Some personal identifiers have been redacted for privacy purposes

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor 

Washington, DC 20036-3457

Appearances: 

Kate O’Scannlain, Solicitor of Labor 

Christine Eskilson, Acting Regional Solicitor

Paul Spanos, Senior Trial Attorney 

U.S. Department of Labor, Boston, Massachusetts 

For Complainant 

Dale Kerester, Esq.

Landay Leblang Stern, Boston, Massachusetts 

For Respondent 

Before: Administrative Law Judge Dennis L. Phillips 

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission 

(Commission) pursuant to sections 2-33 of the Occupational Safety and Health Act of 1970, 29 

U.S.C. §§ 651-678 (OSH Act). Respondent Infra-Red Building and Power Service Inc. (InfraRed) is an electrical contractor engaged in the business of “electrical testing and maintenance.” 

Infra-Red is located at 152 Centre Street, Holbrook, MA 02343. (Tr. 94, 205; Joint Exhibit (J. 

SECRETARY OF LABOR,

INFRA-RED BUILDING AND POWER 

SERVICE INC.,

Complainant,

Respondent.

v. OSHRC Docket No. 17-1511
2

Ex.) XIII, at 0222; Joint Pre-Hearing Statement (Jt. Pre-Hr’g St), at 13; Stipulation of Fact (SF) 

1). On Friday, April 7, 2017, an Infra-Red employee burned his hand while replacing the batteries 

in a police station’s uninterruptible power supply system (UPSS).

1

 (Tr. 232; Jt. Pre-Hr’g St; SF 

4-5; Resp’t Br., at 1; Sec’y Br., at 2; Ex. E). Following an inspection, the Occupational Safety and 

Health Administration (OSHA) issued a citation to Infra-Red alleging four serious violations of 

the Electrical standard, 29 C.F.R. § 1910 Subpart S, and proposing a total penalty of $35,492.2 

(Citation, at 6-10; SF 6). Infra-Red filed a timely notice of contest, bringing this matter before the 

Commission. (Jt. Pre-Hr’g St, at 13; SF 7). On October 16, 2017, the Secretary of Labor 

(Secretary) filed his complaint. (SF 8). On November 6, 2017, Infra-Red filed its Answer, 

Affirmative Defenses, Petition, and Request for Hearing. (SF 9). On July 31, 2018, the Court 

granted Complainant’s assented to Motion to Amend Complaint and Citation to replace “[o]n or 

about 5/3/2017” with “[o]n or about 4/7/2017” so as to identify April 7, 2017 (the date that InfraRed’s employees, [redacted] and Daniel Lueck, worked at the Nantucket police station) as the 

date of the alleged hazard rather than the previously stated date of May 3, 2017. 

A two-day hearing was held in Boston, Massachusetts on June 26 and 27, 2018. Seven 

witnesses testified. The Secretary called two witnesses, Daniel Lueck and Thomas Charles 

McDonald (Tom McDonald). Infra-Red called the remaining witnesses: Robert J. McDonald 

(Bob McDonald), Danielle Marie Rega, Andrew Gordon Francis, James John Amara, and Dean 

David Vanasse. Lueck is a journeyman electrician who was assigned to the Nantucket UPSS job. 

(Tr. 37, 269, 342-43). Tom McDonald is Infra-Red’s president and owner.3

 (Tr. 149-50). Bob 

1 The police station was located at 4 Fairgrounds Road, Nantucket, Massachusetts 02554 (job site). (Tr. 10; J. Ex. 

XIII). The UPSS “is designed to provide many years of reliable power supply and protection from power failure, 

brown-outs, line noise and voltage transients.” (Tr. 206-07; Ex. E, at 0011). 2 OSHA also issued Infra-Red a second citation alleging an other-than-serious violation; the Secretary withdrew this 

citation at the hearing. (Tr. 13; Jt. Pre-Hr’g St, at 13, 16). 

3 Tom McDonald founded Infra-Red in May 1990. He earned his journeyman electrician’s license in about 1998 and 

his master’s license in about 2000. (Tr. 203-04). 
3

McDonald is Infra-Red’s “Operations Manager,” and his responsibilities include managing 

operations and sales employees, vehicles, accounts, and payroll. Bob McDonald is Tom 

McDonald’s brother. (Tr. 150, 228-29, 334-36). Rega is the company’s head of scheduling and 

is responsible for scheduling work assignments.4 (Tr. 230, 426-28). Francis is an employee 

responsible for maintaining the company’s equipment and distributing personal protective 

equipment (PPE) to technicians. (Tr. 236-37, 357). Amara is an OSHA Compliance Officer (CO) 

who investigated the Nantucket incident.5 (Tr. 466-67). Finally, Dean David Vanasse is the owner 

and operator of Boston Safety Training, a company that, since about the Fall, 2012, provides 

training on all aspects of workplace safety.6

 (Tr. 520-21, 529). 

The Court found Vanasse qualified to testify as an expert on: 1) Arc flash and electrical 

safety (NFPA 70E and OSHA Subpart S sections 1910-331 through 335, 2) OSHA and NFPA 70E 

Workplace Safety, 3) Shock and Arc flash protection of PPE, 4) Compliance with the requirements 

of the standards associated with the citation, 5) Electrical safety related training, work policies and 

practices, and tools, 6) Electrical equipment maintenance, and 7) Hazard mitigation, and risk 

analysis.7 (Tr. 591-92; Jt. Pre-Hr’g St, at 10-11). Vanasse founded Boston Safety Training after 

working with and becoming knowledgeable of electrical hazards in various positions, including 

working for electrical equipment manufacturers, for a nuclear station, and being responsible for

4 Rega earned her college degree in philosophy in 2003. For nine years, she worked in the office of an environmental 

lab processing samples. Rega started working at Infra-Red in 2013 as an assistant to the head of scheduling. She 

became head of scheduling in late 2015. Rega is not an electrician and has never worked with batteries. She said she 

schedules 15 – 17 electricians each week. (Tr. 427-29, 447). She goes to Chip McDonald for advice if she has a 

scheduling question about whether an electrician can do a certain job or not. (Tr. 430). Chip McDonald is Tom 

McDonald’s son. Tom McDonald said Chip “has taken over being the general foreman” and is in charge of all of the 

field technicians and shop personnel. (Tr. 229, 404). 

5 Amara has served as an OSHA CO for about 3 years. (Tr. 467). He received his Bachelor’s degree in human 

resources and business in 2016. (Tr. 468). He is not an electrician.

6 Vanasse is not a licensed electrician, master electrician, journeyman electrician or apprentice electrician. (Tr. 609). 7 The Court did not find Vanasse qualified and competent to testify as an expert with regard to conclusions as to 

whether or not specific OSHA standards have been violated. (Tr. 591).
4

electrical support systems while working on a nuclear-powered submarine in the Navy. (Tr. 521-

29). He specializes in teaching electrical safety; other employees at his company provide training 

on other safety subjects. (Tr. 530). 

 The parties both filed post-hearing briefs; Infra-Red also filed a reply brief. In his PostHearing Brief, the Secretary proposed a higher total penalty amount than what was originally 

proposed in the Citation: $51,736. (Sec’y Br., at 23). For the reasons set forth below, the Court 

vacates citation Items 1 and 2, affirms citation Items 3 and 4, and assesses a total penalty of 

$15,873. 

JURISDICTION

Infra-Red admits that, as of the date of the alleged violations, it was an employer engaged 

in business affecting commerce within the meaning of section 3(5) of the OSH Act. (Answer at ¶ 

III). Based upon the record, the Court finds that at all relevant times Infra-Red was engaged in a 

business affecting commerce and was an employer within the meaning of sections 3(3) and 3(5) 

of the OSH Act. The Court concludes that the Commission has jurisdiction over the parties and 

subject matter in this case. (Answer at ¶ I, where Infra-Red admits jurisdiction; SF 3). 

CITED STANDARDS

The Secretary alleges that Infra-Red violated four provisions of the Electrical standard, 

Subpart S of 29 C.F.R. Part 1910. Specifically, the citation alleges:

Item 1, 29 C.F.R. § 1910.332(b)(1): 

Employees were not trained in and familiar with the safety-related work practices 

required by 1910.331 through 1910.335 that pertained to their respective job 

assignments [at] Location: 4 Fair Grounds Rd, Nantucket, MA – On or about 

4/7/2017 employees were exposed to electrical hazards, where employees were not 

trained in and familiar with the safety-related work practices required to safely 

complete the work. 

Item 2, 29 C.F.R. § 1910.333(a)(2): 
5

Where exposed live parts were not deenergized (i.e. for reasons of increased or 

additional hazards or infeasibility), other safety-related practices were not used to 

protect employees who could be exposed to the electrical hazards involved. 

Location: 4 Fair Grounds Rd. Nantucket, MA – On or about 4/7/2017 employees 

were exposed to electrical hazards, were [sic] employee [sic] were exposed to live 

parts, where other safety-related work practices were not used.

Item 3, 29 C.F.R. § 1910.335(a)(1)(i): 

Employees working in areas where there were potential electrical hazards were not

provided with electrical protective equipment that was appropriate for the specific 

parts of the body that needed to be protected and for the work being performed: (a) 

(LOCATION)(IDENTIFY SPECIFIC OPERATIONS AND/OR CONDITIONS)

[at] Location: 4 Fair Grounds Rd. Nantucket, MA - On or about 4/7/2017 

employees were exposed to electrical hazards, where proper personal protective 

equipment was not used. 

Item 4, 29 C.F.R. § 1910.335(a)(2)(i): 

When working near exposed energized conductors or circuit parts, each employee 

did not use insulated tools or handling equipment when the tools or handling 

equipment might have made contact with such conductors or parts [at] Location: 4 

Fair Grounds Rd. Nantucket, MA - On or about 4/7/2017 employees were exposed 

to electrical hazards, where the proper, insulated tools were not used. 

(Amended Citation; Tr. 10-12). 

BACKGROUND

On February 28, 2017, the Town of Nantucket, Massachusetts, hired Infra-Red to supply 

and install 60 EnerSys, Type 12HX540, VRLA replacement batteries in a UPSS located at its 

Nantucket police station for $21,940. (Tr. 48, 274-75; J. Ex. XIII, at 0223; Sec’y Br., at 2; Resp’t 

Br., at 1; Resp’t Reply, at 8). A UPSS provides continuous electricity to critical equipment in the 

event of a power outage. (Tr. 38; Sec’y Br., at 2). The Nantucket police station’s UPSS contained 

two sets of 30 batteries each in two UPS Module Cabinets (Cabinet(s)) connected in a series (60 

batteries in total). There were WARNING and DANGER stickers on the top tray holding batteries 
6

in the Cabinet.8 (Tr. 40, 48, 110-11, 124-28, 145, 272; Exs. E, at 0014, XVI, XVII, at 0240-41). 

Each battery carried approximately 12 volts of electricity, such that each series of 30 batteries

carried approximately 360 volts when all connected. (Resp’t Reply, at 8; Tr. 48-49, 220-21, 595). 

The UPSS was located in the basement of the police station directly below the lobby. (Tr. 38, 

131). 

Rega initially assigned a journeyman9 electrician, Lueck, about age 24 at the time, to 

replace the batteries.10 (Tr. 39, 140, 151, 269, 442, 445; Sec’y Br., at 2). After arriving at the 

police station around March 24, 2017, Lueck began by putting the system in “bypass”11 to divert 

the electricity feeding the batteries. (Sec’y Br., at 3; Tr. 40-41, 54). He then realized he could not 

complete the work by himself because each battery weighed 103 pounds and he needed someone 

to help lift them. (Resp’t Reply, at 7; Tr. 40).

On April 7, 2017, Lueck returned to the police station with [redacted], about age 23 at the 

time, an unlicensed apprentice electrician. At that time, [redacted] had worked at Infra-Red for 

about twenty-two months.12 (Tr. 44, 140, 151, 251-52, 340-41, 353; Sec’y Br., at 2; Resp’t Br., at

8 Lueck also referred to the two Cabinets as “racks.” “RISK OF ELECTRICAL SHOCK. DO NOT TOUCH 

UNINSULATED BATTERY TERMINALS” – appeared below the word “DANGER”, on a rack in front. (Tr. 127-

28; J. Ex. XVII, at 240-42). 

9 A “journeyman” is a licensed electrician, in contrast to an “apprentice,” who is an unlicensed electrician-in-training. 

(Tr. 44). Lueck was a journeyman electrician licensed by the Commonwealth of Massachusetts. (Tr. 39).

10 Infra-Red hired Lueck on a trial basis in January 2017 after Lueck’s father, who worked at Verizon, called Tom 

McDonald. Lueck did not know whether he was still in a 90-day introductory period status as of April 7, 2017. (Tr. 

141, 269, 422-23; Ex. 11, at 30). Bob McDonald stated Lueck was still in his 90-day introductory period as of April 

7, 2017. (Tr. 422-23). Lueck did not know whether the Nantucket police station job was his first Infra-Red job where 

he worked by himself on March 24, 2017. (Tr. 141-42). 11 Lueck described a “bypass” as “taking the UPSS out of the general loop, the direction of power,” such that the 

police station was left “just being on commercial power.” (Tr. 40-41). 

12 [redacted] received a diploma from South Shore Vocational Technical High School on June 7, 2013. (Tr. 344-48; 

Ex. A). New Infra-Red employees are given, and sign for, a copy of Infra-Red’s Policy Manual, Employee Handbook, 

entitled “Infra-Red Building and Power Services Employee Handbook” (Handbook I or Handbook II), when hired. 

[redacted] signed for his Handbook I, updated September 17, 2012, on June 1, 2015. (Tr. 251-52, 340-41, 421; J. Ex. 

I, at 0002; Ex. 11, at 2). Handbook I was later updated on August 27, 2015 (Handbook II). (Tr. 252, 342; J. Ex. II, at 

0028). Tom McDonald testified that he thought [redacted] would have started working with batteries soon after 

starting to work at Infra-Red. (Tr. 217-18; J. Ex. II). One Infra-Red record shows he began working on batteries no 
7

1; J. Ex. 1, at 0002). According to Infra-Red, Lueck and [redacted] decided that they would remove 

the batteries together due to their weight , and then [redacted] would reconnect the new batteries 

in the basement while Lueck would package the old batteries and load them onto a pallet upstairs. 

(Resp’t Reply, at 7; Tr. 45-46, 131). After [redacted] had connected about 20-24 of the new 

batteries, an “arc flash” occurred that burned [redacted]’s hand.13 (Tr. 25-26; Sec’y Br., at 6; 

Resp’t Br., at 18; Jt. Pre-Hr’g St, at 13; SF 5). Lueck was getting off an elevator in the basement 

when he heard a “pop” and first became aware of the accident. He heard [redacted] yelling in pain. 

[redacted] seemed to be in “shock.” Lueck brought [redacted] upstairs to run his hand under water. 

Lueck did not see the accident occur and cannot recall what if anything [redacted] said at the time 

about what he had done or had not done relative to the work. (Tr. 131-33). [redacted] was taken 

by ambulance to a hospital for treatment. (Tr. 53, 133; Sec’y Br., at 6). 

Vanasse testified that an “arc flash” is “the passage of current through the air.” He said 

that “[i]n establishing current flow through air, tremendous amounts of energy are released, 

equipment is destroyed, and a number of phenomenon occur.” (Tr. 555-58; J. Ex. X, at 0089, 

0103, 0154). He described an incident in which a worker was injured by an Arc flash, but was 

wearing PPE, consisting of a suit, helmet and gloves (shown in a photograph) that saved his life 

even though the PPE was significantly damaged. (Tr. 558; J. Ex. X, at 0155). 

In his expert report, Vanasse explained the nature of the April 7, 2017 incident as follows: 

The incident apparently occurred as a result of utilizing an insulated slipjoint pump 

plier which had exposed uninsulated parts of sufficient dimensions to either bridge 

the air gap or make contact of one energized cell terminal to another cell terminal 

of different potential causing a large amount of current to flow through the tool 

superheating the tool and causing the burn to the employee’s hand. 

later than January 4, 2016. (Ex. 8). Lueck did not know whether there were any limitations on Apprentice [redacted]’s 

ability to perform electrical work. (Tr. 44). 

13 Although Infra-Red agrees that what injured [redacted] was “believed to be an arc flash,” Infra-Red also maintains 

that “we don’t know [with certainty] what caused the accident . . . .” (Resp’t Br., at 18). 
8

(Tr. 571; J. Ex. XVIII, at 0253).14 

STIPULATED FACTS

The parties stipulated to the following facts in their Jt. Pre-Hr’g St: 

1. Respondent is engaged in the business of electrical testing and maintenance. 

2. Respondent is an employer engaged in a business affecting commerce within the 

meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 

§ 652(5). 

3. Section 10(c) of the Act, 29 U.S.C. § 659(c) confers the Occupational Safety and Health 

Review Commission with jurisdiction over this proceeding. 

4. Infra-Red entered into an agreement to perform certain work at the Nantucket Police 

Station. 

5. Infra-Red employee [redacted] performed certain work at the Nantucket Police 

Department on April 7, 2017 and received an injury to his hand while performing 

certain of such work. 

6. Complainant issued Serious Citation 1, Items 1 through 4, dated July 26, 2017 and 

issued Other-than-Serious Citation 2, dated August 28, 2017. 

7. Respondent timely filed its Notice of Contest. 

8. The Complaint was filed and served by letter dated October 16, 2017. 

9. The Answer, Affirmative Defenses, Petition, and Request for Hearing was filed and 

served by letter dated November 6, 2017. 

(Jt. Pre-Hr’g St, at 13). 

RELEVANT WITNESS TESTIMONY

The witnesses’ relevant testimony included the following: 

A. About Infra-Red

14 Vanasse’s Expert report in the record does not include any Attachments from Exhibit A through I. (J. Ex. XVIII, 

at 0254).
9

Tom McDonald testified that Infra-Red conducts “testing and maintenance of electrical 

systems,” including the maintenance and repair of an UPSS. (Tr. 205, 207). He said that the 

company has around 40 employees, including 10-12 union electricians.

15 (Tr. 207, 243, 526). 

