United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

 Washington, DC 20036-3419 

SECRETARY OF LABOR,

Complainant, 

v. 

JERSEY CITY MEDICAL CENTER,

Respondent.

OSHRC Docket No. 17-0249 

Appearances: Kate O’Scannlain, Solicitor of Labor 

 Jeffrey S. Rogoff, Regional Solicitor 

 Marc G. Sheris, Senior Trial Attorney 

 U.S. Department of Labor, Office of the Solicitor, New York, New York

 For the Complainant 

 

 Mark J. Blunda, Esquire 

 Apruzzese, McDermott, Mastro & Murphy, P.C., Warren, New Jersey 

 For the Respondent 

Before: Covette Rooney 

 Chief Administrative Law Judge 

DECISION AND ORDER

On Sunday, June 26, 2016, a general maintenance mechanic for Jersey City Medical Center 

(JCMC or Respondent) stood on an A-frame ladder in the hallway of the labor and delivery wing 

of Respondent’s hospital to work on a ceiling fluorescent light fixture. While working on the light 

fixture, the mechanic received an electric shock and fell off the ladder to the ground, hitting his 

head. The mechanic was placed in the intensive care unit of the hospital and later died. The 
2

autopsy report indicated that the manner of the mechanic’s death was an accident caused by blunt 

impact injuries of the head, with a contributory cause of electrocution. 

The Occupational Safety and Health Administration (OSHA) investigated this matter from 

June 28 to December 15, 2016 pursuant to the Occupational Safety and Health Act of 1970, 29 

U.S.C. §§ 651-678 (OSH Act). During the course of the investigation, OSHA noted that another 

mechanic for JCMC worked on live-current during his duties devoted to electrical circuits. After 

its investigation, OSHA issued to JCMC a citation alleging violations of OSHA’s electrical safety 

and training standards found at 29 C.F.R. Part 1910 Subpart S, and proposing a total penalty of 

$174,593. JCMC filed a timely notice of contest, bringing this matter before the Occupational 

Safety and Health Review Commission (Commission). A hearing was held in New York, New 

York from April 24 – April 27, 2018. Both parties filed post-hearing briefs and post-hearing reply 

briefs. As discussed below, the citations and proposed penalties are affirmed. 

JURISDICTION AND COVERAGE

The record establishes that Respondent filed a timely notice of contest and that, as of the 

date of the alleged violation, it was an employer engaged in business affecting commerce within 

the meaning of section 3(3) and 3(5) of the Act. See Complaint & Answer at ¶¶ 3, 9; Second 

Amended Joint Prehearing Statement at 8-9 ¶¶ A, B. Based upon the record, the undersigned 

concludes that the Commission has jurisdiction over the parties and subject matter in this case, and 

Respondent is covered under the Act.

STIPULATIONS

The parties stipulated to the following facts: 

A. Jersey City Medical Center is a not-for-profit corporation organized under the laws of the 

State of New Jersey and maintains its principle office at 355 Grand Street, Jersey City, 

New Jersey. It is a hospital doing business in the State of New Jersey. 
3

B. Many of the materials and supplies used and/or manufactured by respondent corporation 

originated and/or were shipped from outside the State of New Jersey. 

C. As a result of an inspection by an authorized representative of the Complainant, JCMC was 

issued two citations for violations on December 21, 2016. Citation No. 1 contained five (5) 

items and sub-items. Citation No. 2 contained one (1) item. The contested items of the 

citations contained six (6) items and alleged that at a worksite located at 355 Grand Street, 

Jersey City, New Jersey 07302, violations occurred at the places, dates and times alleged 

in the citations. 

D. JCMC hired [the decedent]1 as a Maintenance Mechanic on or about August 5, 2015. 

E. On August 4, 2016, Lawrence Dapat attempted to change a ballast. He failed to use a toggle 

switch lock-out device after he cut the power to a ballast. 

(Second Amended Joint Prehearing Statement at 8-9.) 

BACKGROUND

JCMC’s physical plant consists of a seven-story hospital and approximately five or six 

additional auxiliary buildings. (Tr. at 293.) Out of the approximately 2,300 employees working 

for JCMC, including the medical professionals that provide care to patients; about 22 of them work 

in the Facilities Department. (Tr. 335, 538.) The Facilities Department of JCMC maintains, 

repairs and renovates JCMC’s physical plant and facilities, performing various tasks in and around 

the hospital and auxiliary buildings such as changing ceiling tiles, unplugging toilets, patching 

walls, minor plumbing, and snow removal. See, e.g., Ex. S-1 at 1 (job description for general 

maintenance mechanic); Tr. 38, 179, 249. The task at issue in this case is changing out a lightbulb 

and ballast of a fluorescent light fixture. 

Incident 

Respondent’s security video footage shows the decedent on the ladder, arms above his 

head, working on something above him that is obscured in the video. (Ex. S-26 (decedent in the 

1 For personal privacy reasons, the name of the decedent has been omitted from this Decision and Order.
4

rear of the corridor on the ladder).) A row of lights running down the centerline of the long hallway 

is illuminated, as they are reflected in the floor of the long hallway, showing up as white circles. 

The decedent is working on what looks like a separate light alongside the centerline row of lights. 

Compare Exs. S-26 (video showing row of lights) and S-23 (picture of decedent’s light fixture). 

Around the 7 second mark of the security video, all of the lights suddenly go out, the decedent 

falls off the ladder to the ground, and medical personnel who were passing by the ladder without 

concern quickly jump away from the ladder with surprise and concern. (Ex. S-26; Tr. at 457-460.) 

The decedent passed away a few weeks later due to this incident, and the autopsy report states that 

a contributing cause to the decedent’s death was electrocution. (Ex. S-6 at 4.) 

JCMC convened a “Root Cause Analysis” (RCA) committee shortly after the incident to 

determine “what happened,” “how it happened,” to see if “it is a process issue” and to determine 

“what type of remediation can be taken, what type of corrective action.” See, e.g., Tr. 15, 29, 77, 

83, 89-93, 100, 106-107; Ex. S-9. Committee members included JCMC upper management, nurse 

witnesses, and the Director (Edward Grogan), the Coordinator (George Adamson) and the 

Electrician (Steve Okon) of the Facilities Department. (Ex. S-9 at 2.) Respondent states the 

following as facts: 

84. The consensus of the RCA Committee was that [the decedent] was doing his 

rounds, observed something with the light, and attempted to address it. (S.N. T107). 

85. The Root Cause Analysis determination was that if it was electrical work, he 

should not have been doing it. (S.N. T107.12). 

(Resp’t Br. 14.) No written work orders are in the record and no verbal instruction from any 

supervisor to the decedent is established directing him to work on that fluorescent light fixture on 

the day of the incident. 

 During OSHA’s investigation of this incident, OSHA Compliance Safety Health Officer, 

Industrial Hygienist (CO) Jennifer Consalazio interviewed many members of Respondent’s staff, 
5

including another general maintenance mechanic of the Facilities Department, Lawrence Dapat. 

(Tr. at 247, 437-555.) Dapat is tasked with addressing fluorescent light fixtures, and written work 

orders are in the record establishing that Dapat was assigned the task to address light fixtures and 

“replace ballasts” on June 24, 2016 and July 25, 2016. (Tr. 505-508; Ex. S-3.) Dapat also testified 

that he “worked live,” meaning working on live electric current, once so as not to interrupt the 

medical activity in the immediate area and also, once, he changed a ballast without “locking out 

and tagging out” while he was “alone in the room” on August 4, 2016. (Tr. 269-270, 290-292); 

see also Resp’t Br. 27; Resp’t Reply Br. 1-3. 

What is a Ballast? How to Repair a Fluorescent Light Fixture 

The task at issue begins when a light is out and must be turned back on. The sources in the 

record addressing aspects of how to repair the light fixture at issue in this case include the two 

electricians that testified in this case, Steve Okon2 (JCMC’s electrician) and Christopher Vanella3

(the electrician contractor JCMC hired to investigate the incident), as well as Dapat. They all

testified consistently with each other to the multi-step process that reveals the electrical hazards 

associated with working with the fluorescent light fixture at issue here. 

Pictures in the record show that the light fixture that the decedent worked on is circular and 

mounted overhead in the ceiling. (Tr. at 465-467; Exs. S-20, S-23.) According to JCMC 

electrician Okon, the task of restoring light to this light fixture might entail more than simply 

2 Okon has been an electrician for 16 years, 10 years of which he has worked for JCMC. (Tr. at 138-139, 

144, 197.) His electrical experience includes residential, industrial, warehouse and commercial spaces, 

replacing and installing “lighting, outlets, service entrances, digging ground and running pipes in the ground 

to supply power.” (Tr. at 142-143.) 

3 Vanella has been an electrician for approximately 30 years, having previously worked in Local 3 in New 

York City, and currently at the time of the hearing owning his own business as Community Electric. (Tr. 

at 235-236.) 
6

switching out the light bulb. As Okon testified, the worker first attempts to switch out the light 

bulb. (Tr. at 148.) If the light bulb does not illuminate, however, there are two possible additional 

issues that would need to be explored: (1) the power might be interrupted, or (2) the ballast of the 

fluorescent light fixture would need to be replaced.4 

Okon explained that a ballast “transforms energy to start up a fluorescent light bulb,” it 

“provides power for lighting.” (Tr. at 147, 198.) Dapat testified that a ballast “is a transformer to 

power the fluorescent bulbs.” (Tr. at 250.) The ballast that powered the light fixture that the 

decedent worked on was powered by 277 volts. (Tr. at 147.) Both Okon and Dapat testified that, 

even after the power is switched off from the circuit, there may be power leftover in the ballast

that must be addressed. (Tr. at 148, 250.) Otherwise, especially in the instance of an “emergency 

ballast,” the worker could get “quite a shock.” (Tr. at 149.) 

Okon testified that the preliminary procedure for changing a ballast includes the following 

steps: (1) de-energize the circuit, (2) lock out/tag out the circuit, and (3) verify using a non-contact 

4 Okon testified:

Q Are there occasions in which a ballast might have to be changed out or replaced? 

A Yes.

Q And what would those occasions be? 

A When we determine that after replacing the bulb, the bulb is good, the second item 

likely is the ballast.

Q So if you come across a light fixture that's not working you're saying that if you do 

the bulb first and it's not the bulb there's something wrong with the ballast? 

A Or the voltage supplying the ballast.

Q Okay. But in what circumstances would a ballast have to be replaced? 

A When the bulbs are already replaced, there's no visible damage to the bulb socket 

that holds the bulb in place and makes a connection, and if I determine the voltage 

is present and it's still not working then it would be the ballast.

