Hospitality Management, Inc., d/b/a Executive Inn

Plain-English summary

Hospitality Management ran the Executive Inn hotel in Atlanta, Georgia. OSHA inspected after a referral from the Fulton County Fire Department and cited the company for a serious violation of the electrical safety standard at 29 C.F.R. § 1910.333(a)(1), which requires live parts to be deenergized before an employee works on or near them. A maintenance worker, hired to hang sheetrock and paint, was told to cut a piece of sheet metal to fill a missing blank in a main electrical panel. When he inserted the metal he contacted a live bar and received third degree burns to both hands. The company argued it could not shut off power because the panel fed the building's fire alarm system and people were living in the closed hotel, and it blamed the worker for not following instructions. The judge rejected those defenses, finding the company gave the worker no training and had no safety program, and that the work could have been done with occupants notified, artificial lighting, or protective equipment. The violation was affirmed as serious and a $2,000 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.333(a)(1)
• Outcome: Item 1 affirmed as serious; $2,000 penalty assessed
• Key point: The unpreventable employee misconduct defense fails where the employer provided no training and had no safety rules or program, and deenergizing was feasible through notice, alternate lighting, or protective equipment.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,

             v.                                  :        OSHRC Docket No. 96-1478
                                                 :

HOSPITALITY MANAGEMENT, INC., :
d/b/a EXECUTIVE INN, :
Respondent. :
:

APPEARANCES

    Dorian West, Esq.                                    Ms. Sharon Charania
            Office of the Solicitor                              Hospitality Management, Inc., d/b/a
             U. S. Department of Labor                           Executive Inn
             Atlanta, Georgia                                    Atlanta, Georgia
                      For Complainant                                     For Respondent

Before: Administrative Law Judge Paul L. Brady

                                      DECISION AND ORDER
    This proceeding is brought pursuant to Section 10 of the Occupational Safety and Health

Act of 1970 (Act). Hospitality Management, Inc., doing business as Executive Inn (Hospitality),
contests a citation and proposed penalty issued by the Occupational Safety and Health
Administration (OSHA). The citation, as amended, alleges a serious violation of the standard at
29 C.F.R. § 1910.333(a)(1). The standard, which pertains to safety-related work practices on or
near electrical equipment which may be energized, states in pertinent part as follows:

    Deenergized parts. Live parts to which an employee may be exposed shall be
    deenergized before the employee works on or near them, unless the employer can
    demonstrate that deenergizing introduces additional or increased hazards or is
    infeasible due to equipment design or operational limitations.

    The amended citation alleges that:

    Live parts to which an employee could be exposed were not deenergized before
    the employee worked on or near them:
    Electrical Room - Main Electrical Panel
    - Employee instructed to cut a piece of metal to fit a missing filler blank in a 40
    amp breaker opening of a main electrical panel operating at 50 volts or more.
    When the employee inserted the piece of metal in the opening he contacted the live
    bar either directly or indirectly and was electrocuted (on or about July 20, 1996).

    There is no dispute that an employee was attempting to place a piece of metal in a breaker

opening when he contacted the live bar and received electrical burns. The employee, Mr.
Abdusaboor, was instructed to cut a piece of metal to fit a missing filler blank in the opening of
the electrical panel. The accident occurred in the electrical room of Hospitality's hotel.
Ms. Patricia Morris, Safety Specialist for OSHA, testified she conducted the inspection of
Hospitality's premises following a referral from the Fulton County Fire Department (Tr. 17). The
hotel had been closed because of fire code violations, and the missing blank in the panel was one
of the violations (Tr. 41).
As part of her investigation, Ms. Morris learned that Mr. Abdusaboor had not performed
any electrical work for Hospitality, but was hired to hang sheetrock and paint (Tr. 25). Exhibit C-
1 shows where a 40-amp (240 volts) breaker would have gone and where the filler blank was to
be placed. Ms. Morris explained that live parts were within one to two inches within the opening
(Tr. 27, 28).
Ms. Sharon Charania, representing Hospitality, testified that original replacement blanks
were of an outdated style and could not be purchased ready-made. The filler blanks, therefore,
had to be cut out of sheet metal and placed in the panel (Tr. 60). She explained that:

    The actual gap was not -- was not live. There was, however, a live bar receded in
    the panel that was live, and that controlled lighting in the -- controlled lighting, as
    well as electrical outlets for the room itself, the corridor outside the room, three
    adjoining meeting rooms, the lounge area, the guest laundry and other common
    areas, which included the emergency fire alarm system, which is also located in the
    lobby.
    (Tr. 61).
    Ms. Charania stated that Mr. Abdusaboor was hired as a maintenance man and the job in

question did not require an electrician (Tr. 67-68). She indicated that in replacing the filler
"there's no electrical wires or other bars that have to be contacted or touched." Hospitality
asserts the system was not deenergized because the fire code prohibits cutting off the fire alarm
system as several persons, including children, were living in the building. In addition, replacement
of the filler could not be performed in the dark. An alternate source of lighting, such as a
flashlight would not be adequate (Tr. 62). Hospitality indicated that the employee did not
perform the task according to his instructions (Tr. 62).
To establish the affirmative defense of unpreventable employee misconduct, the employer
must prove: "(1) that it has established work rules designed to prevent the violation; (2) that it
adequately communicated these rules to its employees; (3) that it has taken steps to discover
violations; and (40) that it has effectively enforced the rules when violations have been
discovered."
Nooter Construction Co., 16 BNA OSHC 1572, 1578 (No. 91-237, 1996). In this case, such
defense does not apply since no training was provided Mr. Abdusaboor and Hospitality had no
safety rules or safety program in effect (Tr. 13).
The record discloses that approximately 15 to 25 persons resided in the building (Tr. 41)
and that the filler could be replaced in 25 to 30 minutes (Tr. 52). Ms. Morris testified that under
these circumstances those persons in the hotel could simply be notified that the fire alarm system
would not be operable during that time. Also, the work could be performed with artificial lighting
(Tr. 41, 54). Ms. Morris pointed out that even if deenergizing the system was infeasible, the use
of personal protective equipment, such as insulated covers or protective gloves should have been
utilized (Tr. 54, 55). The evidence clearly shows that the Secretary established the violation as
alleged.
The Secretary alleges that the violation is serious. A violation is serious under § 17(k) of
the Act if "an accident is possible and there is a substantial probability that death or serious
physical harm could result from the accident." Consolidated Freightways Corp., 15 BNA OSHC
1317, 1324 (No. 86-351, 1991). Hospitality's failure to deenergize parts resulted in third degree
electrical burns to both hands of its employee and his possible death. The violation is serious.
The Commission is the final arbiter of penalties in all contested cases. Under § 17(j) of the
Act, in determining the appropriate penalty the Commission is required to find and give "due
consideration" to (1) the size of the employer's business, (2) the gravity of the violation, (3) the
good faith of the employer, and (4) the history of previous violations. The gravity of the violation
is the principal factor to be considered. Ms. Morris testified that the original proposed penalty
was $5,000, but because of Hospitality's size, the amount was reduced to $2,000. No credit was
given for good faith because of a lack of cooperation and because of the gravity of the 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 hereby ORDERED that:
   Item 1 of the citation alleging a violation of § 1910.333(a)(1) is affirmed and a penalty in

the amount of $2,000 is hereby assessed.

                                          PAUL L. BRADY
                                          Judge

Date: February 20, 1997