OAH DOCKET NO. 54-1901-16775-2
MN
STATE
OF
OFFICE
OF ADMINISTRATIVE HEARINGS
FOR
THE DEPARTMENT OF LABOR AND INDUSTRY
M.
Scott Brener, Commissioner FINDINGS OF FACT,
Department
of Labor and Industry, CONCLUSIONS OF LAW
State
of
Complainant,
v.
Wright
Electric, Inc.,
Respondent.
The above-entitled matter came on for
hearing before Administrative Law Judge Lucinda E. Jesson on
Julie A. Leppink, Assistant Attorney
General,
Gregg J. Cavanagh, Esq.,
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 required that electrical
boxes be accessible only to qualified persons and be covered with a “dead
front?”
2.
Did the
Respondent violate Minn. Rule 5207.1000, subp. 4 which requires that employees
exposed to mobile earthmoving equipment be provided with and wear high
visibility garments?
3.
Did the
Respondent establish the affirmative defense of unpreventable employee
misconduct for either citation?
4.
Did the
Complainant properly calculate penalty amounts for the citations?
Based upon the record in this matter,
the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
In the summer of
2003, an addition to an existing Wal-Mart store in
2. On
3. During
his inspection Nevala observed a pre-existing Wal-Mart electric panel which was
being used as a temporary electric panel to supply electricity to construction
workers. Respondent had removed the unit
from the wall and propped it up for construction purposes.[2]
The temporary electric panel was located in the pharmacy area of the
building. The panel board was contained
in a metal cabinet with a cover. When
the cover door was opened, the face plate surrounding the circuit breakers was
in place, but a single-pull breaker was missing, leaving an opening in the face
plate.[3] There was neither a breaker blank nor a
circuit breaker switch (either of which would have provided the necessary
protective cover) in the opening. The opening was approximately ¾ inches high
by 3 inches wide.[4] There were no live electrical parts on the
flat front of the panel box, but live parts were recessed approximately two to
three inches into the opening.[5] At
a minimum, 120-volt electricity was supplied through the wires recessed into
the open panel.[6]
4. The
temporary electrical panel was located in an open, central area, which was
covered and generally a dry location.[7]
5. The
opening caused by the missing breaker blank was large enough for fingers or
tools to reach well into the open panel.
An employee who accidentally or purposefully put a finger or tool in the
panel opening would experience an electric shock.[8]
The result of such a shock would be severe pain. The pain would be serious
physical harm, but not typically fatal.[9]
6. Employees
in the area had access to the panel box.
These included employees of the General Contractor’s subcontractors who
would access the panel to plug in electrical extension cords and the three
Wright Electric on-site employees. As a
result, employees had access to being exposed to live electrical parts.[10]
7. The
open electrical panel was equipped with a cover that could be locked to limit
access. However the cover was not locked
at the time of inspection. Nor was there
a padlock on the cover.[11]
8. During
the inspection, Nevala further observed a Wright Electric employee using a
skid-steer to dig a trench for electrical conduit. Two other Wright Electric employees were
following the skid-steer and placing the conduit into the trench.[12] The skid-steer was moving away from the
employees during this process.[13] The employees were not wearing high
visibility vests or other high visibility garments. Two of the employees working without high visibility
garments were the foreman Leon Schumacher and apprentice Chris Ahlberg.[14]
9. Nevala
also observed other mobile earth moving machines (including a dump truck and an
excavator) in the general vicinity of the employees without high visibility
vests.[15]
10. Schumacher
and Ahlberg told Nevala they were aware of the requirement to wear high
visibility vests. There were no high
visibility vests at the worksite. It was a bright day outside and visibility
was not restricted by the weather.[16]
11. At the
end of the inspections, Nevala conducted a closing conference. He described the proposed citations to
Respondent. The proposed citations were
corrected immediately following the inspection.[17]
12. OSHA
penalties are assessed by calculating a severity-probability rating for the
violation and assigning the corresponding penalty. Following the inspection,
Nevala prepared a penalty work sheet for each violation. In calculating penalties, a severity rating
is assigned to each violation. Severity
is rated on a scale from “A”(violation unrelated to injury) to “F” (violation
that could result in severe injury). With regard to the risk of a shock or
electrocution from exposure to the unguarded opening on the panel board, Nevala
determined that the risk for shock or electrocution was a serious hazard and
gave this citation a severity rating of “D”.