B. The Nantucket UPSS Work and April 7, 2017 Incident

1. Lueck’s First Visit to the Job Site on about March 24, 2017 

Lueck testified that he was initially assigned to replace the Nantucket police station’s UPSS

batteries by himself, and he went to the site alone about two weeks prior to the incident to do so.16 

(Tr. 38-39). Tom McDonald testified that “all the work we do is dangerous work”, but “[c]hanging 

batteries [in a UPSS] is a very simple task.” He said that it is “a task to be taken seriously, but it’s 

not a complex task . . . .”17 (Tr. 271-73). Bob McDonald similarly testified that he was surprised 

the arc flash incident occurred because “the level of difficulty for the job wasn’t real high.”18 (Tr. 

402). Vanasse, on the other hand, testified that when replacing the batteries [redacted] was 

exposed to “a high level of danger”; including exposure to a potential shock and arc flash hazard 

that could result in death or serious bodily harm. (Tr. 626-28; J. Ex. XVIII, at 0246). Lueck was 

provided with an Owners/Technical Manual for the UPSS by email as a PDF document, and he 

reviewed it prior to going to the site.19 (Tr. 102, 444; Ex. E). He said that the UPSS Manual 

“essentially gives you a list of procedures to go through, how to operate it.” (Tr. 54). 

15 Bob McDonald testified that Infra-Red had no employee injuries from 2012 through April 6, 2017. (Tr. 363-64). 

16 Two weeks before Friday, April 7, 2017 is about Friday, March 24, 2017. 17 Tom McDonald was not at the job site on April 7, 2017. (Tr. 271).

18 Bob McDonald is not an electrician, licensed or otherwise, and has not worked as an electrician. He did not 

supervise Lueck or [redacted]. (Tr. 335-36, 361, 412). 

19 The manual is entitled “Mitsubishi Electric Automation, Inc. Uninterrupted Power Supply System, 2033C Series, 

Owners/Technical Manual.” (UPSS Manual) (Ex. E). The UPSS Manual states that it contains “important instructions 

for the 2033C Series Uninterruptible Power Supply Systems that should be adhered to during installation, operation 

and maintenance of the UPS and batteries.” The UPSS Manual also includes an Electrical Hazard “WARNING 1” 

that states “Lethal voltages exist within the equipment during operation. Observe all warning and cautions in this 

manual. Failure to comply may result in serious injury or death.” (Tr. 142-43; Ex. E, at 0011). Rega also sent a copy 

of the UPSS Manual by email to [redacted]. (Tr. 446).
10

Prior to starting any work on his first visit to the job site in late March 2017, Lueck testified 

that he did not fill out one of the company’s job hazard analysis (JHA) forms, which is a checklist

of potential workplace safety issues. (Tr. 43). Neither he nor [redacted] did a JHA before 

beginning work at the job site on April 7, 2017. (Tr. 42-43, 48; Ex. 5). Lueck said that he did not 

complete the JHA forms in late March 2017 or April 7, 2017 because “[i]t wasn’t necessarily 

required.” (Tr. 48). He testified that he had never turned in a JHA form to Infra-Red and had not 

been trained to complete one. (Tr. 56). Although he did not complete the form, he testified that 

he performed a JHA prior to starting work on both of his visits to the police station. (Tr. 89, 116-

17). From his initial analysis, he testified, “I could see that [the UPSS] was in use, and it was 

energized, and that I [therefore] suited up [with PPE] for the task of bypassing the UPS.”20 (Tr. 

105). 

Lueck’sfirst step in the battery replacement involved putting the system in “bypass,” which 

referred to “taking the UPS out of the general loop, the direction of power,” so that the police 

station would be left just on “commercial power.”21 (Tr. 40-41). Lueck testified that he brought 

his max “43 Cal suit” PPE22 with him to the job, which he described as a “very thick material 

that’s supposed to be fire resistant” that “covers your body from head to toe,” and includes a jacket, 

overalls/pants, a helmet, and rubber and leather gloves.23 (Tr. 41-42, 97, 116). Since the system 

20 During courtroom testimony, “UPS” and “UPSS” were used interchangeably unless otherwise identified. 21 Vanasse testified that “[b]attery systems are infeasible to deenergize, therefore you have to apply some controls. 

Controls in place would have included the insulated tools, barrier material, and the application of personal protective 

equipment.” (Tr. 566). 22 The 43 Cal suit was the maximum PPE suit carried by Infra-Red. (Tr. 116). 23 Infra-red provided Lueck with PPE the first day he started working there. (Tr. 97). Infra-Red’s safety program 

states: “PPE shall consist of at least a 40 Cal suit, 20 KV rubber gloves tested every six months, leather protector 

gloves, hard cap, face shield, safety glasses, and ear plugs.” This PPE is the minimum PPE Infra-Red employees 

“should have with them on a job, ....” (Tr. 179-81, 452; J. Ex. III, at 0056; Ex. 4, at 2). Lueck testified that he wore 

the 43 Cal PPE suit “because I was interacting with something that was live.” (Tr. 41, 116). Francis stated that each 

electrician receives two sets of rubber gloves, “a zero” rubber glove which is used up to a thousand volts and a “class 

2” rubber glove that is used up to 24,000 volts. Either the zero or class 2 rubber gloves go inside a leather glove. (Tr. 

452). 
11

was live, Lueck testified that he believes he put on all parts of his PPE suit, except the pants prior 

to performing the bypass. (Tr. 41-42). He said that since he was “kneeling on the floor in front of 

it [he] felt protected, but obviously that’s not the correct way to wear your PPE” because “you’re 

supposed to wear it all.” (Tr. 42). After performing the bypass, Lueck discovered that the batteries, 

at 103 pounds each, were “too heavy for one man to lift.”24 It was clear to Lueck that the job could 

not be done by one person. (Tr. 40, 106-08).

2. Lueck and [redacted]’s April 7, 2017 Visit to the Job Site 

Lueck returned to perform the job about two weeks later on April 7, 2017 with [redacted], 

an unlicensed apprentice electrician. (Tr. 44). While driving from the ferry terminal to the police 

station, which took 20 to 30 minutes, Lueck and [redacted] discussed the work to be performed 

and the risks involved. (Tr. 123-24). After arriving, Lueck testified that he bypassed the UPSS, 

and then they both “removed the batteries [together] because they were heavy, so it was a twoman job.” (Tr. 45). Removing the batteries required disconnecting small cables (“jumpers”) 

secured to posts on the batteries with bolts. (Tr. 45). Although his testimony is ambiguous, Lueck 

appeared to say that he disconnected the cables (possibly together with [redacted]). (Tr 45). When 

asked, “Were you wearing PPE at the time that you disconnected the batteries?” Lueck replied, “I 

was not.”25 (Tr. 45, 143-44). He acknowledged that there was a “DANGER” sticker on one of 

the UPSS battery trays in the Cabinet that warned of the hazard of “SULFURIC ACID” that could 

cause blindness or severe burns. (Tr. 144; J. Ex. XVII, at 241-42). Although he said, “I mean 

clearly there’s a hazard here,” he did not see himself at risk at that time. (Tr. 145). But seeing the 

24 Lueck believed that Infra-Red’s Sales Manager for the job, Mike Sumner, thought that each battery weighed only 

30 pounds, instead of the 103 pounds Lueck found them actually to be. (Tr. 105-07, 337-38; J. Ex. XIII, at 0220).

25 Lueck later testified that he was wearing all of his 43 Cal PPE suit, except his pants, when he transferred the UPSS 

on April 7, 2017 because “[i]t’s the most protective PPE that is available, as far as my knowledge.” Lueck testified 

that he should have worn the pants because there was an Infra-Red work rule to wear the suit all the time “when 

performing any type of work on a live source of power.” (Tr. 60-63). 
12

pictures of the warning labels at the hearing, he agreed he should have been wearing PPE when 

carrying the batteries. (Tr. 144-45). Lueck further testified, however, that he could not remember 

who disconnected the cables or whether they both did. (Tr. 129). According to Lueck, he and 

[redacted] discussed how they would divide up the remaining tasks “together as a team,” and 

decided that [redacted] would connect the new batteries because “he had been with the company 

longer and had been exposed to battery changes,” while Lueck would “be doing the physical labor 

of packaging and loading the old batteries onto a pallet in the lobby.” (Tr. 46). Lueck described 

the procedure for connecting the new batteries as being similar to changing a car battery: “so if 

you were to think of it as a car battery, you have two posts, two terminals on a car battery, and you 

land jumpers that feed the car . . . .” (Tr. 46). 

To secure the cables to the new battery posts, [redacted] used a slip joint pliers tool (Lueck 

referred to it as “channellocks”), which Lueck lent to him.26 (Tr. 49, 59). The slip joint pliers 

were just under ten inches in length and 2 and 1/8 inches in width. Each handle was one-half inch 

wide. (Tr. 138). Lueck testified that this tool had insulated handles that were rated to 1,000 volts, 

and “stops” to prevent one’s hand from sliding past the insulation. (Tr. 49, 58, 109-10). He said 

that he determined that it was an appropriate tool for the work from reviewing the UPSS Manual, 

which instructs technicians to “[u]se tools with insulated handles” when working on batteries. (Tr.

60, 109, 112; Ex. E, at 0035). Lueck, Tom McDonald, and Vanasse all testified that the tool’s 

voltage rating was significantly higher than the maximum potential voltage in the UPSS. (Tr. 111, 

292-93, 595). According to Vanasse, the “maximum voltage that [[redacted]] would have been 

26 The channellocks tool was Lueck’s personal tool that he had purchased through Amazon. (Tr. 59). Lueck testified 

that it was his understanding that “we provide our own personal tools.” (Tr. 83-84). However, he agreed Infra-Red’s 

Employee Handbook II stated that Infra-Red would provide any of the tools necessary for an employee to complete a 

job. He also agreed that Infra-Red maintained tools in its shop that Lueck could request. (Tr. 92-94; J. Ex. II, at 37). 

Tom McDonald testified that he understood that there was a union requirement for Infra-Red union electricians to 

supply “pliers” when they show up on a job. (Tr. 242). 
13

exposed to was 360 volts.” (Tr. 595). In his expert report, however, Vanasse said that [redacted]

“should have been aware that there was too much exposed metal on this tool,” and he should have 

instead used an “insulated socket.” (J. Ex. XVIII, at 4).

Lueck testified that [redacted] had connected around 20 to 24 batteries when Lueck heard 

a “pop” and [redacted] screaming. (Tr. 48, 50, 53). He said that [redacted]’s hand was “burned 

pretty badly,” and the batteries were “charred at top.” (Tr. 51). Lueck believed that [redacted]’s

injury resulted from a “fault cause by . . . crossing of posts – battery posts.” (Tr. 49-50). 

3. Infra-Red’s Electrical Safety Training Program 

Bob McDonald testified that Infra-Red requires “[e]very employee” to attend a day-long 

annual electrical safety training providing by Boston Safety Training. (Tr. 355, 360). Vanasse 

testified that his company first conducted this training for Infra-Red in 2013, and did so again in 

2014, 2016, and 2018. (Tr. 535, 540). He also provided training to a smaller than normal group 

of about six or seven Infra-Red employees in October 2017. He said that Infra-Red typically tries 

“to include all of their employees” in the training, including “office staff so they can understand a 

little more about” what the technicians do. (Tr. 536). According to Vanasse, most companies train 

their employees less frequently at every three years. (Tr. 535). Vanasse testified that he conducts 

the training using a Power Point presentation,27 as well as PPE, and “real-life examples.” (Tr. 

545-56). He said that the training covers how to work safely, PPE, lock-out/tag-out, the effects of 

electrical shock and arc flashes on the body, and first aid. (Tr. 553). [redacted] participated in this

training on March 21, 2016, along with 13 other people.

28 (Tr. 541-45; J. Ex. XI; Ex. C). Lueck 

did not take this training prior to the April 2017 incident. (Tr. 74). In October 2017, Lueck 

27 A copy of Vanasse’s Power Point presentation is at J. Ex. X. (Tr. 546-47; J. Ex. X).

28 Vanasse awarded [redacted] a “Certificate of Completion” for attending and demonstrating understanding of a 6-

hour Electrical Safety Course based on OSHA, 29 CFR 1910 Subpart S Regulations and NFPA 70E Standards, dated 

March 21, 2016. (Tr. 543; J. Ex. XII). 
14

completed the Boston Safety Training course, entitled “Training for INFRA-RED Building and 

Power Service”. (Tr. 54-55, 73-75; Ex. 9). 

Tom McDonald testified that Infra-Red also provides “extensive[]” on-the-job training to 

new employees that includes instruction on the company’s safety rules. (Tr. 246-47). He said that 

new employees are accompanied on jobs by “senior technicians” for “at least months” so “that 

they learn . . . the safety culture and work culture of the company.” (Tr. 247). Bob McDonald 

similarly testified: “We send them out with experienced technicians . . . that, you know, train 

them, and basically they observe them for the most part.” (Tr. 356). He agreed that this training 

included the selection and use of PPE, what tools to use, and safety rules. (Tr. 356-57). Lueck 

testified that he received this on-the-job training, stating that during his first few months he was 

accompanied on jobs by another employee who was “generally a senior tech in order to learn the 

ways in which they perform their work.” (Tr. 95). He said that the senior technician would “walk 

me through . . . what they were doing . . . what the logic is behind the theory, and you know, point 

out any hazard and what we were doing, you know, on the job.” (Tr. 95). He said he was instructed 

to use PPE whenever working with “anything that was potentially live,” and taught that “anytime 

you go out to perform work, you got to look at the job and try to make an analysis on what it is 

that you’re going to be doing . . . . and you know, accurately try to decipher what you should be 

doing when doing that work.” (Tr. 99). 

Tom McDonald testified that Infra-Red also “usually” has new employees take a 10-hour 

OSHA course covering general safety, as well as some electrical safety relating to electrical 

hazards. (Tr. 72-73, 245). Lueck testified that he took this training after starting at the company. 

(Tr. 71-72). Bob McDonald testified that when on-boarding new employees he also requires that 

they review and sign an employee handbook in his presence. He testified that he observed both 
15

[redacted] and Lueck reviewing employee handbooks. (Tr. 338-40; J. Ex. I, at 0002, J. Ex. II, at 

0028). Lueck confirmed that he reviewed the Employee Handbook II and had signed it to indicate 

he had done so in around January 2017.

29 (Tr. 87; J. Ex. II). Employee Handbook II instructs 

employees that they are “expected to use job risk/hazard analysis techniques to determine the 

correct PPE to meet OSHA and the NFPA standards.” (Tr. 88-89; J. Ex. II, at 34; Resp’t Br., at 

49, ¶ 247). 

DISCUSSION

Secretary’s Burden of Proof

To establish a violation of an OSHA standard, the Secretary must show by a preponderance 

of the evidence that: (1) the cited standard applies; (2) the terms of the standard were violated; (3) 

one or more employees had access to the cited condition; and (4) the employer knew, or with the 

exercise of reasonable diligence could have known, of the violative condition. Astra Pharm. 

Prods., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st 

Cir. 1982). 

I. Item 1 (training)

The Secretary alleges that Infra-Red violated 29 C.F.R. § 1910.332(b)(1), which requires 

employees who face a risk of electric shock that is not reduced to a safe level in a manner specified 

under the standard to “be trained in and familiar with the safety-related work practices required by 

1910.331 through 1910.335 that pertain to their respective job assignments.” More specifically, 

the Secretary alleges that Infra-Red violated this requirement by failing to train Lueck on the 

29 Bob McDonald testified that the version of the Employee Handbook that was in effect when Lueck was hired was 

Handbook II and appears at J. Ex. II. (Tr. 342-43).
16

safety-related work practices necessary to safely perform the battery replacement work at the 

Nantucket police station.30 (Sec’y Br., at 8).

A. Applicability

The “Scope” section of the training provision, 29 C.F.R. § 1910.332(a), states that the 

“training requirements contained in this section apply to employees who face a risk of electric 

shock that is not reduced to a safe level by the electrical installation requirements of §§1910.303 

through 1910.308,” and adds, “NOTE: Employees in occupations listed in Table S-4 face such a 

risk and are required to be trained.” Table S-4 includes “Electricians” in its list. Since Lueck was 

an electrician, the Secretary argues, the standard applies and required him to be trained on the 

safety-related work practices that pertained to the battery replacement work. (Sec’y Br., at 8). 

Infra-Red agrees that Lueck was working as an “electrician” and does not dispute that the 

standard applies. (Resp’t Br., at 29; 61-62). Although Infra-Red does contend that there was no 

legal requirement for the battery replacement work to be performed by a licensed electrician, it

does not dispute that the work required electrical expertise and that Lueck was exposed to a risk 

of electric shock during it. (Resp’t Br., at 44). Lueck acknowledged that there was such a risk at 

the hearing and stated that he wore PPE while putting the system in bypass, including a fireresistant jacket, gloves, and helmet, for that reason—because he was “interacting with something 

that was live.” (Tr. 41-42.) Since Lueck was an electrician, performing work in that capacity, and 

faced a risk of electric shock during the work, the Court finds that the training requirement 

30 The Secretary does not contend that Infra-Red failed to adequately train [redacted]. (Sec’y Br., at 11). See 

Intercontinental Terminals Co., No. 78-5523, 1980 WL 10125, at *13-14 (O.S.H.R.C.A.L.J., March 20, 1980) (The 

occurrence of an accident does not establish that an employee did not receive training.)
17

applies.31 See 29 C.F.R. § 1910.332(a) Note (expressly stating that “[e]mployees in occupations 

listed in Table S-4 . . . are required to be trained.”). 

B. Whether Terms of Standard Were Violated

The cited training requirement, section 1910.332(b)(1), is located within a division of 

Subpart S (the “Electrical” standard) that is titled “SAFETY-RELATED WORK PRACTICES,” 

and which consists of sections 1910.331 to 1910.335.32 Section 1910.332, titled “Training,” and 

subsection 1910.332(b), “Contents of training,” sets forth three categories of required training: (1) 

“Practices addressed in this standard” (1910.332(b)(1)); (2) “Additional requirements for 

unqualified persons” (1910.332(b)(2)); and (3) “Additional requirements for qualified persons” 

(1910.332(b)(3)). The Secretary alleges that Infra-Red violated the first provision, section 

1910.332(b)(1), which requires that employees “be trained in and familiar with the safety-related 

work practices required by §§1910.331 through 1910.335 that pertain to their respective job 

assignments.” These sections set forth numerous safety-related work practice requirements.