(Tr. at 148.) 
7

pen tester or a meter that no residual power is leftover in the ballast.5 (Tr. at 148-151, 222.) 

Vanella, the electrician contractor tasked by JCMC to investigate the light fixture after the incident,

5 Okon testified: 

Q Okay. Do you know what the proper procedure is for changing a ballast? 

A I would like to assume so, yes. 

Q What is your understanding of the proper procedure for changing a ballast? 

A First of all I have to make sure the circuit is de-energized.

Q Okay.

A Make sure the ballast does not hold residual energy. After I de-energize the circuit 

and lock it out and tag it, of course, I have to make sure the ballast is not an 

emergency ballast which would very much give me quite a shock. And then just 

proceed to disconnect the light -- up wire, and otherwise... 

Q And then put in the new ballast?

A Then de-mount the old ballast, place the new ballast in, reverse kind of the steps. 

Q Are there further steps that have to be taken after the circuits are -- after they're deenergized or locked out and tagged out? 

A Well, I have to make sure there's no energy, any energy, left in the ballast. 

Depending on what type of ballast it is. 

Q And doesn't one have to make sure that they properly de-energize the circuit, isn't 

that one --

A You have to de-energize the circuit. The circuit doesn't hold the voltage -- the 

ballast is no longer part of the circuit because I disconnected from power, there's 

nothing in the circuit.

Q Okay. After one locks out and tags out does one have to verify to make sure that 

there's no residual energy? 

A Well, there's no way to make sure unless you disconnect the wire from the ballast 

that powers the ballast and either connect it to the ground, you may not notice the 

energy, there might be not even a spark, but it's charging -- this is the old ballast, 

not the new ones. You have to cut the wire off or disconnect it. There's no voltage 

there coming from the switch. 

Q Then to do the lockout/tag out procedure properly you don't have to verify that 

there's no -- that the wires are no longer live?

A I'm not sure if you're telling me or if you're asking me right now. 

Q I'm asking is there --

A Okay.

Q After -- is there something one has to do after they lockout/tag out to make sure 

that the wires are no longer live? To verify that they are no longer live?
8

also described how he safely approached inspecting the light fixture, corroborating Okon’s 

testimony regarding the (1) de-energization and (2) lockout/tag out steps.6 

Once the ballast has been de-energized and grounded, the worker is now tasked to “wire 

and re-wire” the ballast, where the worker will be splicing or twisting wires that require a nimble 

A Yeah, the way of measuring -- there's two -- there's non-contact pen tester that you 

put on the line right when I open the cover for the ballast, that tells me that that's 

dead. There's also – I can use a meter to measure the voltage on the wire. I can put 

the meter lead in the wire nut that connects power to the ballast. You can confirm 

that way.

Q And with these two tools how close to the wires would one have to be to do the 

verification?

A I'm an electrician, I can get close to the wires all the time. I am right at the wire. I 

hold them and -- yeah.

Q The instruments that you use to test whether there's live voltage --

A Right.

Q -- how close to the wires do you have to get to be able to use them properly? 

A Within a few inches away from the wires.

Q Okay. A verification that the wires are no longer live is the last step in the 

procedure? 

A Before I start taking it apart, yes.

(Tr. at 148-151.) 

6 Vanella testified: 

Q The switch, did you turn it off when you changed --

A Yes.

Q Did you lock it out --

A At that time -- yeah. At that time I realized I had a switch control, so I went up to 

the nurse's station, we shut the switch down and I found out that it was -- because 

I saw the lights go out in the corridor and I tested it again and the light was out. 

Okay, and I locked it out. 

Q So that light was in fact controlled by that switch.

A Yeah.

Q And did you lockout and tag out? 

A Yes. 

(Tr. at 245.) In this account, Vanella underscores the importance of de-energizing the circuit before 

attempting to work on it. 
9

touch. (Tr. at 150, 350-351.) JCMC general maintenance mechanics and its electrician do not 

wear voltage rated safety gloves while working on this task. (Tr. at 202, 271-272, 544-545, 547.) 

Work Orders in the record establish that the decedent replaced ballasts routinely in the 

months leading up to the date of the incident. The Secretary summarized the evidence in his brief 

in the following manner: 

Exhibits S-2 and S-32 comprise the entire printout by Adamson that day for [the 

decedent’s] Work Orders for the previous six months before his death (Tr. 502). 

Adamson told the CSHO that this set of Work Orders has an identifying number 

for [the decedent], which was 58 (Tr. 508). In Exhibit S-2: 

• Work Order number 138496.1 RO lists the job assignment for “replace 

ballast” and is dated February 28, 2016 (Tr. 503). 

• Work Order number 138765.1 RO lists the job assignment for “replace 

ballast” and is dated March 8, 2016 (Tr. 503). 

• Work Order number 139521.1 RO lists the job assignment for “lights 

out/replace ballasts” and is dated April 4, 2016 (Tr. 504). 

• Work Order number 139522.1 RO lists the job assignment for “lights 

out/replace ballast” and is dated April 4, 2016 (Tr. 504). 

• Work Order number 139727.1 RO lists the job assignment for “lights 

out/replace ballast” and is dated April 6, 2016 (Tr. 504). 

• Work Order number 139729.1 RO lists the job assignment for “lights 

out/replace ballast” and is dated April 6, 2016 (Tr. 504). 

• Work Order number 140717.1 RO lists the job assignment for “lights 

out/replace ballast in hallway” and is dated April 6, 2016. 

• Work Order number 140743.1 RO lists the job assignment for “lights 

out/change ballast” and is dated May 8, 2016 (Tr. 504). 

(Sec’y Br. 7.) The Secretary also summarized the Work Orders in the record establishing that 

Dapat replaced ballasts during the month before and after the incident: 

Exhibits S-3 and S-33 comprise the entire printout by Adamson that day for Dapat’s 

Work Orders for the previous month (Tr. 506). Adamson told the CSHO that this 
10

set of Work Orders has an identifying number for Dapat, which was 55 (Tr. 508). 

In Exhibit S-3: 

• Work Order number 142082.1 RO lists the job assignment for “lights 

out/change ballast in hallway” and is dated June 24, 2016 (Tr. 508). 

• Work Order number 142747.1 RO lists the job assignment for “replace 

ballast” and is dated July 25, 2016 (Tr. 508).

(Sec’y Br. 7.) Respondent did not dispute this recitation of the work order evidence in its Reply 

Brief. 

The Decedent Failed to De-Energize the Light Fixture

Okon investigated the light fixture shortly after the incident (“no more than a day” after

the incident). (Tr. at 182.) Okon testified that he “carefully removed the ceiling tile and I noticed 

right away a wire, exposed wire, which should be in the ballast, it was a live wire. I immediately 

taped it up, put a wire nut on it. And I reported to my Director what my findings.” (Tr. at 182.) 

Okon further testified that: 

that one wire should not be left removed. I believe it was the last thing he did when 

he got shocked. There was some burn marks in the ceiling grate...I inspected 

visually only. Put my pen tester on that wire, it was live. I put a wire nut on it. I 

looked around for any additional damage above the ceiling, did not find any except 

the burn mark. I closed the ceiling tile back on, put it back in and reported to my 

Director.

(Tr. at 182-183.) 

Vanella also investigated the decedent’s light fixture days later around June 29, 2016. (Tr. 

at 241-242; Tr. at Ex. S-8.) He was contracted by the Director of the Facilities Department, 

Edward Grogan, to see “if there’s anything going on in the fixture that shouldn’t have been.” (Tr. 

at 237.) Vanella testified that when he arrived to check out the fixture, all of the corridor lights 

were on, and the black wire with the wing nut on it that was “feeding” the decedent’s light was 

live with 277 volts. (Tr. at 244.) He determined that a switch at the nearby nurse’s station 

controlled the corridor of lights and shut off the switch to determine if it also controlled the light 
11

that the decedent had been working on. (Tr. at 244.) “At that time I realized I had a switch control, 

so I went up to the nurse’s station, we shut the switch down and I found out that it was – because 

I saw the lights go out in the corridor and I tested it again and the light was out. Okay, and I locked 

it out.” (Tr. at 245.) He then agreed that the decedent’s light was controlled by that switch at the 

nurse’s station. (Tr. at 245.) Vanella did not testify to any existence of residual power leftover in 

the ballast of that light fixture, he testified that he did not see any other ballast in the area, and he 

testified that he subsequently connected the existing ballast and “it worked.” (Tr. at 245.) 

As noted above, the video of the incident establishes that all of the lights in the corridor 

were on immediately before the decedent’s incident, and then all of the lights went out immediately 

after decedent’s incident. (Ex. S-26.) This video evidence, combined with both Okon’s and 

Vanella’s testimony that the black wire that fed into the ballast that powered the decedent’s light 

fixture was still “live” when they investigated the fixture and that the existing ballast was still 

operational after Vanella hooked it back up, supports a finding that, rather than being shocked by 

any residual stored energy in the ballast, the decedent had instead failed to de-energize the light 

fixture prior to working on it. If the decedent had de-energized the circuit, the decedent’s light 

fixture, and its ballast, would no longer have been part of the circuit of the corridor of lights, and 

the ensuing shock would not have affected the row of lights in the corridor like it did in the video. 

The decedent was not wearing voltage rated gloves at the time of the incident. (Tr. at 546-

547.) 

Working Live, Failing to Lock Out/Tag Out and Other 

Electrical Safety Practice Failures at JCMC

Along with the decedent’s incident, other record evidence establishes that Respondent’s 

Facilities Department cultivated a prevalence of failing to follow proper protocol when working 

with electrical circuits. Initially, it is noted that even though Respondent asserts that the decedent 
12

was not qualified or even authorized to change ballasts, Respondent had written work orders in 

place documenting that the decedent was assigned that task at least 8 times prior to the incident. 

As discussed later, the record also establishes that neither the decedent nor Dapat were trained in 

lockout/tag out procedures for this assigned task before the incident, Dapat was not trained until 

at least mid-July 2016, and the decedent and Dapat were addressing light fixtures and changing 

ballasts without this training.

Additionally, even though Associate Vice President William Cook and Director Edward 

Grogan both testified unequivocally that no one is authorized to work “live,” the record establishes 

that Dapat failed to follow this basic electrical safety practice. (Tr. at 30-31, 335-336, 339-340.) 

Respondent does not dispute that Dapat worked “live” once, before the incident, because “they 

were busy working, taking patients – I think it was the lunch, they were taking the lunch orders 

and they needed the light fixed while there were doing it. And I couldn’t shut it off, they need to 

see what they were doing.” (Tr. at 269-270, 290-291; Resp’t Br. 16.) Dapat testified the following 

as to his understanding of “working live”: 

Q Do you know what it means to work live? 

A Yes.

Q Could you describe what that is, working live? 