In making this assignment, Nevala relied upon the MnOSHA Citation Rating
Guide which identifies the range of severity to be assigned to a particular
violation.[18] Nevala also assigned a probability rating of
“3” to the panel board violation. Based
upon the probability and severity ratings, the unadjusted penalty was
$2,000.00. Respondent received the
maximum credit for good faith, safety history and size, which reduced the penalty
to $200. 00.
13. Nevala
also classified the failure of Respondent’s employees to wear high visibility
vests in the vicinity of earth moving equipment as a serious violation. He used the Citation Rating Guide to
determine the severity rating for this citation as a “D” based upon his
assessment that the employees were exposed to the hazard of being run over by
one of the machines or trucks in the area and that if an accident had occurred,
the result would have been serious injury or death.[19] The citation also received a probability
rating of “3” so the unadjusted penalty was $2,000.00. Respondent received the maximum credit for
good faith, safety history and size, which reduced the penalty to $200.00.
14. Respondent
has a policy that employees must wear high visibility vests anytime they are
outside with heavy equipment.[20] Further, Respondent has a “bonus” safety
program wherein employees who comply with the safety rules and attend safety
trainings qualify for quarterly bonuses. Respondent also has a policy that
anytime a breaker is removed from an electrical panel, a blank
is
installed in the open spot. These and
other safety rules are discussed in a half day annual meeting and in informal
“tool box talks” which are scheduled weekly at Respondent’s worksites.[21]
In addition, Respondent’s Safety Manual encourages employees generally to wear
personal protection equipment when required.
15. On
16. On
17. On
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
Commissioner 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. The
Commissioner has the burden of establishing an OSHA violation by a
preponderance of the evidence.
5. Minn.
Stat. § 182.653, subd. 3, requires each employer to comply with Occupational
Safety and Health Standards or Rules adopted pursuant to Minnesota Statutes
Chapter 182.
6. Minn.
Rule 5205.0010, subd. 6, incorporates by reference the provisions of 29 C.F.R.
1926.
7. 29
C.F.R. 1926.405(d) provides that:
(d) Switchboards and panel boards. Switchboards that have any exposed live parts
shall be located in permanently dry locations and accessible only to qualified
persons. Panel boards shall be mounted
in cabinets, cutout boxes, or enclosures designed for the purpose and shall be
dead front. However, panel boards 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.
8.
The electrical
panel board had exposed live parts and was accessible to unqualified persons.
9.
The panel board
was not dead front because the opening on the face of the unlocked panel
allowed access by employees of the worksite who were exposed to the hazard of
shock or electrocution due to the panel board having an unguarded opening.
10.
The Commissioner
established by a preponderance of the evidence that Respondent violated 29
C.F.R. § 1926.405(d).
11.
Minn. Rule
5207.1000, subd. 4 requires that employees exposed to mobile earth moving
equipment be provided with and required to wear a high visibility vest or other
high visibility garment. Respondent’s
employees worked in close proximity to this type of heavy equipment without
wearing high visibility garments as required by Minn. Rule 5207.1000.
12.
The Commissioner
has established by a preponderance of the evidence that Respondent violated the
standards of Minn. Rule 5207.1000.
13.
To establish the
affirmative defense of unpreventable employee misconduct, Respondent must show
that it 1) established a work rule to prevent the unsafe condition from
occurring; 2) adequately communicated the rule to its employees; 3) took steps
to discover incidents of noncompliance; and 4) effectively enforced rules
whenever employees violated them.[22]
Respondent demonstrated that it had specific safety work rules in place which
were communicated to employees to prevent the unsafe conditions, but failed to
show that it either took proactive steps to discover violations of these rules
or that it disciplined employees who violated company safety policies. Respondent fails to establish by a
preponderance of the evidence the affirmative defense of unpreventable employee
misconduct with regard to either citation.
14.
Under Minn.
Stat. § 182.666, 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.
15.
The evidence in
the record supports the Commissioner’s penalty calculation regarding severity
and probability of harm from exposure to the
unguarded opening in the electrical panel. Adjusting the penalty calculation for the
appropriate severity and probability of harm by crediting for size, history and
other factors results in a penalty of $200.00.
16.
The evidence in
the record supports the Commissioner’s penalty calculation regarding the
failure to wear high visibility vests.
Adjusting the penalty calculation for the appropriate severity and
probability of harm by crediting for size, history and other factors results in
a penalty of $200.00.