33 The 

31 In addition to the scope provision (section 1910.332(a)) that specifically applies to the training requirement, an 

anterior provision, section 1910.331, sets forth the “Scope” of the entire “SAFETY-RELATED WORK PRACTICES” 

division (sections 1910.331 to 1910.335). Although neither party addresses this anterior scope section, the Court finds 

that Lueck’s work was also covered by its applicability requirements. Section 1910.331(a) states, in part: 

The provisions of §§1910.331 through 1910.335 cover electrical safety-related work practices for 

both qualified persons . . . and unqualified persons . . . working on, near, or with the following 

installations: 

(1) Premises wiring . . . (2) Wiring for connections to supply. Installations of conductors that 

connect to the supply of electricity; (3) Other wiring . . . ; (4) Optical fiber cable . . . . 

The UPSS battery replacement work involved connecting conductors to a supply of electricity (the batteries), and thus 

constituted “Wiring for connections to supply.” (The standard does not define the terms “conductors” or “supply of 

electricity,” so their plain meaning applies). Since Lueck was working on or near this wiring, his work is covered by 

this scope provision. As noted above, Infra-Red does not dispute that the standard applies. 

32 This division also includes sections 1910.336 to 1910.360, but those sections are presently reserved and lack content. 

33 All four of the Secretary’s citation items allege violations of requirements falling within these sections.
18

Secretary does not allege that Infra-Red failed to provide the additional training required under 

sections 1910.332(b)(2), (b)(3). 

The Secretary alleges that Infra-Red violated section 1910.332(b)(1) by failing to provide 

“any training” to Lueck before he performed the battery replacement work, and in particular, by 

failing to train him on how “to work with batteries,”34 to “complete a job hazard analysis,” and on 

how to “perform the UPSS bypass.”35 (Sec’y Br., at 8-9). Infra-Red’s position is that it did not 

violate the training requirement because Lueck was “trained in and familiar with the safety-related 

work practices required to safely complete” the work that he performed on April 7, 2017. (Resp’t 

Br., at 62). 

Although the Secretary names three subjects that he contends Lueck needed training on—

how to “work with batteries,” to “complete a job hazard analysis,” and how to “perform the UPSS

bypass”—the Secretary does not explain why the cited provision would have required Infra-Red 

to train Lueck on these matters. Section 1910.332(b)(1) does not impose an open-ended obligation 

on employers to simply provide “training.” As quoted above, it requires that employees be trained 

on “the safety-related work practices required by 1910.331 through 1910.335 that pertain to their 

respective job assignments.” (Id.) (emphasis added). The Secretary does not say which of the 

many safety-related work practice requirements in sections 1910.331 through 1910.335 pertained 

to Lueck’s assignment and that Infra-Red failed to adequately train him on. The Secretary does 

not name a single section that he is relying on as the basis for the alleged training violation. None 

34 Respondent asserts that the Secretary “fails to identify any more particularized electrical safety related training that 

would apply to changing batteries as opposed to working with other sources of live energy.” (Resp’t Br., at 13).

35 Respondent asserts that “Complainant failed to identify what additional bypass procedures training should have 

been provided.” (Resp’t Br., at 14).
19

of these sections refer to “work[ing] with batteries,” to “job hazard analys[es],” to “perform[ing] 

a UPSS bypass,” or to similar topics.

36 

 It is the Secretary’s burden to prove that an employer violated the terms of a standard, and 

that burden includes pointing the Court to the specific requirements in a standard that the Secretary 

is alleging have been violated. The Secretary appears to be asking the Court to mine sections 

1910.331 through 1910.335 on his behalf to find some plausible underlying regulatory basis for 

the alleged training deficiencies. The Court finds that it would be improper to undertake this task. 

Since the Secretary has failed to explain which (if any) of the numerous safety-related work 

practice requirements in sections 1910.331 through 1910.335 that he is alleging pertained to 

Lueck’s work assignment and that Lueck was not trained on, the Secretary has failed to meet his 

burden to prove to the Court that Infra-Red violated the training provision.37 The Secretary’s

failure here is akin to accusing an employer of failing to comply with Subpart S—Electrical by 

failing to take some given action (e.g., to require employees to wear safety goggles), without ever

identifying the specific provision within Subpart S that would require that action.38 

36 Section 1910.333(a) imposes a general obligation to use “safety-related work practices” to “prevent electric shock 

or other injuries” when work is performed near equipment that may be energized, but the Secretary has not cited this 

open-ended duty as the basis for the alleged training violation or explained why it would require Infra-Red to train 

Lueck on the topics he names. 37 Vanasse testified that [redacted] was trained on the safety related work practices required by sections 1910-331 

through 1910-335. (Tr. 574; J. Ex. XVIII, at 0247-49). 

38 It is possible, though the Secretary does not assert this so this is mere speculation, that the Secretary is interpreting 

section 1910.332(b)(1) to mean that an employer is obligated not only to train employees on the safety-related work 

practices in sections 1910.331 to 1910.335 that pertain specifically to their work, but also to train them on any other 

pertinent safety-related work practices (even if not mentioned in those sections), such that the Secretary would not 

necessarily need to cite any of those sections to support his claim that section 1910.332(b)(1) required Infra-Red to 

train Lueck on how to work with batteries, perform the bypass, and to complete a JHA. Such an interpretation is 

contradicted by section 1910.332(b)(1)’s plain language. Section 1910.332(b)(1) states only that employees “shall be 

trained in the practices required by §§1910.331 through 1910.335 that pertain to their respective job assignments.” 

The next provision, section 1910.332(b)(2), states that employees “who are not qualified persons” (as defined under 

the standard) “shall also be trained in and familiar with any electrically related safety practices not specifically 

addressed by §§1910.331 through 1910.335 but which are necessary for their safety.” The Secretary has not alleged 

that Infra-Red violated this subsequent provision or claimed that Lueck was an unqualified person who would have 

been subject to its additional requirement that such persons be trained on “any electrically related safety practices” 

even those “not specifically addressed by §§1910.331 through 1910.335 . . . .” 
20

To the extent the Secretary’s position is that Infra-Red necessarily violated the provision 

by failing to provide any safety training to Lueck, this position is belied by the wording of the 

standard. The standard expressly states that an employer is only required to provide training on 

the safety-related work practices in sections 1910.331 to 1910.335 that pertain to the employee’s 

work assignment. It therefore follows that if none of the safety-related practices would pertain to 

a particular job assignment (such as, in this case, changing the batteries), the employer would be 

under no obligation to train the employee on those practices (at least prior to that specific work 

assignment).39 Again, it is the Secretary’s burden to inform the Court which specific sections of 

a standard he is relying on as the basis for an employer’s alleged violation. Failing to do so is by 

itself a failure of proof. 

The Secretary alleges Infra-Red violated the standard when it failed to train Lueck before 

he performed electrical work at the Nantucket police station. Lueck testified that Infra-Red had 

not trained him to work with batteries before he began the battery work on April 7, 2017. (Tr. 

53-54). Tom McDonald testified:

Q. Let’s talk about training. You know that Infra-Red did not train Mr. Lueck 

specifically on battery work before his work on the Nantucket Police Station, 

right? 

A. Yes, that’s correct.

(Tr. 169-70; Exs. 9-10). Lueck said he was not trained to complete JHA forms. (Tr. 56). He 

further testified that Infra-Red had not trained him to perform the UPSS bypass before he 

39 It is possible that the Secretary intended to accuse Infra-Red of failing to train Lueck on the safety-related work 

practice requirements it alleges the company violated in Items 2-4 (i.e., sections 1910.333(a)(2) (other safety-related 

work practices), 1910.335(a)(1)(i) (PPE), and 1910.335(a)(2)(i) (insulated tool)), but the Secretary did not allege that 

Infra-Red violated the training requirement by failing to train Lueck on the practices required by these sections, and 

the Court finds that it would be improper to presume the Secretary’s intent and fill in the missing allegations on his 

behalf.
21

performed the bypass at the job site.40 

But, the record does not support the Secretary’s claim that Infra-Red failed to provide any 

electrical safety training to Lueck.41 Section 1910.332(c) states that “[t]he training required by 

[the training provision] shall be of the classroom or on-the-job type,” and the “degree of training 

provided shall be determined by the risk to the employee.” Several witnesses testified that InfraRed has senior technicians train new employees on electrical safety (and other matters) on-the-job, 

and Lueck confirmed that he received this training during his first few months with the company. 

Tom McDonald, Infra-Red’s president, testified that this on-the-job training of new employees by 

senior technicians is “extensive[ ]” and covers the company’s safety rules. (Tr. 246-47). He said 

that new employees work with senior technicians for “at least months,” with the amount of time 

depending on when “the feedback” is that the employee is working safely. (Tr. 248). Bob 

McDonald testified that the on-the-job training covers Infra-Red’s safety policies and procedures, 

the performance of a job risk analysis, the selection and use of PPE, and what tools to use. (Tr. 

356-57). Rega referred to the senior technicians who go on jobs with new employees as “the 

trainer,” and when asked who she was referring to, explained: “The more senior technician . . . 

who is proficient themselves in the jobs we’re training them on so they would advise them on 

proper procedure, safety, and that kind of stuff.” (Tr. 429-31). She said that the newer technician 

will “go out with the trainer until the trainer tells me they’re good to go on their own,” and that the 

time period for this training varies because it “depends on the skill set they bring in,” as “[s]ome 

40 Lueck acknowledged that Infra-Red gave him the UPSS Manual that provided a list of procedures, operating 

instructions and a description of its functions. (Tr. 54). He also said that Infra-Red had provided him with “a general 

course in construction safety and health.” (Tr. 72). 41 Multiple witnesses testified that Infra-Red requires that all electrical technicians attend an annual training on 

electrical safety provided by third-party Boston Safety Training. (Tr. 73-75, 224, 355, 438, 531-32; J. Ex. X). Lueck 

had only been working at Infra-Red for a few months at the time of the Nantucket police station UPSS job and had 

not yet attended this training; he participated in it afterward. This course included training on how to assess when 

there is some sort of a risk of an arc flash. (Tr. 73-78; J Ex. X, at 84). 
22

of them have more experience than others.” (Tr. 429, 431). She agreed that the trainers would go 

over the company’s safety rules and policies during this on-the-job training. (Tr. 432). 

Lueck described receiving this on-the-job training. (Tr. 94-96). He testified that he was 

required to work with a “senior tech” during his first few months at Infra-Red so that he could be 

taught how to perform the work: “They would walk me through . . . exactly, you know, what they 

were doing . . . and you know, point out any hazard and what we were doing, you know, on the 

job.” (Tr. 95-96). He said that he was trained, for example, to use PPE whenever working with 

“anything that was potentially live”: “They would say, ‘Dan, put your suit on, get your suit on,’ 

you know.” (Tr. 96). He said he was also taught “that anytime you go out to perform work, you 

got to look at the job and try to make an analysis on what it is that you’re going to be doing . . . 

and you know, accurately try to decipher what you should be doing when doing that work,” such 

as what type of PPE should be worn. (Tr. 99). 

In addition to this on-the-job training, the record reflects that Infra-Red also provided some 

more formal and classroom type safety training to Lueck. Just after starting at Infra-Red, he was 

put through a 10-hour OSHA course covering general construction safety, including electrical 

hazards. (Tr. 71-72). Upon being hired, Lueck was given the Employee Handbook II and required 

to review it and sign it in Bob McDonald’s presence. (Tr. 87, 338-99; J. Ex. II). Lueck confirmed 

that he received and reviewed the Employee Handbook II and had signed it to indicate that he had 

done so.42 (Tr. 87; J. Ex. II). Although the Employee Handbook II primarily covers general 

employment matters and not safety, it instructs employees that they “are expected to use job 

risk/hazard analysis techniques to determine the correct PPE to meet OSHA and the NFPA 

42 Lueck’s signature does not appear at J. Ex. II.
23

standards.” (Tr. 89; J. Ex. II, at 34). Thus, the Secretary’s contention that Infra-Red violated the 

standard by failing to provide any safety training to Lueck is contradicted by the record. 

In addition, even if the training provision were construed to impose an open-ended 

obligation on employers to provide any and all electrical safety-related training applicable to the 

work being performed—in other words, if it were permissible for the Secretary to cite the training 

provision without naming the underlying sections within the Safety-Related Work Practices 

division underlying the alleged training deficiency—he still would not have established that 

Lueck’s training was deficient. “To establish noncompliance with a training standard,” the 

Commission has held, “the Secretary must show that the cited employer failed to provide the 

instructions that a reasonably prudent employer would have given in the same circumstances.” 

N&N Contractors, Inc., 18 BNA OSHC 2121, 2125 (No. 96-0606, 2000), aff’d, 255 F.3d 122 (4th

Cir. 2001); see also Compass Envtl., Inc., 23 BNA OSHC 1132, 1134 (No. 06-1036, 2010), aff’d, 

663 F.3d 1164, 1168 (10th Cir. 2011). As discussed above, the Secretary alleges that Infra-Red’s 

training was deficient in that Lueck was not trained on “how to work batteries,” to “perform a 

UPSS bypass,” and to “complete a job hazard analysis.” 

With respect to working with batteries and performing the UPSS bypass, the Secretary has 

not shown that a reasonably prudent employer would have felt the need to give Lueck specialized 

training on these matters. As Infra-Red argues, the Secretary has not identified any “particularized 

electrical safety related training that would apply to changing batteries as opposed to working with 

other sources of live energy.” (Resp’t Reply, at 13). According to Infra-Red, the UPSS battery 

work did not need to be performed by an electrician, and both Lueck and [redacted] were 

overqualified to do it. (Resp’t Reply, at 4). In addition to the on-the-job electrical safety training 

that Lueck received discussed above, the record reflects that Lueck, as a licensed journeyman 
24

electrician, had undergone extensive electrical safety training prior to joining Infra-Red in January 

2017. (Tr. 87). Lueck testified that he graduated from high school in 2011. From 2011 through 

2015, he performed general electrical work at two electrical companies, Donovan Electric and 

CPCO. Lueck became a licensed journeyman electrician in about March 2016. This required him 

to complete 600 hours of electrical education and 8,000 hours of work under a journeyman 

electrician.43 (Tr. 56, 65-71). Before being sent to the Nantucket UPSS job, Lueck was given the 

UPSS Manual, and he confirmed that he reviewed it prior to performing the work. (Tr. 102-04, 

442). 

Multiple witnesses described the task of disconnecting the old batteries and reconnecting 

the new ones as a straightforward process similar to changing a car battery. Lueck testified that 

disconnecting the batteries involved pulling off small cables (“jumpers”) secured to posts on the 

batteries with bolts, and that reconnecting the new ones involved the reverse procedure: “so if you 

were to think of it as a car battery, you have two posts, two terminals on a car battery, and you 

land jumpers that feed the car . . . .” (Tr. 45-46, 111). Tom McDonald testified that “[c]hanging 

batteries is a simple task,” explaining: “It’s not a mechanical task other than connections that 

you’re making. You’re swapping them out. They fit exactly with the same connectors that came 

out.” (Tr. 271). Bob McDonald testified that he was surprised when he found out [redacted] had 

been injured “because . . . the level of difficulty for the job wasn’t real high.” (Tr. 402). As for 

performing the UPSS bypass, Infra-Red notes that the procedure is set forth in the UPSS Manual 

that Lueck reviewed and consists of three simple steps: (1) pressing the “STOP” button; (2) 

43 Lueck obtained his 600 hours of electrical education, that included hand tool and general safety training, from a 

trade school, Gould Institute of Construction, based in Canton over a four-year period from 2011 through 2015. (Tr. 

66-68). He also took a three month, two nights a week, prep course at the Leo Martin School to prepare for his 

journeyman electrician’s examination. (Tr. 68). He received an Associate’s degree in Applied Science from the 

Wentworth Institute in 2017. (Tr. 68-69).
25

rotating the switch to “TRANSFER”; and (3) then rotating the switch to “BYPASS.” (Resp’t 

Reply, at 6; Ex. E., at 42). The Secretary has pointed to no evidence to rebut Infra-Red’s claim 

that the UPSS work was straightforward, and that Lueck was qualified to do it and did not need 

any additional specialized safety training to do it beyond what he underwent to become a licensed 

electrician and on-the-job during his first months at Infra-Red. 

With respect to training to “complete a job hazard analysis,” the Secretary has not proved 

that Lueck lacked such training.44 The Secretary contends that page 56 of the hearing transcript 

establishes that “Infra-Red did not train Lueck to complete a job hazard analysis.” (Sec’y Br., at

8). On that page, Lueck testified that he was not trained “on completing the job hazard analysis 

forms,”45 but he did not testify that he was not trained to perform a JHA.

46 (Tr. 56). Lueck 

subsequently testified that he was trained to perform a JHA before starting work to determine what 

PPE is necessary. (Tr. 95-99). Specifically, he said that he was taught “that anytime you go out 

to perform work, you got to look at the job and try to make an analysis on what it is that you’re 

going to be doing . . . and you know, accurately try to decipher what you should be doing when 

doing that work,” such as what type of PPE should be worn.47 (Tr. 99). This is consistent with 29 

C.F.R. § 1910.132(d)(1) Hazard assessment and equipment selection, which states, in part, that 

44 The Secretary does not define the term “job hazard analysis” or state that he is using the term in any specialized or 

technical sense. The Court therefore construes the Secretary’s use of the term literally, i.e., to broadly refer to 

conducting an analysis to determine the hazards associated with a given job. 

45 As discussed later, the Court finds Lueck neither completed a JHA form nor performed a JHA for the work done at 

the job site on April 7, 2017. (Tr. 173-79). However, an employee’s failure to comply with a safety rule does not, by 

itself, establish a failure to train. Dravo Eng’r and Constructors, 11 BNA OSHC 2010, 2011-12 (No. 81-748, 1984). 

46 J. Ex. V is a copy of the JHA form, which is titled “INFRA-RED BUILDING AND POWER SERVICE, INC. Job 

Hazard Analysis Form.” 

47 Lueck testified:

Q. And what, if any, type of on-the-job training did you receive from those more senior technicians regarding 

performing any kind of a job analysis on the jobs?

A. We have safety meetings before – preventive maintenance jobs. You know, anytime we go down to a shutdown 

– for instance – well, use Dave Major as a example; he’s one of the senior techs. We’ll get everybody together. 

They’ll designate certain tasks and verbally will make an analysis of the dangers involved.

(Tr. 95-96).
26

“[t]he employer shall assess the workplace to determine if hazards are present, or are likely to be 

present, which necessitate the use of” PPE. Bob McDonald agreed that employees are trained to 

perform a “job risk analysis” on-the-job. (Tr. 356). 