A Well basically you're working with wiring that still has electrical current.

Q And is it circuits that have not been de-energized?

A Yes.

Q And further locked out and tagged out? 

A Yes.

(Tr. at 259.) In this instance therefore, the one time Dapat worked “live” before the incident, he 

not only failed to de-energize the circuit, he also failed to lock out/tag out that circuit. 

The record also supports a finding that Dapat addressed light fixtures and changed ballasts 

regularly before the incident. (Tr. at 256.) Dapat further testified that, all of these times before 

the incident, he routinely failed to lock out and tag out when working on ballasts, stating that he 
13

had never been trained in lockout/tag out procedures and that he “never even knew about 

lockout/tag out.” (Tr. at 267.) Dapat also testified that he wore no protective gloves at all before 

August of 2016 “because the circuit would be off. It was working on bare wires,” even though he 

admitted that he never locked out/tagged out the circuits at that time. (Tr. at 267, 271-272.) 

Dapat also testified that he would test voltage on ballasts, before June 2016, using a multimeter to make sure the ballasts were de-energized. (Tr. at 272.) He testified that the leads to the 

multi-meter “would be right on the wire.” (Tr. at 272.) As Okon noted, the possibility of stored, 

residual energy could still be in the ballast, and could still deliver a shock to a worker even if the 

circuit itself had been de-energized, until the ballast was grounded. (Tr. at 150.) Okon testified 

that “after testing the circuit, if the voltage is not there and you de-energized,” it was not necessary 

to wear gloves voltage-rated working on a ballast. (Tr. at 206.) Okon clarified that he believes 

only qualified people test circuits for changing ballasts. (Tr. at 224.) In the event an unqualified 

person is changing a ballast, they would “always” be exposed to the hazard because “if they’re not 

qualified they don’t know how to test it, how to – do they know what voltage is, you know.” (Tr. 

at 224.) He then agreed it would be safer for someone to wear electrically rated gloves while 

verifying whether a circuit has been de-energized or locked out/tagged out because “that person is 

using a voltage meter that comes within inches of the circuits which may be live.” (Tr. at 224.) 

JCMC maintained its written Hazardous Energy Control Procedures Manual on the third 

floor of the hospital in the mechanical room. (Tr. at 62-63, 228, 316, 463; Ex. R-30.) Grogan duly 

produced this manual to CO Consalazio during OSHA’s inspection on June 28, 2016. (Tr. at 463, 

467-468.) Upon receiving it, CO Consalazio noted that it was a generic procedure, intended to be 

tailored to the site-specific equipment of JCMC. (Tr. at 469-470.) It had pages that were not filled 
14

out and had nothing specific to the light fixtures that the general maintenance mechanics changed. 

(Tr. at 470; Ex. R-30.) 

Management of the General Maintenance Mechanics

The multiple instances of disregard for basic electrical safety procedure at JCMC beg the 

question of how Respondent hired, trained and supervised its general maintenance mechanics. The 

record establishing the chain of command is murky, especially surrounding who was responsible 

for ensuring that only appropriately trained employees addressed light fixtures. 

William J. Cook was Associate Vice President of Support Services at the time of the 

incident at JCMC. (Tr. at 12-13, 19.) Cook was responsible for administrative oversight of a 

number of departments, including the Facilities Department. According to Cook, the Facilities 

Department “performed maintenance of anything that needed to be done throughout the Medical 

Center.” (Tr. at 13.) As the Associate Vice President, Cook “was the direct report from the 

Director of Facilities.” (Tr. at 13.) The Director of Facilities at the time of the incident was Edward 

Grogan, who took over from the previous Director, Charles Church, just a few weeks prior to the 

incident. (Tr. at 14-15, 334.) 

According to Grogan, all 22 employees in the Facilities Department reported directly to 

him, including Facilities Coordinator George Adamson. (Tr. at 335, 359.) As the Coordinator, 

Adamson was responsible for issuing work assignments. Cook testified that he did not think 

Adamson, as the coordinator, directly supervised any employees. (Tr. at 12-14.) Adamson “gave 

direction to them,” but the employees reported to Director Grogan. Grogan testified that Adamson 

is not a supervisor, he just coordinates work assignments. (Tr. at 321.) 

Adamson, on the other hand, testified that “general maintenance” reported to him. (Tr. at 

362.) Adamson also stated that it is Director Grogan’s responsibility to make sure that employees 
15

received training. (Tr. at 392, 399-400). Adamson further testified that he does not “know who 

was trained or who wasn’t trained.” (Tr. at 400.) Grogan testified that he did not review the 

qualifications of the employees of the department during the 2-3 weeks he was on the job up to 

and including the day of the incident. (Tr. at 335.) 

Electrician Steve Okon, General Maintenance Mechanic Lawrence Dapat, and the decedent 

all worked in the Facilities Department. Okon testified that he reported to Coordinator Adamson 

or Director Grogan. (Tr. at 152.) Okon reported to Coordinator Adamson “about updates on each 

task that he was assigned.” (Tr. at 153.) Okon also said that he “answers to Ed [Grogan] 

basically”). (Tr. at 177.) Okon was also clear that he himself was not a supervisor. (Tr. at 145.) 

Okon, instead, testified that Dapat reported to Coordinator Adamson and that Coordinator 

Adamson was Dapat’s supervisor. (Tr. at 158.) Dapat testified that Coordinator Adamson was his 

supervisor, and he also “occasionally reported with the Director [Grogan]...if there was a job to 

be done, when George [Adamson] is away.” (Tr. at 261.) Dapat testified that he would report to 

Okon “after I changed the bulb and it needs a ballast I would tell Steve [Okon] and then we’d both 

go,” and then would tell “maybe George [Adamson] after the job was completed.” (Tr. at 269.) 

The record is unclear exactly who supervised the decedent, but the record supports a finding that 

his supervision was similar to Dapat’s. 

Charles Church, the Director of Facilities from June 2002 to June 2016 (retiring a few 

weeks before the incident in this case), was the Director of Facilities when the decedent and Dapat

were hired in the Facilities Department. Church did not testify at the hearing, but CO Consalazio 

interviewed him during the investigation. (Tr. at 536.) CO Consalazio testified that Church told 

her that maintenance mechanics normally changed ballasts, that Adamson “finds” work for the 

mechanics, and that Church, as the Director, is not involved in the “day-to-day” activity. (Tr. at 
16

536.) Church also told CO Consalazio that “he didn’t think that [the decedent] was in the 

lockout/tag out training in 2014.” (Tr. at 536.) 

Adamson testified that when the decedent came to him to report that he needed to order 

more ballasts, Adamson asked the decedent whether he was “doing ballasts,” and the decedent told 

him yes. (Tr. at 385.) Adamson then testified that he immediately told the decedent to stop 

changing ballasts and then told Church, the Director at the time, that the decedent was changing 

ballasts and that Adamson had told the decedent “not to do it anymore.” (Tr. at 386.) Adamson 

testified that it was not his responsibility, it was instead the Director’s responsibility, to take steps 

to make sure employees received training. (Tr. at 399-400.) He further testified that he would not 

have “that information” regarding whether an employee needed training related to his job duties 

(i.e. “I wouldn’t know who was trained or who wasn’t trained.”) (Tr. at 400.) 

Dapat started as a general maintenance mechanic in the Facilities Department on April 2, 

2015. (Tr. at 516.) Dapat testified as to how he became general maintenance mechanic for JCMC. 

He testified that he used to “do the shuttle. I just shuttle people around. And one of the people I 

used to shuttle was Charlie Church. So I was talking with Charlie about my previous experience 

and when there was an opening in the general maintenance position I was talking to Charlie about 

that.” (Tr. at 278.) Dapat testified that he applied for the position, submitted his resume and 

interviewed with Church and Adamson. (Tr. at 279-280.) 

Dapat said that he told Church about his previous employment experience. (Tr. at 278.) 

Dapat testified that before working at JCMC, he worked for one year for Sica Electric, an electrical 

contractor. (Tr. at 282.) He testified that, while working “a little bit with an electrician,” he 

“learned how to work on [ballasts] safely. Live.” (Tr. at 282.) He explained during a deposition 

for this case that this project is where Sica Electric “re-lamped the whole store and just changed 
17

the ballasts. Actually we did it live because we couldn’t turn off the lights in the store.” (Tr. at 

295.) He testified during deposition that he told Adamson this previous electrical experience at 

Sica Electric. (Tr. at 294.) Dapat further testified that he did not discuss electrical safety with 

either Church or Adamson. (Tr. at 278, 280.) Dapat first worked for “several months” on the 

night shift as a general maintenance mechanic, and then switched to the day shift.7

 (Tr. at 251-

252.) 

During his December 7, 2017 deposition, Okon testified that Adamson never come to him 

to ask for feedback about Dapat’s work, rather Okon testified that he took it upon himself to 

approach Adamson to let him know that Dapat was “doing great, you know, I watch him doing 

such good – doing such things, good choice, you know, basically.” (Tr. at 176.) Also, during his 

deposition, Okon testified that he and Dapat did not talk about whether Dapat was trained in 

lockout/tag out or de-energization or other electrical safety work practices. (Tr. at 186.) A further 

excerpt from the deposition states: 

Do you remember if you submitted a position that Mr. Ortiz [Okon’s previous 

assistant] had and he was going to help you do electrical work, were you aware of 

any training or experience that Mr. Dapat had in electrical work? Answer, line 6: I 

heard he had some experience but I doubt these things until I trained him myself. 

(Tr. at 186.) 

Respondent hired the decedent on August 5, 2015. (Second Amended Joint Prehearing 

Statement at 9; Tr. at 111.) At the time he was hired, the decedent had training in heating, 

ventilating and air conditioning, but no training in electrical work. (Tr. at 448-453; Exs. S-11 

(high school diploma from GM Financial Center in Cooling and Conditioning); S-12 (experience 

certificate in telecommunications); S-13 (Certificate of Apprenticeship in Metal and Air Condition 

7 The day shift ran from 7 a.m. to 3 p.m., and the night shift ran from 3 p.m. to 11 p.m., every day of the 

week. (Tr. at 251-252.) 
18

(sic)); S-14 (diplomas from Hudson Technical School in Air Conditioning and Refrigeration); S15 (resume showing experience in Air Conditioning and Refrigeration); S-16 (Certificate of 

Completion from National Occupation Competency Testing Institute in HVAC).) (Sec’y Br. 12.) 

