UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 DOCKET NO. 17-1402

Appearances:

Megan McGinnis, Esq., U.S. Department of Labor, Office of the Solicitor, Kansas City, Missouri

For Complainant

Darren S. Harrington, Esq., Key Harrington Barnes, PC, Dallas, Texas

For Respondent

Before: Administrative Law Judge Brian A. Duncan

DECISION AND ORDER

Procedural History

After learning that an employee was hospitalized due to an arc flash on February 8, 2017, 

OSHA dispatched Compliance Safety and Health Officer (“CSHO”) Brian Elmore to an ADM1

worksite in Columbus, Nebraska to conduct an inspection. (Tr. 231–32). After conducting his 

investigation, CSHO Elmore concluded that Respondent had a work policy which permitted the 

injured employee to remove portions of his personal protective equipment after he had determined 

the load side (but not the line side) of an electrical disconnect box was de-energized. CSHO 

1. ADM stands for Archer Daniels Midland. (Stip. No. 3).

SECRETARY OF LABOR, 

Complainant,

v. 

JACOBS FIELD SERVICES, NORTH 

AMERICA, 

Respondent.

Some personal identifiers have been redacted for privacy purposes
2

Elmore found that this policy, as applied under the circumstances of this case, violated the 

Occupational Safety and Health Act of 1970 (the Act).

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

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

1910.335(a)(1)(i), and proposed a total penalty of $11,408. 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. 

The Chief Judge initially designated this matter for Simplified Proceedings pursuant to 

Commission Rule 203(a); however, upon joint motion of the parties, the Court placed the matter 

back in conventional status. (Tr. 9). See 29 C.F.R. § 2200.203(a). A trial was conducted in Omaha, 

Nebraska on May 9–10, 2018. Seven witnesses testified at trial: (1) Brent Brabec, Respondent’s 

electrical foreman; (2) Gerald Keller, Respondent’s electrical superintendent; (3) [redacted], the 

injured employee; (4) Brian Elmore, Compliance Safety and Health Officer (CSHO); (5) Landis 

Floyd, Complainant’s designated expert; (6) Michael Taubitz, Respondent’s designated expert; 

and (7) Jason King, Respondent’s Director of Health, Safety, and Environment. 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). (Tr. 27–28). See Slingluff v. OSHRC, 425 

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

into the record. (Tr. 27–29).
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Factual Background

Respondent is a large, national electrical contractor that provides on-site services to ADM, 

which is also a large company that, at this particular facility, makes ethanol, fructose, starch, and 

other corn byproducts. (Tr. 43). Respondent has multiple crews and foremen working at ADM’s 

Columbus, Nebraska facility at any given time. One crew was tasked with connecting a new 

subpanel in one of ADM’s fabrication shops to a 480-volt disconnect switch. (Tr. 46). During the 

installation, one of the crew members was exposed to an arc flash, resulting in serious injuries to 

his hands and face. (Tr. 44–45; Stip. No. 10). 

Respondent’s employees at the ADM site were supervised by Gerald Keller, Respondent’s 

on-site superintendent. (Stip. No. 8). Keller was responsible for overseeing each of the foreman, 

who were, in turn, responsible for supervising their respective crews. (Tr. 42). The foreman who 

supervised the injured employee was Brett Brabec, a licensed journeyman electrician with over 19 

years of experience. (Tr. 41). Brabec supervised a crew of six employees, including [redacted], 

the employee injured by the arc flash. (Tr. 42). 

According to Brabec, he was responsible for assigning tasks, explaining those tasks, 

reviewing job safety assessments (JSAs), and performing periodic checks of his employees. (Tr. 

48–49, 71–73). Brabec testified that, once he assigned a task, he would “walk down”, or describe 

in general terms, the steps necessary to accomplish the task. (Tr. 49). It was incumbent upon the 

crew members to develop a JSA, which identified hazards and protective measures. (Tr. 72–73; 

140–41). Brabec reviewed the JSAs to ensure that hazards were accounted for and appropriate 

measures were taken to mitigate those hazards. (Tr. 73–74). Brabec testified he performed these 

reviews during his trips around the worksite, which he did approximately 10 times per day. (Tr. 
4

140). In addition, Brabec was responsible for performing daily and weekly comprehensive 

inspections, which included a checklist for issues of concern. (Tr. 140–145; Ex. R-9, R-10). 

On the day of the accident, Brabec directed [redacted] to “run conduit, pull wire and 

terminate the load side” of a 480-volt disconnect, which was designed to provide power to a 

subpanel in the maintenance pipe shop. (Tr. 48, 53–54). The disconnect was located, along with 

other similarly situated disconnects, on a larger installation referred to as the “skid” (Tr. 46, 48; 

Ex. C-13). According to Brabec, [redacted]’s task started by terminating, or attaching, the wires 

at the subpanel in the pipe shop and moving backwards to the disconnect switch. (Tr. 66). Before 

connecting those wires to the disconnect switch, however, [redacted] needed to confirm that the 

load side2of the disconnect was de-energized. Once de-energization was confirmed, [redacted]

was directed to terminate the three phases and neutral wire to their respective lugs on the bottom 

half (load side) of the disconnect box. (Tr. 68–70; Ex. C-11). In this case, there were no existing 

wires on the load side yet. (Tr. 63). Accordingly, Brabec referred to this as a new installation. (Tr. 

48).

From the outside, a disconnect switch is an enclosed metal box with a lever on the outside, 

indicating “ON” or “OFF”. (Ex. C-11). By turning the disconnect to the “OFF” position, the switch 

removes a set of three blades from their cradles inside the disconnect box. (Tr. 113; Ex. C-11). 

This severs the connection between the aforementioned “load” side at the bottom of the disconnect 

and the “line” side at the top of the box. (Tr. 113–14, 185; Ex. C-11). As compared to the load 

side, the line side is the location where incoming electricity is supplied to the disconnect. (Tr. 55). 

Both the line and load side have three phases (A, B, and C) and a ground (or neutral) wire. (Tr. 