Vanasse testified that Infra-Red’s employees were “trained in safety related work practices 

relative to the hazards that they faced.” His expert report states, “[redacted] was trained in and 

familiar with the safety related work practices required by 1910.331-335 for the replacement of 

the battery system.” (Tr. 599; J. Ex. XVIII, at 0247-48). Vanasse testified that Infra-Red 

employees were familiar with the safety related work practices required by sections 1910-331 

through 1910-335 that pertained to their perspective job assignments. (Tr. 574-75). He also stated 

that “other safety related work practices” were utilized or available to protect employees who could 

be exposed to the electrical hazards involved.48 Vanasse testified that an Infra-Red employee’s 

failure to determine approach boundaries would be a failure to meet his safety-related work 

practice rule that he covers in the training he provides to Infra-Red employees.

49 (Tr. 574-75, 

629). His expert report states that “Infra-Red has an administrative control in place through the 

application of a Job Hazard Analysis (JHA)- Exhibit H [Job Hazard Analysis]”. He also said one 

of the important safety related work practices is doing a JHA. He agreed that Infra-Red required 

its employees to complete a written JHA before beginning work. (Tr. 630-34; J. Ex. XVIII, at 

0249). 

48 Vanasse’s Power Point training included “Objectives” relating to:

Safety related work practices

• Determine approach boundaries- Shock and Arc Flash

• Establishing an Electrically Safe Work Condition

• Energized Work Permit and use of special precautionary techniques and PPE. 

(Tr. 629; J. Ex. X, at 0084); (emphasis in original).

49 Vanasse said approach boundaries keep people at a distance to where they cannot get more than a second-degree 

burn. They exist for both arc flash and shock. It is also a trigger for workers to wear some arc-rated PPE. He said 

[redacted] should have been wearing at least “a 25-Cal system for arc flash protection.” (Tr. 651-55, 660). Vanasse 

said that [redacted] was trained on and understood limited “approach boundaries.” (Tr. 656-57; J. Ex. X, at 45-47). 
27

Consistent with this testimony, Infra-Red’s Employee Handbook II states that employees 

“are expected to use job risk/hazard analysis techniques to determine the correct PPE to meet 

OSHA and the NFPA standards.” (Tr. 87, 99, 356; J. Ex. II, at 34). Lueck testified that he had in 

fact performed a JHA prior to starting the Nantucket UPSS work. (Tr. 65). 

In summary, because (1) the Secretary failed to identify which of the safety-related 

practices in sections 1910.331 through 1910.335 pertained to the work and that Infra-Red failed to 

train Lueck on, or otherwise explain why the cited standard would require the company to train 

Lueck on the three subject matters the Secretary names; (2) the record contradicts the Secretary’s 

claim that the company provided no training to Lueck on electrical safety-related work practices; 

(3) the Secretary did not show that a reasonably prudent employer would have given Lueck

specialized training to perform the UPSS battery work or rebut Infra-Red’s contention that Lueck 

was qualified to do it; and (4) the Secretary did not prove that the company failed to train Lueck 

to complete a JHA, the Court finds that the Secretary has failed to meet his burden of proving that 

Infra-Red violated the terms of section 1910.332(b)(1). Since the Secretary has not shown that the 

company violated the terms of the standard, the employee access and knowledge elements of the 

Secretary’s prima facie case are moot. 

II. Item 2 (other safety-related work practices)

The Secretary alleges that Infra-Red violated 29 C.F.R. § 1910.333(a)(2), which requires 

employers to use “other safety-related work practices” to protect employees working on or near 

live parts that cannot be deenergized, by failing to use such work practices “to safely complete the 

electrical work at the Nantucket police station.” (Sec’y Br., at 11). More specifically, the 

Secretary alleges that Infra-Red’s employees “failed to perform a job hazard analysis to become 
28

familiar with the hazards associated with their work and the precautions to take to avoid harm.” 

(Id.) 

A. Applicability

The cited provision states that where “exposed live parts are not deenergized (i.e., for 

reasons of increased or additional hazards or infeasibility), other safety-related work practices shall 

be used to protect employees who may be exposed to the electrical hazards involved.” 29 C.F.R. 

§ 1910.333(a)(2). The Secretary contends that this requirement applies to the UPSS work because 

Lueck and [redacted] were working on energized equipment. (Sec’y Br., at 11). Infra-Red does 

not dispute that Lueck and [redacted] were exposed to live parts and that the standard applies. 

(Resp’t Br., at 62-63). The record confirms that both employees were working on and near live 

parts that could not be deenergized due to infeasibility. Lueck testified that he and [redacted] were 

“interacting with something that was live.” (Tr. 41-42.) Tom McDonald testified that batteries 

cannot be deenergized. (Tr. 248). Vanasse’s expert report also states: “As the energy of the 

battery system cannot be removed due to the nature of batteries, the deenergization is infeasible.” 

(J. Ex. XVIII, at 9). The Court finds that the standard applies. 

B. Whether Terms of Standard Were Violated

The cited provision, section 1910.333(a)(2), is given context by section 1910.333(a)(1), 

which statesin part: “Live parts to which an employee may be exposed shall be deenergized before 

the employee works on or near them, unless the employer can demonstrate that deenergizing 

introduces additional or increased hazards or is infeasible due to equipment design or operational 

limitations.” Section 1910.333(a)(2) then states that if live parts are not deenergized for such 

reasons, as was the case with the UPSS battery replacement work, “other safety-related work 
29

practices shall be used to protect employees who may be exposed to the electrical hazards 

involved,” and continues: 

Such work practices shall protect employees against contact with energized circuit 

parts directly with any part of their body or indirectly through some other 

conductive object. The work practices that are used shall be suitable for the 

conditions under which the work is to be performed and for the voltage level of the 

exposed electric conductors or circuit parts. Specific work practice requirements 

are detailed in paragraph (c) of this section.

(emphasis added). Although the last sentence of section 1910.333(a)(2) states that specific work 

practices requirements are detailed in paragraph (c), it is not clear whether this sentence means 

that all of the potential work practices that an employer is obligated to use pursuant to section 

1910.333(a)(2) (where suitable for the work conditions) are detailed in paragraph (c), or if it means 

that paragraph (c) details some (but not all) of such potential work practices. If the latter is the 

case, determining whether any given work practice would fall within section 1910.333(a)(2)’s 

broad, open-ended mandate would appear to require the adoption of some performance-based test, 

such as an examination of what a reasonable employer in the industry would have done under 

similar circumstances. Neither party addresses this issue nor cites to any Commission precedent 

applying the cited provision. 

The Court does not need to resolve this question, however, because the Secretary contends 

that section “1910.333(c) articulates the specific work practices required under the standard,” and 

then points to one of the practices enumerated in that section as the basis for the alleged violation.50 

50 Consistent with the Secretary’s contention that paragraph (c) “articulates the specific work practices required,” the 

preamble to the publication of the Safety-Related Work Practices division as a final rule states: 

The basic intent of § 1910.333 is to require employers to take one of three options to protect 

employees working on electric circuits and equipment: (1) Deenergize the equipment involved and 

lock out its disconnecting means (§ 1910.333(b)); or (2) deenergize the equipment and tag 

disconnecting means, if the employer can demonstrate that tagging is as safe as locking (§ 

1910.333(b)); or (3) work the equipment energized if the employer can demonstrate that it is not 

feasible to deenergize it (see discussion of § 1910.333(a) for permissible applications of this option 
30

(Sec’y Br., at 11). Although the citation only cites section 1910.333(a)(2) and does not mention

any of the specific work practice requirements detailed in paragraph (c), in his Post-Hearing Brief, 

the Secretary for the first time alleges that Infra-Red specifically failed to implement the work 

practice requirement detailed in section 1910.333(c)(2), which states: 

Only qualified persons may work on electric circuit parts or equipment that have 

not been deenergized under the procedures of paragraph (b) of this section. Such 

persons shall be capable of working safely on energized circuits and shall be 

familiar with the proper use of special precautionary techniques, personal 

protective equipment, insulating and shielding materials, and insulated tools. 

See (Sec’y Br., at 11 (citing section 1910.333(c)(2) as the basis for the alleged violation); Jt. PreHr’g St, at 13-14 (not including section 1910.333(c)(2) in the list of relevant regulatory sections)). 

According to the Secretary, Infra-Red did not implement this requirement because Lueck and 

[redacted] “failed to perform a job hazard analysis to become familiar with the hazards associated 

with their work and the precautions to take to avoid harm.” (Sec’y Br., at 11). 

In response, Infra-Red argues that it would be unfair to allow the Secretary to rely on this 

alleged basis for Item 2 because the Secretary failed to disclose it in discovery. (Resp’t Reply, at

1-2, n. 1). Infra-Red contends that it issued interrogatories to the Secretary “expressly requesting 

that Complainant state the basis for its contentions that Infra-Red had violated the OHSA [sic] 

regulations . . . including specifically identifying the acts or omission that it contended violated 

such regulations,” and the Secretary “repeatedly responded only as follows: ‘See the violation 

worksheets produced in the Secretary’s responses to Respondent’s document request.’” (Resp’t 

Reply, at 1-2, n. 1). According to Infra-Red, the violation worksheet for Item 2 states only that 

and § 1910.333(c) for precautions to be taken when work is performed on or near energized 

parts).

55 Fed. Reg. 31,984, 32,000 (Aug. 6, 1990) (to be codified at 29 C.F.R. Part 1910) (emphasis added). The preamble 

thus specifically instructs readers to examine paragraph (c) to determine what other safety-related work practices to 

use when working on energized parts. 
31

“other safety-related work practices were not used” and “[t]hese practices would include extensive 

PPE and insulated tools.” (Id., at 2 n. 1). Infra-Red also contends that it complied with the work 

practice requirement detailed in section 1910.333(c)(2) because both Lueck and [redacted] were 

qualified to perform the work and familiar with everything set forth in the newly cited provision. 

(Resp’t Br., at 63). In addition, it contends that Lueck and [redacted] both did perform a JHA prior 

to beginning any work. (Resp’t Reply, at 7). 

To determine whether the Secretary proved that the terms of the cited standard were 

violated, the Court will address the following issues in succession: (1) the threshold question of 

whether the Secretary can rely on section 1910.333(c)(2) and an alleged failure to perform a JHA

as the basis for Item 2 if that was not previously disclosed; (2) if so, whether a failure to perform 

a JHA would constitute a violation of the terms of section 1910.333(c)(2); and (3) if so, whether 

the Secretary established that Lueck and [redacted] in fact failed to perform a JHA. 

1. Whether the Secretary Can Rely on New Legal and Factual Allegations 

Not Previously Pled or Disclosed in Discovery 

The Court construes Infra-Red’s unfairness argument as a claim that it received insufficient 

notice of the nature of the alleged violation and its ability to defend itself was thereby prejudiced.

51 

Section 9(a) of the OSH Act, 29 U.S.C. § 659(a), requires that a citation “describe with 

particularity the nature of the violation, including reference to the provision of the Act, standard, 

rule, regulation, or order alleged to have been violated.” In addition, Commission Rule 34(a)(2) 

requires the Secretary’s complaint to “set forth all alleged violations” and to state “with 

particularity” the “circumstances of each such alleged violation.” 29 C.F.R. § 2200.34(a)(2). The 

particularity requirement in Section 9(a) of the Act does not require “minute detail,” but it requires 

51 Infra-Red does not cite any legal authority or legal principle to support its position that the Court should disallow 

that Secretary from relying on newly alleged facts and law. 
32

that the employer be given “fair notice of the nature of the alleged violation.” Meadows Indus., 

Inc., 7 BNA OSHC 1709, 1710-11 (No. 76-1463, 1979). To provide fair notice, the citation “must 

be drafted with sufficient particularity to inform the employer of what he did wrong, i.e., to apprise 

reasonably the employer of the issues in controversy.” Brock v. Dow Chem., 801 F.2d 926, 930 

(7th Cir. 1986). Since a “[l]ack of particularity in a citation may be cured at the hearing,” the 

Court must determine whether insufficient detail in the citation actually prejudiced the employer. 

Meadows, 7 BNA OSHC at 1710-11. 

The citation simply paraphrases section 1910.333(a)(2)’s broad requirement that “other

safety-related practices” be used, and does not name any specific safety-related practices that InfraRed failed to use or provide any other factual description of the circumstances of the alleged 

violation other than the location and date. It does not mention the specific work practice provision 

that the Secretary now asserts is the basis for the violation—section 1910.333(c)(2)—or allege that 

the company failed to perform a “job hazard analysis.” Nor did the Secretary provide such 

allegations in the Complaint, Joint Pre-Hearing Statement, or in any other filing prior to his PostHearing Brief. The Secretary also has not disputed Infra-Red’s claim that he failed to provide 

these allegations to the company in response to its interrogatories expressly requesting such

information. Commission Rule 55(b) states: “All answers [to interrogatories] shall be made in 

good faith and as completely as the answering party’s information will permit.” 29 C.F.R. § 

2200.55(b); see also Meadows, 7 BNA OSHC at 1710-11 (noting that “available discovery 

procedures enable a respondent to obtain sufficient additional information about the alleged 

violations to remedy any lack of particularity in the citation and complaint.”). 

Although the Secretary failed to provide Infra-Red with reasonable notice of the underlying 

factual and legal basis for Item 2, the Court finds that Infra-Red was not prejudiced by this failure 
33

because the parties actually litigated the factual question of whether a JHA was performed during 

the hearing, and Infra-Red had an opportunity to solicit testimony on this issue. After the 

Secretary’s counsel asked Lueck whether he or [redacted] had completed one of Infra-Red’s JHA

forms on direct examination, Infra-Red’s counsel asked Lueck multiple times on crossexamination whether he had completed a JHA. (Tr. 89, 105-06, 116-17, 124). He asked Lueck, 

for example, “Is it fair to say that even if you had not completed the [JHA] form, that you, in fact, 

had performed a risk assessment before doing any work in Nantucket both on the first and the 

second occasion?” (Tr. 116-17). Lueck replied, “Yes.” (Tr. 105, 116-17). Infra-Red was also 

allowed to file a reply brief, and thus was also given an opportunity to provide legal argument in 

opposition to the Secretary’s claim that a failure to perform a JHA constitutes a violation of the 

terms of the provision cited for the first time in the Secretary’s Post-Hearing Brief (section 

1910.333(c)(2)). 

2. Whether a Failure to Perform a Job Hazard Analysis Constitutes a 

Violation of the Terms of the Cited Standard 

The Secretary does not explain why section 1910.333(c)(2)’s requirement that employees 

be familiar with precautionary techniques, PPE, etc., would impose an obligation on employees to 

perform a “job hazard analysis.” As quoted above, the provision’s plain language states only that 

employees must be “capable” and “familiar” with certain safety measures such as PPE and 

insulated tools; it says nothing about employees needing to perform a “job hazard analysis” prior 

to beginning work. The Secretary asserts that Infra-Red’s safety manual requires each employee 

“to complete and document a job hazard analysis before beginning work.”52 (J. Ex. III, at 0055). 

52 Vanasse also testified that “[p]ror to doing work that would expose an individual to the risks of the electrical hazard, 

a risk assessment shall be performed which shall include what their exposure to arc flash levels would be and/or their 

shock hazard.” (Tr. 565; J. Ex. X, at 0170).
34

Infra-Red does not disagree. (Resp’t Br., at 35, ¶ 100d). Infra-Red’s Company Safety Program 

states: 

Job Hazard Analysis (emphasis in original)

Each employee is required to complete a Job Hazard Analysis before beginning work on

any job and turn this into the Infra-Red Building & Power Service office for filing in the 

job folder. The employee should perform a visual and physical inspection of the work area. 

This ensures each employee pays attention to the potential hazards they may face when 

performing the functions of their assigned work. 

(Tr. 630-35; J. Ex. III at 0055; Sec’y Br., at 11). Vanasse testified that there were no exceptions 

to the requirement that each employee complete a JHA in the Company’s Safety Program for any 

job. He never was provided with any JHA completed by either Lueck or [redacted]. He testified 

that by not doing so [redacted] and Lueck violated the Company’s Safety Program. (Tr. 635-36; 

J. Ex. III).

As Infra-Red points out, however, the Secretary is required to prove the company violated 

the terms of the cited standard, not that the company violated its own safety rules. What the 

company’s own rules happen to require is of unclear relevance.53 The Secretary also references

“NFPA 70E - Standard for Electrical Safety in the Workplace” (NFPA 70E) and quotes it as stating 

that “[a]ppropriate safety related work practices shall be determined before any person is exposed 

to the electrical hazards involved by using both shock risk assessment and arc flash risk 

assessment.” (Tr. 638-40; Ex. 17; Sec’y Br., at 12). NFPA 70E is an electrical safety consensus 

standard published by the National Fire Protection Association, a private industry group.54 (Tr. 

53 An employer of course may choose to adopt safety rules beyond the requirements of OSHA standards and should 

not be discouraged from doing so. Vanasse testified that Infra-Red’s policy requiring the completion of a written JHA 

is a “Best Practice” not required by OSHA standards. (Tr. 659).

54 “NFPA© codes, standards, recommended practices, and guides (NFPA Standards) ... are developed through a 

consensus standards development process approved by the American National Standards Institute.” (Ex. 17, at 2). 

NFPA 70E states: “Users of NFPA Standards should consult applicable federal, state, and local laws and regulations. 

NFPA does not, by the publication of its codes, standards, recommended practices, and guides, intend to urge action 

that is not in compliance with applicable laws, and these documents may not be construed as doing so.” (Ex. 17, at 

3).
35

614-15; Ex. 17). Vanasse testified that Infra-Red expected its employees to meet the standards of 

NFPA 70E. (Tr. 615). He agreed that NFPA 70E requires workers to do a JHA before beginning 

work. (Tr. 636; Ex. 17, at 28-30, 54). The Secretary also does not explain why the existence of 

this industry standard has any relevance to this case. The Secretary has the burden of proving that 

Infra-Red violated the cited OSHA standard, not this private industry standard. Finally, the 

Secretary cites Vanasse’s testimony agreeing that a failure to “determine an approach boundary” 

would be an “electrical safety work practice violation in [his] understanding of the term.” (Sec’y 

Br., at 13 (quoting Tr. 629)). Again, the Secretary does not explain the relevance of this evidence. 

