Miller Electric Company

Plain-English summary

A Miller Electric journeyman was electrocuted while connecting a light fixture to an energized 277-volt circuit at a medical-center construction project. The judge found that Miller permitted work near the energized circuit and failed to ascertain and warn employees that the circuit was live. She rejected the employee-misconduct defense because electricians commonly decided for themselves whether to work on energized circuits, the de-energization rule was widely disregarded, and enforcement was ineffective. Those two serious items were affirmed with $9,500 in total penalties, while a lockout-tagout item was vacated for lack of proof. The Commission later remanded the decision because the judge misunderstood testimony about whether the deceased employee had repeatedly worked on energized circuits. The official PDF for this ALJ row includes both the Commission remand order and the underlying judge's decision.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.416(a)(1), 1926.416(a)(3), and 1926.417(a)
• Outcome: Two serious electrical items affirmed with $9,500 in penalties and one tagging item vacated; the Commission later remanded for reconsideration.
• Key point: The judge rejected employee misconduct where working energized was a common, tolerated practice, but the Commission required reconsideration after identifying a material misunderstanding of testimony.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Comp lainant,
v. OSHRC D ocket No. 99-1702
MIL LER ELE CTR IC CO MPA NY, IN C.,
Respon dent.

                                      DECISION

Before: ROG ERS, Cha irman; and EISE NBRE Y, Comm issioner.
BY THE COMMISSION:
Miller Electric was installing electric power circuits and light fixtures at a co nstruction
project in Lake City, Florida, when Sean Stucker, a journeyman electrician, was electrocuted.
Following an inspection by the Occupational Safety and Health Administration, Miller was
issued a citation alleging three serious violations of standards addressing electrical power
circuits and light fixtures. A Review Commission Administrative Law Judge (“ALJ”)
subsequently issued a de cision affirmin g two of th e violations. In response to Miller’s
petition for review, the ALJ’s decision was directed for review and the case is now before
us.
In its petition, Miller argued, in part, that the ALJ misinterpreted certain testimony
concerning enforcement of one of its safety rules that the ALJ relied on in rejecting its
affirmative defense o f unpreve ntable em ployee m isconduc t. The testimo ny in question came
from Matthew Meado ws, an ap prentice elec trician emplo yed by M iller at the time of the
fatality. He testified as follows: “I can’t remember one instance that [Stucker] might have
hooked up something hot, but about any of the 50 or 60 journeymen electricians I’ve ever
worked with . . . so metim es . . . might hook up some thing hot.” T he ALJ apparently
misconstrued this testimony to find that Mea dows sa w Stuck er workin g on ener gized circu its
50 to 60 times. However, Meadows did not say that Stucker w orked on energized circuits
50-60 times or that the 50-60 journeymen he had seen working on energized circuits were
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Miller employees. Further, Meadow s did not testify that Miller had been his only employer
during his career. By the time of the hearing Mea dows was working for ano ther employer.
In view of the mistaken understanding of the testimony upon which the ALJ relied,
we conclude that it would b e approp riate at this early stage in the p roceeding s to reman d this
case to have the ALJ reconsider the decision. We therefore remand the case to the ALJ for
reconsideration.1

                                                              /s/
                                                              Thomasina V . Rogers
                                                              Chairman




                                                              /s/
                                                              Ross Eisenbrey
                                                              Commissioner

Date: June 8, 2001

1
At this tim e we a re not ad dressin g any o ther issu es raised in the pe tition for r eview .
Secretary of Labo r,
Comp lainant,

            v.                                      OSH RC D ocket N o. 99-1702

Miller Electric Company,
Respon dent.

Appearances:

    Leslie John Rodriquez, Esq.                     Mr. John Steele
             U. S. Department of Labor                              Miller Electric Company
             Office of the Solicitor                        Jacksonville, Florida
             Atlanta, G eorgia                                      For Respondent
                      For Complainant