 

2. As discussed more fully in the succeeding paragraph, the “load side” of a disconnect is also referred to as “secondary 

voltage”. (Tr. 56). In either case, it refers to the bottom half of wires and lugs in the disconnect box that sends power 

out to pieces of equipment and subpanels. (Tr. 56). 
5

57–59; Ex. C-11). The wires on the load side terminate to the appropriate lug on the load side, 

and the wires on the line side terminate to the appropriate lug on the line side; the blades of the 

switch engages/severs the connection between the two sides. (Tr. 113–14; Ex. C-11). It should be 

noted, however, that flipping the switch to OFF only severs the power running to the load side. 

(Tr. 322–23). Unless power is cut off further upstream, there is still electricity running into the 

line side top-half of the box. The dividing line between the two sides is marked by an arc shield, 

which is a piece of plastic that is designed to guard against the possibility of an arc flash when 

disengaging the blades and, to an extent, provide protection against incidental contact with line 

side parts. (Tr. 267, 296–97; Ex. C-11). The arc shield cover was not complete; there were gaps 

ranging from one-quarter inch to three inches along the sides and towards the rear of the box. (Tr. 

154, 318; Ex. C-11). 

On the day of the accident, Brabec reviewed and approved the JSA for [redacted]’s task, 

which was filled out by his fellow crew member, Clayton Hoadley. (Tr. 49, 72, 140–41). 

According to Brabec, the JSA identified all of the expected hazards and addressed those hazards 

through various controls and PPE. (Tr. 72–80; Ex. C-23). Per the JSA, [redacted] set out a barrier 

10 feet away from the disconnect, which would prevent otherwise unqualified or unaware 

employees from wandering into the area, which is referred to as the arc flash boundary. (Tr. 69; 

Ex. C-23). Under Brabec’s supervision, [redacted], who was wearing a 40-cal “hot suit”, which 

provided head-to-toe electrical protection, switched off the disconnect and proceeded to verify that 

the load side was de-energized. (Tr. 68–70, 81, 224). Verifying de-energization required 

[redacted] to implement what Respondent referred to as its “test-test-test” procedure, a tripartite 

examination that is designed to leave little doubt as to whether a circuit is energized. (Tr. 68–69). 
6

Brabec confirmed [redacted] had properly de-energized the load side and proceeded to go about 

his rounds. (Tr. 87).

Once [redacted] had de-energized the load side, Respondent considered it to be in an 

electrically safe working condition (ESWC). (Tr. 115–16; Ex. C-32 at 22). This was so even 

though he would be working within inches of live components on the line side, albeit at least 

partially guarded by the arc shield. (Tr. 157; Ex. C-11). Nevertheless, pursuant to Respondent’s 

policy, [redacted] was permitted to (and did) remove his shock-rated gloves and face shield. (Tr. 

117–19). According to Brabec, those items were cumbersome, and their removal allowed 

[redacted] to have more dexterity while working with the wires. (Tr. 117). [redacted] proceeded 

to connect the A, B, and C phases to the load side lugs. (Tr. 211). 

After connecting the phases and taping off the load-side neutral, [redacted] was informed

by Brabec that he had to bond the load-side neutral to the ground bar on the load side. (Tr. 213). 

In [redacted]’s estimation, he did not have a lot of room to bond the load-side neutral on the ground 

bar, which was located behind the A, B, and C phases. (Ex. C-11). So, [redacted] determined he 

needed to remove the ground bar from the box to allow him enough room to attach the neutral. 

(Tr. 213). The problem, however, is that the line-side ground wire ran from the top of the 

disconnect, along the inside of the box, and attached to the same ground bar. (Tr. 100; Ex. C-11). 

When [redacted] removed the ground bar, the rigid, uninsulated copper ground wire shifted and

contacted the line-side “A” phase, causing the arc flash that injured him. (Tr. 213). 

Once Brabec was informed of the incident, he returned to the skid to find [redacted] with 

his hands in the snow and his face badly burned. (Tr. 89). [redacted] was taken to the hospital, 

where he stayed for several weeks. (Tr. 416; Ex. C-1). He ultimately returned to work, only to 
7

leave Respondent’s employ shortly thereafter for reasons unrelated to the current case. (Tr. 47, 

417). 

Respondent notified Complainant of the employee hospitalization. (Tr. 231). While at the 

ADM facility, CSHO Elmore inspected the location of the accident and conducted interviews of 

employees and management. Based on what he learned, CSHO Elmore determined Respondent 

failed to ensure its employees used appropriate PPE when exposed to energized circuits. (Tr. 236). 

CSHO Elmore determined that this was not an isolated incident; rather, he learned of other 

employees who were exposed in a manner similar to [redacted]. (Tr. 237). In his estimation,

Respondent’s work practice was a failure in two respects: (1) Respondent placed too much reliance 

on the effectiveness of this arc shield as a guard against incidental contact with the line-side, 

energized components; and (2) absent complete de-energization of the disconnect box (both lineside and load-side), Respondent’s employees should not be allowed to remove PPE. (Tr. 238). 

Complainant agreed with Elmore’s assessment and issued a Citation and Notification of Penalty 

alleging a single violation of 29 C.F.R. § 1910.335(a)(1)(i), which is discussed below. 

Discussion

Citation 1, Item 1

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

29 CFR 1910.335(a)(1)(i): Employees working in areas where there were potential 

electrical hazards were not using electrical protective equipment that was appropriate for 

the specific parts of the body to be protected and for the work to be performed:

The employer failed to ensure that that [sic] a [sic] electrician apprentice was protected 

from the hazard of arc flash. An employee was terminating a ground wire on the lower half 

of a 480v, 200 Amp disconnect. The ground wire came into contact with an energized “A 

Phase” at the top of the disconnect. An employee was not wearing the electrical protective 

equipment at the time of the arc flash, resulting in burns to the employee’s face and left 

hand. This most recently occurred on or about February 8, 2017 at 3000 8th Street, 

Columbus, Nebraska 68601. 

