UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

 

 DOCKET NO. 18-0149 

 

 

Appearances:

Norman E. Garcia, Esq., U.S. Department of Labor, Office of the Solicitor, San Francisco, California

 For Complainant

Aaron K. Owada, Esq., AMS Law, PC, Lacey, Washington 

 For Respondent

Before: Administrative Law Judge Brian A. Duncan

DECISION AND ORDER

Procedural History

On September 15, 2017, OSHA Compliance Safety and Health Officer Michael Potter 

inspected Respondent’s worksite at the Portland Air National Guard Base located in Portland, 

Oregon. During the course of his inspection, CSHO Potter observed Respondent’s employees 

using an unguarded table saw outside a building being renovated, as well as multiple uncovered, 

live, electrical outlets and switches within the same building. (Stip. Nos. 2A, 2B; Tr. 69, 107; Ex. 

C-9, C-10). Based on these observations and subsequent interviews, CSHO Potter determined 

Respondent committed two violations of the Occupational Safety and Health Act and 

recommended the issuance of a Citation and Notification of Penalty. 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

PACIFIC TECH CONSTRUCTION, INC., 

 

 Respondent.
2

Based on CSHO Potter’s recommendations, Complainant issued a Citation and 

Notification of Penalty, alleging Respondent committed a serious violation of 29 C.F.R. § 

1926.304(i)(1), and a repeat violation of 29 C.F.R. § 1926.416(a)(1) [or alternatively, 

1926.405(j)(1)(i)], with total proposed penalties of $27,705. Respondent timely contested the 

Citation, which brought the matter before the Occupational Safety and Health Review Commission 

pursuant to Section 10(c) of the Act. 

A trial was conducted on November 6–7, 2018, in Portland, Oregon. Five witnesses 

testified at trial: (1) CSHO Michael Potter; (2) Area Director Cecil Tipton; (3) Lee Sykes, senior 

project manager/corporate safety manager for Respondent; (4) Jason Reetz, project manager for 

Respondent; and (5) Bruce Brock, superintendent for Respondent. Both parties timely submitted 

post-trial briefs for the Court’s consideration. 

Jurisdiction & Stipulations

The parties stipulated the Commission has jurisdiction over this proceeding pursuant to 

Section 10(c) of the Act and that, at all times relevant to this proceeding, Respondent was an 

employer engaged in a business and industry affecting interstate commerce within the meaning of 

Sections 3(3) and 3(5) of the Act, 29 U.S.C. § 652(5). (Stip. Nos. 1A–1B). See Slingluff v. OSHRC, 

425 F.3d 861 (10th Cir. 2005). The parties also stipulated to other factual matters, which were 

submitted to the Court on the record at the beginning of the trial. (Tr. 40; Ex. C-1).

Factual Background 

Respondent, a general contractor, was hired by the Portland Air National Guard to remodel 

its Medical Clinic, located at 6801 NE Cornfoot Road in Portland, Oregon.1 (Stip. No. 1F). The 

remodel required Respondent to remove and replace all the exterior walls of the Medical Clinic, 

1. Respondent was also hired to perform renovations on two other buildings on the Air National Guard’s campus; 

however, none of the citation items at issue involves activity in those buildings. 
3

including the siding, roofing, and windows, which Jason Reetz referred to as the “envelope” of the 

building. (Stip. No. 1G; Tr. 334). Respondent also remodeled some of the offices affected by the 

exterior renovations; specifically, those that had at least one wall along the building’s perimeter. 

(Tr. 433). The interior portion of the remodel included mold remediation, replacement of 

sheetrock, repainting, and floor replacement. (Tr. 334). CSHO Potter conducted his inspection 

while these activities were occurring. (Stip. No. 1H). 

CSHO Potter arrived at the worksite on September 15, 2017 at approximately 8:30 a.m.2

(Tr. 67). According to security protocol, CSHO Potter met with the base safety and health officer, 

Master Sergeant Peterson, who escorted him to the Medical Clinic. (Tr. 67). Upon arriving at the 

entrance to the Clinic, CSHO Potter observed three workers using a table saw to cut pieces of 

plywood. (Tr. 69, 80). Closer inspection revealed that the saw blade did not have a guard. (Stip. 

