EL-O Electric, Inc.

Plain-English summary

EL-O Electric was the electrical subcontractor on a school renovation and
expansion in Cuyahoga Falls, Ohio. During a complaint inspection, an OSHA
compliance officer found an open circuit-breaker panel energized at 208 volts on
the boiler-room wall. EL-O's electricians had removed the screwed-on cover to
work in the panel and left it open, without barricades, while they worked
elsewhere; they posted only a small hand-lettered "Hot 208 Volts" sign. The
boiler room had three doors propped open and was regularly used as a passageway
to a break room, and the officer watched 15 to 20 people, including other
contractors' workers, pass close by the open panel.

Judge Nancy J. Spies affirmed the single serious item under § 1926.403(i)(2)(i),
which requires live parts operating at 50 volts or more to be guarded. The
general contractor's "authorized personnel only" sign did not make the room
accessible to qualified persons only, and on a multi-employer site EL-O was
responsible for the hazard it created regardless of whose employees were exposed.
The foreman's knowledge was imputed to the company. The judge assessed a $400
penalty, giving EL-O more good-faith credit than the officer had for its active
safety program, immediate abatement, and clean history. Overall gravity was
found not high.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.403(i)(2)(i)
• Outcome: Single serious item affirmed; penalty $400
• Key point: Leaving a live panel open in a walk-through area is not cured by a warning sign; on a multi-employer site the contractor that creates an electrical hazard must guard it for everyone exposed.

Full text (OSHRC public release)

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United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19

                                                                                 Phone:(202)606-5400
                                                                                  Fax:(202)606-5050

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 95-1567
EL-O ELECTRIC, INC.
Respondent.

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

docketed with the Commission on Marc K 7, 1996. The decision of the Judge
will become ‘a final order of the Commission on April 8, 1996 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 27, 1996 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 C. I?.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419

Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N. W.
Washington, 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) 606-5400.
FOR THE COMMISSION

Date: March 7, 1996 Ray’ H. DarlinzJr.
Executive Secretary
DOCKET NO. 95-1567
NOTICE IS GIVEN TO THE FOLLOWING:

Benjamin T. Chinni
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

Samuel Frankel, President
EL-O Electric, Inc.
5201 Richmond Road
Bedford Heights, OH 44146

Nancy J. Spies
Admmistrative Law Jud e
Occupational Safety an B Health
Review Commission
1365 Peachtree St., N. E.
Suite 240
Atlanta, GA 30309 3119

00121936124:05
 United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 Peachtree Street, N.E., Suite 240
Atlanta, Georgia 30309-3 119

Phone: (404) 347-4 197 Fax: (404) 347-0113

SECRETARY OF LABOR,
Complainant,

                 v.                                                  OSHRC Docket No. 954567

EL-O ELECTRIC, INC., E-Z
Respondent.

Appearances:

         Kenneth Walton, Esquire                                     Mr. Samuel Frankel, President
                 Office of the Solicitor                                    EL-O Electric, Inc.
                 U. S. Department of Labor                                  Bedford Heights, Ohio
                 Cleveland, Ohio                                            For Respondent
                          For Complainant

Before: Administrative Law Judge Nancy J. Spies

                                       DECISION AND ORDER

         EL-O Electric, Inc., (EL-O) contests a single-item citation issued to it on September         19,1995

under the Occupational Safety and Health Act of 1970 (the Act). On September 6, 1995,
Occupational Safety and Health Administration (OSHA) compliance officer Thomas Henry
conducted a complaint inspection of a school renovation and expansion project in Cuyahoga Falls,
Ohio. EL-O was the electrical subcontractor (Tr. 10).
EL-O is a medium-sized electrical contractor, employing 65 persons. It has been in operation

for 42 years in the Bedford Heights, Ohio area.               The company typically provides electrical
installations for new construction and renovation, including installation of power panel boxes,
lighting fixtures, and telephone communication equipment (Tr. 28-29).



                                                        1

This case was heard on February 13,1996, pursuant to the pilot “E-Z” trial procedures set
out in Commission Rules 200-211, $8 2200.200-211. EL-O’s president, Samuel Frankel,
represented his company at the hearing.
Stipulations
The parties stipulated to jurisdiction and coverage and to the following facts (Tr. 5):
1. Respondent has been in business for 42 years.
2. On the particular work site, EL-O-Electric employed 10 to 12 people.
3. Two of the employees were working on an electrical panel that was being
used for “testing out” breakers.
4. There were actually two panel boxes that were open that were next to each
other, but only one was a breaker box.
5. There were two signs on the window outside of the boiler room, next to the
door. One sign said “Authorized Construction Personnel Only.” The other
sign said “Visitors Report to Field Office.” These two signs were placed
there not be EL-O-Electric but by the general contractor. On the panei itself,
EL-O-Electric placed a smaller sign which read, “Hot: 208 volts.”