Citation and Notification of Penalty at 6.
8

The cited standard provides: 

Employees working in areas where there are potential electrical hazards shall be 

provided with, and shall use, electrical protective equipment that is appropriate for 

the specific parts of the body to be protected and for the work to be performed. 

29 C.F.R. § 1910.335(a)(1)(i). 

The Standard Applies and Was Violated

The question of whether the standard applies is not in dispute. [redacted] was working in 

an area where there were potential electrical hazards. The key issue is whether the PPE worn by 

[redacted] was appropriate “for the specific parts of the body to be protected” and, as emphasized 

by Respondent, “for the work to be performed.” Id. [redacted] may have been properly equipped 

when he verified de-energization of the load side, but that changed when, consistent with company 

policy and practice, he removed his gloves, face shield, and hood. As discussed below, the Court 

finds Respondent’s policies regarding electrical hazard assessment and PPE unnecessarily exposed 

[redacted] and similarly situated employees to electrical shock and arc flash hazards. 

The cited electrical PPE standard is a performance standard. As such, whether Respondent 

complied with its terms is interpreted in light of what is reasonable under the circumstances, 

including “the knowledge of reasonable persons familiar with the industry.” See Siemens Energy 

& Automation, Inc., 20 BNA OSHC 2196 (No. 00-1052, 2005). However, the Court must be 

mindful not to blindly rely upon industry custom and practice. According to the First Circuit:

[A]n appropriate test is whether a reasonably prudent man familiar with the 

circumstances of the industry would have protected against the hazard. We would 

expect, most often, that reference to industry custom and practice will establish the 

standard of conduct. There may, however, be instances where industry practice fails 

to take reasonable precautions against hazards generally known in the industry; in 

such event it may not be unfair to hold the employer to a standard higher than that 

of actual practice.

Cape &Vineyard Div. of New Bedford Gas v. OSHRC, 512 F.2d 1148, 1152 (1st Cir. 1975). 
9

As discussed above, [redacted] was fully equipped with PPE, inclusive of arc-rated gloves, 

face shield, and suit when he verified the load side of the disconnect was de-energized. (Tr. 79; 

Ex. C23). Once that was established, however, [redacted] removed the gloves and face shield. 

According to all of Respondent’s witnesses, this was in accord with company policy, which 

allowed removal of certain PPE once [redacted] had determined the disconnect was ESWC. (Tr. 

87, 118, 121, 187–88, 422; Exs. R-3, C-27). ESWC is a term defined by NFPA 70E, which is an 

industry-recognized set of standards governing work on electrical circuits. (Ex. C-32). According 

to NFPA 70, ESWC means, “A state in which an electrical conductor or circuit part has been 

disconnected from energized parts, locked/tagged in accordance with established standards, tested 

to ensure the absence of voltage, and grounded if determined necessary.” (Ex. C-32 at 15). To 

achieve this state, an electrician must follow a five-step process, which is also provided in NFPA 

70E. (Ex. C-32 at 22). The parties dispute whether this state was achieved such that [redacted]’s 

minimal PPE was appropriate for the work to be performed. 

The problem for Respondent is that it attempted to apply a policy/practice in a one-sizefits-all manner without considering any unique circumstances about the equipment being worked 

on. According to Brabec, Respondent relied upon ADM’s Electrical Safety Program—which is 

consistent with their own policies, and dictates their work on ADM’s worksite—to determine that 

a disconnect was ESWC. (Tr. 164–65). The standard Brabec relied upon, identified in Comment 

15.4.4.1, states that “480V MCC buckets on-site are considered to be in an electrical safe work 

condition with breaker de-energized and no voltage condition is verified.” (Ex. R-3 at 41). Brabec 

testified he relied on this policy because MCC3buckets and disconnects “have the same potential 

and same risk” and that he did not see much difference between them. (Tr. 163). The problem, 

 

3. MCC stands for “motor control center”, which is an “assembly of one or more enclosed sections having a common 

power bus and principally containing motor control units [or buckets].” (Ex. C-32 at 16). 
10

though, as pointed out by Landis Floyd, is that there are fundamental differences between a 

disconnect switch and an MCC bucket. (Tr. 299). Specifically, the MCC bucket can be fully 

removed from the control center and worked on separately from the source of power. (Tr. 299). 

Another significant difference is that line-side connections are not made by an electrician; they are

factory-installed and internal to the bucket. (Tr. 299). Comparatively, in a disconnect, the arc 

shield must be removed before the line-side connections can be made by hand. (Tr. 299). Thus, 

there are structural and functional differences between the disconnect at issue and MCC buckets

that made reliance upon the aforementioned practice at least somewhat questionable.

Notwithstanding any written policy or practice Brabec may have relied upon, he, and the 

others testifying on Respondent’s behalf, testified that it was common in the industry to work on 

the load side of a disconnect while leaving the line side energized. (Tr. 118–19, 363). Further, 

they also testified the industry considers that set-up to be ESWC insofar as the work is limited to 

the de-energized load side of the arc shield. (Tr. 159–60, 179). As such, it is important to 

understand the exact orientation of the live, line-side parts vis-à-vis the de-energized, load-side 

parts within the disconnect. 

As described above, the line side and load side were separated by an arc shield that ran

across the middle of the disconnect box just above the fuses, which are located on the load side.

4

(Tr. 45–46; Ex. C-11). As C-11 illustrates, there is a gap between the arc shield and the left-hand 

side of the disconnect box. (Ex. C-11). According to Floyd, this side gap was roughly two inches 

wide. (Tr. 318). Adjacent to that gap, just behind the shield, is the energized “A” phase that 

ultimately contacted the ground wire and caused the arc flash. (Tr. 319). In addition, the arc shield 

did not extend all the way to the back of the disconnect box. This was pointed out by Floyd, who 

 

4. Exhibit C-11 shows a comparable disconnect switch on the same skid. As shown in Exhibit C-4, the disconnect 

[redacted] was working on was badly marred by the arc flash, rendering it unhelpful as a demonstrative. 
11

noted a three-inch gap between the back panel and the top of the arc shield. (Tr. 318; Ex. C-10). 