No. 2B; Tr. 69; Ex. C-9). According to CSHO Potter, he went inside the clinic to find a 

representative for Respondent. (Tr. 68–69). Once inside, he found Bruce Brock, who identified 

himself as the superintendent for the project. (Tr. 69). Before starting the opening conference, 

CSHO Potter asked Brock to walk back outside where the employees were using the unguarded 

table saw. (Tr. 69). Three of Respondent’s employees—Rodney Swenson, Steve Taylor, and Mark 

Rubon—were still cutting 8-foot strips of plywood with the saw. (Stip. No. 2D, 70). CSHO Potter 

took photographs of the scene, after which Brock directed the employees to immediately stop using 

the saw. (Tr. 70). The employees then packed up the saw and moved on to other duties. (Tr. 105–

106). Afterwards, CSHO Potter conducted an opening conference with Brock and other 

subcontractor representatives working on the project. (Tr. 106). 

2. CSHO Potter was later joined by CSHO Brian Peters, an industrial hygienist, who came to observe the mold 

remediation efforts. (Tr. 67). CSHO Peters did not testify at trial. 
4

After the opening conference, CSHO Potter continued with the inspection. (Tr. 106). As 

he traveled through the rooms impacted by the exterior renovations, CSHO Potter noticed multiple 

uncovered electrical outlets and switches in at least four different rooms. (Tr. 107, 110–111; Ex. 

C-6). Using a GFCI circuit tester, CSHO Potter tested the wiring in each of the uncovered outlets 

and switches. (Tr. 108; Ex. C-10). Every one of the uncovered outlets and switches he tested was

live energized at 110 volts.3 (Tr. 107–110). According to Brock, the outlets needed to remain 

energized during Respondent’s work because the breaker panels had improper labeling, and 

because the medical clinic employees needed power to continue working in other areas of the 

building. (Tr. 127). This was confirmed by Pavel Zabarenko, who was the electrician for the 

project. (Tr. 127; Ex. C-32 at 8).

Two of the light switches had been pulled out of the wall and had exposed wires hanging 

out with energized components; one of the outlets had an extension cord plugged into it; and the 

remaining outlets had painters tape placed over the face of the receptacle. In some instances, 

Respondent’s employees wrapped the tape around the side of the outlets, very close to where the 

uninsulated wires attached to the terminal screws of the outlet. (Tr. 109, 116–117; Ex. C-10). As 

illustrated by the photographs submitted into evidence, the gaps between the drywall and the 

energized, unprotected elements of the outlets varied in size, but none of those elements was very 

far from the surface. (Ex. C-10 at 5). CSHO Potter learned Respondent’s employees removed the 

outlet covers and switches and covered them with tape so that they would not be ruined while they 

painted the room. (Tr. 118–119; Ex. C-10). In addition to observing Respondent’s employees and 

subcontractor employees working in some of the rooms identified in Exhibit C-6—as well as the 

3. CSHO Potter found a data port that did not register as energized because it carries low voltage; the GFCI reader 

only recognizes “live” wires when they are over 50 volts. (Tr. 124). 
5

fact that tape was placed over the top of the outlets—CSHO Potter also saw fresh paint splatter on

some of the tape. 

Discussion

To establish a violation of an OSHA standard, Complainant must prove, by a 

preponderance of the evidence, that: (1) the cited standard applied to the facts; (2) the employer 

failed to comply with the terms of the cited standard; (3) employees were exposed or had access 

to the hazard covered by the standard, and (4) the employer had actual or constructive knowledge 

of the violative condition (i.e., the employer knew, or with the exercise of reasonable diligence 

could have known). Atlantic Battery Co., 16 BNA OSHC 2131 (No. 90-1747, 1994). 

Citation 1, Item 1

Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows: 

29 CFR 1926.304(i)(1): Each circular hand-fed rip saw was not guarded by a hood 

that completely enclosed that portion of the saw above the table and that portion of 

the saw above the material being cut: 

(a) Portland Air National Guard Base – Medical Clinic building 135 – On or about 

September 15th, 2017 and at times prior thereto employees were ripping lumber on 

the BOSCH 4100 table saw without an adequate guard or hood. 

Citation and Notification of Penalty at 6.

The cited standard provides, in relevant part: 

Each circular hand-fed ripsaw shall be guarded by a hood which shall completely 

enclose that portion of the saw above the table and that portion of the saw above 

the material being cut.

29 C.F.R. § 1926.304(i)(1). 

The Standard Applies and Was Violated

The parties stipulated that, on the date of the inspection, Respondent’s employees were 

using a Bosch 4100 table saw that did not have a guard for its blade. (Stip. Nos. 2A, 2B). 

