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Wayne J. Griffin Electric, Inc. v. Secretary of Labor

United States Court of Appeals, District of Columbia Circuit

July 2, 2019

Wayne J. Griffin Electric, Inc., Petitioner
v.
Secretary of Labor, Respondent

          Argued September 21, 2018

          On Petition for Review of a Final Order of the Occupational Safety & Health Review Commission OSHRC Case No. 15-0858

          Dion Y. Kohler argued the cause and filed the briefs for petitioner.

          Brian 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, Counsel.

          Before: Srinivasan and Katsas, Circuit Judges, and Ginsburg, Senior Circuit Judge.

          OPINION

          Katsas, Circuit Judge.

         Petitioner 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.

         I

         The 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. § 1926.416(a)(1).

         Griffin 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.

         Piechocki 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 mistake.

         Griffin 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.

         Piechocki 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.

         Following 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 ...


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