3-1901-16144-2 MN OSH DIVISION DOCKET NO. 7791 OSHI ID NO. B3600 032-04

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF LABOR AND INDUSTRY

 

M. Scott Brener, Commissioner, Department of Labor and Industry, State of Minnesota, Complainant, v.   Wright Electric, Inc., Respondent.	FINDINGS OF FACT,              CONCLUSIONS OF LAW,              AND ORDER

The above-entitled matter came on for hearing before Administrative Law Judge Kathleen D. Sheehy on May 5, 2005, at the Office of Administrative Hearings in Minneapolis, Minnesota.  The hearing record closed on May 23, 2005, with the receipt of the last post-hearing brief.

 

Julie A. Leppink, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127, appeared on behalf of the Commissioner of the Department of Labor and Industry (Complainant).

 

Gregg J. Cavanagh, Esq., 13277 94^th Avenue North, Maple Grove, MN 55369, appeared on behalf of Wright Electric, Inc. (Respondent).

 

NOTICE

 

          Notice is hereby given that under Minn. Stat. § 182.664, subd. 3 (2004), this decision may be appealed to the Minnesota Occupational Safety and Health Review Board by the employer, employee, their authorized representatives, or any party, within 30 days following the service by mail of this decision.  The procedures for appeal are set out at Minn. Rule Ch. 5215.

 

STATEMENT OF ISSUES

1.       Did the Respondent violate 29 C.F.R. § 1926.405(d), which requires that electrical boxes be accessible only to qualified persons and be covered with a “dead front”?

 

2.       If so, is this properly considered a serious violation?

 

The Administrative Law Judge concludes that the Respondent did violate 29 C.F.R. § 1926.405(d) and that the violation is properly considered to be serious.

 

Based upon all of the proceedings herein, the Administrative Law Judge makes the following:

 

FINDINGS OF FACT

 

1.                In March 2004, a new elementary school was under construction at 5900 Humboldt Avenue North, in Brooklyn Center, Minnesota (the worksite).  Multiple employers had employees on the worksite.  The Respondent was the electrical subcontractor on the worksite.

 

2.                Bob Darling is a senior safety investigator for Minnesota Office of Safety and Health (MnOSHA).[1]  On March 3, 2004, Darling conducted an inspection of the worksite, along with two other MnOSHA inspectors.[2]  Darling conducted the opening conference with the approximately eight subcontractors on the worksite and began his inspection.[3]  Darling advised Kenneth Stavrum, Respondent’s foreman on the worksite, of the purpose and scope of the inspection.  Stavrum is a journeyman electrician.[4] 

 

3.                After the opening conference, Darling conducted a walk-around inspection.  The Respondent had installed temporary 120-240 volt panels to supply electricity at the worksite.[5]  The temporary panels have knockouts occupying spaces for breakers.  When a circuit breaker is installed, the knockout is removed, leaving an opening sized for a standard breaker. 

 

4.                In a hallway on the first floor Darling observed a temporary panel with an unlocked cover.  Inside on the face of the panel were open slots, not covered by the knockouts or unconnected breakers.  The opening measured approximately two inches by two inches.[6]  The open panel was active, with 120-volt electricity being supplied through the panel.[7]  The opening was large enough for fingers or tools to reach well into the open panel.  Live bare wires were contained in the open panel.  The open panel had been installed by the Respondent in August 2003 and remained in use until August 2004.[8]  The open panel posed a risk of shock, burns, or electrocution to the workers present at the worksite.

 

5.                Curtis Nelson, an apprentice for the Respondent, had been told to move an outlet from this panel.[9]  The outlet was to be disconnected from the open panel and the outlet’s electricity supplied by a different temporary panel.  Nelson did not recall specifically working on the open panel and did not recall leaving the slots uncovered.[10]

 

6.                The open panel was equipped with a cover that could be locked to deny access to persons not qualified to work on electrical equipment.  A slot in the panel cover accepts a loop for a padlock.  The cover was not locked in place at the time of inspection.  After Darling identified the problem, the cover on the open panel was closed and locked until the open slots were filled.[11]  The slots on the open panel were filled immediately after the inspection.[12] 

 

7.                Darling conducted a closing conference and informed the affected employers of proposed citations.[13] 

 

8.                Darling prepared a penalty worksheet for the violation.[14]  In calculating penalties, a severity rating is assigned to each violation.  The severity rating is based upon a scale, ranging from A (violation unrelated to injury) to F (violation could result in death, permanent total disability, or 60% or greater permanent partial disability).[15]  The MnOSHA Citation Rating Guide identifies the range of severity to be assigned to a particular violation, depending on the conditions at the work site.  Nonfatal injuries caused by electricity that potentially exceed the “let go” threshold are assessed as level D.[16]  Darling assigned a severity level of D, relying on the Guide standard for dead front violations.[17]  The other factors resulted in a probability rating of 3.  The unadjusted penalty was $2,000.00.  Respondent received the maximum credit for good faith, safety history, and size, which reduced the penalty to $400.00.

