Metro Power, d/b/a Gibson Electric

Plain-English summary

Metro Power, doing business as Gibson Electric, was the electrical subcontractor on a youth facility construction project in Georgia. The judge affirmed a ground-fault circuit interrupter violation because the outlet serving drink and ice machines did not have functioning protection, but classified it as other-than-serious and assessed no penalty. The judge vacated the breaker-panel location item because OSHA did not prove that Metro placed the panels where physical damage was reasonably foreseeable. The judge affirmed a serious floor-opening violation because Metro employees worked near unguarded pits and the company did not arrange effective protection or correction by the general contractor. A $600 penalty was assessed for the floor-opening item.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.404(b)(1)(ii); 29 C.F.R. § 1926.404(e)(1)(iv); 29 C.F.R. § 1926.500(b)(5)
• Outcome: GFCI item affirmed as other-than-serious without penalty; breaker-panel item vacated; floor-opening item affirmed as serious with a $600 penalty
• Key point: A subcontractor that did not create or control a hazard still had to protect its own employees or seek effective correction from the general contractor.

Full text (OSHRC public release)

                                 UNITED      STATES    OF AMERICA
           OCCuPA’ioNAL      SAFETY       AND         HEALTH        REVIEW   COMMISSION
                                      1825  K STREET NW
                                          4TH FLOOR
                                WASHINGTON,     DC 20006-       1246



                                                                                          FAX
                                                                                          COM   f202,63d-4008
                                                                                          FTS1202) 634-4008

SECRETARY OF LABOR
Complainant, OSHRC DOCKET
v. NO. 92-1471

METRO POWER, D/B/A GIBSON ELECTRIC,
Respondent.

                          NOTICE OF DOCKETING
             OF ADMINISTRATIVE               LAW JUDGE’S               DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on February 18, 1993. The decision of the Judge
will become a final order of the Commission on IMarch 22, 1993 unless a
Commission member directs review of the decision on or before that date: ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
March 10, 1993 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 C. P .R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 200064246
Petitioning parties shall ;llso m;lil a copvd to:
Dand J. Mick, Esq.
Counse! ior Regional Trial Litigation
Offizs oi the Solicitor, U.S. DOL
R oo m S-NM
200 Constitution Avenue, Y.W.
Washmgton, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7020.
FOR THE CObl,MSSION

Date: February 18, 1993
DOCKET NO. 92-1471
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 202 10

Ms. Bobbye D. Spears
Re ional Solicitor
Of Bice of the Solicitor, U.S. DOL
Suite 339
1371 Peachtree Street, N.E.
Atlanta, GA 30309

Mr. Daniel d. Gibson, Sr.
Manager,
Metro Power, /b a Gibson Electirc
Post Office Box I 0
Chula, GA 31733

Nancy J.. Spies
Occupational Safety and Health
Review Commission
1365 Peachtree St., N.E.
Room 240
Atlanta, GA 30309 3119

00018075457:04
 ~UPATIONAL SAFETY AND HEALTH REVE’VVCOMMSSION
1366 fEAamEE SIREET, N.E..suTE 240
ATLANTA,GEORGlA30309-3119

                                                                                                           FAxi
                                                                                                           alaa(rOl)3474113
                                                                                                           m(404)3474113

SECRETARY OF LABOR,

                 Complainant,

                v.                                                  ..        OSHRC Docket No. 92-1471

METRO POWER, d/b/a GIBSON
ELECTRIC,
.

                Respondent.                                         ..
                                                                    .

Appearances:

      Ann G. PaschalI, Esq.                                         Mr. Daniel D. Gl’bsoa, Sr.
             Office of the Solicitor                                       Manager, Metro Power, d/b/a
             U. S. Department of Labor                                     G13son Elect&               e
             Atlanta, Georgia                                              Chula, Georgia
                      For Complainant                                              For Respondent

Before: Administrative Law Judge Nancy J. Spies

                                           DECISION AND ORDER


      Metro Power, d/b/a Gibsm                 Electric (Metro), contests alleged serious violations of 29

C.F.R. 5 1926.404(b)( l)(ii), for failure to have a functioning ground fault circuit interrupter
on drink and ice machines; of 6 1926.404(e)(l)(k), for positioning breaker panels in
hazardous locations on the jobsite; and of 8 1926.500(b)(S), for failure to guard pit
openings!

I Metro did not contest Citation No. 2, akgtng *‘otherthan serious” violations.
. L

          Metro is an electrical contracting company operating in Chula, Georgia.           Metro was
the electrical     subcontractor     for the construction      of the Eastman Youth Developement
Facility.     On January 7, 1992, a compliance officer of the Occupational          Safety and Health
Administration      (OSHA) inspected the Eastman jobsite pursuant to the Occupational            Safety
and Health Act of 1970 (Act).