Respondent’s employees were using the circular table saw to rip pieces of plywood into furring 
6

strips, which were used as shims for the fascia of the Medical Clinic renovations. (Tr. 452–53). 

The blade was not guarded at any point above the table or above the material that was being cut. 

(Tr. 69; Ex. C-9). Based on these stipulations and facts, the Court finds the standard applies and 

was violated. 

Respondent’s Employees Were Exposed to a Hazard 

To establish access under Commission precedent, the Secretary must show Respondent’s 

employees were exposed to the violative condition or that it is “reasonably predictable by 

operational necessity or otherwise (including inadvertence), that employees have been, are, or will 

be in the zone of danger.” Fabricated Metal Prods., 18 BNA OSHC 1072, 1074 (No. 93-1853, 

1997). 

 Respondent’s employees using the table saw to cut eight-foot-long furring strips. (Tr. 69). 

Due to the length of the boards being cut, one employee was required to feed the wood into the 

saw blade, while another was positioned on the opposite side of the saw to receive the cut pieces. 

(Tr. 73–75). The individual feeding the wood was using both hands: one hand to hold the weight 

of the wood and the other hand to maintain pressure against the saw’s fence (also known as a 

guide) to ensure a straight cut through the wood. (Tr. 73–74; Ex. C-9 at 1). CSHO Potter testified 

he observed the employee feeding the wood into the saw blade come within one foot of the blade 

as he pushed it through. (Tr. 74). Similarly, the employee receiving the cut wood on the other side 

of the saw came within a few feet of the blade as he grabbed the cut pieces. (Tr. 75). Given their 

proximity to the blade, CSHO Potter concluded that both the feeding and receiving employees 

were exposed to the hazard imposed by the blade because either employee could slip, trip, or 

otherwise contact the spinning blade with their hands. (Tr. 75). This was particularly acute in the 
7

case of the feeding employee, because he had to maintain pressure on the piece of wood as he 

pushed it towards the saw blade. (Tr. 75). 

 Respondent makes three arguments to suggest its employees were not in, nor were unlikely 

to enter, the zone of danger. None of the arguments are persuasive. First, Respondent argues the 

photographic evidence illustrates the employees were several feet from the saw and that it was not 

in operation at the time the photograph was taken. Simply because CSHO Potter did not capture 

the exact moment in time that would illustrate the process described above does not mean his 

description of their work was inaccurate. CSHO Potter saw the employees cutting the lumber in 

plain sight at the Medical Clinic entrance when he began the inspection, as well as a few minutes 

late when he brought Brock back outside to observe what was going on. (Tr. 69–70). Respondent 

has not given the Court any reason to doubt CSHO Potter’s description of how close the employees 

got to the unguarded blade while cutting the furring strips.

Second, Respondent argues there was “no evidence as to whether it was reasonably 

predictable that the wood or employee would slip, let alone contact the saw blade.” Resp’t Br. at 

9. Respondent also argues that the individuals identified in the photograph were experienced and 

qualified employees, whom Brock expected would have the know-how to use common tools 

associated with carpentry work. Id. Regardless of the employees’ respective levels of experience, 

the standard for exposure asks whether employees have been, will be, or are in the zone of danger

which may result from any slip, trip, or other unintentional movement. See Southern Hens v. 

OSHRC, 930 F.2d 667 (5th Cir. 2019)(“OSHA standards serve to protect workers from ‘common 

human errors such as neglect, distraction, inattention, or inadvertence.’”), quoting Matsu Ala., Inc., 

25 BNA OSHC 1952 (No. 13-1713, 2015) (ALJ), 2015 WL 6941348, at *21 (internal quotation 

omitted). In this case, Respondent’s employees were working within a foot or two of a spinning 
8

saw blade that was completely unguarded. One of those employees was walking directly towards 

the blade while pushing a piece of lumber through it, while the other had to approach the saw in 

order to grab the split piece of lumber and pull it through the same blade. The potential for an 

accident under such a scenario is apparent, and the Court concludes that Respondent’s employees 

were within the zone of danger. 

Third, Respondent argues that the nature of the cuts being made—rough cuts of plywood—

did not require precision, and, therefore, it was unnecessary for employees to get very close to the 

moving blade. Like the previous argument, this disregards the actual proximity to the blade 

observed by the CSHO, as well as the potential for mistakes or inadvertent contact. See, e.g., 

Bredshall Plastering, Inc., 19 BNA OSHC 1449 (No. 00-1590, 2001) (ALJ) (finding an 

employee’s hands 11 inches away from blade within zone of danger because it is “reasonably 

predictable than an employee’s hands could come in contact with the blade as a result of 

operational necessity, accident, or inadvertence”). Accordingly, the Court finds Respondent’s 

employees were exposed to the hazard. 