Vanasse did not say what he meant when he agreed that this would be a “violation,” and it is not 

clear if he was referring to a violation of OSHA rules, a violation of NFPA rules, a violation of his 

own best practice recommendations as an electrical safety instructor, or something else. Even if 

he were referring to this as an OSHA violation, Vanasse was not qualified to testify as an expert 

on OSHA law and the Court sustained the Secretary’s own express objection to Vanasse being 

permitted to testify as to his opinions regarding whether Infra-Red violated the cited standards.55 

(Tr. 571-73, 589-92). 

The company’s own rules, the NFPA standards, and other evidence of common industry 

practice such as Vanasse’s opinions, could be relevant to determining what “special precautionary 

techniques” a reasonable employer in the industry would ensure its employees are familiar with 

and capable of performing in order to comply with the standard. But even if a “job hazard analysis” 

is one of these special precautionary techniques contemplated by the standard, the Secretary does 

not claim that Lueck and [redacted] were unfamiliar with that technique or uncapable of 

performing it; the Secretary instead alleges only that they did not in fact implement it. The 

55 As the Secretary correctly stated at the hearing, “Violation[s] of applicable standards are legal conclusions,” and 

Vanasse was not “qualified to analyze the regulations and reach conclusions on legal issues.” (Tr. 572).
36

Secretary does not explain why an alleged failure to use any given precautionary technique would 

violate a provision that by its terms merely requires employees to be familiar with such techniques. 

 

Although there appears to be no Commission precedent applying section 1910.333(c)(2), 

the Court finds that the Secretary’s claim that the provision requires employees to perform an 

undefined “job hazard analysis” is unsupported by the provision’s plain language. The first 

sentence in section 1910.333(c)(2) states: “Only qualified persons may work on electric circuit 

parts or equipment that have not been deenergized under the procedures of paragraph (b) of this 

section.” The standard defines a “qualified person” as “[o]ne who has received the training in and 

has demonstrated skills and knowledge in the construction and operation of electric equipment and 

installations and the hazards involved.” 29 C.F.R. § 1910.399. The first sentence thus prohibits 

untrained employees lacking adequate knowledge from working on energized equipment; it says 

nothing, however, about what particular techniques someone who is qualified must use when doing 

so (or whether a “job hazard analysis” is one of those techniques). 

The second sentence in section 1910.333(c)(2) states: “Such persons shall be capable of 

working safely on energized circuits and shall be familiar with the proper use of special 

precautionary techniques, personal protective equipment, insulating and shielding materials, and 

insulated tools.” This sentence reiterates that the employees must be “capable” and specifies 

certain matters that the employees must be “familiar with,” i.e., have knowledge of, prior to 

working on energized equipment. The Secretary asserts in a conclusory manner, without 

explanation, that this provision obligates employees to “familiarize themselves with the hazards at 

the worksite by completing and documenting a job hazard analysis.” (Sec’y Br., at 13). The 

Secretary appears to be inventing this requirement out of whole cloth, however, because it finds 
37

no support in the words of the provision itself.56 The provision’s plain language states only that 

employees must be familiar with special precautionary techniques, protective equipment, 

insulating materials, and insulating tools; it says nothing about whether and when an employee 

must actually put such techniques or equipment to use. As noted above, even if conducting a JHA

is one of the “special precautionary techniques” contemplated by the provision (which the 

Secretary has not claimed), the provision states only that employees are required to be familiar 

with such techniques and capable of implementing them, not that they must use them in every job 

no matter the circumstances. 

In conclusion, the Secretary has not alleged that Infra-Red violated the provision because 

Lueck and [redacted] were unfamiliar with JHA techniques and uncapable of implementing them, 

and has pointed to no evidence to support such a claim;

57 instead, the Secretary only attempts to 

point to evidence that they did not in fact perform a JHA prior to the Nantucket police work. The 

Secretary therefore has not established that Infra-Red violated the terms of section 1910.333(c)(2) 

or, in turn, section 1910.333(a)(2). 

 3. Whether Infra-Red’s Employees Performed a Job Hazard Analysis 

Although section 1910.333(c)(2) does not require employees to perform a JHA, and the 

Secretary therefore has not established a violation, the Court will still address the factual question 

of whether Lueck and [redacted] performed a JHA. In support of his claim that Lueck and 

[redacted] failed to perform a JHA, the Secretary cites the following passage of Lueck’s testimony:

Q. Okay. So before beginning work on April 7th, did you do a job hazard 

analysis?

56 See Stewart Elec. Co. 24 BNA OSHC 2098, 2101, 2104 (No. 13-0850, 2014) (ALJ) (finding that “[a]n arc flash 

hazard analysis is not required by OSHA” where “[t]he Secretary concedes that there is no requirement in the OSHA 

standards for an employer to perform an arc hazard analysis.”). (Resp’t Br., at 63-64, ¶ 25). 57 The Secretary alleges that Infra-Red violated the training provision (Item 1) by failing to train Lueck to perform a 

JHA but does not rely on that allegation as a basis for the alleged violation of sections 1910.333(c)(2) and 

1910.333(a)(2) (Item 2). See (Sec’y Br., at 11-15).
38

A. No.

Q. Do you know if Mr. [redacted] did – let me re-ask that question. Did Mr. 

[redacted] do a job hazard analysis on April 7th? 

A. No, not to my knowledge. 

(Sec’y Br., at 12 (quoting Tr. 48)). The Secretary also cites Lueck’s testimony that neither he nor 

[redacted] performed a “shock risk assessment,” an “arc flash risk assessment,” or a “battery risk 

assessment” before beginning work on April 7, or determined the voltage they would be exposed 

to, the “boundary requirements,” or the “arc flash boundary.” (Tr. 56-57, 639-43; Ex. 17, at 28-

30, 54; Sec’y Br., at 12-13). 

In response, Infra-Red argues that in the passage quoted by the Secretary above, Lueck was 

testifying only that he and [redacted] had not completed a JHA form, not that they had not in fact 

analyzed the hazards associated with the work. (Resp’t Reply, at 7). Infra-Red contends that 

Lueck “expressly testified that both he and [redacted] performed a JHA before beginning any 

work.” 58 (Tr. 89; Resp’t Reply, at 7).

Without question, neither Lueck nor [redacted] completed one of Infra-Red’s JHA forms

on April 7, 2017. (Tr. 89; Ex. 5). The Secretary’s counsel showed Lueck Exhibit 5; and asked 

him if he had seen it before and if he knew what it was. (Tr. 42-43; Ex. 5). Lueck replied that he 

had and said that it was a “[j]ob hazard analysis form.” (Tr. 42-43). Counsel then asked, “On your 

initial visit to the Nantucket police station . . . did you complete a job hazard analysis?” (Tr. 43). 

Lueck replied, “Nope.” (Tr. 43). On cross-examination, Lueck said that he only meant that he 

had not completed the form, not that he did not complete a JHA at all. When asked, “Is it fair to 

say that even if you had not completed the [JHA] form, that you, in fact, had performed a risk 

assessment before doing any work in Nantucket both on the first and the second occasion?” he 

58 Employee Handbook II states: “Employees are expected to use job risk/hazard analysis techniques to determine 

correct PPE to meet OSHA and the NFPA standards.” (J. Ex. II, at 0034). 
39

replied, “Yes.” (Tr. 89; 116-17). Lueck testified that he and [redacted] discussed the work they 

would be performing throughout their drive from the ferry station to the police station, which took 

20 to 30 minutes.59 (Tr. 105-06, 123). He said they performed an assessment and analysis of the 

risks involved in the work, and that he determined that he needed to wear his PPE suit.60 (Tr. 124). 

Tom McDonald testified that the purpose of performing a JHA was to identify the hazards 

and decide upon what PPE to wear. Lueck’s account of his 20 minute discussion with [redacted]

while driving to the job site did not disclose any specifics regarding the types of hazards they 

identified and precisely what PPE they needed to wear.61 The JHA Form called for Yes or No and 

other entries under “Electrical/Live Work” for: 1) Shock Hazard, 2) Arc (Sticker rating), 3) Arc 

Blast, 4) Potential of Energized Parts, and 5) Trouble shoot/Anticipate unexpected events. The 

JHA Form also called for Yes or No entries under “Environment” for: 1) Noise, 2) Extreme 

Temperature, 3) Falling Objects, and 4) Visibility. The JHA Form also called for entries for “PPE 

worn”, “Other preventative actions taken” and a “Fault Current Calculation”. The JHA Form also

called for the technician to sign the JHA Form. (Ex. 5). Lueck’s testimony reflects that these 

topics were not adequately discussed as part of a JHA by Lueck and [redacted] before they started 

working at the job site on April 7, 2017. Also, [redacted] failed to wear any PPE while working 

at the job site on April 7, 2017 despite the requirement to identify any required PPE as part of a 

JHA. [redacted]’s failure to wear any PPE suggests a JHA was not performed prior to work being 

59 Lueck testified that he understood that he had a responsibility to determine what the correct PPE would be to use 

based upon Infra-Red’s Employee Handbook II and on-the-job training he had received at Infra-Red prior to April 7, 

2017. (Tr. 89; J. Ex. II, at 34). 

60 Tom McDonald testified that Infra-Red trained its employees annually on the need to complete a JHA before 

beginning work. He said its employees needed to analyze any hazards they may be exposed to and select the proper 

PPE. He further testified that Infra-Red’s safety program stated: “Each employee is required to complete the job 

hazard analysis before beginning work on any job and turn this into the Infra-Red Building and Power Services office 

for filing in the job folder.” Tom McDonald stated that the JHA must be documented. He agreed that neither Lueck 

nor [redacted] completed a JHA form before beginning work on April 7, 2017. He said their failure to complete the 

form was a violation of Infra-Red’s safety program. (Tr. 173-79). 

61 [redacted] did not testify at the hearing. 
40

started. The Court finds Lueck’s testimony that both he and [redacted] had done a JHA before 

starting work on April 7, 2017 to not be persuasive. The Court find Lueck’s testimony in this 

respect to not be credible. Furthermore, when a document is required by day-to-day practice to 

show that an event has been done; the absence of any such document calls for a finding that the 

event was not done. The absence of a record of an event that would ordinarily be documented is 

probative of the fact that the event did not occur. U.S. ex rel. Compton v. Midwest Specialties, 

Inc., No. 96-4374, 1998 WL 30811, at *7, n. 6 (6th Cir. Jan. 22, 1998) (unpublished). There is no 

documentation in the record that shows either Lueck or [redacted] completed a JHA or JHA form. 

Accordingly, in view of the above, the Court finds that neither Lueck nor [redacted] performed an 

actual JHA prior to starting work on April 7, 2017 at the job site. 

In conclusion, although the Court finds that Infra-Red’s employees did not perform a JHA, 

because the Secretary’s contention that the provision he cites for the first time in his Post-Hearing 

Brief requires employees to perform a JHA before every job is inconsistent with the plain language 

of that provision; the Court finds that the Secretary has not proved that the company violated the 

terms of section 1910.333(c)(2) or, as a result, section 1910.333(a)(2). Since the Secretary has not 

shown that the company violated the terms of the standard, the knowledge and employee exposure 

elements of the Secretary’s prima facie case are moot. 

III. Item 3 (PPE)

The Secretary alleges that Infra-Red violated 29 C.F.R. § 1910.335(a)(1)(i), which requires 

employees working in areas with potential electrical hazards to use electrical PPE. According to 

the Secretary, Infra-Red violated this requirement because neither Lueck nor [redacted] wore any 

PPE while disconnecting the batteries, [redacted] wore no PPE when connecting the new 
41

batteries,

62 and Lueck did not wear arc-rated pants while bypassing the UPSS on both his initial 

visit and return April 7, 2017 visit. (Tr. 41-42, 61-62, 130; Sec’y Br., at 16). 

A. Applicability

The standard states that it applies to “[e]mployees working in areas where there are 

potential electrical hazards.” 29 C.F.R. § 1910.335(a)(1)(i). The Secretary states that the standard 

applies because both Lueck and [redacted] were working in areas where there were electrical 

hazards. Infra-Red does not dispute that both employees worked in areas with potential electrical 

hazards and that the standard applies. (Resp’t Br., at 63-64; Resp’t Reply, at 22-25). Lueck 

acknowledged that he was “interacting with something that was live” when performing the bypass 

work and he wore some PPE for that reason. (Tr. 41). The fact that [redacted] was injured by an 

arc flash when connecting the batteries also provides evidence that they were working in an area 

with potential electrical hazards. The Court finds that the standard therefore applies. 

B. Whether Terms of Standard Were Violated

The standard requires employees to be provided with, and use, electrical PPE 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). As stated above, the Secretary contends that Infra-Red violated this 

requirement because Lueck and [redacted] failed to wear any PPE when disconnecting the old 

batteries and reconnecting the new ones, and Lueck failed to wear arc-rated pants when performing 

the UPSS bypass on both visits. (Sec’y Br., at 16). Infra-Red agrees [redacted] did not wear any 

PPE while working at the job site on April 7, 2017. It also agrees [redacted] should have been 

62 Lueck testified that [redacted] had a PPE suit in the back of his truck on April 7, 2017 at the job site. He said 

[redacted] was not wearing a PPE suit when working at the job site on that date. He offered to allow [redacted] to 

wear his [Lueck’s] PPE suit because Lueck’s PPE suit was in the room where [redacted] was working. Lueck did not 

tell [redacted] that [redacted] needed to wear the PPE suit. Lueck stated that “I’m sure I should have told him 

[[redacted]] to put his PPE on.” (Tr. 62-63, 129-30). 
42

wearing PPE at that time, and that it was unsafe for him not to do so.63 (Tr. 198, 660; Resp’t Br., 

at 2, 18). Vanasse’s expert report concluded that [redacted] received an injury as “a direct result 

of his choice not to wear his PPE which he had brought with him.” (J. Ex. XVIII, at 0246). 

Vanasse’s Expert report states:

Summary Statement Item 2:

As the energy of the battery system cannot be removed due to the nature of batteries, the 

deenergization is infeasible and therefore the work had to be performed energized requiring 

the implementation of “other safety related work practices” as the referenced training 

outlined. These work practices should have included the use of insulated tools and personal 

protective equipment (PPE). Specifically, while the employee used an insulated tool, an 

insulated socket and driver assembly should have been used to disconnect / reconnect the 

battery system. Voltage rated gloves (class 0 rated to 1000V) with leather protectors should 

have been worn to protect the employee as the hazards of shock and thermal burn / arc 

flash could not be eliminated, nor the hazard engineered out, the worker substituted for. 

Additional PPE including safety glasses, hearing protection, class E or G hardhat, face 

shield and Arc rated system should also have been worn. Infra-Red provided all of the 

required material / tools / PPE to the employee. It is my opinion based on the task and 

equipment construction, the incident could have been prevented with the use of the 

appropriate insulated tool (insulated socket and insulated driver). Infra-Red provided the 

training in all the work methods required [sic] perform this task without incident, as well 

as Infra-Red supplying all the required PPE and tools to do so. 

(J. Ex. XVIII, at 0251). 

Vanasse also testified: “My conclusion was that if the personal protective equipment that 

was provided was utilized, it would have prevented his injury.” (Tr. 605). He further testified that 

“[t]he lack of any type of voltage-rated glove and/or leather protector caused the direct injury to 

his hand. Had he worn his voltage-rated glove and leather protector, he would not have sustained 

the injuries to his hand from the arcing event, regardless of the tool that was utilized at that time.” 

(Tr. 655-56). Infra-Red does not dispute that [redacted]’s failure to wear PPE during the 

disconnection and reconnection work violated the terms of the standard but argues that the 

63 Tom McDonald said that if he had been at the job site, he would have stopped [redacted] from working and probably 

completed the work himself if [redacted] had no PPE. (Tr. 198).
43

Secretary did not prove it had knowledge of this violative conduct or that Lueck participated in 

that work. Regarding Lueck’s failure to wear arc-rated pants when performing the UPSS bypasses, 

Infra-Red argues that the Secretary did not prove that the PPE Lueck wore was insufficient. 

To determine whether the Secretary established the terms of the standard were violated, 

the Court will address the following issues in succession: (1) whether [redacted]’s failure to wear 

PPE during the disconnection and reconnection work violated the standard; (2) whether Lueck 

participated in the disconnection work while not wearing PPE; and (3) whether Lueck’s failure to 

wear arc-rated pants during the UPSS bypasses violated the standard. The Court will then 

separately address the knowledge and employee access elements of the Secretary’s prima facie 

case. 

1. Whether [redacted]’s Failure to Wear PPE During the Disconnection 

and Reconnection Work Violated the Terms of the Standard

Infra-Red does not dispute that [redacted] wore no PPE during the battery disconnection 

and reconnection work. (Resp’t Reply, at 23-24). The record establishes that [redacted] was 

exposed to electrical hazards during this work, such as the risk of an arc flash, and that appropriate 

PPE would have helped protect him against such hazards. [redacted] burned his hand as a result 

of an arc flash. (Tr. 51-52; Ex. 12). Vanasse testified that disconnecting the batteries involved 

“working within the arc flash boundary,” and that [redacted] would not have injured his hand if he 

had been wearing his voltage-rated gloves and leather protector. Infra-Red does not dispute this. 

(Tr. 654-56; Resp’t Br., at 18). Since appropriate PPE thus could have protected [redacted] from 

the electrical hazard he was exposed to, the Court finds that that his failure to wear PPE violated 

the terms of the standard. 

2. Whether Lueck Participated in the Disconnection Work
44

 Although Infra-Red admits [redacted] performed the disconnection and reconnection work 

without PPE, it contends that the Secretary did not prove that Lueck performed this work. (Resp’t 

Reply, at 23). The Secretary alleges that Lueck assisted [redacted] with disconnecting the 

batteries. When Lueck was asked who disconnected the batteries, he replied, “I really can’t 

remember.”64 (Tr. 129). Earlier in his testimony, however, he appeared to testify differently. 

When asked to discuss his and [redacted]’s work assignments, Lueck stated: 

Well, I had been reading the manual on the UPSS. So I transferred the UPSS, and 

then we talked about the work that needed to be performed to remove the batteries. 

So together we removed the batteries because they were heavy, so it was a two-man 

job. 