Work Assignments 

The record indicates that general maintenance mechanics come to address a light fixture 

by one of three ways: (1) a written work order assigned by Coordinator Adamson, (2) verbal 

instruction over the phone or radio by Coordinator Adamson, Director Grogan, or “a secretary 

that’s taking phone calls at that moment,” or (3) on their own volition while “making rounds” 

throughout JCMC’s physical plant. (Tr. at 107, 157, 160-161, 184-185, 268, 365-366, 405-406, 

484, 486.) As noted earlier, if a light is out, there are three possible ways to fix it: (1) replace the 

light bulb, if that does not work, (2) check if there is power to the ballast, and if that does not work, 

(3) replace the ballast.8

 When the Facilities Department gets a request to fix a light that has gone 

8 Dapat testified:

Q Before the incident was one of the types of job assignments that George gave you 

to change ballasts?

A He would just send me up saying a light's not working. 

Q If you got the job assignment that a light was not working what steps would you 

take to get the light working again?

A First I would try to replace the bulb. If it's not the bulb then I would check to see 

if there's power to the ballast. If there is power to the ballast then we would have 

to replace the ballast.

Q But as you testified, George merely said to you that there's a light out in the hallway 

and go fix it? 

A Yeah, basically he would ask me to take a look at it and see what the problem is.

Q If you came upon a ballast -- I'm sorry, if you came upon a light fixture that was 

out and you made a determination that the ballast had to be replaced, would you 

report that to anyone? 

A Yes. I would -- after I changed the bulb and it needs a ballast I would tell Steve 

and then we'd both go. 
19

out, Adamson testified that he did not know if it was a simple light bulb fix, or a ballast issue.9 

(Tr. at 406-407.) According to Dapat, there are “too many” light fixtures at JCMC. (Tr. at 293.) 

Q Would you tell anyone else but Steve? 

A Maybe George after the job was completed.

Q If you were to -- at the time that you told -- at those times that you told George that 

you had changed a ballast, did he have any reaction to that?

A No.

Q If you came upon -- the procedure you've described where if you came upon a light 

fixture that was out, you would test to see if the bulb was working and then if it 

wasn't the bulb and the ballast needed to be replaced, would you do those types of 

things by yourself? 

A If Steve is not available I would do it by myself.

(Tr. at 268.) 

9 Adamson testified:

Q And does that mean a staff person in the hospital could stop a plumber and say 

there is a sink stopped up in 3-E, can you do something about it? 

A It's happened before, you know, where somebody would stop -- my drawer is 

broke, can you fix it? Or my light's out, can you change the bulb, you know, things 

of that nature.

Q And are there occasions that that work is then performed without you assigning it?

A I believe so, sometimes. Sometimes they'll come up to me and say oh, so and so 

stopped me, asked me to put the wheel back on a chair or change a light in their 

office.

Q Do you then enter a work order? 

A Yes.

Q Okay. Now, when you issue assignments connected with lights, do you know a 

ballast is out?

A No.

Q So what do you issue as the assignment?

A To change -- I don't know if it's a ballast. Somebody may have told me I changed 

the light, so I'm going to assume it's the ballast, so I would just automatically just, 

you know, change ballast. 

Q But you're not an electrician? 

A No.

Q Now, back to the work order --
20

The record contains at least 8 written work orders that the decedent had been assigned the 

task to address light fixtures and “replace ballasts” in the months leading up to the date of the 

incident. (T. 502-504; 638-639 (no objection that the employee number (“58”) associated with the 

work orders was identified as the decedent’s employee number); Exs. S-2, S-32.) On the day of 

the incident, Adamson did not issue a work order or verbal instruction or call the decedent on the 

radio or give him any assignment that night having to do with any kind of electrical task. (Tr. at 

405.) Instead, the record establishes that the decedent came upon the light fixture during “his 

rounds” and addressed the light fixture on his own volition. (Tr. at 107.) 

When asked about the multiple work orders documenting the fact that the decedent had 

changed multiple ballasts in the months leading up to the incident, Adamson testified that he only 

issues work orders “for the most part” and that he did not know if he created those specifically. 

(Tr. at 386-387.) Adamson “absolutely” denied ever giving the decedent an assignment to change 

ballasts. (Tr. at 384.) 

Training 

Respondent claims that JCMC “established extensive employee training from initial 

orientation through mandatory annual training and individual department training.” (Resp’t Br. 

40.) Mary Cataudella, Vice President of Human Resources who oversees the new employee 

orientation program, described what the two-day orientation consists of: 

Yes, it's a two day program which starts off with the CEO and all of his 

administrators introducing themselves to the employees and asking the employees 

why they came to Jersey City, what their title is and getting them to know each 

other and then the day proceeds with topics such as blood born pathogen, hazardous 

material, infection control procedures, cultural diversity, Human Resource benefits, 

policies and procedures, fire safety, violent prevention in the work place. 

A I mean there could be a dozen things wrong with the fixture. I'm not going to list 

everything on the work order. 

(Tr. at 406-407.) 
21

(Tr. at 53.) Cataudella testified that all new JCMC employees, no matter their job title, are required 

to attend this two-day orientation together. (Tr. at 63-64.) All new hires, representing departments 

such as dietary, pharmacy, anesthesia as well as maintenance, are all taught the same lockout/tag 

out practices discussed, among other topics, within an hour and a half session entitled 

“Environment of Care & Right to Know, Safety, Equipment, & Utilities Management Security 

Management, Hazardous Material & Waste Mgmt.” (Tr. at 63-64; Exs. R-7 at 1, R-8 at 1.) The 

record establishes that the decedent attended the two-orientation meeting on August 31 and 

September 1, 2015. (Tr. at 111, 658; Exs. R-7, R-8.) The record does not similarly establish that 

Dapat attended a two-day orientation meeting.10 

In addition to this two-day new hire orientation, all JCMC employees are expected to 

complete annual refresher training of the same subjects covered in orientation via an online training 

module. (Tr. at 55-56; Exs. R-1, R-3, R-4, R-31.) Okon testified that the training in these modules 

“wasn’t for – to educate how to do the work with electrical, it’s how to do it safe. So it was just 

about lockout/tag out so you could work safely on anything that comes up.” (Tr. at 181.) These 

training modules, which served as a refresher to what was taught at orientation, had nothing 

specifically about changing ballasts. (Tr. at 181.) The decedent did not attend the annual refresher

training as the incident occurred less than a year into his first year at JCMC. (Tr. at 111-112.) 

Dapat testified that he recalls the annual refresher online modules shown at the hearing, but he did 

not know when he took the annual refresher training and the record does not establish when he 

took the annual refresher training. (Tr. at 286-287.) The record does establish, however, that 

10 The record does not indicate when Dapat attended new-hire orientation training. It is noted that Dapat 

was originally hired by JCMC as a courier, and then transferred into the Facilities Department a few months 

afterward. (Tr. at 247-248.) 
22

Dapat completed a course termed “Joint Commission OSHA Compliance Course Electrical 

Safety” on June 30, 2014, and May 14, 2015. (Tr. at 208; Ex. R-17.) 

JCMC also provided lockout/tag out training: once on April 23, 2014, and then after the 

incident on July 12, 2016. Neither the decedent nor Dapat attended the 2014 lockout-tag out 

training, as they had not been hired by that time. Rather, attendees at the 2014 training included 

Church (who gave the training), Adamson, Okon, and Okon’s assistant at the time. (Tr. at 20-23, 

31-33; Ex. R-30 at 181.) At this lockout/tag out training, Church, Adamson, Okon and Okon’s 

assistant at the time discussed “basic lockout/tag out procedures and different complications. It 

was a lockout/tag out course not only for electrical, general mechanical lockout/tag out. It was a 

basic course for everyone to attend.” (Tr. at 179-180.) Dapat attended the lockout/tag out training 

on July 12, 2016, after the incident. (Tr. at 288.) This lockout/tag out training discussed proper 

de-energization and lockout/tag out procedures for “an item that uses electric as power,” although 

not specifically ballasts. (Tr. at 329-330). 

Regarding on-the-job training, Okon was the only electrician on staff at JCMC. (Tr. at 30, 

108, 138, 421.) As the only electrician on staff, Okon testified that he did not train the decedent 

at all in electrical safety, and that he never worked with the decedent, except on tasks like snow 

removal. (Tr. at 179.) On the other hand, Okon testified that he worked closely every day with 

Dapat “ever since he started,” making sure Dapat “learned all the steps that I’m doing to learn 

[electrical] correctly,” and that “as of 2016,” Okon trusted Dapat “to change a simple ballast.” (Tr. 

at 187-189.) 

Dapat, in contrast, testified at his deposition that he did not start working together with 

Okon until after the incident and that before the incident, Dapat changed ballasts by himself. (Tr. 

at 256.) Dapat also testified that lockout/tag out procedures were instituted by JCMC after the 
23

incident. (Tr. at 272-273.) Dapat testified that before he came to work at JCMC, he worked as an 

apprentice as an electrician, but was never trained in lockout/tag out.11 He also testified that he 

did not even know about JCMC’s lockout/tag out program until after the incident. (Tr. at 267.) 

Deposition Discrepancies: Okon, Dapat and Grogan

 The record contains several discrepancies between previous deposition testimony of Steve 

Okon, Lawrence Dapat, and Edward Grogan, and their own testimony at the hearing. (Tr. at 160, 

175, 178, 186, 256, 281, 294-295, 313.) These discrepancies add to the murkiness of this record 

regarding the oversight of safety for JCMC’s general maintenance mechanics. Additionally, the 

undersigned notes that these witnesses appeared uncomfortable and coached when they changed 

their story under examination by Respondent’s counsel at the hearing. Their evasive testimony 

led to a lack of clarity in their responses. In contrast, the CO’s testimony was convincing and 

consistent with the deposition testimony.

Steve Okon testified on December 7, 2017 at deposition that work is assigned to him by 

Adamson verbally over the phone or over the radio, and work could also be assigned to him by the 

11 Dapat testified: 

Q And you said you apprenticed with an electrician? 

A Yes. Roughly around -- it was one of my first jobs. I used to work for Sica Electric 

and I used to work with an electrician and I also had my own team. Used to change 

lamps and ballasts in department stores.

Q Did this apprenticeship -- did the person who was conducting the apprenticeship 

train you in lockout/tag out or de-energization?

A He taught me how to de-energize circuits but there was no lockout/tag out. 

Q And what did he show you about de-energization?

A How to turn off the breaker, you know. Turning off the circuit before you work on 

the wiring.

Q But he didn't teach you anything about lockout/tag out? 

A No.

(Tr. at 267.) 
24

Director, or “it could be a secretary that’s taking phone calls at that moment.” (Tr. at 160-161.) 

Later at the hearing, on April 24, 2018, Okon testified that he received assignments via work order, 

in addition to verbal assignments. (Tr. at 160.) 