Respondent Had Knowledge of the Violation 

To prove this element, Complainant must show Respondent knew or, with the exercise of 

reasonable diligence, could have known of the violation. Dun-Par Engineered Form Co., 12 BNA 

OSHC 1962, 1965 (No. 82-928, 1986). The key is whether Respondent was aware of the 

conditions constituting a violation, not whether it understood the conditions violated the Act. 

Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079–80 (No. 90-2148, 1995). Complainant can 

prove knowledge of a corporate employer through the knowledge, actual or constructive, of its 

supervisory employees. Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). If a 

supervisor is, or should be, aware of the noncomplying conduct of a subordinate, it is reasonable 
9

to find the employer had knowledge. See Mountain States Tel. & Tel. Co. v. OSHRC, 623 F.2d 

155, 158 (10th Cir. 1980). 

In this case, the question of knowledge is largely contingent upon the Court’s assessment 

of CSHO Potter’s and Bruce Brock’s credibility. There is no doubt the terms of the standard were 

violated; however, the key issue is whether Respondent had reason to know about it. There were 

no supervisory employees operating the saw at the time of CSHO Potter’s observations, nor is 

there direct evidence of Brock specifically observing the operation of the saw until after it was 

brought to his attention. According to Brock, he had never seen the table saw in operation until 

the morning of September 15, 2017. (Tr. 444–45). Thus, according to Respondent, it had no reason 

to know the saw was being operated at all, let alone that it was being operated without a guard. 

Conversely, Complainant presented evidence Brock should have been aware the saw was 

being used without a guard. CSHO Potter testified he was told by two of the employees operating 

the saw, one of which was Mark Rubon, that they had used the table saw every day for the last 

thirty days. (Tr. 89–91). Although no one specifically told him the saw was unguarded during that 

entire period of time, CSHO Potter concluded the guard must have been missing the whole time, 

because Respondent was never able to locate a guard for the saw after CSHO Potter pointed out 

the safety hazard. (Tr. 399–400, 439). Brock’s office trailer was located approximately 100 yards 

away from where CSHO Potter found the saw, with an unobstructed view of the saw location. (Tr. 

95–96; Ex. C-9 at 1[red circled trailer]). Additionally, the was right outside the main entrance to 

the Medical Clinic which Brock commonly used to enter and exit the building. (Tr. 95; Ex. C-9 at 

1). In fact, on the day of the inspection, Brock testified he entered the clinic through the main 

entrance, which meant he would have walked past the saw; though he claims it was not set up 

when he entered the clinic that morning and that he never heard the saw operating. (Tr. 417). 
10

Brock’s testimony contained inconsistencies. In discussing the unguarded saw blade, he 

was unclear about when he first met with CSHO Potter or when he first saw the unguarded saw. 

(Tr. 365, 398). At one point he testified they first met around noon, and then later agreed with 

Complainant’s counsel that they actually met in the morning around 9:00 a.m. (Tr. 366–67). When 

confronted with a photograph of the table saw, he testified he never observed CSHO Potter taking 

the photograph only to later contradict himself by saying he had. (Tr. 368, 398-399). He then tried 

to downplay the significance of what he observed by attempting to suggest he did not see his 

employees “using” or “operating” the saw, even though he admitted he saw them working in and 

around the saw with cut lumber. (Tr. 399). The fact that one of the photographs, taken in Brock’s 

presence, show one of Respondent’s employees pulling a piece of lumber away from the saw 

makes this claim particularly dubious. (Ex. C-9). In addition, although Brock testified, consistent 

with CSHO Potter’s testimony, that the opening conference was held outside of the building in the 

courtyard near where the saw was located, his deposition testimony indicated the opening 

conference occurred inside the building. (Tr. 415). In contrast to Brock, CSHO Potter consistently 

and credibly testified about the events of September 15th, from the time he arrived on site to when 

he encountered Brock, their subsequent observation of the unguarded saw being used, and the 

progression of the OSHA inspection. 

The Court finds the foregoing facts are sufficient to establish Brock was aware of the 

condition of the saw, or with the exercise of reasonable diligence, should have been aware of it.