Brabec also noted an unusual gap between the arc shield and termination lug on the line side, which 

measured approximately one-quarter of an inch. (Tr. 152–55). Finally, it is important to note that 

[redacted]’s work on the load side occurred approximately 8–10 inches away from the energized 

line-side parts. (Tr. 156-157).

In support of its assessment that the disconnect was ESWC, and to justify [redacted]’s 

removal of PPE, Respondent places significant emphasis on the arc shield as an adequate guard 

against electrical shock and arc flash hazards. (Tr. 159–61). As the name suggests, the arc shield 

is designed to prevent arc flashes. The materials for this particular model of disconnect also 

indicate that the shield secondarily serves as a guard against incidental contact. (Ex. C-36). 

According to Floyd, however, the arc shield was not everything that Respondent claims it 

to be. First, while it is designed to prevent arc flashes, Floyd testified that an arc shield is 

principally an equipment performance measure. (Tr. 298). To illustrate, Floyd discussed the 

difference between a 240-volt and 480-volt (at issue here) switch. (Tr. 290). A 240-volt switch 

does not arc when the switch is turned off, and the blades separate from their cradles. (Tr. 290). 

As such, they are not equipped with arc shields, even though the potential for contact with 

energized parts is quite real. (Tr. 296–97). A 480-volt switch, on the other hand, can create an arc 

under certain load conditions, such as supplying electricity to a motor. (Tr. 291). Due to this 

potential, Floyd testified that a suppression measure, such as an arc shield, is required to prevent 

the destruction of equipment and potential injury to employees. (Tr. 291). Further, while Floyd

agreed that the likelihood of accidental contact was reduced by the presence of the arc shield, he 

disagreed that the likelihood was so reduced as to justify [redacted]’s removal of gloves and face 

shield. (Tr. 325–26, 332–34). 
12

In support of his assessment of the arc shield, Floyd discussed his experience investigating 

events that were otherwise unexpected, but nonetheless resulted in hazardous contact. Floyd

admitted that, from the front side, incidental contact with the live, line-side components was 

unlikely; however, he also noted that the left side and top of the arc shield were “wide open”. (Tr. 

292). Based on his experience with work of this type, Floyd discussed the possibility of tools

slipping through the gap and causing a short circuit between an energized phase and ground or that

cut wire strands would fly in unexpected ways after being cut to fit. (Tr. 295, 302–303). At bottom, 

Floyd described Respondent’s position towards the arc shield as an “over-estimation of 

effectiveness” and an “under-estimation of risk”. (Tr. 300). This was due, in no small part, to the 

shield being “open on the sides and top in such a manner that I can actually put my fingers in and 

touch energized conductors . . . .” (Tr. 300). In other words, [redacted] was working very close to 

“a source of energy that can kill” guarded by an insufficient means to protect against inadvertent 

contact. (Tr. 301).

Respondent, through its expert, Taubitz, asserted that the arc shield was sufficient to 

prevent inadvertent contact. (Tr. 364). This argument is premised not on any logistical argument 

about the difficulties of access, but on the idea that [redacted] exceeded the scope of his duties 

when he detached the ground bar from the load side in order to bond the load-side neutral. (Tr. 

367–68). Taubitz and Brabec spent a substantial amount of time pointing out that, had [redacted]

not removed the ground bar, the arc flash event would not have occurred and its assessment that 

the disconnect was ESWC would remain intact. This argument is not persuasive for several

reasons. First, as will be discussed in more detail in the section on Respondent’s claim of 

unpreventable employee misconduct, the Court is not convinced that [redacted] exceeded the scope 

of his work. Second, the Court is unclear as to how the scope of [redacted]’s work served as a 
13

control against inadvertent contact, given the relatively short distance from the point of his work 

to the closest live wire (approx. 8 inches). Third, not all disconnects or MCC buckets are created 

alike; some are more insulated against contact than others. (Tr. 298–300). The mere presence of 

some type of an arc shield does not “remove the likelihood of approach to a point of danger or 

contact by persons or objects.” See 29 C.F.R. § 1910.399 (definition of guard). While some 

guards/arc shields may have this capacity, the evidence illustrates the arc shield on the #3 

disconnect that [redacted] was working on did not. And fourth, whether a violation of a standard 

occurred does not depend on the specific cause of a particular accident. Boeing Co., 5 BNA OSHC 

2014 (No. 12879, 1977).

As noted by Brabec, Floyd, and Taubitz, the orientation of the disconnect’s inner 

components was not standard. Brabec testified that the gap between the shield and the “A” phase 

lug was unusual. (Tr. 155). Taubitz also noted the gap was “error-provocative”, though he 

dismissed such concerns by relying on the previously mentioned “scope of task” argument. (Tr. 

377). Similarly, Floyd highlighted the presence of multiple gaps, the size of which created the 

potential for inadvertent contact. (Tr. 329–330). This problem was exacerbated by how close to 

the live parts [redacted] had to work. Floyd also testified that the ground wire, which ran from 

energized line side to de-energized load size, did not need to terminate on the load side. (Tr. 304). 

While this set-up was not attributable to Respondent, it was, according to Floyd, “a pre-existing 

situation that contributed to the likelihood that this incident could occur.” (Tr. 304). In other 

words, there were multiple conditions within the disconnect enclosure that contributed to the 

likelihood of inadvertent contact and should have been considered when performing the hazard 

and PPE assessment, but were not. 
14

Brabec said he did not look inside of the disconnect box prior to [redacted] performing 

work inside of it. (Tr. 56). He also testified, however, that none of the above would have changed 

his assessment of the task, because the hazards were mitigated if [redacted] had stayed within the 

purported “scope” of his work. (Tr. 155–56). Based on this, Floyd believed that [redacted]’s and 

Brabec’s faulty assessments were indicative of their being unqualified to perform such tasks, 

because they were unable to see the potential for incidental, albeit hazardous, contact. (Tr. 329–

30). [redacted] and Brabec’s actions were a reflection of Respondent’s electrical safety policy, 

which appears to adopt a relaxed interpretation of the NFPA 70E standards of industry conduct

and the subpart S standards at issue in this proceeding. 