Before: Administrative Law Judge Nancy J. Spies

                                   DECISION AND ORDER
    Miller Electric Co. (Miller) contests the Secretary’s citationissued on August 31, 1999. The

citation followed the April 15, 1999, inspection by Occupational Safety and Health Administration
(OSHA) compliance officer Joseph Roesler of a work-related fatality on April 14, 1999. The
Secretary alleges that Miller was in serious violation of § 1926.416(a)(1) when it permitted its
employee to work in too close a proximity to an electric power circuit without taking required
precautions, of § 1926.416(a)(3) when it failed to ascertain and warn employees of the proximity
of an energized electrical power circuit, and of § 1926.417(a) when it failed to properly lock and tag
out an electrical circuit. In general, Miller asserts that if it violated the terms of the standards, the
violations occurred because of the misconduct of the trained electricians who failed to follow its
safety procedures.
A hearing was held in Gainesville, Florida. The parties briefed the issues, and the case is
ready for decision. For the reasons set out below, the undersigned finds that the Secretary
established violations of the first and second items and has failed to prove the third. Miller did not
meet its defense of employee misconduct for item 1.
Background

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Miller, an electrical contractor located in Jacksonville, Florida, installed electrical service
at a large medical center complex under construction in Lake City, Florida (Tr. 156). By the time
of the accident, the physical structure of the building had been completed. On April 13 and 14,
1999, Larry Saye, Miller’s foreman, assigned journeyman electricians Sean Stucker and Randy
McClendon, and apprentice Matthew Meadows to install incandescent and flourescent light fixtures
and switches in the Endo and Cysto Rooms of the hospital (Tr. 45-46, 62-63). When completed,
the rooms would have lights running on three circuits: incandescents on a 110-volt circuit,
fluorescents on a 277-volt circuit, and an emergency system running on a separate 277-volt circuit
(Tr. 92, 154).
On April 14, Stucker was finishing the installation of a flourescent fixture in the Endo Room.
The fixture’s circuit was energized. Working off a ladder with his head above the ceiling, Stucker
tied in the ground and the neutral wires (Tr. 42, 47). As he began to connect the “hot” wire to the
light fixture, he physically made contact with the energizedcircuit and was electrocuted (Tr. 83-84).
Discussion
In order to establish a violation of an occupational safety or health standard, the
Secretary has the burden of proving: (a) the applicability of the cited standard, (b)
the employer’s noncompliance with the standard’s terms, (c) employees access to the
violative conditions, and (d) the employer’s actual or constructive knowledge of the
violation.

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1741, 1994).

                     Items 1 and 2: §§ 1926.416(a)(1) and 1926.416(a)(3)
      The Secretary asserts that Miller violated § 1926.416(a)(1)2 (item 1) when Sean Stucker

wired a flourescent ceiling fixture while the electrical circuit was energized. The Secretary also
asserts that Miller violated § 1926.416(a)(3) 3 (item 2) when it failed to ascertain and warn Stucker

2
Section 1926.416(a)(1) provides:
No employer shall permit an employee to work in such proximity to any part of an electric
power circuit that the employee could contact the electric power circuit in the course of
work, unless the employee is protected against electric shock by de-energizing the circuit
and grounding it or by guarding it effectively by insulation or other means.
3
Section 1926.416(a)(3) provides:
Before work is begun the employer shall ascertain by inquiry or direct observation, or by
(continued...)

                                                4

of possible contact with the energized electrical circuit. It is stipulated that the terms of both
standards apply to the conditions cited (Tr. 5-6). Although the standards have different
requirements, in this case the main issues in the two allegations, i.e., knowledge and employee
misconduct, are closely related. These issues will be discussed together.
Item 1:
Miller stipulates that Stucker was exposed to conditions which violated § 1926.416(a)(1)
while he worked in direct proximity to the energized circuit without using personal protective
equipment or without guarding or grounding the circuit (Tr. 5).
Item 2:
The standard required Saye to learn of and to warn Stucker that he would be working near
a live circuit. Saye gave the crew their work assignments each morning. During the investigation,
Larry Saye admitted to Roesler that he had not checked the circuit to determine if it was energized
before he directed the employees to work on it that day. Saye explained to Roesler that it was the
responsibility of the individual electrician to check the circuit (Tr. 115). However, at the hearing
Saye testified that he, in fact, told Stucker to de-energize the circuit on the morning of the accident.
Saye’s testimony on this point is not credited.
Saye did not tell Roesler that he had given the alleged instruction to Stucker. The point
would have been particularly germane, and it is anticipated that a reasonable person would have
stated it to OSHA’s investigator. Apprentice Meadows, also in the crew, does not describe hearing
the admonition. Meadow’s understanding of how the journeymen worked was at odds with their
being given an instruction of this nature (Tr. 55-56). At the hearing, Saye’s initial recitation that he
told Stucker to de-energize was hesitant and unsure. Saye’s testimony appeared to lack sincerity on
several issues, as he modified his answers to reflect the interests of his employer (Tr. 76-78, 81, 84,
86, 90). It is concluded thatforeman Saye did not tell Stucker to de-energize the circuits on April 14