During his December 7, 2017 deposition, Okon testified that he never had any

conversations with Church, Grogan or Adamson about the way Dapat did his lockout/tag out 

procedures or his de-energization procedures. (Tr. at 175, 178.) At the hearing, however, Okon 

testified that Grogan asked him whether Dapat was taking proper procedures, and he confirmed to 

Grogan “that we are doing it.” (Tr. at 178.) He later testified that “I believe I must have but I 

don’t remember.” (Tr. at 226.) 

Okon testified at the hearing that he and Dapat worked “side by side...ever since the day 

he started.” (Tr. at 188.) Dapat testified that “even before the incident I was changing the ballasts 

with Steve [Okon].” (Tr. at 255.) Dapat, however, during his deposition on December 7, 2017, 

testified that he began “teaming up” with Okon after the incident, and that before the incident he 

changed ballasts by himself. (Tr. at 256.) Also during his deposition, Dapat testified that the 

extent of his communication with Adamson regarding his work with Okon consisted of Adamson 

asking Dapat for status updates and whether a particular job was completed. (Tr. at 281.) During 

the hearing, however, Dapat testified that he did not remember any communications with Adamson 

before June 2016 regarding work he did with Okon. (Tr. at 280.) 

Under cross-examination, Dapat agreed that at his deposition that he had communicated 

with Adamson about his training and experience in electrical work when he “first got interviewed” 

for the job. (Tr. at 294.) Under redirect examination, Dapat clarified that his deposition testimony 

revealed that this communication with Adamson at his job interview consisted of his experience 

at Sica Electric, where he worked with live electricity changing ballasts. (Tr. at 295.) He had also
25

testified at his deposition that he discussed with Adamson that his training consisted of only “onthe-job” training and he did not discuss his knowledge of electrical safety work practices. (Tr. at 

295.) 

At the hearing, Grogan testified that while he knew the incident occurred on a Sunday, he 

did not remember exactly when he first participated in the discussions with his management team 

in determining what caused the incident. (Tr. at 311-312.) Grogan was then reminded by his 

deposition testimony that he believed that the first discussion meeting he participated in occurred 

the very next day after the incident, Monday. (Tr. at 312-313.) 

DISCUSSION

To prove a violation of an OSHA standard, the Secretary must establish that (1) the cited 

standard applies, (2) there was a failure to comply with the cited standard, (3) employees had 

access to the violative condition, and (4) the employer knew or could have known of the condition 

with the exercise of reasonable diligence. Astra Pharma. Prods., 9 BNA OSHC 2126, 2129 (No. 

78-6247, 1981) aff’d in relevant part, 681 F.2d 691 (D.C. Cir. 1980). A violation is “serious” if a 

substantial probability of death or serious physical harm could have resulted from the violative 

condition. 29 U.S.C. § 666(k). 

Serious Citation 1, Item 1: De-Energization 

The Secretary claims that Respondent violated 29 C.F.R. § 1910.333(a)(1), which requires: 

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. Live parts that operate at less than 50 

volts to ground need not be deenergized if there will be no increased exposure to 

electrical burns or to explosion due to electric arcs. 

29 C.F.R. § 1910.333(a)(1). The Secretary alleges that: 
26

[g]eneral maintenance mechanics work on live 277 volt AC while changing ballasts 

for overhead fluorescent lights. On or about 06/26/16, a worker performing such 

operations received an electrical shock while working from an A frame ladder. The 

worker fell approximately 6 ft. to the floor below, striking his head and later died 

of his injuries. 

(Citation at 6.)

Respondent argues that no general maintenance mechanic was ever directed or authorized 

to work on live current, and that only Okon and Dapat were authorized to even change ballasts. 

(Resp’t Br. 26-28; Tr. at 340.) Therefore, Respondent argues that the Secretary failed to establish 

both that JCMC violated the cited standard and that it had actual or constructive knowledge of any 

general maintenance mechanic violating the cited standard. (Resp’t Br. 28-29; Resp’t Reply Br. 

2-3.) 

The record establishes that the cited standard was applicable here, that the standard was 

violated and that the decedent, JCMC’s employee, was exposed to live parts on June 26, 2016. 

Light fixtures at JCMC ran on 277 volt current, which is greater than the 50-volt exception to the 

standard. (Tr. at 147. 464.) If a light fixture needed to be addressed, because for example the light 

had gone out, JCMC’s general maintenance mechanics were initially charged with “changing a 

light bulb.” (Tr. at 30.) If changing the light bulb failed to correct the lighting issue, two possible 

situations would have to be explored: either the voltage had been interrupted or the ballast was 

damaged. (Tr. at 148.) In exploring either situation, the employee was exposed to live current 

unless the light fixture was completely de-energized. As found above, the decedent did not deenergize the light fixture and was working on live current, greater than 50 volts, when he was 

electrocuted while working on the light fixture.12 

12 The record also establishes that Dapat changed ballasts, and therefore was also exposed to the possibility 

of live current when he changed ballasts. JCMC does not dispute that Dapat actually worked on live current 

at least once, before the incident, while changing a ballast and does not dispute that Dapat regularly changed 
27

 “The knowledge element of a violation does not require a showing that the employer was 

actually aware that it was in violation of an OSHA standard; rather it is established if the record 

shows that the employer knew or should have known of the conditions constituting a violation.” 

Peterson Bros. Steel Erection Co., 16 BNA OSHC 1196, 1199 (No. 90-2304, 1993), aff’d, 26 F.3d 

573 (5th Cir. 1994). To establish whether the employer should have known of the conditions

constituting a violation, the Secretary must show whether the employer: 

constructively knew of it--that is, the employer could have known with the exercise 

of reasonable diligence. ... Whether an employer was reasonably diligent involves 

a consideration of several factors, including the employer’s obligation to have 

adequate work rules and training programs, to adequately supervise employees, to 

anticipate hazards to which employees may be exposed, and to take measures to 

prevent the occurrence of violations.

Par Elec. Contractors, Inc., 20 BNA OSHC 1624, 1627 (No. 99-1520, 2004) (citations omitted); 

see also N.Y. State Elec. & Gas Corp. v. Sec'y of Labor, 88 F.3d 98, 108 (2d Cir. 1996) (holding 

that Secretary bears the burden of proof regarding the issue of knowledge “even when knowledge 

charged to an employer is predicated on its alleged inadequate safety policy.”). “The knowledge 

of a supervisory employee may be imputed to his or her employer.” Par, 20 BNA OSHC at 1627.

ballasts in his role as a general maintenance mechanic. Respondent argues that because the citation itself 

limited the instance of exposure to the decedent’s incident on June 26, 2016, that the Secretary 

inappropriately expanded the scope of the charge by including Dapat’s work with ballasts. (Resp’t Reply 

Br. 2.) 

Any such expansion is harmless because this violation is upheld based on the decedent’s incident. The 

undersigned, however, finds any such amendment to the alleged violation description to this citation item 

would be proper, and Respondent would not be prejudiced, because Respondent had the opportunity and 

did fully litigate the issues surrounding Dapat for this citation item at the hearing. See Tr. at 249 (asking 

Dapat on direct examination “a series of questions about the time period before [the decedent’s] incident” 

regarding his duties and procedures addressing light fixtures), and Tr. at 541 (CO testifying on direct 

examination regarding knowledge of safe electrical practices of both decedent and Dapat for Citation 1, 

Item 1); N. Y. State Elec. & Gas Corp. v. Sec'y of Labor, 88 F.3d 98, 104 (2d Cir. 1996) (“[i]n an 

administrative proceeding ... pleadings are liberally construed and easily amended.”); Nat’l Realty & 

Constr. Co., Inc. v. OSHRC, 489 F.2d 1257, 1264 (D.C. Cir. 1973)(“So long as fair notice is afforded, an 

issue litigated at an administrative hearing may be decided by the hearing agency even though the formal 

pleadings did not squarely raise the issue.”). 
28

Respondent argues that changing a ballast is not the same thing as working “live.” (Resp’t 

Reply Br. 2 (asserting, “Rather, by sleight of hand, the Secretary attempts to prove knowledge of 

‘live’ work by referring to evidence of ballast changes. They are critically different.”).) Okon, 

however, testified that addressing a light fixture necessarily involves potential exposure to live 

electricity should a simple light bulb replacement be unsuccessful. (Tr. at 148.) The record 

establishes that the decedent routinely addressed light fixtures and “changed ballasts” documented 

in written work orders in the months leading up to the incident. (Exs. S-2, S-32.) These written 

work orders were issued by Adamson “for the most part,” or at the very least, by someone who 

had authorization to direct the decedent to address those light fixtures. Am. Eng’g & Dev. Corp., 

23 BNA OSHC 2093, 2095-96 (No. 10-0359, 2012) (imputing knowledge of backhoe operator 

who lacked authority to hire or fire but was charged with giving work instructions and orders to 

other employees); Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993) (“[A]n 

employee . . . empowered to direct that corrective measures be taken is a supervisor[].”). These 

work orders are sufficient to impute actual knowledge to Respondent that the decedent was 

addressing light fixtures at JCMC and therefore was potentially exposed to live current. Am. 

Eng’g & Dev. Corp., 23 BNA OSHC at 2095 (knowledge is imputed to the employer “through its 

supervisory employee.”). 

Additionally, Adamson testified that the decedent told him that he was changing ballasts, 

and that Adamson told the decedent not to change them. (Tr. at 386.) Adamson then testified that 

he told Church that the decedent was changing ballasts and that he had told the decedent not to 

change them. Church, however, told the CO that general maintenance mechanics normally 

changed ballasts, and that he knew that the decedent had not attended the 2014 lockout/tag out 

training, which Church himself ran. (Tr. at 20-23, 536.) It was also surmised by the RCA that the 
29

decedent saw the light in disrepair while doing “his rounds” on the day of the incident and decided 

to address the light fixture himself. (Resp’t Br. 14.) Newell testified to this fact, and CO 

Consalazio testified that Adamson told her that he knew that the decedent fixed items without a 

work order if he saw the item in disrepair while “doing rounds during the quiet part of his shift.” 

(Tr. at 107, 486.) 

Nothing in the record, moreover, establishes that JCMC took steps to ensure that the 

decedent did not change ballasts: the one electrician on staff did not train the decedent; no 

supervisor testified to the steps he took to monitor the decedent to make sure that he was not 

addressing light fixtures and to prevent further occurrences by the decedent; and JCMC did not 

provide training to the decedent in lockout/tag out or de-energization for the “simple” task of 

changing a ballast. These inactions add up and establish Respondent’s constructive knowledge 

that the decedent was working with live current when he addressed light fixtures at JCMC. Gary 

Concrete Prods., Inc., 15 BNA OSHC 1051, 1054-55 (No. 86-1087, 1991) (finding inadequate 

works rules and a lack of specific training or instructions on stacking techniques supported a 

finding of constructive knowledge). Schuler-Haas Elec. Co., 21 BNA OSHC 1489, 1493-94 (No. 