Subpart S indicates a preference for de-energizing live parts “to which an employee may 

be exposed . . . before the employee works on or near them.” Id. § 1910.333(a)(1) (emphasis 

added). This is an expansive concept of exposure that contemplates not just the parts that the 

employee is directly working on, but also the energized parts to which an employee may be 

exposed by virtue of working near them. See also Solares Electrical Svcs Inc., 26 BNA OSHC 

1779, (No. 16-0605, 2017) (ALJ) (“To establish access under Commission precedent, the 

Secretary must show either that Respondent’s employees were actually 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.’” (citing Fabricated 

Metal Prods., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997))). The definition of exposure under 

Subpart S, which comports with Commission case law on the topic as a general concern, reiterates 

this expansive concept: “(As applied to live parts.) Capable of being inadvertently touched or 

approached nearer than a safe distance by a person. It is applied to parts not suitably guarded, 

isolated, or insulated.” 29 C.F.R. § 1910.399. 
15

According to subpart S, ‘guarded’ means “[c]overed, shielded, fenced, enclosed, or 

otherwise protected by means of suitable covers, casings, barriers, rails, screens, mats, or platforms 

to remove the likelihood of approach to a point of danger or contact by persons or objects.” Id.5 

The definition reiterates the expansive concept of exposure mentioned above—it is not enough to 

remove the likelihood of contact, but any suitable guard must remove the likelihood of approach

to a point of danger. Id. Respondent seems to suggest that because it prevents some incidental 

contact that the arc shield qualifies as something that “remove[s] the likelihood” of it. While it is 

true that guards do not have to be (and often cannot be) capable of completely removing a hazard, 

the Court finds the gaps in this particular arc shield allowed employees working on the load side

to come within inches of the point of danger. Floyd testified that some arc shields, can create such 

a guard; however, the arc shield in the disconnect box at issue did not, thereby highlighting the 

importance of assessing each task and piece of equipment on its own merits. (Tr. 299–300).

The definition of exposure introduces a previously undiscussed element, the so-called “safe 

distance”, that is given meaning by NFPA 70E. According to NFPA 70E, there are a couple of 

different safe distances, so to speak, that need to be observed during work on electrical circuits: 

(1) the arc flash boundary, (2) the limited approach boundary, and (3) the restricted approach 

boundary. The arc flash boundary is the outer limit and represents the “distance from which a 

prospective arc source within which a person could receive a second degree burn if an electrical 

arc flash were to occur.” (Ex. C-32 at 14). The limited access boundary and restricted access 

boundary represent progressively closer distances to an exposed energized conductor, within 

which the likelihood of electrical shock or arc-over is increased. (Ex. C-32 at 14). According to 

Floyd, who contributed significantly to the development of NFPA 70E and associated literature, 

 

5. The definitions of “guarded” and “exposed” are mirrored in NFPA 70E. (Ex. C-32 at 15). 
16

the limited approach boundary does not just apply to equipment that an employee is planning to 

touch. (Tr. 322). Contrary to Respondent’s argument that the limited access boundary is targeted 

towards unqualified individuals (e.g., not electricians), Floyd testified, “[A]ny exposure within the 

limited approach boundary needs to be placed in a likely [sic] safe work condition.” (Tr. 322). 

According to Table 130.4(D)(a) of NFPA 70E, the limited approach boundary was 3 feet, 6 inches. 

(Ex. C-32 at 29). 

Perhaps the most persuasive element of the NFPA 70E standard, however, is the discussion 

of arc flash hazards and the associated boundary and PPE assessments. (Ex. C-32 at 38–43). The 

NFPA definition provides: “An arc flash hazard may exist when energized electrical conductors 

or circuit parts are exposed or when they are within equipment in a guarded or enclosed condition, 

provided a person is interacting with the equipment in such a manner that could cause an electric 

arc.” (Ex. C-32) (emphasis added). Notwithstanding Respondent’s arguments about the scope of 

[redacted]’s work, the fact that an arc flash occurred in this case is a strong indication that an arc 

flash hazard existed as part of [redacted]’s task. Within the same definition, the reader is directed 

to Table 130.7(C)(15)(A)(a) for examples of activities that could pose an arc flash hazard, 

including “Work on control circuits with exposed energized electrical conductors and circuit parts, 

greater than 120V.” (Ex. C-32 at 39). According to the table, arc flash PPE is required any time 

an employee works on a circuit with exposed conductors. (Id.). Further, the table also identifies 

the boundaries associated with specific equipment and the appropriate arc flash PPE category. (Id.

at 41). Even at the lowest voltage levels listed on the table, [redacted] was working within the arc 

flash boundary, which meant he should have been wearing, at a minimum, all the PPE he was 

wearing while assessing the disconnect as ESWC. (Ex. C-32 at 43). 
17

According to Floyd, there was only one way to properly assess this disconnect as ESWC: 

shutting off the power main, which was just a few feet away from disconnect #3. (Tr. 322–23). 

This was the only way to prevent [redacted] from approaching, let alone contacting, energized 

electrical components. While Respondent argues shutting down the main power switch would have 

been unreasonably disruptive, the Court finds Respondent failed to perform an adequate analysis 

of the task and associated hazards such that its assessment warranted deference. Subpart S 

provides a decisional matrix, of sorts, to allow an employer to determine whether work should be 

performed on a live electrical component. As noted above, the default is complete de-energization,

unless the employer “can demonstrate that de-energizing introduces additional or increased 

hazards or is infeasible due to equipment design or operational limitations.” 29 C.F.R. § 

1910.333(a)(1). To clarify, the standard notes what constitutes “additional or increased hazards” 

and “infeasibility”. See id. at n. 1–2. Those include: interruption of life support, deactivation of 

alarm systems or ventilation equipment, removal of illumination from an area, and complete 

shutdown of a continuous industrial process, such as at a chemical plant. Id. While Taubitz

testified regarding the potential impact of de-energizing the main switch on the skid, there is no 

indication that any of the foregoing obstacles to complete de-energization were present, nor is it 

clear that Respondent performed the sort of analysis envisioned by Subpart S. 