                              Alleged Violation of S 1926.404(b)( l)(ii\


          Section 1926.404(b)( l)( ii) provides:
          (b) Branch     cim&--( 1) Ground-fault protection--( ii) Ground-fault circuit
          intempters. All 120+olt, single-phase, 15. and 20 ampere receptacle outlets
          on construction sites, which are not part of the permanent wiring . . . shall
          have approved ground-fault circuit interrupters for personal protection.

          In November, 1992, Metro installed a drink machine and an ice machine owned by
the general
       .    contractor       (Tr. 60, 61).        Although belonging to the general contractor,      all
workers used or had access to the ice and drink machines, including Metro’s employees (Tr.
13, 5 1). The machines were set on a wooden pallet near the general contractor’s trailer.
They were in the open and exposed to the elements (Tr. 14). The receptacle                  outlet into
which they were plugged was connected to the temporary power (Tr. 51). When OSHA
compliance officer Phillip Moncrief tested the outlet, he noted that the ground fault circuit
interrupter     (GFCI) was not functioning (Tr. 13). Moncrief notified the general contractor
of the alleged violation.    At its direction,    Metro replaced the non-functioning    GFCI (Tr. 16).
          The drink and ice machines were installed with a functioning GFCI, but the GFCI
for that outlet had not been tested since installation (Tr. 30, 46). Neither had the machines
been unplugged since they were Installed (Tr. 59). Other GFCIs on the jobsite were known
to be functioning because they frequently tripped (Tr. 30). It was Metro’s responsibility to
test all the GFCIs on the site (-Tr. 63).
          Metro argues first that the standard implies a requirement that GFCIs be inspected
only periodically      and that, referencing       the three-month    inspection   requirement   for an
assured equipment        grounding    conductor     program,   it was not yet required to inspect the



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GFCI for the drink and ice machines. Metro did not have an assured equipment grounding
conductor program (Tr. 32). The standard does not discuss how often or whether GFCI
protection will be inspected; it requires that the GFCI function. While an employer’s
conscientious efforts to determine that a GFCI remains operational may affect whether the
employer can be charged with knowledge that overcurrent protection was lacking at a
particular time, it does not affect the underlying violation in this case. There is no
justification in the language of the standard to support the three-month grace period -Metro
suggested.
The probability and severity of an injury caused by the violation were low. The
machines were on the flat surface of the pallet, and the wiring between the receptacle and
the machine was in good repair (Tr. 15). The anticipated injury would be burns or electrical
shock.
Daniel Gibson, Manager of Gibson Electric, who represented Metroprose, holds an
electrician’s licenses in five states. Gibson argued that the drink and ice machines did not
need GFCI protection because they were internally grounded “to the frame of the
equipment just like a washing machine” and had a grounded, three-wire plug (Tr. 62). The
Secretary argues that even were this true, it would be possible for an employee to unplug
the ice or drink machines and use the outlet for other purposes. Such an occurrence is most
remote. The machines were located approximately 400 feet from the area where the
building was being constructed, and the power at the trailer location supplied the office and
was not intended for construction work (Tr. 34,83). There were four other outlets available
for use directly adjacent to the ice and drink machines (Tr. 83).

      To establish aprimo     facie   use that an employer       has violated a standard promulgated

pursuant to Section 5(a)(2) of the Act, the Secretary must show by a preponderance of the
evidence that (1) the cited st;lndxd applies to the facts, (2) the requirements of the standard
were not met, (3) employees had access to the hazardous condition, and (4) the employer
knew or could have known of the hazardous condition with the exercise of reasonable
diligence. Waker Towing Corp., 14 BNA OSHC 2072, 1991 CCH OSHD 129,239 (No. 870

1359, 1991). The Secretary has met her burden of proving each of these elements. Metro’s
supervisor, James Taft, a master electrician, was on the site on a daily basis (Exh. R-3, Tr.