03-0322, 2006) (finding that employer had constructive knowledge because it could have known 

of the physical conditions constituting the violation); Pride Oil Well Serv., 15 BNA OSHC 1809, 

1814 (No. 87-692, 1992) (finding constructive knowledge when a supervisor could have 

discovered and eliminated the hazard with reasonable diligence). 

As far as characterization, this citation item is properly characterized as serious. 29 U.S.C. 

§ 666(k) (A violation is “serious” if a substantial probability of death or serious physical harm 

could have resulted from the violative condition). CO Consalazio testified that the hazard of 

electrocution, should it occur, was likely to cause death or serious physical harm. The decedent’s 
30

autopsy report indicates that electrocution contributed to the decedent’s death in this case. This 

serious citation item is affirmed. 

Serious Citation 1, Items 2a and 2b: Lockout/Tag Out 

Item 2a: Lockout/Tag Out

The Secretary claims for Citation 1, Item 2a that Respondent violated 29 C.F.R. 

§ 1910.333(b)(2), which requires: 

While any employee is exposed to contact with parts of fixed electric equipment or 

circuits which have been deenergized, the circuits energizing the parts shall be 

locked out or tagged or both in accordance with the requirements of this paragraph. 

The requirements shall be followed in the order in which they are presented (i.e., 

paragraph (b)(2)(i) first, then paragraph (b)(2)(ii), etc.).

29 C.F.R. § 1910.333(b)(2). The Secretary alleges that “[w]hile an employee was changing 

ballasts, the 277 volt circuits were not locked out or tagged after the toggle switch was turned off 

exposing the worker to electrocution. Violation occurred on or about 08/04/16.” (Citation at 7.)

Here, the parties stipulated that, “on August 4, 2016, Lawrence Dapat attempted to change 

a ballast. He failed to use a toggle switch lock-out device after he cut the power to a ballast.” 

(Second Amended Joint Prehearing Statement at 9.) With this stipulation, the parties have 

established that Dapat, a JCMC employee, was exposed to a de-energized circuit that he did not 

lockout/tag out while working on it. The cited standard applies, Dapat violated the standard, and 

he was therefore exposed to the hazard of unexpected re-energization while working on a deenergized circuit.

The record also establishes constructive knowledge for this citation item. Par Elec. 

Contractors, Inc., 20 BNA OSHC at 1627 (factors considered for constructive knowledge include

adequate work rules and training programs, adequate supervision, adequate anticipation of 

hazards, and adequate prevention measures). Here, after the incident, Grogan “scrambled” to 

provide his workers lockout/tag out training. (Tr. at 328-329.) While Dapat did attend this 
31

training, he nevertheless violated the lockout/tag out rule mere weeks afterward. Nothing in the 

record establishes that JCMC took any steps to change its work processes, such as increase 

monitoring to discover rule violations, to address basic electrical safety practice failures. The 

chain of command is not entirely clear either as to who had authority to monitor for Dapat’s safety: 

Okon denied any kind of supervision authority, Grogan stated that Adamson was not a supervisor 

and only coordinated work assignments, Adamson stated that he does not know who is trained to 

do which tasks, and Church stated that the Director is not part of the day-to-day activity. (Tr. at 

145, 321, 400, 536.) Constructive knowledge is established. Pride Oil Well Serv., 15 BNA OSHC 

at 1814 (finding constructive knowledge when a supervisor could have discovered and eliminated 

the hazard with reasonable diligence).

Respondent raises the unpreventable employee misconduct defense, asserting that JCMC 

cannot be responsible for “the unpreventable and inexcusable misconduct of Lawrence Dapat on 

August 4, 2016.” (Resp’t Br. 31.) Respondent claims that since Dapat attended the lockout/tag 

out training on July 12, 2016, after the incident and before Dapat’s lockout/tagout instance, the 

Secretary’s arguments as to Citation 1, Item 2a are without merit. (Resp’t Reply Br. 3-4.) 

To establish the unpreventable employee misconduct defense, Respondent has the burden 

to establish that: (1) JCMC has established work rules designed to prevent the violation; (2) JCMC 

adequately communicated those rules to its employees; (3) JCMC had taken steps to discover 

violations; and (4) JCMC effectively enforced the rules when violations have been discovered. 

Precast Servs. Inc., 17 BNA OSHC 1454, 1455 (No. 93-2971, 1995) aff’d 106 F.3d 401(6th Cir. 

1997); see also S.J. Louis Constr., 25 BNA OSHC 1892, 1900 n.24 (No. 12-1045, 2016) 

(evaluating employer’s safety program for adequacy involves same factors for evaluating 

constructive knowledge and the defense of unpreventable employee misconduct) appeal docketed, 
32

No. 19-60224 (5th Cir. Apr. 15, 2019). As just discussed, no supervisor took steps to discover any 

violation of the lockout/tag out rule that Dapat learned on July 12, 2016. As this was a factor that 

JCMC must establish to prevail on the UEM defense, this defense is rejected for this citation item. 

Pa. Power & Light Co. v. OSHRC, 737 F.2d 350, 357–58 (3d Cir. 1984) (“The courts of appeals 

have consistently held that the adequacy of a company's safety program, broadly construed, is the 

key to determining whether an OSHA violation was reasonably foreseeable and preventable.”). 

This citation item is affirmed as serious because the hazard resulting from the violation of 

this standard could lead to death or serious physical harm. (Tr. at 541-543); 29 U.S.C. § 666(k). 

Item 2b: Lockout/Tag Out Manual

The Secretary claims in Citation 1, Item 2b that Respondent violated 29 C.F.R. 

§ 1910.333(b)(2)(i), which requires: “The employer shall maintain a written copy of the 

procedures outlined in paragraph (b)(2) and shall make it available for inspection by employees 

and by the Assistant Secretary of Labor and his or her authorized representatives.” 29 C.F.R. 

§ 1910.333(b)(2)(i). The Secretary alleges that: 

the employer did not maintain written procedures for de-energizing 277 volt circuits 

for employees conducting work such as changing ballasts. Violation occurred on 

or about 06/28/16. Procedures must include: 1) Specific statement of the intended 

use of the procedure, 2) Specific procedural steps for shutting down, isolating, 

blocking and securing machines or equipment to control hazardous energy, 3) 

Specific procedural steps for the placement, removal, and transfer of lockout 

devices or tagout devices and the responsibility for them, 4) Specific requirements 

for testing a machine or equipment to determine and verify the effectiveness of 

lockout devices, tagout devices, and other energy control measures. 

(Citation at 8.)

It is undisputed that Grogan duly presented for inspection a written manual entitled 

“Hazardous Energy Control Procedures” that JCMC maintained in its mechanical room to the 

OSHA CO upon request at the inspection. (Ex. R-30.) What is in dispute is whether this manual 

contained “the procedures outlined in paragraph (b)(2)” of the cited standard as required for this 
33

citation item. 29 C.F.R. § 1910.333(b)(2)(i). The Secretary claims that this manual did not meet 

the substantive requirements of the standard, while Respondent argues that there is no legal 

authority that this manual must contain specific lockout/tag out procedures for changing ballasts. 

(Sec’y Br. 30; Resp’t Reply Br. 5-6.) 

The Secretary explains the procedures listed in paragraph (b)(2) extensively in his posthearing brief. (Sec’y Br. 30-31.) These (b)(2) provisions are plainly incorporated into the cited 

standard. 29 C.F.R. § 1910.333(b)(2)(i) (“Note: The written procedures may be in the form of a 

copy of paragraph (b) of this section.”) A review of Respondent’s manual reveals lockout/tag out 

procedures in outline format with headings such as “Preparation for Lockout or Tag Out,” 

Sequence of Lockout or Tagout System Procedure,” “Restoring Machines or Equipment to Normal 

Production Operations,” and “Training and Annual Inspection.” (Ex. R-30 at 4-9.) 

As the Secretary notes, however, and Respondent does not specifically refute, this manual 

“from pages 4 of 181 to 12 of 181 shows that none of the procedures address the electrical safety 

hazards covered by the provisions of 1910.333(b), nor do they incorporate the requirements of 

paragraphs 1910.333(b)(2)(iii)(D) and 1910.333(b)(2)(iv)(B) according to the requirements of 

section 1910.333(b)(2)(i).”13 (Sec’y Br. 31.) Respondent argues that no legal authority exists that 

13 29 C.F.R. § 1910.333(b)(2)(iii)(D) states: 

A tag used without a lock, as permitted by paragraph (b)(2)(iii)(C) of this section, shall be 

supplemented by at least one additional safety measure that provides a level of safety 

equivalent to that obtained by use of a lock. Examples of additional safety measures include 

the removal of an isolating circuit element, blocking of a controlling switch, or opening of 

an extra disconnecting device. 

29 C.F.R. § 1910.333(b)(2)(iv)(B) states: 

A qualified person shall use test equipment to test the circuit elements and electrical parts 

of equipment to which employees will be exposed and shall verify that the circuit elements 

and equipment parts are deenergized. The test shall also determine if any energized 

condition exists as a result of inadvertently induced voltage or unrelated voltage backfeed 

even though specific parts of the circuit have been deenergized and presumed to be safe. If 
34

specifically requires this manual to address changing ballasts but does not address how its manual 

does not satisfy the requirements of sections 1910.333(b)(2)(iii)(D) and 1910.333(b)(2)(iv)(B). 

Indeed, this manual targets mechanical lockout/tag out measures and not electrical 

lockout/tag out measures. As the Secretary notes, the list of inventory includes boilers, pumps and 

elevators, but not electrical circuits. (Ex. R-30 at 13-62.) The manual even references OSHA’s 

mechanical lockout/tag out standard, “1910.147 ‘The Control of Hazardous Energy’ 

requirements.” (Ex. R-30 at 7.) The cited standard at issue here even considers this instance: 

Note 2: Lockout and tagging procedures that comply with paragraphs (c) through 

(f) of 1910.147 will also be deemed to comply with paragraph (b)(2) of this section 

provided that: 

[1] The procedures address the electrical safety hazards covered by this Subpart; 

and

[2] The procedures also incorporate the requirements of paragraphs (b)(2)(iii)(D) 

and (b)(2)(iv)(B) of this section.

29 C.F.R. 1910.333(b)(2) (emphasis added). These required provisions specifically use electrical 

terminology like “circuit elements,” control switches,” “disconnecting devices,” “electrical parts 

of equipment,” and “voltage.” 29 C.F.R. §§ 1910.333(b)(2)(iii)(D) and 1910.333(b)(2)(iv)(B). 