In addition to the foregoing, Respondent argues that the plain language of the standard does 

not compel it to ensure its employees wear proper PPE. Instead, Respondent argues, its only 

obligation is to provide proper PPE; it is incumbent upon the individual employee to actually use

the PPE that has been provided. This is a strained reading of the standard and is inconsistent with 

Commission case law on the topic of performance-based PPE standards. The plain language 

provides that employees “shall be provided with, and shall use, electrical protective equipment . . 
18

. .” 29 C.F.R. § 1910.335(a)(1)(i) (emphasis added). This terminology is no different than that 

found at 29 C.F.R. § 1910.132(a), which requires that “protective equipment . . . shall be provided, 

used, and maintained . . . .” Id. § 1910.132(a). In both cases an employer’s obligation extends 

beyond the mere providing of equipment to ensuring that it is, in fact, used. This was made clear 

by the Commission in The Budd Company, wherein the panel found “subpart [1910.132](a) means 

that where personal equipment is necessary, the employer shall insure that it is used. If he provides 

such equipment, he is responsible for insuring that it is ‘provided, used, and maintained in a 

sanitary and reliable condition.” 1 BNA OSHC 1548 (Nos. 199 & 215, 1974), aff’d 513 F.2d 201 

(“The decision of the Commission in no way diminishes the employer’s obligation to ensure that 

safety shoes are in fact worn when required.”). Accord Arkansas-Best Freight Systems, Inc., 2 

BNA OSHC 1620 (No. 2375, 1975) (“Respondent failed to comply with 29 CFR § 1910.132(a) 

by not requiring that its dock workers and repair shop employees have toe protection.”). Thus, 

given the substantial similarities between the mandates of 1910.132(a) and 1910.335(a)(1)(i), the 

Court finds Respondent was obligated to both provide and ensure the use of electrical PPE. 

Accordingly, Respondent’s suggestion that it is only required to provide electrical PPE under such 

circumstances is rejected.

 Finally, as the foregoing shows, the Court placed substantial weight on the testimony of 

Floyd, Complainant’s expert, over that of Michael Taubitz, Respondent’s expert. This was the 

case for many reasons. First, Floyd was an electrical engineer, who has written over 60 peerreviewed articles on the topic of electrical safety. (Tr. 279–280; Ex. C-37). His experience was 

more specific to the issue at hand than Taubitz, whose experience is primarily in the area of 

“control of hazardous energy”, which is more directly related to lock-out/tag-out than to shock and 

arc flash hazards. (Tr. 347). Second, Floyd was able to articulate clear distinctions between the 
19

various pieces of electrical equipment, like the MCC buckets and disconnect switches, to show 

how Respondent’s policy or practice was either misapplied or wrong. He also used personal 

experiences from his investigations to explain the various ways in which electricians can contact, 

or be exposed to, energized electrical components while using “common practices”. (Tr. 298–300). 

Third, and most importantly, Floyd’s evaluations of hazards and attendant risks were consistent 

with the purpose of the Act—to prevent the first injury—and were premised on an intimate 

knowledge of arc flash incidents and hazards. (Tr. 324–25). Taubitz, on the other hand, focused 

on what is “common” practice in the industry, versus what is safe and compliant with the 

regulations. Indeed, Taubitz relied almost entirely on the arc shield and the relatively elastic 

concept of “scope of work” as a panacea for adequate protection against shock and arc flash 

hazards. (Tr. 366–68). While Taubitz is clearly an expert in his field, the Court finds Floyd’s

testimony was far more persuasive based on the detail he provided in his explanations of the 

electrical equipment at issue and his descriptions of the various ways in which electricians have 

been injured based on their exposure to energized circuits, as [redacted] was here. 

Consistent with the foregoing, the Court finds the standard applied and was violated.

[redacted] was Exposed to the Hazard Caused by the Violation

To establish exposure under Commission precedent, the Secretary must show 

Respondent’s employees were actually 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). The dispute over whether [redacted] was exposed to the hazard caused by 

the violation is a textured one. There is no question that [redacted] was exposed to a hazard—480 

volt energized wiring, which resulted in an arc flash, causing serious injuries to his hands and face. 
20

Rather, the operative question in this case is whether [redacted] was exposed to a hazard resulting 

from the violation alleged by Complainant. See Oberdorfer Industries, Inc., 20 BNA OSHC 1321 

(“The zone of danger is determined by the hazards presented by the violative condition that 

presents the danger to employees which the standard is designed to prevent.”). Notwithstanding 

the fact that [redacted]’s hands and tools were within inches of unenclosed, energized circuit 

components, Respondent contends [redacted] was not exposed to a hazard because he allegedly 

committed misconduct when he removed the ground bar, which was purportedly outside the scope 

of his assigned duties. The Court disagrees and finds [redacted] was exposed to a hazard because 

he was not wearing PPE appropriate for his work environment. 

Although dealt with in more detail below in the section on Respondent’s defense of 

unpreventable employee misconduct, the facts illustrate [redacted]’s exposure was not the product 

of him exceeding the scope of his assigned task. First and foremost, it was Respondent’s policy 

that permitted this type of employee exposure in the first place. Whether a correct interpretation 

of the ADM electrical policy or not, all of Respondent’s witnesses testified that [redacted] acted 

consistently with Respondent’s own policy when he made the determination that the disconnect 

box was ESWC and removed his gloves and hood. Second, the instructions given to [redacted]

were general and, according to Brabec, were not based on the particular set up of the phases and 

wires inside this particular disconnect. (Tr. 56). [redacted]’s job was to connect phases and a 

neutral wire to the load side of the disconnect, which also housed a ground wire that connected the 

energized line side to a grounding bar on the de-energized load side. Because of the task he was 

assigned, [redacted] necessarily had to perform his job within inches of the energized line-side 

components. See Oberdorfer, 20 BNA OSHC 1321 (lathe operators hands coming within 3 to 8 

inches from unguarded hazard constituted exposure). As testified to by Floyd, such activities 
21

presented a distinct possibility of inadvertent exposure. That, in and of itself, is sufficient to 

establish exposure 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 

to charge the employer with that knowledge. See Mountain States Tel. & Tel. Co. v. OSHRC, 623 

F.2d 155, 158 (10th Cir. 1980).