3
(...continued)
instruments, whether any part of an energized electric power circuit, exposed or concealed,
is so located that the performance of the work may bring any person, tool, or machine into
physical or electrical contact with the electric power circuit. The employer shall post and
maintain proper warning signs where such a circuit exists. The employer shall advise
employees of the location of such lines, the hazards involved, and the protective measures
to be taken.

                                                5

and that he failed to warn Stucker that he would be working near energized circuits. The terms of
§ 1926.416(a)(3) were violated.
Knowledge
Remaining for decision is whether Miller knew or should reasonably have known of the
violative conditions for items 1 and 2. The Secretary contends that Miller had at least constructive
knowledge of both violations.
The Secretary emphasizes that Saye should have drawn inferences from the fact that the
lights were on in the Cysto Room. On April 13, 1999, foreman Larry Saye directed the crew
(Stucker, McClendon, and apprentice Meadows) to wire the lighting in the Endo and Cysto Rooms
to the permanent power. The flourescent lights in both the Endo and Cysto rooms were on the same
277-volt electrical circuit, marked HC-12-9 on the circuit breaker panel. The circuit breaker panel
box was located in a locked electrical room about 100 feet away. On April 13 the crew unlocked
the electrical room and de-energized and taped down the HC-12-9 circuit. By the end of the
workday on April 13, the crew had installed all the receptacles and light fixtures for the Cysto Room
and all of the outlets for the Endo Room. Wanting to test the lights in the Cysto Room, Miller’s
electricians again unlocked the electrical room, removed the tape from the specific circuit, flipped
the circuit breaker, and turned on the lights. Because other employees planned to work in the Cysto
Room during the night, the flourescent lights were left on (Tr. 63-65).
At 7:00 a.m. on April 14, the crew returned to finish installing the remaining fixtures in the
Endo Room, particularly the flourescent fixtures. The lights were still on in the Cysto room
(Tr. 68, 111).
Saye was in and out of the Cysto and Endo Rooms the morning of the accident. Saye knew
that the Cysto room was lighted, although he testified that he did not pay attention to whether the
incandescent or flourescent lights were on. Discerning which lights were on would indicate which
circuits were energized. A failure to pay attention is not the same thing as being without knowledge.
Saye was familiar with the plans for the electrical lighting and was well aware that the flourescent
lights in the two rooms were on the same circuit. He was familiar with the work sequences needed
to complete the wiring. Saye also knew that only the foremen, superintendent Higginbotham, and
the general contractor had keys to the electrical room. None of the non-management electricians

                                             6

had a key. It would be normal procedure for Stucker to go though his foreman to get the key to the
locked electrical room (Tr. 52, 169-170).4
It is more likely that Saye was unconcerned about lights being on because Miller’s
electricians often worked on energized circuits while using the wall switch to control the electricity.
There was a wall switch in the Endo Room for the particular fixture. During the investigation,
Saye’s focus with Roesler was that Stucker “would have been safe” if he had turned the wall switch
off (Tr. 75, 78, 112). Saye was not alone in this belief. As discussed more fully infra, many of
Miller’s electricians followed the practice of controlling electricity with a wall switch.
By the time of the hearing, Saye had changed his mind and stated that turning off the wall
switch would have had no effect on the circuit and that Stucker should have de-energized the circuit
“like I told him to” (Tr. 78, 84, 112). Miller and the Secretary agree that using the wall switch to
control electricity totally fails to comply with § 1926.416(a)(1). Knowing that the lights were on
in the Cysto Room and knowing that Miller’s electricians often used their discretion when deciding
whether to work on energize circuits sufficiently establishes Saye’s constructive knowledge of
item 1. He had actual knowledge of item 2. Because Miller’s employees so often worked with
energized circuits, Saye’s constructive knowledge is properly imputed to Miller.
This conclusion is not changed because Miller’s general superintendent testified that there
may have been “a separate feeder” for the emergency flourescent lights. Miller suggests that even
if Saye saw that flourescent lights were on in the Cysto Room, he could have believed that they were
the emergency flourescent lights (Tr. 153-154). It does not appear that the other electricians,
including Saye, even considered the possibility that the emergency lights could have been on. A
simple glance upward would have verified for Saye which circuits were energized.
Finally, Miller argues that it could not have known what Stucker was doing because he was
partially hidden by the ceiling as he worked. This argument is rejected. For the reasons stated, it
was not necessary for Saye to be able to view the work to know that Stucker was working on a live
circuit.