None of these electrical terms are in this 181-page manual.

Accordingly, the undersigned agrees with the Secretary that Respondent’s manual does not 

comply with the requirements of the cited standard. The Secretary has established a violation of 

the cited standard for this instance. Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079 (No. 90-

2148, 1995) (“Employer knowledge is established by a showing of employer awareness of the 

physical conditions constituting the violation”), aff’d, 79 F.3d 1146 (5th Cir. 1996) (unpublished). 

the circuit to be tested is over 600 volts, nominal, the test equipment shall be checked for 

proper operation immediately after this test.
35

This violation is properly classified as serious because the hazard associated with violations 

of these standards could lead to death or serious physical harm. (Tr. at 541-543); 29 U.S.C. 

§ 666(k). 

Serious Citation 1, Item 3: Qualified Persons 

The Secretary alleges that Respondent violated 29 C.F.R. § 1910.333(c)(2), which 

requires: 

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. 

29 CFR § 1910.333(c)(2). The Secretary alleges that “[t]he employer did not ensure that general 

maintenance mechanics performing live electrical work, such as changing ballasts on 277 volt 

circuits, were qualified to do such work. Violation occurred on or about 6/26/16.” (Citation at 9.) 

A “qualified person” is defined in section 1910.331(a): 

Covered work by both qualified and unqualified persons. The provisions of 

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

both qualified persons (those who have training in avoiding the electrical 

hazards of working on or near exposed energized parts) and unqualified persons 

(those with little or no such training) working on, near, or with the following 

installations. 

29 CFR § 1910.331(a) (emphasis added). The term is also defined at section 1910.399: “Qualified 

person. One who has received training in and has demonstrated skills and knowledge in the 

construction and operation of electric equipment and installations and the hazards involved.” 29 

CFR § 1910.399. 

 Respondent does not dispute that the decedent was unqualified to address light fixtures by 

changing ballasts, although Respondent argues that “all Facilities employees are trained on 

electrical safety.” (Resp’t Br. 35.) Respondent also argues that JCMC did not violate the standard 
36

because no supervisor directed the decedent to change the ballast on the day of the incident. 

(Resp’t Br. 34.) Respondent states that is even conjecture that the decedent was changing a ballast, 

and even if he was, his actions were unauthorized. (Resp’t Br. 35.) Therefore, Respondent argues 

“that the Secretary failed to prove that Respondent allows, or has knowledge, of unqualified 

maintenance mechanics working of [sic] live 277 volt circuits.” (Resp’t Br. 35.) 

As an initial matter, the undersigned agrees with the Secretary that the training that was 

provided to the decedent at orientation by JCMC did not satisfy the requirements of the cited 

standard to render him a “qualified person.” (Sec’y Br. 38 n.8.) A “qualified person,” as defined 

at section 1910.331(a), requires training in the provisions of sections 1910.331 through 1910.335. 

29 C.F.R. § 1910.331(a). One of these sections, 1910.332(b)(3), explicitly states: “For the 

purposes of 1910.331 through 1910.335, a person must have the training required by paragraph 

(b)(3) of this section in order to be considered a qualified person.” 29 C.F.R. § 1910.332(b)(3) 

Note 1. As the Secretary states, a qualified person must be: 

trained in and familiar with: the skills and techniques necessary to distinguish 

exposed live parts from other parts of electric equipment. [1910.332(b)(3)(i)]; the 

skills and techniques necessary to determine the nominal voltage of exposed live 

parts [1910.332(b)(3)(ii)]; and the clearance distances specified in 1910.333(c) and 

the corresponding voltages to which the qualified person will be exposed 

1910.332(b)(3)(iii). 

(Sec’y Br. 38 n.8.) The cursory orientation training that all incoming personnel at JCMC attend 

when they are first hired does not mention or satisfy the requirements of these sections addressing 

live parts, nominal voltages and clearance distances of electric equipment. 

Respondent’s next argument that it had no knowledge that the decedent was changing 

ballasts and thus was exposed to live electric parts, and therefore it cannot be held accountable for 

it, is also flawed. As analyzed under Citation 1, Item 1, Respondent had actual and constructive 

knowledge that the decedent was addressing light fixtures and replacing ballasts. Adding to this 
37

knowledge, Respondent admits that it also knew, the entire time, that the decedent was unqualified 

to address light fixtures and replace ballasts. This citation item is affirmed. 

This violation is properly classified as serious because the hazard associated with the 

violation of this standard could lead to death or serious physical harm. (Tr. at 549-550); 29 U.S.C. 

§ 666(k). 

Serious Citation 1, Item 4: Protective Equipment

The Secretary alleges that Respondent violated 29 C.F.R. § 1910.335(a)(1)(i), which 

requires: 

(1) Personal protective equipment. (i) Employees working in areas where there are 

potential electrical hazards shall be provided with, and shall use, electrical 

protective equipment that is appropriate for the specific parts of the body to be 

protected and for the work to be performed. 

29 C.F.R. § 1910.335(a)(1)(i). The Secretary claims that “[g]eneral maintenance mechanics were 

not provided with appropriate hand protection such as rubber insulating gloves while performing 

live electrical work including, but not limited to, changing ballasts which operate at 277 volts. 

Violation occurred on or about 06/26/18.” (Citation at 10.) 

To establish applicability of a general PPE standard, the Secretary must prove “that a 

reasonable person familiar with the circumstances surrounding the hazardous condition, including 

any facts unique to the particular industry, would recognize a hazard requiring the use of PPE.” 

Gen. Motors Corp., GM Parts Div., 11 BNA OSHC 2062, 2065 (No. 78-1443, 1984) 

(consolidated) (citation omitted), aff’d, 764 F.2d 32 (1st Cir. 1985); see also Wal-Mart Distrib. 

Ctr. # 6016, 25 BNA OSHC 1396, 1400-01 (No. 08-1292, 2015), aff’d in part and vacated in part 

on other grounds, 819 F.3d 200 (5th Cir. 2016) (discussing Commission precedent regarding 

applicability analysis). The Third Circuit, to which this case could be appealed, has held that with 

regard to the “reasonable person test,” while industry custom and practice are relevant, the ultimate 
38

inquiry is whether a reasonable person familiar with the factual circumstances surrounding the 

allegedly hazardous condition, including any facts unique to a particular industry, would recognize 

a hazard warranting the use of personal protective equipment. Voegele Co. v. Occupational Safety 

& Health Review Comm’n., 625 F.2d 1075, 1078 (3d Cir. 1980); see also Kerns Bros. Tree Serv., 

18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) (Commission generally applies law of the circuit

where it is probable a case will be appealed). 

The record establishes that the decedent was not wearing protective gloves when he was 

working on the light fixture, near an electrical hazard, on the day of the incident. (Tr. at 546-547.) 

The record also establishes that Respondent management knew that its Facilities Department 

workers did not wear gloves when working with ballasts. Respondent argues that protective gloves 

were inappropriate for the task of changing ballasts because Okon testified that it was impossible 

to work on a ballast while wearing protective gloves. (Resp’t Br. 36-37; Tr. at 204-206, 232-233.) 

Okon, however, conceded that it was possible to wear those gloves while testing to see whether 

the ballast circuit had been de-energized or locked out/tagged out, and that it was safer for an 

unqualified person to wear the gloves while using a voltage meter that comes within inches of the 

circuits which may be live. (Tr. at 217-222, 224.) As noted above, it is undisputed that the 

decedent was an unqualified person working on the light fixture on the day of the incident. CO 

Consalazio testified that she believed gloves needed to be worn when verifying whether the ballast 

has been de-energized. (Tr. at 559-560.) This citation item is affirmed. 

This violation is affirmed as serious because the hazard resulting from the violation in this 

case caused death or serious physical harm. (Tr. at 548); 29 U.S.C. § 666(k). 

Willful Citation 2, Item 1: Training 

Merits
39

The Secretary alleges that Respondent violated 29 C.F.R. § 1910.332(b)(1), which 

requires: “Employees shall 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.” 29 

CFR § 1910.332(b)(1). The Secretary claims that: 

[t]he employer did not ensure that general maintenance mechanics were trained in 

safety-related work practices for electrical work such as, but not limited to, 

changing ballasts. An employee performing such operations received an electrical 

shock while working from an A frame ladder. The worker fell approximately 6 ft 

to the floor below, striking his head and later died of his injuries. Violation 

occurred on or about 06/26/16. 

(Citation at 11.) 

As found earlier, the decedent’s job assignments included addressing light fixtures and 

changing ballasts. The cited standard therefore required that the decedent be trained in and familiar 

with the safety-related work practices required by §§ 1910.331 through 1910.335 for addressing 

light fixtures and changing ballasts. These sections are entitled “Scope,” “Training,” “Selection 

and use of work practices,” “Use of requirement,” and “Safeguards for personnel protection,” and 

all of them applied to this training requirement for changing ballasts at JCMC. The record 

establishes that the decedent’s only training provided by JCMC was his orientation when he first 

was hired as there is no other training documents for decedent in the record. Well Solutions, Inc., 

Rig No. 30, 17 BNA OSHC 1211, 1214-15 (No. 91-340, 1995)(holding that the Secretary can rely 

on “best available evidence” to establish decedents’ lack of training and that slim showing of prima 

facie case is sufficient absent rebuttal by party who has “full possession of all the facts.”). As 

discussed earlier, this orientation training is insufficient as it does not go into any detail regarding 

changing ballasts, let alone the specific requirements of sections 1910.331-1910.335 of changing 

ballasts. Pressure Concrete Constr., 15 BNA OSHC 2011, 2018 (No. 90-2668, 1992) (“[t]he fact 

that [the company] failed to train [employees] in the recognition and avoidance of dangerous 
40

conditions establishes that it had at least constructive knowledge of the inadequacy of its training 

program.”). 

Additionally, the record supports a finding that JCMC had actual and constructive 

knowledge that the decedent was changing ballasts in the months leading up to the incident. And 

while there was no work order for the day of the incident to change a ballast, the record establishes 

that Adamson knew that the decedent would routinely fix items without a work order while doing 

his rounds. (Tr. at 484, 486.) Because the task of addressing light fixtures was routine for the 

decedent, it is reasonably foreseeable that he would attempt to address a light fixture while he was 

alone on duty, making rounds, on a Sunday. The decedent was therefore exposed to the hazard of 

electrocution when addressing the light fixture on the day of the incident because he had not been 

trained in accordance with the cited standard’s requirements when changing ballasts. Bardav, Inc., 

24 BNA OSHC 2105, 2112 (No. 10-1055, 2014) (concluding that exposure is established for 

training citation item when worker “engaged in excavation work without first receiving required 

training”) citing Gen. Motors Corp., 22 BNA OSHC 1019, 1030 (No. 91-2834E, 2007)

(consolidated) (“finding it unreasonable to require that employee be exposed to a hazard before 

requiring that he be trained to recognize and avoid that hazard.”). This citation item is affirmed. 

