical protection measures set out in a standard.” Cornell & Company, Inc., 5 BNA OSHC
1018, 1020 (No. 9353, 1977). The purpose of a safety standard is to prevent the first accident,
such as in this case. An employer must assure that employees, even experienced employees,
work in a safe manner. The Secretary has met her burden in establishing a serious violation of §
1926.416(a)(1).

                                Orion’s Employee Misconduct Defense
     During the hearing, Orion asserted that if there was a violation, it was due to

unpreventable employee misconduct. Orion points to its safety rule, which states:
All machines and equipment must be operated in a safe, sensible
manner. Shut off machine or equipment before making
adjustment, cleaning or repairing. Only authorized persons are
allowed to operate machines and equipment” (Exhs. R-1, R-5).

     Orion maintains that this safety rule instructs employees to turn off the power before

working on an electrical circuit (Exh. R-5; Tr. 74-75). Since the term “equipment”3 is
specifically defined in the National Electric Code and Orion’s business involves electrical
installations in accordance with the Code, Orion argues that this rule directs its electricians to de-
energized the circuit before making any adjustments or repairs. OSHA considers the rule vague,
ambiguous and not job specific (Tr. 121, 172).
As written, Orion’s work rule is general and open to interpretation. An employer’s safety
rule that employees “shut off machines and equipment” during adjustment, cleaning and repair is
not as clear as instructing employees to de-energize a circuit during installation of electrical

     3
        The term "equipment" is defined in the National Electric Code as "[A] general term including material,

fittings, devices, appliances, fixtures, apparatus, and the like used as a part of, or in connection with, an electrical
installation" (Exh. R-6).

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equipment. As conceded by Thomas, under the electric code “electrical circuit” and
“equipment” are different in that the former term refers to the wires connected to the equipment
(Tr. 83). However, even if the court accepts Orion’s interpretation of its safety rule as reasonable
within the electrical industry, Orion’s employee misconduct defense is still not met.
In order to show unpreventable employee misconduct, an employer is required to prove
that (1) it has established work rules designed to prevent the violation, (2) it has adequately
communicated these rules to its employees, (3) it has taken steps to discover violations, and (4) it
has effectively enforced the rules when violations are discovered. Nooter Construction Co., 16
BNA OSHC 1572, 1578 (No. 91-0237, 1994). It is Orion’s burden to show that the employee’s
misconduct was unpreventable.
Thomas testified that he recommends employees to de-energize the circuit before
working on it (Tr. 21, 74). Singh testified that Thomas instructed employees to de-energize the
circuit (Tr. 89, 107). Thomas, however, concedes that he has worked on energized circuits and is
aware that employees, depending on the circumstances, also work on “live” circuits (Tr. 20-21,
39). Singh also acknowledges that he had worked on energized circuits in the past (Tr. 99, 108).
In fact, Thomas states that "[I]f I felt like I needed to leave that circuit on for whatever reason, I
would change it out ‘live’ without a second thought or trepidation" (Orion’s Statement of
Position, p. 7).
Singh testified that he and Beckinger decided to install the dimmer switch without de-
energizing the circuit because “they are single volt dimmers. If we shut the power, it would shut
the lights off the entire place. We didn’t have flash lights on our person with us at the time. We
do have them in the truck” (Tr. 98). “It’s faster and quicker” (Tr. 99).
Singh’s reasons for not de-energizing the circuit do not excuse the noncompliance. Singh
concedes that a flashlight was in the truck. Also, the circuit breakers prevented the shut down of
all power to the bar (Tr. 102, 106). A more expedient or faster method to perform a task does not
excuse compliance with the safety requirements.
Also, the record fails to show that any rule to de-energize the circuit was enforced by
Orion. ``[W]hen the alleged misconduct is that of a supervisory employee, the employer must
also establish that it took all feasible steps to prevent the accident, including adequate instruction
and supervision of its employee'' Archer-Western Contractors, Ltd, 15 BNA OSHC 1013, 1017
(No. 87-1067, 1991). The Commission also stated that “where a supervisory employee is
involved, the proof of

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unpreventable employee misconduct is more rigorous and the defense is more difficult to
establish since it is the supervisors’ duty to protect the safety of employees under his supervision.
A supervisor’s involvement in the misconduct is strong evidence that the employer’s safety
program was lax.” Id. at 1017. The “fact that a supervisor would feel free to breach a company
safety policy is strong evidence that the implementation of the policy is lax” United Geophysical
Corp., 9 BNA OSHC 2117, 2123 (No. 78-6265, 1981).
The failure of Beckinger and Singh to de-energize the circuits indicates a
misunderstanding of any company rule, or that the rule was ineffectively enforced by Orion.
Because there were no circumstances shown which prevented the employees from de-energizing
the circuit, Beckinger and Singh’s failure to de-energize or use other protection indicates a lack
of concern for the consequences of their action. Adequate enforcement is a critical element of
the employee misconduct defense. Although Beckinger and Singh were experienced electricians,
Orion is not excused from assuring that employees comply with safety requirements. There is no
evidence that Orion enforced a rule to de-energize the circuit. No employees were shown to have
been warned or disciplined for violating the rule, although Thomas was aware that his instruction
was not followed. An effective safety program requires “a diligent effort to discover and
discourage violations of safety rules by employees.” Paul Betty, d/b/a Betty Brothers, 9 BNA
OSHC 1379, 1383 (No. 76-4271, 1981).
Orion is a small company and appears conscientious. However, it must take
responsibility to ensure that its employees, including experienced journeymen electricians, work
in a safe manner. Unless Orion changes its attitude about the hazards associated with working
with low voltage, there remains the potential for another accident. This case demonstrates that
even an experienced employee can make a serious mistake if safety is not considered. It
concerns the court that even after his accident, neither Thomas nor Singh4 indicate that they will
change their attitude towards working on an unprotected energized circuit (Orion’s Statement of
Position, p. 7; Tr. 109). Orion needs to take responsibility and enforce a safety instruction to
electricians. If circumstances do prevent de-energizing the circuit, the standard permits
protection by insulation or other means.

   4
       Since January, 1999, Singh no longer works for Orion. He left for another opportunity (Tr. 114).

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Penalty Consideration
The Commission is the final arbiter of penalties in all contested cases. In determining an
appropriate penalty, the Commission is required to consider the size of the employer’s business,
history of previous violations, the employer’s good faith, and the gravity of the violation.
Gravity is the principal factor to be considered.
Orion is a small employer with less than 25 employees (Tr. 14). There were two
employees involved in working on an unprotected, energized circuit. There was no reason shown
which prevented the circuit from being de-energized. Orion is entitled to credit for history in that
there is no record of prior OSHA inspections or past violations (Tr 123). Orion does maintain a
written safety program (Exh. R-7). Also, there is no evidence that Orion was uncooperative
during the inspection.
A penalty of $1,000 is reasonable for violation of § 1926.416(a)(1). The employees were
working on a low voltage, energized circuit to install dimmer switches. There was a hazard of
shock or, as in this case, death. Two employees worked on the energized circuit for
approximately 15 minutes.

                               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.

                                          ORDER


   Based upon the foregoing decision, it is ORDERED that serious Citation No. 1:
   1.      Item 1, alleging violation of § 1926.416(a)(1), is affirmed and a penalty of $1,000

is assessed.

                                          KEN S. WELSCH
                                          Judge

Date: May 7, 1999

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