4
Miller points out that Saye was not the only person Stucker could have asked for a key to the
electrical room. Saye was the most accessible person to provide the key to Stucker, however. The
fact that Stucker did not request the key from Saye was another indication that Stucker may not have
de-energized the circuit.

                                               7

Working near an energized 277-volt circuit likely would result in serious injury or death, as
occurred in this case. Unless Miller establishes a defense, the Secretary proved that Miller violated
the standards and that the violations were serious.
Employee Misconduct Defense for Item 1
In order to negate a violation on the grounds of employee misconduct, the
employer must show that: (l) it established work rules designed to prevent the
specific violation from occurring; (2) the work rules were adequately communicated
to its employees; and (3) it took steps to discover violations of those rules; and (4)
it effectively enforced the rules when violations were discovered. E.g., Gary
Concrete, 15 BNA OSHC 1051, 1055 (No. 86-1087, 1991).

   Although Miller’s journeyman electricians were recruited from the IBEW Local No. 1205,

they had longstanding employment relationships with Miller (Tr. 40, 63, 141). Miller contends that
it had an oral workrule that required employees to de-energize circuits before working on them or,
alternatively, that required the employees to secure a formal “hot work” permit (Tr. 146, 168-169).5
It contends that the workrule was communicated to employees at various times, including at safety
meetings. In order to be considered effective, an employer’s work rule must be clear enough to
eliminate employee exposure to the hazard covered by the standard, Foster-Wheeler Constructors,
Inc., 16 BNA OSHC 1344, 1349 (No. 89-287, 1993) or “designed to prevent the cited violation”
See Gary Concrete Prods., Inc., 15 BNA OSHC 1051, 1056 (No. 86-1087, 1991).6
The fact that a workrule remains unwritten may legitimately lead to questions about its
specificity in limiting exposure to the hazard. The testifying employees generally knew that Miller
had an official “policy” to de-energize circuits before working on them. They were also aware that
Miller’s “practice” was otherwise. After explaining that industry practice allows electricians to
work on electrical equipment with the electricity turned off at the wall switch, rather than de-

5
It is accepted that some of the electrical work had to be completed while the circuits were
energized. This decision refers to the larger percentage of hot work where employees “cut corners”
and worked on circuits which could have been de-energized at the circuit panel box (Tr. 143).
6
Miller made no showing that it had a workrule which required foremen to ascertain whether
electricians would work near energized circuits. Both its foremen and superintendent acknowledge
that it was the electrician’s responsibility to do this. Thus, the employee misconduct defense can
apply only to item 1.

                                             8

energizing it at the breaker panel, journeyman electrician Bernard explained Miller’s practice (Tr.
19):
Well, the Company policy is, you know, ever since I’ve been there is to whenever
you can, you de-energize the circuit. And in this particular case, if the wall switch
had been off, it would probably be different circumstances. As far as the breaker,
you know, their policy is, you know, that it be de-energized. Now, whether it was
executed, that’s a different story.

    According to Bernard, whatever Miller’s policy, its practice was “to work on a circuit with