(Tr. 44-45). He was then asked, “When you were removing batteries, were you disconnecting 

them?” and he replied, “Yes.” (Tr. 45). Infra-Red contends that Lueck was answering this 

question “collectively and not individually.” (Resp’t Reply, at 24, n. 8). Although this is plausible, 

Lueck was then asked, “Were you wearing PPE at the time that you disconnected the batteries?” 

and he replied, “I was not.” (Tr. 45). Since he referred specifically to himself in this answer (“I 

was not”), it appears he understood the “you” in this question as referring to himself rather than 

collectively to him and [redacted]. Later on during re-direct testimony, Lueck acknowledged that 

he was not wearing PPE when moving the batteries. He agreed that he should have been wearing 

PPE when carrying the batteries after they were disconnected. (Tr. 144-45). 

 The Court finds that Lueck helped [redacted] disconnect the batteries and did not wear PPE 

while doing so. As quoted above, Lueck was directly asked whether he was wearing PPE while 

disconnecting the batteries, and he replied simply, “I was not.” (Tr. 45). He did not respond by 

saying that he was not personally involved in disconnecting the batteries and therefore would not 

64 Regarding reconnecting the new batteries, Lueck recalled: “[[redacted]] was connecting the new batteries . . . I was 

not doing that work.” (Tr. 130).
45

have needed to wear PPE in the first place or provide any other clarification. It is true that when 

later pressed on cross-examination if he recalled “who actually performed that disconnecting, 

whether it was you, whether it was , or whether it was both,” he replied, “I really can’t remember.” 

(Tr. 129). The Court finds this response to be evasive and not credible. Lueck’s initial 

recollection, as reflected in his earlier response, was that he was involved in the disconnection 

work. His initial response is also consistent with his testimony that “we should have been wearing 

our [PPE] suits the entire time,” including while carrying the batteries. (Tr. 47, 144-45). The 

Court finds that Lueck’s initial, unqualified recollection that he performed the disconnection work 

indicates that it is more likely than not the case that he was involved in the work. 

3. Whether Lueck’s Failure to Wear Arc-Rated Pants During the 

Bypasses Violated the Terms of the Standard

Infra-Red acknowledges that Lueck did not wear his arc-rated pants when he performed 

the UPSS bypass on both visits. (Resp’t Reply, at 23). Lueck testified that he brought his “43 Cal 

suit” on both visits, which he described as “a very thick material that’s supposed to be fire resistant 

. . . and it covers your body from head to toe.” (Tr. 41). He said that the suit consists of a jacket, 

overalls, a helmet, and gloves. (Tr. 42). Although he testified that he wore his helmet, gloves, and 

jacket while performing the bypass during both visits, he admitted that he did not wear his arcrated pants on either occasion, stating: “I think because I was kneeling on the floor in front of it, 

I felt protected, but obviously that’s not the correct way to wear your PPE.” (Tr. 42, 60). 

Infra-Red argues that there is no evidence that it was necessary for Lueck to wear his PPE 

pants, pointing to Lueck’s testimony that he “felt protected” since he was kneeling during the 

work. (Resp’t Reply, at 23 (citing Tr. 42)). Although Lueck testified that he “was supposed to 

wear it all,” Infra-Red contends that he meant only that the company’s own work rules required 

him to do so or that it was his own opinion (citing his statement that, “we’re told from the day one 
46

we get the suit to wear the suit”). Lueck testified that during on-the-job training, he was always 

told to “suit up” when turning something on or off or working with anything live. (Tr. 62-63, 96-

98; Resp’t Reply, at 23 (citing Tr. 61, 129)). 

The standard requires PPE to be used that is “appropriate” for the parts of the body that 

need protection and for “the work to be performed.”65 29 C.F.R. § 335(a)(1)(i). The Secretary 

does not explain why arc-rated pants were “appropriate” for the UPSS bypass, or point to any 

evidence that such pants were necessary to protect Lueck, other than quoting Lueck’s statement 

that only wearing the other parts of his suit was not “the correct way” to wear it “[b]ecause you’re 

supposed to wear it all.” (Sec’y Br., at 16 (quoting Tr. 42)). Nevertheless, the Court finds that 

the record establishes that arc-rated pants were appropriate for the work and necessary to fully 

protect Lueck. Lueck testified that failing to wear the pants was “obviously” not the “correct way” 

to wear his PPE. (Tr. 42). Although he may, as Infra-Red argues, have meant that it was not 

correct under the company’s own rules, that would still provide evidence that it is appropriate and 

necessary to do so to be fully protected. In addition, Lueck later made clear in his testimony that 

he believed wearing the full PPE suit was something that he should have done to protect himself, 

not just to comply with Infra-Red’s rules. When asked why he said it was his duty to wear his 

PPE, he replied: “It’s clear that we’re dealing with some sort of live voltage, and it’s up to us to 

protect ourselves from the hazards that we face.”66 (Tr. 129). He said that this “duty” was to 

65 29 C.F.R. § 1910.335(a)(1)(i) also includes a NOTE that states: “Personal protective equipment requirements are 

contained in subpart I of this part.” Section 1910.132(a) of Subpart I states: 

(a) Application Protective equipment, including personal equipment for eyes, face, head, and 

extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be 

provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason 

of hazards of processes or environment, chemical hazards, radio-logical hazards, or mechanical irritants 

encountered in a manner capable of causing injury or impairment in the function of any part of the body 

through absorption, inhalation or physical contact. 

66 Lueck also admitted that the UPSS Manual instructs technicians to “[w]ear rubber gloves and boots” as PPE when 

working on batteries. (Tr. 109, 279; Ex. E, at 0035). 
47

“[o]ur persons,” “[o]urselves,” and that “even if it wasn’t [an Infra-Red rule], I would make it a 

rule for myself to put my suit on.”67 (Tr. 129). The Court therefore finds that Lueck violated the 

terms of the standard by failing to wear his arc-rated pants during the UPSS bypasses. The Court 

further finds that Lueck was exposed to electrical hazards that existed at the job site.

C. Knowledge 

 The Secretary must prove that the employer knew, or with the exercise of reasonable 

diligence could have known, of the violative condition. Astra Pharm. Prods., 9 BNA OSHC at 

2129. A supervisor’s knowledge of a violative condition is imputed to the employer. Dover 

Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). The Secretary contends that InfraRed had actual knowledge through its onsite supervisor, Lueck, or “in the alternative,” had 

constructive knowledge because it “failed to exercise reasonable diligence in allowing an 

unlicensed apprentice and an employee still in his introductory period to work without 

supervision.” (Sec’y Br., at 7; Ex. 11, at 30). Infra-Red disputes that Lueck was a supervisor and 

argues that it could not have known that Lueck or [redacted] would have failed to wear PPE 

because it had “extensively trained” them to do so. (Resp’t Reply, at 24-25). 

1. Whether Lueck Was [redacted]’s Supervisor on April 7, 2017 at the Job Site

An employee who “has been delegated authority over other employees, even if only 

temporarily, is considered to be a supervisor for the purposes of imputing knowledge to an 

employer. Tampa Shipyards, Inc. 15 BNA OSHC 1533, 1537 (No. 86-360, 1992) (consolidated). 

During the hearing, Tom McDonald was asked during direct examination: “Mr. Lueck supervised 

Mr. [redacted] on Infra-Red’s behalf on April 7, 2017; isn’t that right?” (Tr. 162). He replied: 

67 Although he responded “Yes” to a general question whether Infra-Red had a work rule that required he and 

[redacted] to wear PPE, he did not identify any Infra-Red work rule that governed work at the job site with specificity. 

He also did not say he had a “duty” to Infra-Red to wear PPE at the job site. (Tr. 129). 
48

“That’s your statement. I can’t say that I necessarily agree to that due to their differences in 

experience and different job tasks.”68 Later during cross-examination, he stated he did not have 

an understanding that one was the supervisor of the other. (Tr. 162-63, 232). He agreed, however, 

that both he and Bob McDonald stated differently in writing three days after [redacted]’s injury. 

(Tr. 163; Ex. 14). Bob McDonald drafted and signed a letter, dated Monday, April 10, 2017, to 

the IBEW Local Union 223’s training director describing [redacted]’s hand injury. (Tr. 165, 232, 

409-10; Ex. 14). In the letter, Bob McDonald wrote: “Why [[redacted]] didn’t have his PPE on 

would be a question for him and the supervising electrician.” (Tr. 167; Ex. 14 (emphasis added)). 

The “supervising electrician” Bob McDonald was referring to was Lueck, the only employee with 

[redacted] on the job. (Tr. 151, 167-68, 416-17; Ex. 14). Tom McDonald testified that he reviewed 

the letter before it was mailed, and added the second sentence, which expressly states that Lueck 

was [redacted]’s supervisor: “[[redacted]] was working under the supervision of a local 223 

licensed electrician replacing the batteries in the two units.”69 (Tr. 164-67; Ex. 14 (emphasis 

added)). Thus, three days after the incident both Infra-Red’s president and Operations Manager 

stated in writing that Lueck was supervising [redacted] during the UPSS work. Tom McDonald 

also agreed at the hearing that Apprentice [redacted] could only work under the supervision of a 

licensed electrician when performing electrical work as defined by Massachusetts. (Tr. 153, 168; 

68 Tom McDonald testified that Infra-Red generally does not assign an employee to be in charge for one or two- day 

jobs involving one or two employees because they should be working as a team. (Tr. 231).

69 Tom McDonald testified: 

Q. So you said that Mr. [redacted] was supervised on April 7th by a licensed electrician, right?

A. That’s what I said in that line, yep.

Q. And you were referring to Mr. Lueck, right?

A. I was referring to Mr. Lueck.

(Tr. 167). 
49

Ex. 6). He also agreed that Infra-Red’s safety program required the presence of a foreman on job 

sites.70 (Tr. 168). 

Despite strong contemporaneous written evidence to the contrary, Infra-Red nevertheless 

contends that Lueck was not in fact [redacted]’s supervisor.71 (Resp’t Reply, at 19; Ex. 14). The 

company’s position, apparently, is that its two officials both either misrepresented the facts in their 

April 10, 2017 letter to the union or were somehow misinformed about the matter at that time. 

Infra-Red cites Lueck’s testimony that he and [redacted] were working “together as a team,” and 

that he was not [redacted]’s supervisor, and no one had told him he was [redacted]’s supervisor. 

(Tr. 121). Infra-Red also cites Tom McDonald’s testimony, when asked if he had an 

“understanding” as to whether Lueck or [redacted] was supervising one or the other, that he “did 

not have an understanding that one was the supervisor of the other.” (Tr. 160, 232). Tom 

McDonald stated that his contrary assertion in the union letter was “probably not an accurate 

statement,” though when asked if he “assumed it to have been true at the time,” confusingly 

replied, “Yeah – well, you know, [Lueck] was a licensed electrician, and was an apprentice.” (Tr. 

233; Ex. 14). Bob McDonald also agreed that he did not know whether the letter’s assertion that 

Lueck was supervising [redacted] was true. (Tr. 410-11; Ex. 14). 

The Court finds that Tom and Bob McDonald’s testimony regarding Lueck’s supervisory 

status lacks credibility. Their testimony, at times, was ambiguously worded, and they failed to 

persuasively explain why, if Lueck was not a supervisor or they had no knowledge about that issue, 

they purposefully inserted a sentence into their union letter expressly stating that Lueck was

70 Infra-Red’s safety program states that: “the foreman will monitor all safety activities on the site.” (Tr. 168-69).

71 Vanasse’s report referred to [redacted] as the “Employee in Charge.” (Tr. 608, 662; J. Ex. XVIII, at 0246). The 

Court finds Vanasse’s description of [redacted] as the Employee in Charge to be without adequate support; and beyond 

his areas of expertise. [redacted], about age 23, was an unlicensed apprentice electrician at the time. There is no 

evidence that Vanasse ever spoke to [redacted] about who was in charge at the job site. Lueck was a licensed 

journeyman electrician. His electrician credentials far outweigh those of [redacted]. See fn 43, herein.
50

supervising [redacted]. They were apparently either readily willing to misrepresent matters in 

writing to the union or were misrepresenting matters (or feigning to lack knowledge) during the 

hearing. Lueck also had the authority to require the use of PPE while he and [redacted] worked at 

the job site. Lueck testified:

Q. And from your understanding of the work assignments on April 7, 2017, was there 

anybody on-site who had the role such that could require the use of PPE?

 A. I – I guess. 

(Tr. 47).

Based on the above, the Court finds that Lueck was acting as [redacted]’s supervisor while 

the work was being performed at the Nantucket Police Station on April 7, 2017. Accordingly, the 

Court finds that the Secretary has established actual knowledge through the imputation of Lueck’s 

knowledge. See Tampa Shipyards, 15 BNA OSHC at 1537. 

2. Whether Infra-Red Could Have Learned of the Violative Conditions 

with the Exercise of Reasonable Diligence 

 Whether an employer could have learned of a violative condition with reasonable diligence 

is determined “based on several factors, including an employer’s obligation to inspect the work 

area, anticipate hazards, take measures to prevent violations from occurring, adequately supervise 

employees, and implement adequate work rules and training programs.” Jacobs Field Serv. N. 

Am., 25 BNA OSHC 1216, 1218 (No. 10-2659, 2015). The Secretary argues that if Lueck was not 

supervising [redacted], as Infra-Red maintains, then the company failed to exercise reasonable 

diligence because it allowed an unlicensed apprentice electrician to work on live equipment 

without supervision “in violation of Massachusetts law.” (Sec’y Br., at 15, 17). The Secretary 

also argues that Infra-Red did not have a clear work rule regarding when PPE was required, and 

that this also reflects a lack of reasonable diligence. (Sec’y Br., at 17). 
51

The evidence supports the Secretary’s claim that it would have been unreasonable for InfraRed to allow an unlicensed electrician to perform the work without any supervision. As discussed 

above, the company’s president, Tom McDonald, admitted that he took care to deliberately insert 

the following sentence in a letter to a union representative regarding [redacted]’s injury: 

“[[redacted]] was working under the supervision of a Local 223 licensed electrician . . . .” (Tr. 

165; Ex. 14). Although McDonald claimed that this was “probably not an accurate statement,” the 

fact that he felt the need to revise the letter to include this specific sentence despite its purported 

inaccuracy provides strong evidence that it would have been improper to allow an unlicensed 

electrician to perform the hazardous work unsupervised. (Tr. 233). The company’s Operations 

Manager, Bob McDonald, similarly referred to Lueck as a supervisor in the letter, writing that 

“[w]hy he didn’t have his PPE on would be a question for . . . the supervising electrician.” He 

wrote this despite claiming at the hearing that he did not “have personal knowledge whether it was 

true” that Lueck was supervising [redacted], which further reinforces the natural inference that 

both he and Tom McDonald believed a failure to supervise [redacted] would have reflected poorly 

on it (or perhaps would have violated union rules). Tom McDonald initially testified that he 

believed that because [redacted] was an unlicensed apprentice electrician, under Massachusetts 

law he “could only work under the direct supervision of licensed electrician.”72 (Tr. 158-60; Exs. 

6, 14). He later contradicted himself during cross-examination by saying that there was no 

requirement for [redacted] to be working under a journeyman electrician at the job site because the 

work did not involve installing electrical wiring, conduits, and appliances, or making such repairs 

72 Massachusetts law states that an “apprentice shall mean a person who, not having been licensed under the provisions 

of M.G.L. [Massachusetts General Law] c. [Chapter] 141, is learning to properly perform electrical and systems work 

under the direct supervision of an appropriately licensed person.” (Tr. 157-58). The Massachusetts General Law 

further states: “Direct supervision means direct personal on-site supervision.” (Tr. 298-99). 
52

as may be required only on the premises and property of persons, firms, or corporation.73 The 

Court rejects this “after-the-fact” explanation and finds that the work performed by [redacted]

needed to be performed under the supervision of a journeyman electrician. Infra-Red dispatched 

a journeyman electrician to the job site to accompany [redacted]. Infra-Red’s April 10, 2017 letter 

to IBEW Local Union 223 asserted that [redacted] “was working under the supervision of a Local 

223 licensed electrician replacing the batteries in two UPS units.” It did not raise any argument 

that the work allowed [redacted] to not work under the supervision of a licensed journeyman 

electrician. (Tr. 212-14; Ex. 14). Additionally, if the Court were to accept Infra-Red’s argument 

that Lueck was not [redacted]’s supervisor on April 7, 2017, and it does not, all of the above

evidence indicates an Infra-Red decision to allow an unlicensed electrician to work on hazardous 

equipment with no supervision would show a lack of reasonable diligence. In that event, InfraRed would have had no supervisor on site to observe or correct [redacted]’s failure to wear PPE, 

and he would have been injured as a result. 

The evidence also supports the Secretary’s claim that the company lacked a clear work rule 

regarding PPE use, which further exhibits a lack of reasonable diligence. Infra-Red contends that 

[redacted]’s failure to wear PPE violated its “well-established and extensive . . . work rules.” 

(Resp’t Br., at 22, 25). But the company never clearly states what those relevant PPE work rules 

were that it had in place to prevent the violation. See (Resp’t Br., at 21-23, 66-67 (sections of 

principal brief presenting UEM defense); Resp’t Reply, at 30-34 (section of reply brief discussing 

the UEM defense)). Infra-Red first states that its Employee Handbook mandates that field workers

wear cotton clothing and work boots, and “perform a job risk analysis to determine what PPE 

should be worn.” (Tr. 88; Resp’t Br., at 11 (citing J. Ex. II, at 34)). The Employee Handbook 

73 Tom McDonald said: “[I]t’s not something I would normally classify as that, no.” (Tr. 214).
53

further states that employees “are expected to use job risk/hazard analysis techniques to determine 

to [sic] correct PPE to meet OSHA and the NFPA standards.”74 (J. Ex. II, at 34). Infra-Red later 

describes its PPE rule differently, however, stating: “Infra-Red trained its employees to always

wear their PPE whenever working with a potentially live energy source. Stated otherwise, InfraRed employees were required to always wear their PPE in such situations, regardless of what an 

arc flash calculation might reflect.” (Resp’t Br., at 17-18). Lueck testified that it “was expected 

of us that we always wear our suit when performing any type of task related to energized equipment 

or checking to see if that equipment was energized or not.” (Tr. 99). Tom McDonald testified 

that he “coaches” all employees to wear “more than the minimum PPE”. (Tr. 283). Francis 

testified that the amount of PPE employees were required to wear “depends on what job you are 

doing”.75 Vanasse testified that [redacted] was required to wear PPE regardless of what the 

calculation of the arc flash boundary was. (Tr. 657). Given these varying, conflicting and 

confusing company rules on PPE, Lueck understandably prevaricated when asked to identify a 

specific Infra-Red safety rule that articulated minimum PPE requirements for all jobs. He said he 

had not read any Infra-Red rule that said he should have told [redacted] to put PPE on for the job. 