See N & N Contractors, Inc. v. OSHRC, 255 F.3d 122, 127 (4th Cir. 2001) (employer has 

constructive knowledge of a violation if employer fails to use reasonable diligence to discern the 

presence of a violative condition). Accordingly, the Court finds Respondent, through Brock, had 

constructive knowledge of the violation. 
11

Based on the foregoing, the Court finds Complainant established a prima facie violation of 

the standard. 

The Violation Was Serious

A violation is “serious” if there was a substantial probability that death or serious physical 

harm could have resulted from the violative condition. 29 U.S.C. § 666(k). Complainant need not 

show that there was a substantial probability that an accident would actually occur; he need only 

show that if an accident occurred, serious physical harm could result. Phelps Dodge Corp. v. 

OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). If the likely injury addressed by a regulation is 

death or serious physical harm, a violation of the regulation is serious. Mosser Construction, 23 

BNA OSHC 1044 (No. 08-0631, 2010); Dec-Tam Corp., 15 BNA OSHC 2072 (No. 88-0523, 

1993). 

The parties stipulated “that if an employee were injured by a table saw that it is reasonably 

likely that hospitalization would occur . . . .” (Stip. No. 2O). On cross-examination, Brock 

admitted an employee could lose fingers or a hand if exposed to an unguarded saw blade. (Tr. 

393). Accordingly, the Court finds the violation was properly characterized as serious. 

Respondent Failed to Prove the Affirmative Defense of 

Unpreventable Employee Misconduct 

In order to prevail on a claim of unpreventable employee misconduct, Respondent must 

show: (1) it had established work rules designed to prevent the violation; (2) it adequately 

communicated those rules to its employees; (3) it had taken steps to discover violations of the 

rules; and (4) it effectively enforced the rules when violations were detected. Am. Eng’g & Dev. 

Corp., 23 BNA OSHC 2093, 2096–97 (No. 10-0359, 2012). In other words, it is incumbent upon 

Respondent to “demonstrate that the actions of the employee were a departure from a uniformly 

and effectively communicated and enforced workrule [sic].” Archer-Western Contractors Ltd., 15 
12

BNA OSHC 1013 (No. 87-1067, 1991). Although Respondent had a work rule requiring its 

“circular saw shall be equipped with guards that automatically and completely enclose the cutting 

edges”, the Court finds it failed to adequately communicate that rule, failed to take steps to discover 

violations of that rule, and failed to effectively enforce the rule (or any other) when violations were 

detected. (Stip. 2M). 

As to communication of the rule, Jason Reetz testified each new employee was required to 

read the safety policy and sign an acknowledgment that they read and understood the policy; 

however, neither Reetz nor Brock could credibly testify whether Rubon, Swenson, Taylor, or any 

of the other employees at the Medical Clinic worksite had been trained on that policy. (Tr. 303, 

396). Instead, Reetz testified, “It’s an assumption we made that if they’re there, they’d been 

trained.” (Tr. 303). Respondent did not introduce any independent evidence of such training. 

Similarly, Brock testified that when employees came to his worksite, he expected them to know 

how to use a table saw because they had prior experience and it was a common tool used in his 

trade. (Tr. 450). The Court finds this the foregoing is insufficient to establish adequate 

communication of a work rule. 

Brock testified he conducted daily, albeit undocumented, inspections of the worksite and 

equipment, insofar as it was going to be used. (Tr. 503). Given the Court’s finding that the 

unguarded saw had been in operation for a month, however, the Court questions whether such 

inspections occurred, or, at the very least, whether they were effective. 

Finally, the Court finds Respondent failed to prove it enforced its policies when it 

discovered violations of its work rule(s). In fact, although Respondent submitted a copy of its 

disciplinary policy, Respondent failed to submit any evidence of specific discipline for any of its 

safety rules. Respondent stipulated, other than the general group meeting, it did not impose 
13

discipline on any of the individuals using the saw on the day of the inspection. (Stip. No. 2N). 

According to Respondent’s own disciplinary policy, a general group meeting does not meet the 

definition or standards of “discipline”, which requires an investigation, a counseling session with 

the employee(s) involved in the infraction, and documentation of the counseling/discipline. (Ex. 

R-2 at 2.087). Without evidence of discipline being applied in this or any other case, the Court 

finds Respondent’s defense of unpreventable employee conduct fails. 

Based on the foregoing, Citation 1, Item 1 will be AFFIRMED as a serious violation of the 

Act. 