17.
The foregoing
Conclusions of Law are based on the reasons set out in the Memorandum which
follow 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 citations
are AFFIRMED.
2.
The Respondent
shall forthwith pay to the Commissioner
of Labor and Industry the sum of $400.00.
3.
If the penalties
are 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
Dated
this 15th day of May, 2006.
_s/Lucinda
E. Jesson______________
LUCINDA
E. JESSON
Administrative
Law Judge
MEMORANDUM
The
facts underlying the citations are generally uncontested. In violation of Respondent’s stated (but
unwritten) safety policies, there was an uncovered panel opening on a panel box
that held exposed live electrical parts.
Moreover, employees were not wearing high visibility vests in the
presence of earth-moving machinery. At
the hearing, however, Respondent sought to avoid the citations for four
reasons.
First,
Respondent claimed that the construction workers at the site (which was not
open to the public) were all “qualified persons” so that it did not have to
ensure that the electrical panel was dead front. Clearly, the personnel of other subcontractors
at the worksite were not “qualified persons” within the meaning of the
electrical standards. The painters, carpenters and other subcontractors were
not trained in the operation and structure of electrical panels.[23]
Neither the fact that, in general, construction workers will be aware that there
is a potential for live electrical in panels nor the requirement that
construction industry employers train their employees generally regarding
hazards in the workplace, [24] relieves an employer from obeying specific
OSHA statutes—including the requirement that switchboards that have any exposed
live parts “shall be located in permanently dry locations and accessible only
to qualified persons.” [25]
Nor
was the panel board in this case “dead front”, as Respondent next argues. Dead front means “without live parts exposed
to a person on the operating side of the equipment.” [26] The question this definition raises is when
an employee is “exposed” to live parts.
Respondent points to the evidence that a person could not come in
contact with live parts “merely by bumping into or brushing up against the
panel.” Rather, a person would have to
insert fingers or a tool into the opening on the faceplate.[27] Even accepting this as true, this constitutes
“exposure to live parts” because employees had access to the hazard.[28]
In
a third argument, Respondent attacks Minn. Rule part 5207.1000 subp. 4 as both constitutionally
infirm and as inapplicable in this case because no employees were “exposed” to
mobile earth-moving equipment. An
Administrative Law Judge lacks the authority to declare a statute
unconstitutional.[29]
That argument must be brought to another forum. With regard to the issue
of whether employees were “exposed”, the two employees were working close to a
Trac skid-steer and a small excavator. Nevala also observed a grader working in
the area. It is true that at the time of
the inspection, the weather was clear and the skid-steer (which was the piece
of equipment closest to the employees) was moving slowly away from them.
However, given the proximity attested to by both Nevela’s testimony and the
picture of the employees at work without the vests, the employees were in the
area of several machines which had the capacity to quickly reach them. The lack of high visibility vests exposed the
employees to an increased chance of a serious accident.
Finally,
while Respondent established that it promulgated and communicated safety
policies regarding both the use of breaker blanks and high visibility vests, it
failed to produce evidence that it effectively enforced these policies. There was little evidence that the Respondent
investigated for safety noncompliance.
There was no evidence that individual employees were ever disciplined
for safety violations. The fact that
there were no high visibility vests at the worksite and that a foreman was
present while this work rule was violated mitigate against the defense as well.
L.E.J.
[1] Zane Nevala testimony; Ex. 1.
[2] Thomas Clifton testimony.
[3] Nevala testimony; Ex. 3.
[4] Nevala testimony; Ex. 2, Ex. 6.
[5] Nevala,
[6] Nevala testimony.
[7] Nevala,
[8] Nevala,
[9] Nevala testimony.
[10] Nevala testimony.
[11] Nevala testimony.
[12] Ex. 2.
[13]
[14] Nevala testimony; Ex. 4.
[15] Nevala testimony; Ex. 4.
[16] Nevala testimony.
[17] Ex. 2.
[18] Ex. 5.
[19] Nevala testimony; Ex. 5.
[20]
[21]
[22]
[23] 29 C.F.R. 1910.399, definition of “qualified
person.”
[24]
[25] 29 C.F.R. 1926.405(d).
[26] 29 C.F.R. 1926.449.
[27] Respondent’s brief at p. 8.
[28] Donovan
v. Adams Steel Erection, Inc., 766 F.2d 804,811 (3rd Cir.
1985).
[29] In the Matter of