He also did not recall Infra-Red having any rule that required him to call Infra-Red to report he 

saw another employee working without PPE. (Tr. 61-63). This evidence reflects that Infra-Red 

did not have a clear work rule regarding whether and what amount of PPE was required for the job 

at the police station. 

74 This is consistent with the Company Safety Program, which states: “The appropriately rated arc flash protection 

equipment, as determined by the job hazard analysis shall be worn.” (Tr. 354; J Ex. III, at 0056) 75 Francis has worked at Infra-Red since about 2008 and is not an electrician. (Tr. 450). He isthe employee responsible 

for maintaining equipment and distributing PPE suits to electricians. When working on batteries, Francis stated, at a 

minimum, employees were supposed to be wearing a “12-cal flash suit”, along with rubber gloves inserted into a 

leather glove. (Tr. 450-53, 460; Ex. 4, at 1). No one testified that [redacted] wore a 12-Cal or 40-Cal suit when he 

worked on batteries in Infra-Red’s shop. On the contrary, Bob McDonald said he saw [redacted] working in the shop 

wearing only gloves, and not a suit. (Tr. 363). Nothing in the record indicates [redacted] was disciplined for not 

using proper PPE when working on batteries at the Holbrook shop.
54

In conclusion, the Court alternatively finds, assuming Lueck was not [redacted]’s on-site 

supervisor, that the Secretary has established Infra-Red’s constructive knowledge of Lueck and 

[redacted]’s failure to wear adequate PPE due to Infra-Red’s failure to exercise reasonable 

diligence by dispatching an unlicensed apprentice electrician to perform the UPSS work without 

any on-site supervision and the lack of a clear work rule regarding the use of PPE at the job site. 

D. Access to the Cited Condition 

The Secretary must prove that one or more employees had access to the cited 

condition. Astra Pharm. Prods., 9 BNA OSHC at 2129. As is evident from the discussion above, 

the Secretary established that Lueck and [redacted] had access to the violative condition; they were 

exposed to an electrical hazard due to their failure to wear PPE while performing the UPSS battery 

work. The Court therefore finds that the Secretary established all of the prima facie elements of a 

section 1910.335(a)(1)(i) violation. 

E. Unpreventable Employee Misconduct Defense

Infra-Red argues that the violation resulted from unpreventable employee misconduct

(UEM) (Resp’t Br., at 21-23, 66-67; Resp’t Reply Br., at 30-34). UEM is an affirmative defense 

to a violation. Manganas Painting Co., 21 BNA OSHC 1964, 1997 (No. 94-0588, 2007). To 

establish the UEM defense, an employer must prove that it: “(1) established work rules designed 

to prevent the violative conditions from occurring; 76 (2) adequately communicated those rules to 

76 Lueck initially testified that he did not recall Infra-Red having a safety rule that required him to inform Infra-Red 

that he saw another employee working without PPE. (Tr. 63). During cross-examination, he agreed that Infra-Red’s 

Employee Handbook II states that employees have a responsibility to report any unsafe working condition. (Tr. 90-

91; J. Ex. II, at 44). Specifically, the Employee Handbook II states:

As an employee, you have a duty to comply with the safety rules of Infra-Red Building and Power Services, 

to assist in maintaining a hazard-free environment, to report any accidents or injuries, and to report any unsafe 

equipment, working condition, process, or procedure immediately to a supervisor. 

(Tr. 200-01; J. Ex. II, at 44).

Tom McDonald testified that Lueck was required, but failed, to report [redacted]’s failure to wear any PPE to Lueck’s 

supervisor. He also said Infra-Red’s Employee Handbook II required Lueck to be disciplined for this failure. (Tr. 

201-02, 253-54; J. Ex. II, at 27, 45). 
55

its employees; (3) took steps to discover violations of those rules; and (4) effectively enforced the 

rules when violations were discovered.”77 (Id.) The factors that the Commission considers when 

evaluating the UEM defense are the same as those it considers when evaluating whether the 

Secretary established constructive knowledge. See Burford’s Tree, Inc., 22 BNA OSHC 1948, 

1951-52 (No. 07-1899, 2010) (“The Commission has considered these same factors in evaluating 

both an employer’s constructive knowledge and the merits of an employer’s unpreventable 

conduct affirmative defense.”), aff’d, 413 F.App’x 222 (11th Cir. 2011) (unpublished); S.J. Louis 

Constr. of Tex., 25 BNA OSHC 1892, 1898, n. 17 (No. 12-1045, 2016) (citing Burford’s Tree for 

the proposition that the “factors for evaluating constructive knowledge are the same for evaluating 

unpreventable employee misconduct affirmative defense”); Dana Container, Inc., 25 BNA OSHC 

1776, 1780-82 (No. 09-1184, 2015) (finding violation foreseeable due to an inadequate safety 

program based on lack of UEM factors), aff’d, 847 F.3d 495 (7th Cir. 2017). 

First, Infra-Red did not have a clear work rule on the use of PPE. As an essential element 

of the misconduct defense, the employer needs to establish that it has work rules designed to 

prevent the unsafe condition or violation of an OSHA standard. Pride Oil Well Serv., 15 BNA 

OSHC 1809, 1816 (No. 87-692, 1992). A work rule is defined as “an employer directive that 

requires or proscribes certain conduct, and that is communicated to employees in such a manner 

that its mandatory nature is made explicit and its scope clearly understood.” J.K. Butler Builders, 

Inc., 5 BNA OSHC 1075, 1076 (No. 12354, 1977). As discussed above, the evidence establishes 

that Infra-Red lacked a clear work rule regarding PPE use. 

77 Lueck testified that Infra-Red’s Employee Handbook II states that the creation of a hazard by an employee or 

disregard of safety rules would be dealt with through disciplinary action. (Tr. 91-92; J. Ex. II, at 37, 45). Infra-Red 

did not discipline Lueck or [redacted] for anything that they did working on the Nantucket Police Station project. (Tr. 

63-64; 196-98, 419-20). Lueck testified that he considered a discussion he had with Chip McDonald about what he 

could have done better to be a form of discipline “in a sense”, but he could not recall what he could have done better. 

(Tr. 139). 
56

Infra-Red also failed to prove that it: 1) effectively communicated a clear use of PPE work 

rule to its employees, 2) took adequate steps to discover violations of any such rule, and 3) 

effectively enforced any such rule when a violation was discovered. Given that Infra-Red lacked 

a clear work rule to communicate, monitor, and enforce, it cannot establish any of these additional 

requirements. In addition, Infra-Red does not point to any persuasive evidence that it monitored 

worksites or otherwise took steps to discover safety rule violations. 

Although an employer is not required to provide constant surveillance, it is expected to 

take reasonable steps to monitor for unsafe conditions. Ragnar Benson, Inc., 18 BNA OSHC 1937, 

1940 (No. 97-1676, 1999); see also Texas A.C.A., Inc., 17 BNA OSHC 1048, 1050 (No. 91-3467, 

1995) (employer’s duty is to take reasonably diligent measures to detect hazardous conditions 

through inspections of worksites; it is not obligated to detect or become aware of every instance 

of a hazard). Infra-Red states vaguely that its “work rules were actively monitored (by Tom 

McDonald and others),” but it cites to no supporting evidence.78 (Resp’t Br., at 22; Resp’t Reply, 

at 31-32). Its stated position regarding Lueck’s supervisory status, moreover, undermines this 

claim. According to Infra-Red, it sent an unlicensed apprentice electrician to perform highly 

hazardous work on an island reachable by ferry without any supervision or means for it to monitor 

his compliance with the company’s safety rules. Tom McDonald admitted that he had no intention 

of visiting the Nantucket worksite. (Tr. 160). Although the Court finds the company’s claim that 

Lueck was not a supervisor inconsistent with the evidence, the company’s position that it would 

have been acceptable to allow him and [redacted] to work unsupervised contradicts its contention 

that it always actively monitors its worksites. 

78 Infra-Red cites Tom McDonald’s testimony at Tr. 161, lines 1-4. (Resp’t Br., at 36). In these lines, Tom McDonald 

was asked if he was the only member of management that visits worksites to check on employees, and he replied 

simply, “I cannot say that that’s true.” (Tr. 161). He did not testify that he and others “actively monitored” work rule 

compliance. 
57

Vanasse testified that Infra-Red provided Lueck and [redacted] with PPE that was specific 

to the work to be performed on April 7, 2017. His expert report states “appropriate PPE was 

available for the task ....” (Tr. 575-76, 592-93). He concluded, however, that [redacted] “chose 

not to utilize it [PPE] resulting in his injuries.” (J. Ex. XVIII, at 0252). 

Infra-Red also failed to show that it effectively enforces its safety rules when it discovers 

violations. “To prove adequate enforcement of its safety rule, an employer must present evidence 

of having a disciplinary program that was effectively administered when work rule violations 

occurred.” Gem Indus., Inc., 17 BNA OSHC 1861, 1865 (No. 92-1122, 1996), aff’d, 149 F.3d 

1183 (6th Cir. 1998). In an effort to demonstrate an effective discipline enforcement program, 

Infra-Red points to an example where, in November 2010, Tom McDonald issued a written 

warning to an employee, Jamie Miranda, for performing switching operations without wearing 

proper PPE. (Tr. 261-62; Ex. 13; J. Ex. IV). A lone example of a written warning issued nearly 

six and a half years before the violation at issue does not by itself demonstrate an effective 

enforcement of company rules when violations were discovered.79 Additionally, the Nantucket 

UPSS incident was not the first time Infra-Red learned [redacted] failed to bring his required PPE 

to a job site. Tom McDonald testified that in about September 2016, [redacted] went to an 

emergency job at a warehouse in Readville without any PPE. Although at the hearing, Tom 

McDonald testified that he did not know whether this was a violation of Infra-Red’s work rules, 

during his pre-hearing deposition he admitted that he had stated [redacted]’s act was a PPE 

violation. This “bigger error” caused Tom McDonald to get into his car and go over to the 

79 Vanasse’s testimony emphasized the importance of supervising employees working in the field. He said: “And if 

you find through your supervision or operations that they are not working safely, you have an obligation to ensure that 

you’re correcting that.” The Court, however, rejects Vanasse’s opinion that the lone instance where Infra-Red took 

disciplinary action against an employee demonstrated that Infra-Red had an effective enforcement of company rules

as of April 2017. (Tr. 603-04). 
58

warehouse and perform the switching work himself. Tom McDonald wore his own PPE because 

switching work required PPE be worn. Other than receiving an apology and a promise “to never 

– never do that again and to always make sure he had his stuff [PPE] with him,” no disciplinary 

action was taken against [redacted]. (Tr. 263-67, 294, 299-304, 420). This ineffective 

communication did not motivate and cause [redacted] to comply with Infra-Red’s PPE rules six 

months later at the Nantucket job site. Bob McDonald also testified that he observed [redacted]

wearing only his insulated gloves, and not his PPE suit, when assembling battery packs containing 

12-volt batteries for UPSS in Infra-Red’s Holbrook shop.80 (Tr. 361-70; Ex. D). Infra-Red has 

not shown that it effectively enforced company PPE rules when violations were discovered.81 For 

these reasons, Infra-Red’s UEM defense fails.

F. Characterization

The Secretary characterized the PPE violation as “serious.” Under section 17(k) of the 

Act, a violation is serious if “there is substantial probability that death or serious physical harm 

could result . . . .” 29 U.S.C. § 666(k); see also Pete Miller Inc., 19 BNA OSHC 1257, 1258 (No. 

99-0947, 2000) (a violation is serious if “a serious injury is the likely result should an accident 

occur.”). Vanasse described the severe injuries that can occur as a result of an arc flash and these 

included “thermal burns, potential cardiac arrest, potential blindness, hearing loss,” as well as 

nerve damage and “a concussion to your head or potentially collapsed lungs.” (Tr. 559; J. Ex. X, 

at 0114). The record establishes that Lueck and [redacted]’s failure to wear appropriate PPE at the 

80 Bob McDonald said he has not observed [redacted] working outside Infra-Red’s Holbrook facility. He further stated 

that the work [redacted] performed at Infra-Red’s Holbrook shop and elsewhere between about January 4, 2016 

through March 13, 2017 was similar in nature to the work [redacted] performed at the job site on April 7, 2017. InfraRed had a contract with Verizon to replace batteries in 911 systems in all of the police stations in Massachusetts. (Tr. 

366-67, 390-400, 413-14; Ex. D). Rega assigned [redacted] to all of these jobs. (Tr. 440-42).

81 Infra-Red also took ineffective steps to discover violations of its PPE rules. It regularly dispatched teams comprised 

of one or two electricians to work sites without designating anyone in-charge as foreman or supervisor. (Tr. 231). 
59

job site exposed them to a risk of serious electrical injury, and that [redacted] in fact suffered a 

serious hand burn requiring that he be taken to a hospital. The Court finds that the violation was 

serious. 

G. Penalty

Section 17(j) of the Act requires that the Commission consider four factors when 

assessing a penalty: (1) the employer’s size; (2) the gravity of the violation; (3) the employer’s 

good faith; and (4) the employer’s prior history of violations. 29 U.S.C. § 666(j); Compass 

Envtl., Inc., 23 BNA OSHC at 1137. The gravity of the violation is generally accorded greater 

weight than the other factors. See J. A. Jones Constr. Co., 15 BNA OSHC 2201, 2213-14 (No. 

87-2059, 1993). The gravity of a violation “depends upon such matters as the number of 

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

likelihood that any injury would result.” (Id.) The statutory maximum penalty for a serious 

violation at the time the citation was issued in July 2017 was $12,675. 29 U.S.C. § 666(b); 83 

Fed. Reg. 7-01, 15 (Jan. 2, 2018). 

The Secretary argues that Infra-Red should receive the maximum penalty in effect in 

2018, which was $12,934. 83 Fed. Reg. at 15. In the citation, however, the Secretary proposed a 

much lower penalty of $8,873. The Secretary does not explain (or mention) this discrepancy. In 

support for the most recently proposed penalty, the Secretary emphasizes that Infra-Red’s 

employees were exposed to potentially lethal levels of electricity, and that [redacted] suffered a 

severe hand injury as a result of his failure to wear PPE. (Sec’y Br., at 22). Infra-Red argues 

that any penalty should be “substantially discounted” due to its “small size, its good faith at all 

times, and its stellar safety record.” (Resp’t Reply, at 34). 
60

The Court finds that the gravity of the violation was very high as Lueck and [redacted]

were exposed to potentially lethal levels of electricity. (Tr. 143, 628; Ex. E, at 0011). Infra-Red 

is a moderately sized company with about 40 employees; a discount is warranted for its size. 

(Tr. 149). As the company’s president and Operations Manager failed to straightforwardly 

explain why they described Lueck as a supervisor in their union letter if he was not in fact a 

supervisor, and gave confusing, ambiguous responses when asked about it, a discount for good 

faith is not warranted. The Court agrees with Infra-Red, however, that some discount from the 

statutory maximum penalty is warranted due to its lack of prior violations and excellent safety 

record. CO Amara acknowledged that Infra-Red told him that the company had no prior 

workplace injuries in at least the five years prior to the hearing, and that this was a “very good” 

safety record. (Tr. 516). Based on these considerations, as well as the Secretary’s failure to 

justify significantly increasing the penalty above what was originally proposed in the citation, the 

Court assesses the original penalty amount proposed: $8,873. 

IV. Item 4 (insulated tool)

The Secretary alleges that Infra-Red violated 29 C.F.R. § 1910.335(a)(2)(i) because 

[redacted] failed to use a properly insulated tool when connecting the replacement batteries. (Sec’y 

Br., at 18). Section 1910.335(a)(2)(i) requires employees working near exposed energized 

conductors or circuit parts to use insulated tools if the tools might make contact with the conductors 

or parts. Photographs of the tool at issue as it appeared on June 26, 2018 are at exhibits F and G. 

(Tr. 112-116; Exs. F-G). 

A. Applicability

The Secretary states that the standard applies because [redacted] and Lueck were working 

on exposed energized conductors. (Sec’y Br., at 18). Infra-Red does not dispute that they were 
61

working on or near energized conductors, and that the requirement to use insulated tools applies. 

(Resp’t Br., at 64; Resp’t Reply, at 26-30). As discussed above, the record establishes that both 

employees worked near energized conductors and circuit parts. The Court finds that the standard 

applies.

B. Whether Terms of Standard Were Violated

The Secretary alleges that Infra-Red violated the terms of the standard because [redacted]

used slip joint pliers that were “not properly insulated” when connecting the new batteries. (Sec’y 

Br., at 18). Infra-Red contends that the tool [redacted] used had insulated handles that were 

appropriate for the work and therefore it complied with the standard. (Resp’t Br., at 64). 

Although the Secretary does not dispute that [redacted]’s tool had insulated handles, he 

contends that it was not “properly insulated” because it had a “dangerous amount of uninsulated, 

exposed metal.” (Ex. 12, at 1-2; Sec’y Br., at 18). The cited provision states only that employees 

“shall use insulated tools,” and does not spell out what qualifies as an insulated tool or indicate 

whether a tool with insulated handles would qualify.82 29 C.F.R. § 1910.335(a)(2)(i). Neither 

party has cited any Commission precedent applying the provision. Implicit in the provision’s 

requirement to use insulated tools, however, is a requirement that the insulation be sufficient to 

reasonably protect the employee during the work being performed. A tool with insulation only 

covering the handles would therefore comply with the provision if such insulation were sufficient 

to reasonably protect the employee. This interpretation is consistent with OSHA’s statement in an 

interpretation letter, in response to a question regarding how “insulated tools” is defined, that 

82 The term “insulated” is defined separately in Subpart S as follows: “Separated from other conducting surfaces by 

a dielectric (including air space) offering a high resistance to the passage of current.” 29 C.F.R. § 1910.399. Although 

this definition indicates that the material covering a tool must present a high resistance to the passage of current to 

qualify as insulation, it does not indicate whether such material must cover all parts of the tool in order to comply with 

section 1910.335(a)(2)(i). 
62

“[w]hen any tool or handling equipment is said to be insulated, it is understood to be insulated in 

a manner suitable for the conditions to which it is subjected.” OSHA Std. Interp. 1910.137 (Dec. 