                                        Background
   Henry began his inspection of the outside of the school building. Finishing this area by mid-

morning (lo:30 a.m. to 11:OOa.m.), Henry and the general contractor’s representative proceeded
A

through an open door from the parking lot into the boiler room (Tr. 11,21).
The boiler room adjoins the school hall on one side. The room had three doors: a door
opening directly to the outside, one at the other end of the room opening into the hall, and a third
leading into the contractor’s break room. All three doors were secured in an opened position
(Exhs. ALJ-1, R-l; Tr. 12). The general contractor’s sign (two pieces of paper) which read,
“authorized construction personnel only-visitors report to field o&e” was placed near the hall
entrance (Exh. R-l-d). No restriction was posted at the outside door (Tr. 36). Although it was not
the main school entrance, because it afforded a direct route from the hall entrance through the boiler
room to the outside, the boiler room was regularly used as an access way (Tr. 19).
On the boiler room wall Henry observed two open electrical panels, one of which was the
circuit breaker panel box. That electrical panel was normally protected by a cover which was
screwed into place (Exh. C-l; Tr. 10-l 1). Two of EL-O’s electricians removed the cover early in
the morning so that they could work in the panel. They left it open when they began work in another

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area. At some point the electricians placed the small hand-lettered sign on the breaker panel which
read, “Hot 208 Volts.” None of the electricians were in the area when Henry came into the boiler
room (Tr. 15,21).
At Henry’s request, the general contractor’s representative left to find the electricians. Henry
waited approximately 15 minutes before EL-O’s foreman, Michael White, returned to the boiler
room. While Henry waited for White, he observed 15 to 20 people coming into and through the
boiler room or going in and out of the break room (Tr. 15-16). The break room was half-way
between the two exit doors on the same side of the wall as the open panel box (Exh. ALJ-1). Some
of the persons passing the open panel box appeared to Henry to be school personnel, such as janitors,
or students;’ some were employees of other contractors involved in the renovation. Henry
particularly identified employees of the plumbing contractor. White admitted to Henry that the
electricians had worked in the panel earlier in the morning (Tr. 16,21).
Alleged Serious Citation
Item 1
The Secretary asserts that the electrical panel box was not properly guarded in violation of
6 1926.403(i)(2)(i). EL-O contends that the safeguards it utilized constituted appropriate
compliance with the standard. The standard provides:
(2) Guarding of live parts. (i) Except as required or permitted elsewhere in this
subpart, live parts of electric equipment operating at 50 volts or more shall be
guarded against accidental contact by cabinets or other forms of enclosures, or by any
of the following means:
(A) By location in a room, vault, or similar enclosure that is accessible only
to qualified persons. [other exceptions not arguably applicable.]

    The Secretary has the burden of proving that EL-O violated $ 1926.403((i)(2)(i).                        To

establish a violation of a standard, the Secretary must show that: (1) the cited standard applies, (2)
its terms were not met, (3) employees were exposed to or had access to the violation, and (4) the

    ’ EL-O asserts that school was not in session and that no students should have been present (Tr. 38).

This may well be so, since Henry did not verify the presenceof students. In any event, it is the exposure of
“employees” which is in issue.

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employer knew or could have known of the conditions with the exercise of reasonable diligence.
See Seibel Manz$ & Welding Corp., 15 BNA OSHC 1218, 1222 (No. 88-821, 1991).
Application of Standard and Failure to Meet Its Terms
The open electrical panel in the boiler room contained live (or energized) wires and parts,
energized at 208 volts (Exh. C-1). The standard applies. The live parts of the equipment were not
barricaded or otherwise guarded from contact. Likewise, the parts were not protected by location
“in a room, vault’ or similar enclosure that is accessible only to qualified persons.” The boiler room
was widely accessible. The doors were open, and the sign purporting to restrict access to only
“authorized construction personnel” had no apparent affect, especially since the room provided Entry
to the contractor’s break room. The electricians, rather than employees in other crafts, were the
“qualified persons” referred to in the standard. The requirements of the standard were not met.
Exnosure
The school was being renovated and expanded with simultaneous efforts from different
crafts. On such multi-employer construction sites, where an employer creates or controls a
hazardous condition, it is obligated to protect not only its own employee, but also those of others
engaged in the common undertaking. Flint Engineering & Const. Co., 15 BNA OSHC 2052,2054
(No. 90-2873, 1992); A/C Electric Co. v. OSHRC, 956 F.2d 530 (6th Cir. 1991) (violation affirmed
for an electrical contractor supplying power at the worksite, although its own employees were not
exposed).
EL-O created the hazard. When EL-O’s electricians removed the cover of the breaker panel
and left it open, without barricades or other guards, they created the potential for employees to come
into contact with energized parts of the panel. The facts establish that these employees were actually
exposed as they passed in close proximity to the opened panel while leaving or entering the building
and the break room.2