Brabec, [redacted]’s foreman, was responsible for assigning the task, providing instruction 

to [redacted] on that task, reviewing the JSA, and conducting periodic observations as part of his 

daily rounds. He watched [redacted] perform the “test-test-test” procedure to verify deenergization and was aware the line-side of the disconnect would remain energized as [redacted]

began to work on the load side without the full array of electrical PPE. Further, Brabec was aware 

[redacted] would remove certain elements of his PPE once he verified the load side was deenergized, which was consistent with company policy and what was identified as common practice 

in the industry. (Tr. 117). Though the record is not clear whether he saw [redacted] remove his 

PPE, Brabec’s testimony illustrates that he was aware [redacted] would remove his PPE. (Tr. 79–
22

88). Indeed, all of Respondent’s employees who testified made clear that it was company policy 

to allow removal of electrical PPE items when the load side of a disconnect had been de-energized. 

Thus, while the Court concludes Respondent had knowledge of the violative conditions 

through the imputed knowledge of Brabec, whether actual or constructive, the Court also finds

Respondent itself was aware of the violative conditions. It was Respondent’s policy allowing 

[redacted] to remove PPE, as well as its reliance on “industry practice” to assess the disconnect as 

ESWC, that placed him in the zone of danger.

6

Irrespective of whether this assessment was 

consistent with common industry practice or represented a correct interpretation of company 

policy (given that it explicitly referred to MCC buckets), the consensus was that [redacted] did not 

violate company rules by removing his PPE. Because [redacted]’s act of removing his PPE after 

he verified the load side was in a de-energized state was an accepted practice and part of written 

policy, the Court finds Respondent was actually aware of the conditions constituting a violation.

Respondent Failed to Prove the Affirmative Defense of 

Unpreventable Employee Misconduct

As noted above, however, Respondent claims it could not have foreseen that [redacted]

would exceed the scope of his duties by removing the ground bar and, thus, his subsequent 

exposure to the arc flash was the product of unpreventable employee misconduct. This argument 

disregards a fairly basic, and obvious, fact: [redacted] was permitted to remove his PPE 

notwithstanding the fact that he was working within inches of 480 volt energized components that 

were not adequately protected from inadvertent contact. For that and other reasons discussed 

below, Respondent’s defense of unpreventable employee misconduct is rejected. 

 

6. The Court places the term “industry practice” in quotes for a couple of reasons. First, it was not clear whether 

Respondent’s industry practice argument referred to treating the entire disconnect box as ESWC, or whether it referred 

to the removal of PPE, or both. Second, as pointed out by Floyd, merely because a practice is “common” does not 

mean that it is compliant with safety regulations. 
23

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

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

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

and (4) it must effectively enforce the rules when violations are 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 

BNA OSHC 1013 (No. 87-1067, 1991).

Prior to starting work on the disconnect, Brabec instructed [redacted] to “run conduit, pull 

wire, and terminate the load side of the disconnect.” (Tr. 48). The JSA reflected these very basic 

steps, which did not appear to take into account any of the “unusual” aspects of the disconnect 

referenced by Floyd, Taubitz, CSHO Elmore, and even Brabec himself, who determined no shock 

or arc flash hazards existed at the point of de-energization. (Tr. 67). These unusual aspects, such 

as the aforementioned gaps and the uninsulated copper ground wire that connected the line side to 

the load side, however, ended up being significant factors in the subsequent arc flash. (Ex. C-23 at 

1). On the face of it, there was nothing implicit or explicit in Brabec’s instructions that leads the 

Court to believe [redacted] violated a rule specific to the task assigned to him. 

Nevertheless, Respondent contends that Brabec’s instructions were sufficiently specific to 

prevent [redacted] from removing the ground bar to install the load-side neutral. The Court 

disagrees. According to both [redacted] and Brabec, [redacted] was instructed to terminate the 

load-side neutral to the load-side ground bar. There was no mention of the line-side, uninsulated 

ground wire, which ran from the energized line side to the de-energized load side. This stands to 

reason, because Brabec admitted he had not looked inside the disconnect box. [redacted] was 
24

confronted with a problem of how to connect the neutral wire to the ground bar after he had 

installed the A, B, and C phases, which served as an impediment to bonding the neutral. (Tr. 213). 

As a solution, [redacted] determined he needed to manipulate the ground bar to properly bond the 

neutral to one of the ground lugs. The Court fails to see how, when viewed objectively, 

[redacted]’s actions exceeded the scope of his original mandate. Neither Brabec’s instructions nor 

the JSA mentioned the line-side ground wire attaching to the load-side ground bar. Nor, for that 

matter, do those instructions mention the arc shield gaps that were identified by all testifying 

parties. 

This case is similar to the situation presented in Secretary of Labor v. Capform, 19 BNA 

OSHC 1374 (No. 99-0322, 2001). In that case, the employer provided oral instruction to two new 

employees on how to remove jacks that were used to support recently poured concrete slabs, also 

known as stripping. The two employees received instructions on how to remove the jacks under 

normal circumstances, but their trainer apparently did not provide instructions on how to proceed 

when immovable obstructions were present. Id. The Commission found Respondent failed to 

provide adequate instruction because, if the trainer had inspected the work area ahead of time, he 

would have noticed “it might not be possible for the employees to remove all of the posts . . . in 

the manner in which he had instructed.” Id. (citing Automatic Sprinkler Corp., 8 BNA OSHC 1384, 

1387 (No. 76-5089, 1980) (an employer “must make a reasonable effort to anticipate the particular 

hazards to which its employees may be exposed in the course of their scheduled work.”)).