Willfulness

“The hallmark of a willful violation is the employer's state of mind at the time of the 

violation—an ‘intentional, knowing, or voluntary disregard for the requirements of the Act or ... 

plain indifference to employee safety.)’ ” Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181 

(No. 90-2775, 2000) (citation omitted), aff'd, 268 F.3d 1123 (D.C. Cir. 2001). 

[I]t is not enough for the Secretary to show that an employer was aware of conduct 

or conditions constituting the alleged violation; such evidence is already necessary 

to establish any violation .... A willful violation is differentiated by heightened 
41

awareness of the illegality of the conduct or conditions and by a state of mind of 

conscious disregard or plain indifference .... 

Hern Iron Works, Inc., 16 BNA OSHC 1206, 1214 (No. 89-433, 1993); see also Bianchi Trison 

Corp. v. Chao, 409 F.3d 196, 208 (3d Cir. 2005) (A willful violation of the OSH Act “constitutes 

an act done voluntarily with either an intentional disregard of, or plain indifference to, the OSH 

Act’s requirements”)(internal quotes omitted). 

There must be evidence that an employer knew of an applicable standard or 

provision prohibiting the conduct or condition and consciously disregarded the 

standard. Without such evidence of familiarity with the standard's terms, there must 

be evidence of such reckless disregard for employee safety or the requirements of 

the law generally that one can infer that if the employer had known of the standard 

or provision, the employer would not have cared that the conduct or conditions 

violated it. 

Williams Enters. Inc., 13 BNA OSHC 1249, 1257 (No. 85-355, 1987). 

The state of mind of a supervisory employee ... may be imputed to the employer for 

purposes of finding that the violation was willful.” Branham Sign Co., 18 BNA OSHC 2132, 2134 

(No. 98-752, 2000); Elliot Constr. Corp., 23 BNA OSHC 2110, 2116-17 (No. 07-1578, 2012) 

(finding plain indifference when supervisor knew from prior experience and the day of the accident 

that carbon monoxide would be present and yet failed to monitor for it); Adrian Constr. Co., 7 

BNA OSHC 1172, 1175 (No. 15414, 1979) (“A violation is willful if the evidence shows that the 

employer ignored an obvious and grave danger . . . ”). 

Heightened Awareness

With regard to heightened awareness, the record supports a finding that the management 

in the Facilities Department knew that addressing light fixtures and changing ballasts required 

specific electrical training, and that the management knew that the decedent addressed these light 

fixtures and changed ballasts without having this training. Hern Iron Works, Inc., 16 BNA OSHC 
42

at 1214 (“A willful violation is differentiated by heightened awareness of the illegality of the 

conduct or conditions...”). 

The Secretary argues that JCMC’s supervisory personnel knew that the decedent was

working on or near electrical circuits, which required specific training in electrical safety work 

practices that the decedent did not have, and that they directed the decedent to work on these job 

assignments anyway. (Sec’y Br. 47.) Indeed, despite Respondent’s assertions, the employee 

training for the general maintenance mechanics was not “exhaustive” with respect to addressing 

light fixtures. (Resp’t Br. 40.) The electrical standard cited here required JCMC to train the 

decedent in the electrical facets of his job assignments, specifically addressing light fixtures and 

changing ballasts. As found above, the orientation training was insufficient to meet these 

requirements. 

Despite failing to meet these requirements, JCMC directed the decedent to change ballasts 

knowing he was not trained in the electrical hazards of the procedure. Church told CO Consalazio 

that general maintenance mechanics normally changed ballasts, even though he also knew at the 

time that the decedent had not attended the 2014 lockout/tag out training, that he himself had 

taught. Additionally, the decedent himself notified Adamson that he was changing ballasts. 

Respondent states that “there were no concerns brought to the attention of the 

administration relating to training or safety in the Facilities Department.” (Resp’t Reply Br. 9.) 

The undersigned agrees that the record establishes that upper management appeared uninvolved 

in the day-to-day management of general maintenance mechanics at JCMC. A willfulness finding, 

however, can be based on imputing the knowledge of mere supervisory personnel. Caterpillar, 

Inc., 17 BNA OSHC 1731, 1732-33 (No. 93-373, 1996) (finding heightened awareness established 

by imputing knowledge of supervisory personnel to employer), aff’d, 122 F.3d 437 (7th Cir. 1997); 
43

Access Equip. Sys., Inc., 18 BNA OSHC 1718, 1726 (No. 95-1449, 1999) (imputing knowledge 

of even a temporary employee who has been delegated authority over other employees). 

Heightened awareness of the violative conditions is established. 

Plain Indifference

Even with this heightened awareness of the violative conditions, Respondent acted with 

plain indifference toward the decedent’s safety. Church knew that the decedent was not trained in 

changing ballasts, yet he also knew it was one of the decedent’s normal job assignments. Even 

though the decedent notified Adamson that he was changing ballasts, work orders are still in the 

record directing him to change ballasts, and the decedent addressed the light fixture on the day of 

the incident. 

Respondent claims that JCMC is devoted to safety based on its many “Medical Center 

Safety Efforts and Emphasis,” and its record of zero OSHA citations. (Resp’t Br. 38-40.) The 

Secretary argues that JCMC’s multitude of safety efforts in other aspects of its business are 

unrelated to the safety of general maintenance mechanics working on light fixtures. The 

undersigned agrees. None of the safety efforts listed by Respondent, such as the Environment of 

Care Committee and the Quality of Safety Committee, addressed the simple supervision of 

workers in the Facilities Department changing a light fixture. All of the efforts presented by 

Respondent primarily target the safety of non-facilities personnel and patients. (Resp’t Br. 39); 

see, e.g., Exs. R-12 at 1-2 (Equipment Electrical Safety policy targeting “electrically susceptible 

patient” locations and requiring “All Hospital Personnel” to notify “Plant Operations” for 

equipment repair); R-13 at 1 (Safety Management Plan “put in place to achieve the lowest 

potential for adverse impact on the safety and health of patients, staff, and other people coming to 

the organization’s facilities”); R-14 and R-15 (fire safety management plan).
44

Even though both Church and Adamson knew that the decedent was changing ballasts 

without training in that job assignment, no measures were put in place to monitor the decedent to 

make sure he did not change ballasts, or at the very least, train him in that job assignment. Elliot 

Constr. Corp., 23 BNA OSHC 2110, 2116-17 (No. 07-1578, 2012) (finding plain indifference 

when supervisor knew from prior experience and the day of the accident that carbon monoxide 

would be present and yet failed to monitor for it); Anderson Excavating & Wrecking Co., 17 BNA 

1890, 1892-94 (No. 92-3684, 1997) (plain indifference found based in part on failure to provide 

safety program, training and protective equipment, combined with supervisory involvement and 

failure to take action after notification of violations of same standard at other sites). 

This citation is properly characterized as willful.

PENALTY

Section 17(j) of the Act requires the Commission to give due consideration to four criteria 

in assessing penalties: the size of the employer’s business, the gravity of the violation, the 

employer’s good faith, and its prior history of violations. Compass Envtl., Inc., 23 BNA OSHC 

1132, 1137 (No. 06-1036, 2010) aff’d, 663 F.3d 1164 (10th Cir. 2011). The gravity of the violation 

is generally accorded greater weight. J. A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 

87-2059, 1993). 

Joseph Czapik, OSHA’s Assistant Area Director of Parsippany, reviewed the proposed 

penalties for this case and submitted them to the Area Director for approval to issue with the 

citation. (Tr. at 633-637.) Even though Respondent has no history of OSHA violations, OSHA 

in its discretion did not grant a reduction “to maintain an appropriate deterrent effect,” for each of 

the proposed penalties for history. (Tr. at 635.) Similarly, neither size nor good faith were 
45

considered as a reduction because Respondent had over 2,000 employees and because the citation 

alleges a willful violation and high gravity serious violations. (Tr. at 635.) 

All of the serious violations were high severity based on the potential for death or serious 

physical harm, and because there was a fatality. (Tr. at 634.) Similarly, all of the serious violations 

were a greater probability because there was an actual fatality. (Tr. 634 -635.) Therefore, serious 

Citation 1, Item 1 was proposed at a $12,471 unadjusted penalty; serious Citation 1, Item 2a and 

2b were grouped and were proposed at a $12,471 unadjusted penalty; serious Citation 1, Item 3 

was proposed at a $12,471 unadjusted penalty; and serious Citation 1, Item 4 was proposed at a 

$12,471 unadjusted penalty. 

The willful Citation 2, Item 1 was proposed with the maximum penalty, $124,709, due to 

no reductions for size, good faith or history for the same reasons that the serious violations were 

not given those reductions. (Tr. 636). It was also assigned a high severity, greater probability 

because of the actual fatality. (Tr. at 636.) Czapik then testified: “We had mechanics, we had 

general maintenance people that were engaged in working on electrical equipment that didn’t have 

training and there was no good reason for them not to have that training.” (Tr. at 637.) 

Respondent has not addressed the amount of the proposed penalties in its briefs. After 

consideration of the statutory factors with regard to the penalties for the affirmed violations, the 

undersigned agrees with the penalty amounts proposed by the Secretary for each citation item. 

The proposed penalty amounts are assessed for each affirmed citation item.

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. 
46

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that: 

1) Citation 1, Item 1, alleging a Serious violation of 29 C.F.R. § 1910.333(a)(1), is 

AFFIRMED, and a penalty of $12,471 is ASSESSED, 

2) Citation 1, Item 2a, alleging a Serious violation of 29 C.F.R. § 1910.333(b)(2), and Citation 

1, Item 2b, alleging a Serious violation of 29 C.F.R. § 1910.333(b)(2)(i), are AFFIRMED, 

and a grouped penalty of $12,471 is ASSESSED,

3) Citation 1, Item 3, alleging a Serious violation of 29 C.F.R. § 1910.333(c)(2), is 

AFFIRMED, and a penalty of $12,471 is ASSESSED,

4) Citation 1, Item 4, alleging a Serious violation of 29 C.F.R. § 1910.335(a)(1)(i), is 

AFFIRMED and a penalty of $12,471 is ASSESSED, 

5) Citation 2, Item 1, alleging a Willful violation of 29 C.F.R. § 1910.332(b)(1), is 

AFFIRMED, and a penalty of $124,709 is ASSESSED.

SO ORDERED. 

 

___/s/Covette Rooney_____ 

 COVETTE ROONEY

 Chief Judge, OSHRC 

DATE: July 2, 2019 

 Washington, D.C.