27, 1991). 

The strongest evidence supporting the Secretary’s position that [redacted]’s tool was 

insufficiently insulated to protect [redacted] is the expert written report of Dean Vanasse, which 

was admitted into evidence as a joint exhibit.83 (J. Ex. VIII; Tr. 26, 573). In his report, Vanasse 

stated that [redacted]’s tool was inappropriate for the work because it had too much exposed metal, 

and that he should have instead used an insulated socket wrench: 

When [[redacted]] began the disassembly, he apparently determined that he did not 

have the insulated socket required and asked Dan [Lueck] if he had any tools he 

could use, Dan had the insulated slip joint pliers and provided them to . should 

have been aware that there was too much exposed metal on this tool which could 

short any battery terminals to each other or to the rack and not used it. The work 

should have stopped until the correct tools were obtained, but unfortunately the 

work continued and the incident occurred. 

(Tr. 645-47; J. Ex. XVIII, at 0246 (emphasis added)). Vanasse added that [redacted]’s decision to 

“use the wrong tool for the job caus[ed] the incident . . . .” (Id.). Vanasse later reiterated that the 

“most appropriate tool to be utilized for the task . . . was an insulated socket / insulated driver rated 

1000V,” and explained that the “incident apparently occurred as a result of utilizing an insulated 

slip joint pump plier which has exposed uninsulated parts of sufficient dimensions to either bridge 

the air gap or make contact of one energized cell terminal to another cell terminal . . . .”84 (Id., at 

0253). He concluded his discussion of Item 4 by stating: “The employees’ choice to use the pliers 

resulted in the incident.” (Id.). Vanasse further stated in his expert report that: [redacted] “should 

have known the tool he was using was inadequate for the task and was putting himself at risk in 

83 The Court finds Vanasse’s courtroom testimony that was contrary to his written expert report to be unpersuasive

and not credible. (Tr. 645-46, 664). 

84 Vanasse did testify that the tool [redacted] used was rated greater, at 1,000 volts, than the potential exposure in the 

UPSS, 360 volts. (Tr. 594-95).
63

utilizing the slip joint pliers for the task.” Vanasse’s expert report also stated: “It is my opinion 

based on the task and equipment construction, the incident could have been prevented with the use 

of the appropriate insulated tool (insulated socket and insulated driver).” (Tr. 649-50; J. Ex. XVIII, 

at 0251). 

Vanasse’s opinion that [redacted] could have and should have used an insulated socket is 

consistent with the toolkits that Infra-Red maintains in its shop. Photographs of these Infra-Red 

toolkits show that they include sockets of various sizes that are fully covered by red (also described 

as “orange”) reinsulating material, in contrast to the slip joint pliers [redacted] used.

85 (Tr. 52, 57-

58, 191-92, 456, 461; Ex. 3; J. Exs. VI, XV (photographs of the slip joint pliers [redacted] used, 

showing the tool had a significant amount of exposed metal beyond the insulated handles). Tom 

McDonald testified that employees are required to bring these toolkits to jobs and that [redacted]

and Lueck should have brought one to the Nantucket UPSS job.86 Tom McDonald would have 

brought the insulated toolkit to the job site. (Tr. 256). He said Infra-Red wanted to ensure that its 

employees were using insulated tools. (Tr. 189-92; Ex. 3). He also testified that Infra-Red’s policy 

manual states: “Infra-Red Building and Power Services, Inc. will provide you with all the tools 

and equipment necessary to complete your job.” Tom McDonald said that [redacted] and Lueck 

were required to use the tools in Infra-Red’s toolkit on April 7, 2017 at the job site. (Tr. 188-90; 

Ex. 3; J. Ex. II, at 0040). Infra-Red does so because the insulated tools in its toolkits are safe to 

use and their condition was monitored by Infra-Red.87 (Tr. 192). 

85 Francis said that the “orange” material on the tools in Infra-Red’s toolkits is the insulating material for the tool. (Tr. 

461-62). When shown the pair of slip pliers actually used by [redacted] on April 7, 2017, Francis agreed that the 

plier’s jaws had no insulating material on them. He also said that he was unaware of any slip pliers that are completely 

insulated. (Tr. 462-63; Exs. F-G). 86 Neither Lueck nor [redacted] brought one of these Infra-Red toolkits containing insulated tools to the job site on 

April 7, 2017. (Tr. 57-59).

87 Tom McDonald testified that Infra-Red did not know what tools its employees were using on a job. He also said 

that Infra-Red did not inspect or monitor the condition of hand tools owned by its employees that might be used during 

a job. (Tr. 192-96).
64

In support for its position that [redacted]’s tool was sufficiently insulated, Infra-Red cites 

the UPSS Manual and the DataSafe HX Top Terminated Batteries, 6 and 12 Volt Battery, 

Installation, Operation and Maintenance Instructions (Battery Instructions). The UPSS Manual 

includes instructions for installing and servicing the batteries, and states: “Use tools with insulated 

handles.” (Tr. 279; Ex. E, at 0035). The Battery Instructions provide an identical instruction: 

“Use tools with insulated handles.” (Tr. 225-28; J. Ex. XIV, at 228). [redacted]’s tool had 

insulated handles in accord with these manufacturer instructions, and its insulation was rated to a 

voltage amount greater than what was required for the battery work. Lueck testified that the tool, 

which he had lent to [redacted], was rated to 1000 volts and had “stops” to prevent one’s hand 

from sliding past the insulation. (Tr. 49, 58, 109-10). He said that he reviewed the UPSS Manual 

prior to the work, and had determined that it was an appropriate tool for the work based on the 

instruction to use a tool with insulated handles. (Tr. 102-04, 112; Ex. E, at 0035). Lueck agreed 

that the maximum voltage of the 30 batteries in each UPSS set connected together, at 13.7 volts 

each, was substantially less than 1000 volts, so the handles were “overrated” for the task.88 Lueck 

testified that the channellock tool handles were “overrated” for a 480-volt or 600-volt piece of 

equipment. (Tr. 49, 111-12). Tom McDonald similarly testified that the tool was insulated 

“sufficiently” and “sufficiently rated” for the UPSS work. (Tr. 257, 279; Exs. F and G).

Infra-Red also cites Vanasse’s testimony at the hearing, in which he qualified some of the 

opinions in his written expert report. On direct examination, Vanasse agreed that [redacted] “used 

a proper insulated tool.” (Tr. 594). Vanasse said that he looked up the tool’s model number, and 

determined that it was “1,000 volt rated,” which was “greater than the potential exposure in [the 

UPSS] system.” (Tr. 595). He explained, “The maximum voltage that [[redacted]] would have 

88 30 batteries X 13.7 volts equals a 411-volt piece of equipment. (Tr. 112). 
65

been exposed to was 360 volts.” (Tr. 595). On cross-examination, Vanasse was asked whether he 

knew that [redacted]’s tool was the “wrong tool for the job,” and he replied, “No, I don’t.” (Tr. 

644). He testified that his opinion was that [redacted] should not have used that tool because it 

had exposed metal and a better tool was available, but then said that it nevertheless may have been 

adequate: 

That is something that I don’t know based on me not going to the site and seeing 

the specific equipment, nor understanding fully the dimensions of what was in place 

at the time. It may have been [adequate for the task]. There was a more appropriate 

tool to use. 

(Tr. 648-49). Vanasse agreed that in his expert report he stated that [redacted] “did not have the 

insulated socket [tool] required,” and that the tool he used was inadequate because “there was too 

much exposed metal . . . which could short any battery terminals to each other or to the rack and 

[he should] not [have] used it.” (Tr. 645, 647). But after subsequently getting “more information 

about the event and circumstance,” which he believed included seeing “more detailed photos” and 

the “manufacturer’s information,” he stated that his opinion changed and he could not “state that 

an insulated socket set was necessarily the required or appropriate tool . . . .” (Tr. 645-46). He 

added that the “manufacturer recommended insulated handle tool,” that the tool [redacted] used 

was an “insulated handle tool,” and that his revised opinion was that an insulated socket was “not 

definitely a more appropriate tool . . . .”89 (Tr. 650). He later appeared to contradict himself, 

however, stating that “there was a better tool to be utilized, in my opinion . . . .” (Tr. 664). 

Although Vanasse’s testimony is confusing and at times contradictory, the Court interprets 

it to mean that while his opinion in his report that a safer tool was available did not change, after 

reviewing the UPSS and battery manufacturers’ recommendations as well as photographs of the 

89 The CO who inspected Infra-Red, Amara, agreed that neither he nor anyone else at OSHA has “determined what 

the appropriate tool” would have been. (Tr. 500).
66

batteries, he could not definitively assert that [redacted]’s tool was insufficiently insulated. This 

interpretation is supported by his testimony that it “[c]ould have been a judgment based on the 

qualifications of the employee at the time.” (Tr. 650). It is also consistent with his agreement, on 

redirect-examination, that in his report he was making a distinction between “minimum 

requirements and best practices.” (Tr. 663-64; Resp’t Br., at 59, ¶¶ 349-50). The “distinction,” 

he testified, “was [that] there was a better tool to be utilized, in my opinion,” but the tool [redacted]

used was “an insulated tool which can be utilized at that voltage [of the batteries [redacted] was 

working on].” (Tr. 664). 

While the record is mixed, the preponderance of the evidence supports the Secretary’s 

contention that the tool [redacted] used was insufficiently insulated. Although the UPSS Manual 

and the Battery Instructions direct technicians to use tools with insulated handles, they do not 

specify how much exposed metal on any given tool is permissible. Vanasse’s written expert report

clearly indicates that the particular tool that [redacted] used had too much exposed metal to 

perform the job safely. The fact that [redacted] in fact burned his hand while using the tool due to 

its exposed metal further supports this conclusion. Although Vanasse stated at the hearing that he 

could not definitively say that the tool could not have been used safely, he did not change his 

opinion that it had too much exposed metal and it would have been safer for [redacted] to use a 

fully insulated socket tool. The Court therefore finds that the Secretary has established that InfraRed violated the terms of the standard. 

C. Access

[redacted]’s failure to use a properly insulated tool exposed him to an electrical hazard, and 

he severely injured his hand as a result. The Secretary therefore established that an employee had 

access to the cited condition. 
67

D. Knowledge/Unpreventable Employee Misconduct

As discussed above, the Secretary established that Infra-Red knew, or with the exercise of 

reasonable diligence, could have known, of Item 3’s violative condition, and its UEM defense to 

Item 3 fails. A similar analysis and outcome apply to Infra-Red’s knowledge of Item 4’s violative 

condition and its UEM defense to Item 4. Lueck knew [redacted] was using a tool that was not 

fully insulated and that was not an Infra-Red tool. It was one of Lueck’s own personal tools, and 

he lent it to [redacted] to perform the work. When asked how he decided that his channellock tool 

was appropriate for use at the job site, he stated: “Just seemed like they were a practical tool to 

use at the time.” (Tr. 60). It was “practical” for [redacted] to use the channellock tool because 

that’s all they had with them. They had not brought one of Infra-Red’s insulated tool kits that 

contained fully insulated tools that would have been better suited for the work at the job site. Lueck

knew [redacted] would be working near exposed energized conductors with a tool that might make 

contact with such conductors. Just as Vanasse stated in his expert report that [redacted] “should 

have known the tool he was using was inadequate for the task and was putting himself at risk in 

utilizing the slip joint pliers for the task,” Lueck should have known the same. (Tr. 649-50; J. Exs. 

VI, XVIII, at 0251). He was in a position to know that the channellock split joint pliers were not 

sufficiently insulated to perform the work safely. Both Lueck and [redacted] could readily see that 

there was too much uninsulated, exposed metal beyond the insulated handles on the channellock 

tool. This would have been readily apparent to both of them at the job site. (Tr. 645, 647; J. Ex. 

18, at 4; Exs. F-G). 

Since Lueck was a supervisor, his knowledge of [redacted]’s failure to use a sufficiently 

insulated tool is imputed to Infra-Red. In the alternative, if Lueck was not a supervisor, then the 

Secretary established constructive knowledge because the company failed to exercise reasonable 
68

diligence in allowing an unlicensed electrician to work unsupervised and lacked a clear work rule 

regarding insulated tools. 

Infra-Red neither had, nor communicated, a clear work rule on the use of safe, insulated 

tools. Lueck thought he was allowed to use personal tools on Infra-Red’s jobs. (Tr. 59-60). InfraRed’s Employee Handbook states that Infra-Red will provide all tools and equipment necessary to 

complete the job. (Ex. 11, at 15). Tom McDonald was unable to provide any clear rule regarding 

the use of tools, and prevaricated and gave confusing responses when asked what the company’s 

rules were. Initially, he testified that Infra-Red employees were required to use Infra-Red’s 

insulated tool kits, which contain fully insulated tools. (Tr. 190.) When asked if employees were 

required to use the insulated tools in the company tool kits, he replied: “Okay. Yes, I would say.” 

(Tr. 190). A few questions later, however, he said that using the insulated tool kits was “not 

necessarily required.” (Tr. 191). But he then agreed that in his deposition he had said that 

employees were required to use the insulated took kits. (Tr. 192). At another point, he testified 

that employees were allowed to use their personal tools. (Tr. 195). All of this testimony 

establishes that the company lacked a clear work rule that could have prevented the violation. 

Infra-Red also failed to take steps to adequately discover safety violations relating to the 

use of unsafe tools, and to discipline employees for using improperly insulated tools. Tom 

McDonald was the only identified person who visited sites to discover safety violations and he 

admitted that he had no intention of visiting the Nantucket site. (Tr. 160-62). Infra-Red regularly 

dispatched teams comprised of one or two electricians to work sites without designating anyone 

in-charge as foreman or supervisor. (Tr. 231). Infra-Red also did not enforce any rules regarding 

the use of fully insulated, safe tools when any such rules were violated, as evidenced by its failure 

to discipline Lueck for lending [redacted] the improper tool. Tom McDonald admitted that he did 
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not discipline Lueck for his actions, and that in his deposition he also admitted that no one else at 

Infra-Red had either. (Tr. 196). [redacted] was not disciplined for using an improperly insulated 

tool at the Nantucket job site. (Tr. 196). [redacted]’s use of the improper tool thus was foreseeable 

because Infra-Red’s owner allowed its employees to use personal tools despite an unenforced 

company policy to the contrary. 

Since Infra-Red lacked a clear work rule regarding insulated tool use, and failed to 

effectively communicate, monitor compliance with, and enforce violations of the safety rules that 

it did have, its argument that Item 4’s violation resulted from UEM fails. (Answer, at 4-5; Resp’t 

Br., at 67, ¶ 49). 

 E. Characterization

The Secretary characterized the violation as “serious.” Under section 17(k) of the Act, a 

violation is serious if “there is substantial probability that death or serious physical harm could 

result . . . .” 29 U.S.C. § 666(k); see also Pete Miller Inc., 19 BNA OSHC 1257, 1258 (No. 99-

0947, 2000) (a violation is serious if “a serious injury is the likely result should an accident 

occur.”). The record establishes that [redacted]’s failure to use a sufficiently insulated tool exposed 

him to a risk of serious electrical injury, and that he in fact suffered a serious hand burn requiring 

that he be taken to a hospital. The Court finds that the violation was serious. 

F. Penalty

As stated above, section 17(j) of the Act requires that the Commission consider the gravity 

of the violation when determining the penalty, as well as the employer’s size, good faith, and prior 

history of violations, with gravity being the most important factor. 29 U.S.C. § 666(j); Compass 

Envtl., 23 BNA OSHC at 1137; J. A. Jones, 15 BNA OSHC at 2213-14. The Secretary requests 

that Infra-Red receive the statutory maximum penalty for a serious violation in effect in 2018, 
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$12,934. See 29 U.S.C. § 666(b); 83 Fed. Reg. 7-01, 15 (Jan. 2, 2018). As with the other Items, 

the citation proposed a much lower penalty of $8,873, and the Secretary has not explained the basis 

for this discrepancy. The Secretary presents essentially the same arguments regarding the penalty 

for all the Items; the Secretary emphasizes that the work was very dangerous, and that [redacted]

suffered a severe injury. (Sec’y Br., at 22). Infra-Red also presents the same arguments regarding 

the penalty for all the Items: that the penalty should be “substantially discounted” due to its “small 

size, its good faith at all times, and its stellar safety record.” (Resp’t Reply, at 34). 

The Court agrees that the gravity of the violation was high, as [redacted] was exposed to 

potentially lethal levels of electricity, and he in fact suffered a severe hand injury as a result. (Tr. 

143, 628; Ex E, at 0011). However, the gravity was somewhat mitigated by his use of a tool that, 

at least, had insulated handles, although the tool was, nevertheless, still unsafe for the job. See 

J.A. Jones, 15 BNA OSHC at 2213-14 (the gravity of a violation depends in part on whether any 

precautions were taken against injury). As the parties’ arguments regarding the effect of the 

employer’s size, good faith, and prior history on the penalty amount are the same as those they 

presented regarding the PPE violation, the Court takes those factors into account in the same 

manner as discussed above regarding the PPE violation. Based on the gravity and those other

considerations, as well as the Secretary’s failure to justify significantly increasing the penalty 

above what was originally proposed in the citation, the Court assesses a penalty of $7,000. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

All findings of fact and conclusions of law relevant and necessary to a determination of the 

contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of fact 

and conclusions of law inconsistent with this decision are denied. 
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ORDER

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that: 

1. Item 1 of Citation 1, alleging a serious violation of 29 C.F.R. § 1910.332(b)(1), is 

VACATED.

2. Item 2 of Citation 1, alleging a serious violation of 29 C.F.R. § 1910.333(a)(2), is

VACATED.

3. Item 3 of Citation 1, alleging a serious violation of 29 C.F.R. § 1910.335(a)(1)(i), is 

AFFIRMED, and a penalty of $8,873 is ASSESSED. 

4. Item 4 of Citation 1, alleging a serious violation of 29 C.F.R. § 1910.335(a)(2)(i), is 

AFFIRMED, and a penalty of $7,000 is ASSESSED.

SO ORDERED.

__/s/_________________________ 

The Honorable Dennis L. Phillips 

 U.S. OSHRC Judge 

Date: _October 7, 2019_____ 

 Washington, D.C.