Citation 2, Item 1

Complainant alleged a repeat violation of the Act in Citation 1, Item 1 as follows: 

29 CFR 1926.416(a)(1) [or alternatively, 1926 .405(j)(1)(i)]: Employee(s) were permitted 

to work in proximity to electric power circuits that were not protected against electric shock 

by de-energizing and grounding the circuits or effectively guarding the circuits by 

insulation or other means: 

(b) Portland Air National Guard Base – Medical Clinic building 135 – On or about 

September 15th, 2017 and at times prior thereto Pacific Tech Construction allowed 

employees to work around live and uncovered 110V outlets and switches throughout the 

building. 

Pacific Tech Construction was previously cited for a violations of this occupational safety 

and health standard or its equivalent standard 29 CFR 1926.416(a)(1), which was contained 

in OSHA inspection number 899984, citation number 1, item number 1 and was affirmed 

as a final order on 5/14/2013, with respect to a workplace located at 6801 NE Cornfoot Rd 

#255 Portland, OR 97218. 

Citation and Notification of Penalty at 7. 

The cited standard provides, in relevant part: 

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 

deenergizing the circuit and grounding it or by guarding it effectively by insulation 

or other means. 

29 C.F.R. § 1926.416(a)(1). 
14

The Standard Applies, Was Violated, and Respondent Knew of the Violation 

The parties stipulated that Complainant “found uncovered outlets and switches in the 

Medical Clinic that had live electrical 110-volt current.” (Stip. No. 3T). Respondent admitted it 

was “common practice” to have its employees remove cover plates from outlets and switches for 

painting, to cover the faces of those outlets with tape, and to paint in those areas while the switches 

and outlets remained energized. (Stip. Nos. 3F, 3G, 3J, 3K, 3L). In addition to the written 

stipulations, Respondent’s counsel confirmed Respondent was not disputing employer knowledge 

as to the condition described in Citation 2, Item 1. (Tr. 327–28). 

Based on these facts, the Court finds the standard applies, was violated, and Respondent 

was aware of the violative conditions. 

Respondent’s Employees Were Exposed to the Hazard Caused by the Violation 

To establish access under Commission precedent, the Secretary must show Respondent’s 

employees were exposed to the violative condition or that it is “reasonably predictable by 

operational necessity or otherwise (including inadvertence), that employees have been, are, or will 

be in the zone of danger.” Fabricated Metal Prods., 18 BNA OSHC 1072, 1074 (No. 93-1853, 

1997). Respondent contends employee exposure to the electrical hazard was not reasonably 

predictable and the probability of injury was “highly remote and speculative.” Resp’t Br. at 15. 

The Court disagrees. 

Respondent stipulated it was “common practice” for its employees to not only remove 

cover plates from 110-volt outlets and switches to prepare for painting, but also that it was common 

practice for its employees to place tape over the face of energized 110-volt outlets to prevent paint 

from entering the outlets after the covers were removed. (Stip. Nos. 3J, 3K). CSHO Potter found 

outlets and switches without covers and with tape over the face in at least 5 locations. (Tr. 131; 
15

Ex. C-6, C-10). In many cases, the tape over the face of the outlets was wrapped around the side 

of the outlets, which means the employees placed their fingers near the location where the 

uninsulated portion of the electrical wires attached to the outlets’ terminal screws. (Tr. 117–18; 

Ex. C-10). The Court is further persuaded Respondent’s employees were exposed to an electrical 

hazard as illustrated by Exhibit No. C-10, which shows how close to the surface the energized 

terminal screws were, and by other outlet and switch locations where the gap was large enough to 

permit either tools or fingers. (Ex. C-10). The fact of exposure is particularly acute in the case of 

the two outlets that had been pulled out, hanging away from the wall. (Ex. C-10 at 3–4).

 Respondent argues that, other than an employee intentionally touching the live wires with

their fingers or tools, painters could not have been exposed to the energized elements of the outlets. 

This argument is inconsistent with how the Commission views the requirements of the standard, 

which encompasses unintentional, inadvertent contact: 

The standard speaks not of an employee working in “proximity” to an electric 

power circuit, but “in such proximity to any part of an electric power circuit that he 

may contact [it] in the course of his work....” The clear meaning and evident 

purpose of the standard is therefore that an employee shall not work so close to an 

energized power circuit that he may inadvertently contact it in the course of his 

work. Thus, the standard, when read in its entirety, prescribes a specific and 

ascertainable standard of conduct, for an employer can determine by objective 

means whether employees are within reach of, and therefore may contact, an 

energized power circuit while they work. 