Although [redacted] was not a “new” employee and had performed similar tasks before, 

he was still an apprentice electrician. It was incumbent upon his foreman, a journeyman with 19-

plus years of experience, to “make a reasonable effort to anticipate the particular hazards to which 

[[redacted]] may be exposed” in the course of his assigned work. Id. Instead, Brabec disregarded, 
25

or otherwise lent no credence to, the possibilities for inadvertent contact, including the way

[redacted] was actually injured in this case. Perhaps this was, as Floyd testified, an over-reliance 

upon the arc shield as an engineering control, which led to an underestimation of the risk presented 

by the unusual aspects about this particular disconnect switch. In either case, the Court finds that 

Brabec’s instructions, which were premised on company policy, were insufficient to eliminate the 

hazard of arc flash and incidental contact. Accordingly, the Court finds Respondent cannot prevail 

on its claim of unpreventable employee misconduct as it relates to the purported “scope” of 

[redacted]’s duties. See Archer-Western Contractors Ltd., 15 BNA OSHC 1013 (citing Brown & 

Root, Inc., 8 BNA OSHC 1055, 1060 (No. 76-3492, 1980)) (holding employer cannot prevail on 

the defense of unpreventable employee misconduct “where the employer’s instructions were 

insufficient to eliminate the hazard even if the employee had complied with the instructions.”). 

Respondent does not have an explicit work rule governing this situation, other than the one 

which permitted [redacted] to remove his PPE and generalized instructions provided by Brabec 

regarding the scope of [redacted]’s work. The former arguably placed [redacted] in the zone of 

danger by permitting the removal of PPE while inches from energized components, while the latter 

insufficiently addressed the hazard. Respondent also attempts to rely on a vague and undefined 

“seek help” rule, whereby an employee who has reached the limits of their understanding or skill 

is supposed to seek assistance. (Tr. 124–25). Such a “rule”, so called, is nothing more than an 

admonition to “stay safe”, which has been repeatedly rejected as insufficient to support a claim of 

employee misconduct. See, e.g., Packerland Packing Co. of Texas, Inc., 6 BNA OSHC 1126 (No. 

13315, 1977) (holding generalized instructions to “work safely” is not sufficient to establish the 

exercise of reasonable diligence to prevent violations (citing Brennan v. Butler Lime & Cement 

Co., 520 F.2d 1011 (7th Cir. 1975))); Arc Electrical Constr. Co., Inc., 7 BNA OSHC 1676 (No. 
26

77-0091, 1979) (holding instructions to “be careful” or to “take every necessary precaution” were 

inadequate and evidence a lack of an adequate safety program). Further, such a rule is particularly 

unhelpful when it comes to inexperienced employees, or those still in training, because it places 

the onus on the employee to account for what they know and do not know. See Otis Elevator v. 

Marshall, 581 F.2d 1056 (2d Cir. 1978) (“Leaving the decision to the discretion of the employee 

is not sufficient compliance with the regulation.”). At bottom, it is Respondent’s obligation to 

make a reasonable effort to anticipate the hazards to which its employees may be exposed, not the 

employee himself.

Ultimately, Respondent, through Brabec, applied a one-size-fits-all approach to a situation 

that required a greater appreciation for the possibility of [redacted]’s exposure to a substantial, and 

potentially fatal, hazard. Without consideration for the idiosyncrasies of the switch at issue, 

Respondent relied upon policy and practice to justify [redacted]’s determination that the switch 

was safe to work on, and that PPE deemed too cumbersome was allowed by the employer to be 

removed. While this policy and practice may have been “common” under certain circumstances, 

the Court finds their application to be inappropriate where, as here, the conditions of the disconnect 

switch warranted the use of additional safeguards or PPE. [redacted] was not exposed to a 

hazardous condition because he exceeded the scope of his duties; rather, it was Respondent’s 

policies for determining when a circuit was ESWC and allowing removal of PPE that placed 

[redacted] in the zone of danger. That [redacted] was injured while doing what he was told—

bonding the neutral to the ground bar—seems entirely foreseeable considering the general nature 

of the instructions provided by Brabec and memorialized in the JSA, neither of which referenced 

the uninsulated, copper ground wire running from line side to load side, adjacent to an unprotected, 
27

energized phase lug. As such, Respondent’s claim of unpreventable employee misconduct is 

rejected. 

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 possible 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).

According to Floyd, an arc flash is an uncontrolled electrical arc that can cause severe 

damage to equipment, cause fires, and cause severe injury and death due to thermal burns and blast 

pressure. (Tr. 284). The destructive nature and range of an arc flash involving 480 volts was 

illustrated by the post-accident condition of the disconnect box, as well as the PPE that [redacted]

had removed and was sitting on the ground at the time of the flash. (Exs. C-2 to C-9). [redacted]

suffered serious injuries as a result of his exposure to the arc flash, including burns to the hands 

and face. These injuries caused [redacted] to be hospitalized for weeks and miss work for a couple 

of months. The violation was serious. 

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 
28

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).

 Complainant proposed a penalty of $11,408 because it determined there was a high 

potential for serious injury or death. In calculating the proposed penalty, Complainant further 

factored Respondent’s status as a large, national employer; afforded no good faith reduction do to 

the occurrence of an accident; and afforded a ten percent penalty reduction based on Respondent’s 

lack of OSHA violation history in the last five years. (Tr. 239-241). The Court sees no reason to 

depart from Complainant’s penalty assessment. Respondent’s apprentice-level electrician was 

exposed to shock and arc flash hazards based on Respondent’s policy of allowing the removal of 

PPE even though there was still potential for contact with 480 volt energized wiring. Based on the 

totality of the circumstances discussed above, Complainant’s proposed penalty of $11,408 is 

appropriate and will be assessed.

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, and a penalty of $11,408 is

ASSESSED.
29

/s/ Brian A. Duncan

Date: December 11, 2018 Judge Brian A. Duncan

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