                                                    3

86). Metro had constructive knowledge of the violation since, with proper inspections, its
supervisor could have known that the GFCI was not functioning.
To establish that a violation is “serious” under Section 17(k) of the Act, there must
be a “substantial probability” that death or serious physical harm could result from the
violative conditions. This language refers not to the likelihood of an accident occurring, but
rather to the severity of an injury if an accident were to occur. BethZehem Steel Corp. V.
OSHRC, 607 F.2d 1069 (3rd Cir. 1979). While the Secretary contends that the violation is
serious, extenuating circumstances do not warrant that classification. The drink and ice
machines were properly installed, set on a pallet, internally insulated and grounded by a
three-wire plug. Only the remotest possibility existed that the outlets would be used for any
equipment other than the ice and drink machines. It is implausible to assume that
employees would unplug continuously running machines to use that particular outlet when
others were readily available and the construction work was taking place 400 feet .away. The
machines were on the ground level and employees would not be subject to a fall from
heights if shocked. These facts not only affect the probability of an accident occurring, they
also significantly lessen the severity of the potential injury. GFCI provides additional
protection and is required by the standard, a fact which Metro impliedly recognized when
it installed GFCI for the drink and ice machines. Although Moncrief testified that a shock
might result in death “[alnytime you deal with electrical voltage,” he acknowledged that,
here, the most probable injury was a bum or electrical shock (Tr. 15, 17). It is not sufficient
to classify all electrical violations as “serious” without a realistic consideration of individual
circumstances in the case. It is the Secretary’s burden of proof to establish the probability
of death or serious physical harm as proof of her ptima facie case. Crescent Wharf and

Warehouse Co., 1 BNA OS1iC 1219, 1973 CCH OSHD ll 15,687 (No. 1, 1973). The severity
of a potential bum or shock which could occur with these machines has not been shown to
be serious. The probability of serious injury caused by the non-functioning GFCI is remote
and speculative. The violation is affirmed; it is properly classified as “other than serious”
and no penalty is assessed.
 Alleged Violation of 5 1926.404(e)[ 1)(iv)

   Section 1926.404(e)( I)( iv) provides:
   (e) Overcunent protection. (1) 600 volts,nominal, or less . . (iv) Location in
                                                                   l




   or on premises. Overcurrent devices shall be readily accessl%le. Overcurrent
   devices shall not be located where they could create an employee safety
   hazard by being exposed to physical damage or located in the vicinity of easily
   ignitl%le material.

   The Secretary alleges that the locations of two circuit breaker panels (overcurrent

devices), installed by Metro on the jobsite, exposed the panels to physical damage and the
employees to electrocution or bums. She contends that placement of the panels made it
likely that they could be hit by machinery operating in the vicinity (Tr. 21, 59).
The breaker panels were placed on wooden pedestals, each approximately 4 l/2 feet
high. One pedestal was placed on the west side of the site and the other on the north side,
near another part of the project (Tr. 34, 48, 49). The location of the pedestals was
determined after Metro and the general contractor’s representatives met with Georgia
Power, the electric utility. Al1 other subcontractors were invited to attend the meeting but
did not do so (Tr. 66). At the meeting, the parties reviewed the site plan and the flow of
traffic (64). They determined the sites for the main power disconnect as well as where the
two branch circuit breaker panels would be placed. They believed that the construction
traffic would flow from 10 to 15 feet around the building and between a break in the
building (Exh. R-l, Tr. 66-68). They were aware that there would be bulldozers and other
equipment in the entire area (Tr. 68). It was the consensus that the panels would be placed
approximately 8 feet from the building wall, the best location “with the least amount of
abuse . . . to any traffic or anything” and yet be readily accessible to accommodate the
construction process (Tr. 67-99).
On the day of the inspection the pedestal at the west side of the building was laying
on the ground, de-energized, and had reportedly been hit the day before when the bobcat
operator was doing grading and site work in the area (Tr. 18). The second panel on the
north side was leaning at a 75 degree angle and appeared to have been disturbed (Tr. 18).
Compliance Officer Moncrief gave Metro the option of relocating the panel boxes to an

                                            5

unspecified location or of putting up a tape and post barricade around the panels so that
a machine operator would hit something else before the operator hit the panels (Tr. 50).
Metro placed tape around the pedestals, but questioned whether this was effective or was
proper, since the tape was continually tom down and the circuit breakers should have
remained “readily accessible” (Tr. 71, 84).
The Secretary must establish that the location of the panels “exposed them to
physical damage.” The exposure to anticipated damage must be greater than a mere
possibility of damage. It must rise to a level which would afford an employer a reasonable
basis to know that it was placing circuit breakers in an ill-advised and potentially dangerous
area. The damage anticipated by the Secretary is that employees operating heavy equipment
would not see the panels and would run into them. There is no suggestion that the panels
were too low or were improperly marked or flagged (Tr. 49). It is unclear where the panels
should have been placed in the Secretary’s opinion or why the particular sites chosen were
hazardous. The traffic pattern itself was not shown to expose the panels to an increased risk
of damage. The mere fact that a bobcat operator ran into one of the pedestals does not
establish that the location was improper. Grading work is a normal part of the construction
process and is not confined to the roadways or to a specific area of the jobsite. Metro took
the anticipated traffic movement into consideration when it made the decision of where to
place the pedestals. The Secretary has not established that Metro’s placement of the two
circuit breaker panels violated the standard. The alleged violation is vacated.