Cleveland Consolidated, Inc., 13 BNA OSHC 1114, 1987 WL 89048 at *3 (No. 84-696, 1987).4

First, the act of placing tape on and around the faces of the uncovered outlets was intentional, and, 

in so doing, employees placed their fingers within an inch or less of uninsulated, energized circuits.

(Tr. 117–18). Second, whether using paint brushes or rollers, the Court finds it is reasonably 

4. Although the numbering of the standard is different, the language is still the same. The requirements of former 29 

C.F.R. § 1926.400(a)(1) were transferred to the now-current § 1926.416(a)(1). See Electrical Standards for 

Construction, 51 Fed. Reg. 25294 (July 11, 1986). 
16

predictable that an employee could accidentally contact the unguarded, energized wires. Finally, 

in addition to the tape and painting, Respondent was also actively using the unguarded outlets, as 

illustrated by the extension cord plugged into one of them during the inspection. (Ex. C-10 at 5). 

In that photograph, not only is the outlet being used, but the voltage detector shows just how 

shallow the energized parts were located. (Id.). 

As for the switches hanging out of their boxes, CSHO Potter opined on the possibility of 

slipping or tripping and falling into the energized, hanging wires. (Tr. 116). While this was 

certainly possible, there were much simpler scenarios in which Respondent’s employees working 

in and around the Medical Clinic could have contacted the exposed switch wires—for example, 

unknowingly reaching for the light switch as a person entered the room. 

Respondent also seems to suggest there was no evidence the outlets or switches were 

energized at the point in time when the tape was applied or when employees were working in the 

areas. This suggestion is counter to the evidence: Pavel Zabarenko, an electrician for one of 

Respondent’s subcontractors, testified at deposition, “Pretty much every other time when they 

painting, some repainting and retouch—retouching, I would see covers off. Somebody took it off.” 

(Ex. C-32 at 13). He further testified electrical current was always running to those outlets. (Id. at 

13, 15). 

 Respondent also attempts to downplay the hazard posed by the exposed energized circuits 

by suggesting any resulting injury would be minimal. Respondent’s position runs counter to the 

testimony of its own superintendent, Brock, who admitted death was a possible result of touching 

110-volt wires. (Tr. 393). Commission case law also establishes that exposure to 110-volt power 

can be lethal. See Orion Electric, Inc., 18 BNA OSHC 1851 (No. 99-212, 1999) (ALJ) (electrician 
17

killed while installing dimmer switch to an energized 110-volt circuit). Thus, Respondent’ 

argument as to minimal potential injury is rejected. 

 The Court finds Respondent’s employees were exposed to the violative condition. 

Accordingly, Complainant established a prima facie violation of Citation 2, Item 1.5 

The Violation Was Properly Characterized as Repeat

Respondent presented some evidence as to the question of whether Citation 2, Item 1 was 

a repeat violation, but failed to further pursue that argument in its post-trial brief. Nevertheless, 

the Court will address the evidence on that issue. 

According to the Act, a violation is repeated if “at the time of the alleged repeated violation, 

there was a Commission final order against the same employer for a substantially similar 

violation.” Potlatch Corp., 7 BNA OSHC 1061 (No. 16183, 1979). For violations issued under 

section 5(a)(2) of the Act, “[T]he Secretary may establish a prima facie case of substantial 

similarity by showing that the prior and present violations are for failure to comply with the same 

standard.” Id. Where the prior and present violations are based on an employer’s failure to comply 

with the same specific standard, it will be difficult for the employer to rebut the claim of substantial 

similarity, “because in many instances the two violations must be substantially similar in nature in 

order to be violations of the same standard.” Id. “Although the ‘principle [sic] factor’ in assessing 

repeat liability ‘is whether the two violations resulted in substantially similar hazards’, this 

assessment may also take into consideration other factors that bear on the similarity of the two 

violations.” Angelica Textile Svcs., Inc., 2018 OSHD (CCH) ¶ 33675, 2018 WL 3655794 at *11 

(quoting Lake Erie Constr. Co., 21 BNA OSHC 1285, 1289 (No. 02-0520, 2005) (internal citation 

omitted)). 

5. In the Complaint, Complainant also pled 29 C.F.R. § 1926.405(j)(1)(i) as an alternative basis for the violation. 

Because the Court finds Respondent violated § 1926.416(a)(1), it need not address the alternative standard. 
18

Respondent was previously cited for a violation of the same standard, 1926.416(a)(1), 

which became a final order of the Commission in 2013 by virtue of a settlement agreement. (Ex. 