     2 The parties dispute by how close employees passed the panels. Henry estimated that they came within

6 to 12 inches of the panel (Tr. 17). However, as his estimate of the width of the boiler room access way
showed, he may have under-estimated the distances involved. Even a more realistic two-feet distance supports a
finding of exposure.

                                                   4

Knowled=
Foreman, Michael White, was aware that EL-O removed the cover of the breaker panel
(Tr. 21). His knowledge is properly imputed to the company. Pride Oil Well Serv., 15 BNA OSHC
1809, 1814 (No. 87-692, 1992).
Accordingly, the Secretary has established the four elements of the violation. If an employee
contacted the live parts of the panel box, the probable injury from a shock of 208 volts would be
first, second, and third degree burns or other serious injury (Tr. 22). The violation is properly
classified as serious.
Defenses
EL-O’s argument that it substantially complied with the standard must be rejected. As
discussed, the general contractor’s sign was ineffective. While EL-O appropriately placed a notice
to employees that the panel itself was energized, this is not compliance with the standard. The
standard seeks not only to advise of the presence of the hazard but to protect against accidental
injuries caused by it. For example, employees may be shocked or burned after a trip or fall causes
them to contact the panel. Equipment’ tools or building material may carry a shock, if inadvertently
touched to energized parts of the panel. Further, EL-O is incorrect that because no one was injured,
the hazard did not exist. Since the goal of the Act is to prevent the “first accident” the possibility
of injury is not diminished by a hindsight observation that no injury occurred. Williams Enterprises,
Inc., 7 BNA OSHC 1015 (NO 14748, 1978). EL-O’s prompt action in abating the condition may
also have prevented the occurrence of an injury.
Penaltv Determination
The Commission is the final arbiter of penalties in all contested cases. It 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 in determining the appropriate penalty. JA.
Jones Constr. Co., 15 BNA OSHC 2201, 2213-14, (No. 87-2059, 1993). These factors are not
necessarily accorded equal weight. The gravity of the violation is the primary element in the penalty
assessment. Trinity Indus., 15 BNA OSHC 1481, 1483 (NO. 88-691, 1992).
EL-0 employed 65 persons, and had no more than 12 electricians at the jobsite (Tr. 24, 3 1).
EL-O’s good faith is weighed as a positive factor, which should have been credited more than in

                                               5

Henry’s assessment. Henry reduced the good faith credit because he saw no safety program. In
fact’ EL-O had an active program (Tr. 23). It conducted weekly safety meetings with the employees
at the worksites and had monthly safety meetings with its supervisory personnel. The employer
cooperated with the investigation and immediately abated the violation. Given the extent of EL-O’s
work at the jobsite, the single-item citation indicates general compliance with safety regulations
(Tr. 3 1). EL-O has no previous history of violation under the Act (Tr. 24).
Considerations of gravity include EL-O’s efforts, although not fully effective, to notify
employees of the hazard. The probability of an accident was heightened because many employees
would likely pass near the panel. Also, items such as a pipe, cooler, extinguisher, and miscellaneous
materials were on the floor near the panel, creating a tripping hazard (Exh. C-1). Nevertheless, the
overall gravity of this violation is not high. All the breakers were in the panel (Exh. C-l-c).
Employees spent only a short time passing near the hazard. Based upon these considerations, a
penalty of $400.00 is assessed
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 that item 1 of serious Citation
No. 1, alleging a violation of 5 1926.403(1)(2)(I) is affirmed and a penalty of $400.00 is assessed.

                                                  NANCY J. SPIES
                                                  Judge

Date: February 26, 1996
Atlanta’ Georgia
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