 

9.                On March 12, 2004, the Commissioner of Labor and Industry issued a Citation and Notification of Penalty identifying the open panel as a serious violation of 29 C.F.R. § 1926.405(d) and imposing a penalty of $400.00.[18]  On March 31, 2004, Respondent filed a Notice of Contest.  Respondent contested the existence and type of violation and the amount of the penalty.[19]

 

10.             On June 10, 2004, the Commissioner issued a Complaint seeking an order affirming the violation and penalty identified in the Citation and Notification of Penalty.  On June 23, 2004, Respondent filed an Answer to the Complaint.  On December 4, 2004, the Commissioner issued a Notice and Order for Hearing setting this matter on for a contested case hearing.

 

11.             The Respondent has a policy that anytime a breaker is removed from an electrical panel, a blank or unconnected breaker is to be installed in the vacated slot.  This policy was included in “toolbox talks,” which are scheduled safety discussions held periodically with employees.  Stavrum personally spoke to other employees about safety issues, including covering unused panel slots.[20]

 

12.             Thomas Clifton, President of Wright Electric, has held a master electrician license since 1994.  Clifton directed that covering open slots on panels be included in the annual safety discussions held in each of the two years prior to the inspection.  Clifton also ensured that materials informing Wright employees of the policy were included in the “toolbox talks” given by supervisors.  Clifton visited the worksite two or three times prior to the MnOSHA inspection.[21]

 

Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

 

CONCLUSIONS

1.                The Commissioner of Labor and Industry and the Administrative Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.50, 182.661, subd. 3, and 182.664.

 

2.                The Department gave proper notice of the hearing in this matter and has fulfilled all relevant procedural requirements of law or rule.

 

3.                The Respondent is an employer as defined by Minn. Stat. § 182.651, subd. 7.

 

4.                Minn. Stat. § 182.653, subd. 3, requires each employer to comply with Occupational Safety and Health Standards or Rules (OSH) adopted pursuant to Minnesota Statutes Chapter 182.

 

5.                Minn. R. 5205.0010, subp. 6, incorporates by reference the provisions of 29 C.F.R. 1926.

 

6.                29 C.F.R. 1926.405(d) provides that:

 

(d) Switchboards and panelboards.  Switchboards that have any exposed live parts shall be located in permanently dry locations and accessible only to qualified persons.  Panelboards shall be mounted in cabinets, cutout boxes, or enclosures designed for the purpose and shall be dead front.  However, panelboards other than the dead front externally- operable type are permitted where accessible only to qualified persons. Exposed blades of knife switches shall be dead when open.

 

7.                The Complainant has the burden of establishing an OSH violation by a preponderance of the evidence.

 

8.                The Respondent failed to ensure that the panelboard was accessible only to qualified persons, as required by 29 C.F.R. 1926.405(d).

 

9.                The panelboard was not dead front, as required by 29 C.F.R. 1926.405(d), because the openings on the face of the panel allowed access by unqualified persons.

 

10.             The Complainant has established that employees on the worksite were exposed to the cited hazard.

 

11.             The Complainant has proved that Respondent violated the standards of 29 C.F.R. 1926.405(d).

 

12.             The Department classifies violations 29 C.F.R. 1926.405 as severity level D, which is always treated as a serious violation.[22]  

 

13.             Under Minn. Stat. § 182.666, subd. 6, the Commissioner has authority to assess fines giving due consideration to the appropriateness of the fine with respect to the size of the business and the employer, the gravity of the violation, the good faith of the employer and the history of previous violations.

 

14.             The evidence in the record supports the Complainant’s penalty calculation regarding severity of and probability of harm from the violation.  Adjusting the penalty calculation from the appropriate severity and probability of harm by crediting for size, history, and other factors results in a penalty of $400.00.

 

13.             The foregoing Conclusions of Law are based on the reasons set out in the Memorandum which follows and which is incorporated into these Conclusions by reference.

 

Based upon the foregoing Conclusions of Law, the Administrative Law Judge makes the following:

 

 

 

 

ORDER

 

          IT IS HEREBY ORDERED that:

 

          1.       The citation is AFFIRMED.

 

          2.       The Respondent shall forthwith pay to the Commissioner of Labor and Industry the sum of $400.00.

 

                    3.       If the penalty is not paid within 60 days after the fine becomes a final Order, it must be increased to 125 percent of the originally-assessed amount.  Furthermore, after 60 days, the unpaid fine shall accrue an additional penalty of 10 percent per month compounded monthly until the fine is paid in full as required by Minn. Stat. § 182.666, subd. 7.

 

Dated this

22nd

day of

June

2005.

 

                                                                

s/Kathleen D. Sheehy

KATHLEEN D. SHEEHY

Administrative Law Judge

 

Reported: Taped (two tapes), no transcript prepared.

