United States Court of Appeals, District of Columbia Circuit
Wayne J. Griffin Electric, Inc., Petitioner
Secretary of Labor, Respondent
September 21, 2018
Petition for Review of a Final Order of the Occupational
Safety & Health Review Commission OSHRC Case No. 15-0858
Y. Kohler argued the cause and filed the briefs for
A. Broecker, Attorney, U.S. Department of Labor, argued the
cause for respondent. With him on the brief were Ann S.
Rosenthal, Associate Solicitor, and Heather R Phillips,
Before: Srinivasan and Katsas, Circuit Judges, and Ginsburg,
Senior Circuit Judge.
Katsas, Circuit Judge.
Wayne J. Griffin Electric, Inc. seeks review of a citation
for violating workplace safety standards designed to prevent
electric shock. The case largely turns on administrative
findings about the carelessness of a Griffin supervisor.
Occupational Safety and Health Act of 1970 requires employers
to provide a workplace "free from recognized
hazards" likely to cause death or serious injury, 29
U.S.C. § 654(a)(1), and to "comply with
occupational safety and health standards" promulgated by
the Secretary of Labor, id. § 654(a)(2). One such safety
standard requires an employer, before employees begin work,
to "ascertain by inquiry or direct observation, or by
instruments, whether any part of an energized electric power
circuit" is "so located that the performance of the
work may bring any person" into contact with the
circuit. 29 C.F.R. § 1926.416(a)(3). Another standard
prohibits an employer from permitting work "in such
proximity to any part of an electric power circuit that the
employee could contact" the circuit, unless it is
de-energized or effectively guarded. Id. §
was hired to upgrade electrical systems in two office
buildings owned by Fidelity Investments. To prepare for work
on two substations, Griffin foreman Keith Piechocki wrote a
method of procedure called MOP-51. A written MOP includes
step-by-step instructions for each segment of the
work-including what electrical equipment must be de-energized
and who is responsible for each task. In this case, MOP-51
required de-energizing the substations, but not a metal bar
connected to one of them. Piechocki omitted the latter step
because he assumed that the bar was not energized, even
though project drawings revealed otherwise.
presented MOP-51 at a meeting attended by Fidelity and other
contractors involved in the project. He also shared a final
draft of it with his own supervisors. Nobody noticed the
had two general safety policies in place at the time. The No
Live Work policy prohibited employees from working close to
"an electrical system with exposed energized
parts." J.A. 32. The Test Before You Touch policy
required employees to "'[t]est every circuit, every
conductor, every time you touch!'-even if it seems
'redundant or unnecessary.'" Id.
and Griffin employee Brian Jusko did the work on one
substation described in MOP-51. Before they began, Piechocki
and Jusko tested the substation, but not the bar connected to
it. As they worked, Jusko inadvertently touched the live bar.
He suffered significant injuries as a result.
an investigation, the Occupational Safety and Health
Administration, which administers the Act for the Secretary,
cited Griffin for failing to determine whether the circuit
was energized and for permitting employees to work close to a
live circuit. The Administration concluded ...