C-21, C-22). The prior citation, which forms the basis of the repeat, was issued for two separate 

conditions: (1) an energized, electrical junction box did not have a cover installed; and (2) an 

HVAC unit only had cardboard covering the opening of an energized 200 Amp 240 VAC unit. 

(Ex. C-21). According to Reetz, the first instance referred to an uncovered junction box on the 

ceiling of the space they were working in, and the second instance actually referred to an electrical 

panel with breakers, because “there aren’t any HVAC equipment that have a 200 Amp circuit.” 

(Tr. 341–343). In both instances, however, Respondent left electrical circuits uncovered and/or 

improperly protected in an area where its employees were working, exposing its employees to 

electric shock and burn hazards. 

Because both the present and 2013 violations were issued under the same standard, 

Complainant established a prima facie case of substantial similarity. In response, Respondent 

presented evidence to suggest the violations are not substantially similar because the equipment 

was different in size, location, and voltage. (Tr. 341–43). In Potlatch, the Commission declined to 

distinguish between “various subcategories of equipment on the basis of its function and location”, 

so long as the hazard presented was the same. (“That the equipment which was the subject of the 

present citation is of a different type that that previously cited is of little moment.”). In that case, 

as in this one, the Commission was convinced by the fact that the subject of both citations was 

electrical equipment and presented the same hazard to employees—exposure to an unguarded, 

energized circuit. In this case, while the voltage was higher in the 2013 citation than in the citation 

currently at issue, the Court finds this does not detract from the substantially similar hazards 

presented by uncovered electrical circuits. In either case, employees were exposed to shock, burns, 
19

and even electrocution had they contacted the uncovered electrical circuits. Thus, the Court finds 

Citation 2, Item 1 was properly characterized as a repeat violation of the Act. Accordingly, 

Citation 2, Item 1 will be affirmed. 

Penalty

In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act 

requires the Commission give due consideration to four criteria: (1) the size of the employer’s 

business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the employer’s 

prior history of violations. Gravity is the primary consideration and is determined by the number 

of employees exposed, the duration of the exposure, the precautions taken against injury, and the 

likelihood of an actual injury. J.A. Jones Construction Co., 15 BNA OSHC 2201 (No. 87-2059, 

1993). It is well established that the Commission and its judges conduct de novo penalty 

determinations and have full discretion to assess penalties based on the facts of each case and the 

applicable statutory criteria. Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995); Allied 

Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975). 

According to the record, Respondent is a medium-sized employer, with approximately 100 

to 200 employees. (Tr. 348). Complainant applied a 10% penalty reduction to each of the citation 

items. (Tr. 102). As for Citation 1, Item 1, the table saw violation, Complainant proposed a penalty 

of $11,408. Complainant determined the violation was high gravity due to the possibility for 

amputation and hospitalization resulting from exposure to an unguarded saw blade. (Tr. 101). 

Multiple employees worked near the unguarded blade on a daily basis for approximately one 

month, which Complainant argues increased the likelihood an accident would occur. (Tr. 101). 

However, while evidence clearly established use of the unguarded saw on the day of the accident, 

it was less clear as to the location, or frequency of use during previous days at the job. Considering 
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the totality of the circumstances, the Court finds that a penalty of $7,000 is appropriate for Citation 

1, Item 1. 

 Complainant proposed a penalty of $16,297 for Citation 2, Item 1. Complainant 

determined that the severity of the potential injuries was low because contact with 110 volts would 

be more likely to cause minor burns and shock than death, but determined probability of an 

accident was high based on the number of uncovered, energized outlets and switches found 

throughout the building, and the number of employees on site. (Tr. 140). The Court considers the 

likelihood of contact with most of the energized outlets to be low, except for the switch and wiring 

pulled out from the box. Considering the totality of the circumstances, including the repeat nature 

of the violation, the Court finds that a penalty of $12,500 is appropriate for Citation 2, Item 1. 

Order

 Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED 

that: 

1. Citation 1, Item 1 is AFFIRMED as a serious violation of the Act, and a penalty of $7,000 

is ASSESSED; and

2. Citation 2, Item 1 is AFFIRMED as a repeat violation of the Act, and a penalty of $12,500 

is ASSESSED.

 

/s/ Brian A. Duncan

Date: September 3, 2019 Judge Brian A. Duncan

Denver, Colorado U.S. Occupational Safety and Health Review Commission