 

MEMORANDUM

 

Respondent makes three main arguments as to why it should not be responsible for the violation.  First, it contends that there was no violation because the panel was accessible only to qualified persons.  Respondent maintains that all employees on the site are qualified persons because all workers on a construction site are generally trained regarding circuit breakers, and therefore the standard does not prohibit access to any worker on a worksite.

 

Respondent’s interpretation of the rule would cause the exception (access only to qualified persons) to swallow the rule.  The notation to the definition of “qualified person” provides:

 

Note 1: Whether an employee is considered to be a “qualified person” will depend upon various circumstances in the workplace. It is possible and, in fact, likely for an individual to be considered “qualified” with regard to certain equipment in the workplace, but “unqualified” as to other equipment.[23]

 

In the context of training, there are separate requirements for qualified and unqualified persons.  A qualified person must be trained, for example, to recognize specific voltage hazards and clearance distances.  There is no evidence that employees of other subcontractors on the site had the training to recognize these hazards.[24]  The employees of other subcontractors on the worksite are not qualified persons who may have access to live electrical equipment under the regulation.

 

Second, the Respondent argues that the panelboard meets the “dead front” requirement, because the live parts could not be inadvertently touched.  Dead front means “[w]ithout live parts exposed to a person on the operating side of the equipment.”[25]  “Exposed” means “[c]apable of being inadvertently touched or approached nearer than a safe distance by a person.  It is applied to parts not suitably guarded, isolated, or insulated.”[26]  The Respondent’s employees testified that the live wires could not be brushed against from outside the panel.  But the standards for dead front equipment are not limited to inadvertent touching by brushing against the outside of the panel.  There is no doubt that hand-held tools could come in contact with the bare wires of the open panel.  The likely result of such contact is an injury to a worker.  The open panel was not dead front as required by the standard.[27]

 

Third, the Respondent asserts that the failure to cover the electrical panel constitutes “employee misconduct.”  Where a prima facie OSH violation has been shown, an employer may nevertheless defeat the alleged violation by a showing of unpreventable or unforeseeable employee misconduct.  The employer bears the burden to demonstrate this defense[28] and must show that (1) the employer had a work rule to prevent the behavior constituting the violation; (2) the work rule had been adequately communicated to its employees; (3) the employer took steps to discover noncompliance; and (4) the employer effectively enforced safety rules when violations were discovered.[29]

 

No documentary evidence of these policies was produced.  The Respondent’s employees did testify that there was a policy in place and that it took steps to communicate the rule to its employees; there is no evidence, however, that the Respondent took steps to discover noncompliance and then effectively disciplined violations.  These last two elements of the defense must be proved to successfully interpose an employee misconduct defense.[30]  In this case, there is no evidence supporting the last two elements.  Therefore, Respondent has not demonstrated employee misconduct.

 

In addition, Respondent asserts that actual or constructive knowledge of the hazard must be shown before a serious violation can be shown.  This requirement is present when Complainant is attempting to prove a violation of the general duty clause, 29 U.S.C. § 654(a)(1), which states:

 

Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

 

Where the general duty clause is cited, a violation is demonstrated where the employer failed to render its workplace free of a hazard which was recognized as causing or likely to cause death or serious physical harm.[31]  This is not a general duty clause matter.  Respondent was cited for violating a specific standard.

 

Finally, the Respondent disputes that this is a serious violation, maintaining that the open panel posed little threat of harm.  The relevant OSHA standard requires specialized training for any employee with access to bare live electrical equipment in excess of 50 volts.[32]  The Code of Federal Regulations at 29 C.F.R. 1910.333 (Table S-5) establishes the minimum safe distance for qualified employees to live electrical equipment.  For live equipment of less than 300 volts (such as the temporary panel at the worksite) the standard is to “avoid contact.”  The reason for this requirement is that live electrical equipment is capable of inflicting serious harm.  The MnOSHA field compliance manual categorizes as severity level D the hazards that can result in an expected injury of permanent partial disability or temporary total disability of up to 10 lost workdays.[33]  MnOSHA Citations Rating Guide provides the standard severity level of D for failure to maintain dead front protection on electrical panels, and severity level D is always treated as a serious violation.[34]

 

Respondent describes the foregoing documents as “at best a bureaucratic device for issuing citations and complaints.”[35]  These documents have been developed by the agency for assessment of the severity posed by common workplace hazards.  Nationally, exposure to electricity in excess of 50 volts has been determined to be hazardous.  The severity of the hazard posed by the violation is not dependent on whether any particular person has experienced the injury or can testify to such injuries at a hearing.  The purpose of the OSHA standards is to eliminate injuries by eliminating avoidable workplace hazards.

 

The reason for the specific requirements for electrical panels is to avoid the accidental contact that can happen through inadvertence, inattention, or mistake.  Access to a hazard is the test, not actual employee exposure to that hazard.[36]  An employer creating a hazard is responsible for access to that hazard by other contractors’ employees on a multi-employer worksite.[37]  The open panel provided access to the hazard by all the employees on the worksite.  This access is sufficient to support the citation. 

K.D.S.