                        Alleged Violation    of 8 1926SOO{bJ(5]


   Section 1926SW(b)( 5) provides:
   (b) Guarding of jl oar OpGgs and floor holes. (5) Pits and trap-door floor
   openings shall be guarded by floor opening covers of standard strength and
   construction. While the cover is not in place the pit or trap door shall be
   protected on all exposed sides by removable standard’railings.

   Throughout the worksite the concrete pad had floor openings which had been left

open to install vertical supports for the upper members of the planned constmction (Tr. 24).

                                             6

Tfie holes, which measured 3 feet square and were approximately 16 inches deep, were
neither covered nor guarded (Tr. 24, 25). Metro’s employees were exposed to hazards
associated with unguarded floor openings while installing electrical conduit. Three or four
days before the OSHA inspection, Kim Davis of Liberty Mutual Insurance Company
conducted an inspection of the worksite for Metro’s insurance company. She advised Metro
that the floor holes presented a hazard to its employees. She suggested that Gl’bson write
to the general contractor “putting the general contractor on notice that he had an unsafe
condition and that we did not want to expose our personnel to that possible hazard” (Tr. 73,
74). Gibson had not written that letter at the time of the OSFIA inspection (Tr. 74).
Metro argues that the unguarded floor openings were the responsrbility of the general
contractor. Each employer on a multi-employer work site is responsible for the safety of its
OWTIemployees. Arming-Johnson Co., 4 BNA OSHC 1193, 1975-76 CCH OSHD % 20,690
(No. 4409, 1976), and Grossman Steel and Aluminum Cop., 4 BNA OSHC 1185, 1975-76
CCH OSHD lI 20,691 (No. 12775, 1976). In the present case, although Metro may not have
created or controlled the violative condition, it did not provide its employees with realistic
alternative protections nor had it notified the genera 1 contractor to correct the hazard.
Metro has not established a multi-employer defense.
Metro raises a further defense regarding applica tion of the standard. Relying on its
reading of the general scope provision of 6 1926.500(a), Metro interprets the words “pits”
or “trap-door floor openings” as applying only to holes though which someone could fall.
The floor holes at issue were closed. Metro’s argument has been considered and rejected
by the Commission. See National Indurttial ConstiwctoTs, Inc., 10 BNA OSHC 1081, 1095,

1981 CCH OSHD 1125,743 (No. 76-4507, 1981); Ceco Cop. & McDevitt & Sneet Co.,
BNAOSHC ) 1991 CCH OSHD Ii 29,455 (Nos. 89-2514, 89-2588, 1991). The intent of
the standard protects employres from the hazard of failing into open cavities. Consistent
with Commission precedent, the standard is applied to openings into which an employee may
fall or trip, not only to floor openings through which an employee may fall.
Metro had knowledge of the violation since its supenisory employee was on the
jobsite on a daily basis and the condition was in plain sight. It had also been notified of the

                                             7

apparent violation by its insurance company. The most likely injury from falling into the pit
would be a sprain or twist injury to the leg, which is considered serious. A serious violation
of the standard is affirmed.

                                  Penalty Determination


    The Commission is the final arbiter of penalties in all contested cases. Secretary V.

OSAEIRC & Interstate Glass Co., 487 F.2nd 438 (8th Cir. 1973). Under 0 11(j) of the Act,

the Commission is required to 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 in determining the appropriate penalty. The gravity of the offense is the
principal factor to be considered. Nacirema Operating Co., 1 BNA OSHC 1001, 1971-73
CCH OSHD II 15,032 (No. 4, 1972).
Gibson Electric, which may maintain some operating independence from Metro,
employs from 8 to 24 employees. Gibson did not know the number of Metro’s employees,
but the parent company employs a considerably larger number (Tr. 16, 79). Metro has had
no previous citations. Compliance officer Moncrief found the company to be cooperative
and responsive (Tr. 16). Moncrief also observed with approval such safety precautions as
capped re-bars and the generally clean condition of the worksite (Tr. 25,27,28). Metro had
a safety program, and its employees attended regular safety meetings. A penalty of $600.00
is considered appropriate for this violation.

             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 on the foregoing decision, it is ORDERED:
    (1)    That the violation of 0 1926.404(b)( 1)( ii) is affirmed as non-serious and no

penalty is assessed;
(2) That the violation of 8 1926.404(e)(l)(iv) and the proposed penalty are
vacated; and
(3) That the violation of 0 1926.500(b)(5) is affirmed and a penalty in the amount
of $600.00 is hereby assessed.

                                              /s/ Nancy J. Spies
                                        NANCY J. SPIES
                                        Judge

Date: February 9, 1993