the wall switch off” (Tr. 20). Journeymen electricians viewed the practice as one of the “tricks of
the trade” and Bernard and other electricians would work on energized circuits when they “felt
comfortable” with doing it that way (Tr. 25).
Miller tolerated the extensive practice of controlling energized circuits at the light switch and
otherwise allowing the employees discretion as to whether they would work “hot” circuits. Two
incidents around the time of the accident support this conclusion. At separate times within 24 hours
of the accident, foreman Charles Worley advised two electricians who were working on live 120-
volt circuits not to do the work that way (Tr. 158-160). The workrule was widely violated. Even
the apprentice electrician noted that although the journeymen did not allow him to do it, they could
work on energized circuits at their option. Apprentice Meadows saw Stucker working “hot” 50 to
60 times but he had never seen him disciplined (Tr. 54, 56). Bernard, who was in Worley’s crew,
worked on energized circuits which should have been de-energized. He had never known anyone
at Miller to be disciplined for a safety infraction (Tr. 16-18, 24). When a workrule is widely
disregarded, it cannot be considered sufficiently specific or properly enforced. Propellex, 18 BNA
OSHC 1677, 1683, No. 96-0265, 1999 (“fact that all of the demilling employees lit or at least
utilized the burn barrel in violation of the rule also suggests that the rule was ineffectively
enforced”); Falcon Steel, 16 BNA OSHC 1179, 1193-94, No. 89-2883, 1993 (7 employees out of
about 30 found not wearing safety belts tends to reveal an enforcement problem, not just isolated
deviations from an effective safety program).
Penalty
The Commission is the final arbiter of penalties. In arriving at an appropriate penalty, the
gravity of the violation is weighed. The gravity of the violations is high. Sean Stucker worked in
a tight space while standing on a ladder within inches of a 277-volt circuit. Miller’s size, good faith,

                                               9

and previous history of violation are considered as potentially mitigating factors. Miller had over
500 employees and is not a small employer (Tr. 114). The penalty is reduced because OSHA had
not cited Miller for a serious violation within the previous 3 years (Tr. 134-135). A good faith
reduction is not warranted because Miller had the widespread practice of permitting employees to
independently decide whether to de-energize circuits and because its safety program was so
informal. Some reduction is afforded, however, since the two violations are related. A penalty of
$5,000 is assessed for item 1, and a penalty of $4,500 is assessed for item 2.
Item 3: § 1926.417(a)
The Secretary asserts that Miller violated § 1926.417(a)7 when it failed to lock and tag out
the energized electrical circuits on April 13, 1999. 8 The allegation is not that the circuit was
insufficiently locked and tagged out on the morning of the accident. The violation is based on
Roeslar’s supposition that the circuit was not properly tagged out before the employees energized
the line to test the lights in the Cysto Room on the evening of April 13, 1999. Roeslar reached his
conclusion based upon Saye’s admission that they used tape on the circuit breaker, which he saw
was still by the HC-12-9 circuit on April 15, 1999 (Tr. 121).
On April 13, Miller’s crew taped down the circuit in the panel box corresponding to the 277-
volt circuit in the Cysto/Endo Rooms. When locking out a circuit on such a “residential type” panel
box, Miller’s journeyman electrician Vernon Bernard explained Miller’s procedure (Tr. 17):
If there were no break-away locks to break it out . . ., usually we would just tape
them off; put a tag on it, you know explaining why it was taped off or tagged out. .
. . [T]hey would put your name on it and say ...work being done on circuit, you
know, and stated what company you worked for and who placed it.

      Although Miller’s electricians had keys to the panel box cover, only its management had a

key to the locked electrical room where the panel box was located. The Secretary has failed to show
why use of the electrical tape was insufficient to secure the circuit when access to the panel box was
effectively controlled under lock and key. Miller must still “tag” the taped circuit. On April 15,

7
Section § 1926.417(a) provides:
Controls. Controls that are to be deactivated during the course of work on energized or
deenergized equipment or circuits shall be tagged.
8
At the hearing, the Secretary’s motion to amend the citation to reflect that the violation allegedly
occurred on April 13, 1999 was granted.

                                              10

Roesler did not notice a tag with the information the employees stated was put on the front of the
panel box on April 13. The photograph shows only the opened panel box (Exh. C-9). However,
both the police and the general contractor had investigated the area after the accident and may have
dislodged the sign. While the employees forthrightly agreed that they used their discretion in
deciding how and whether to de-energize circuits, they were as convincing that they wrote a tag
giving the required information for the circuits actually deenergized. If Miller’s method of tagging
out circuits was insufficient, the Secretary failed to show it.
For the above reasons, item 3 is vacated.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Rule 52(a), Fed. R. Civ.P.
ORDER
Based on the foregoing decision, it is ORDERED:
Item Standard Disposition Penalty
1 § 1926.416(a)(1) Affirmed $5,000.00
2 § 1926.416(a)(3) Affirmed $4,500.00
3 § 1926.417(a) Vacated ---

                                                          /s/
                                                          NANCY J. SPIES
                                                          Judge

Date: December 21, 2000

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