Jacobs Field Services v. Eugene Scalia ( 2020 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-1517
___________________________
Jacobs Field Services North America, Inc.
Petitioner
v.
Eugene Scalia, Secretary of Labor
Respondent
____________
Petition for Review of an Order of the
Occupational Safety & Health Review Commission
____________
Submitted: January 15, 2020
Filed: June 2, 2020
____________
Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
____________
LOKEN, Circuit Judge.
Apprentice electrician Timothy Sky was seriously burned by an arc flash while
connecting wires from a new electrical panel at the Archer Daniels Midland (“ADM”)
corn processing plant in Columbus, Nebraska, to a disconnect switch outside a
building. Sky’s employer, Jacobs Field Services North America, Inc. (“Jacobs”),
promptly reported the accident to the Occupational Safety and Health Administration
(“OSHA”). After investigating, the Secretary of Labor cited Jacobs for a single,
serious violation of 29 C.F.R. § 1910.335(a)(1)(i) for failing to ensure that Sky was
wearing appropriate personal protective equipment (“PPE”). After a two-day
evidentiary hearing, the Occupational Safety and Health Review Commission’s
administrative law judge (“ALJ”) upheld the citation. The Commission denied
Jacobs’ administrative appeal, and Jacobs petitions for review of the ALJ’s now-final
order. Concluding that substantial evidence on the record as a whole supports the
ALJ’s decision, we deny the petition for review. See 29 U.S.C. § 660(a); Wal-Mart
Stores E., LP v. Acosta, 919 F.3d 1073, 1076 (8th Cir. 2019) (standard of review).
I. Background.
Jacobs is a national electrical contractor providing electrical maintenance
service to the ADM plant. Electric power flowing to the plant is distributed for
various ADM uses, some through 480-volt disconnect boxes. Power enters the top
of a 480-volt disconnect’s “line side” through three feeder cables -- known as the A,
B, and C phases -- which are connected to lugs in the disconnect switch about a
quarter of the way down. The bottom half of the disconnect, known as the “load
side,” contains A, B, and C cables and a neutral wire that connect the disconnect
switch to the ADM use. Turning a lever on the outside of the disconnect to “OFF”
removes a set of line-side cable connector blades from their cradles inside the box,
which stops power flowing to the load-side wires.
The February 2017 accident occurred while Sky was working on a disconnect
box that was not feeding power to any ADM installation. The three line-side cables
were connected and energized. The task of Sky and his partner, apprentice electrician
Clayton Hoadley, was described in a mandatory Job Safety Analysis (“JSA”) prepared
by the two electricians and their foreman, Brent Brabec. The two electricians would
cut wire off a spool, pull it through flexible metal conduit, and Hoadley would
“terminate” (connect) the load-side wires to ADM’s electrical panel inside the
-2-
building. Sky would “run conduit, pull wire, [and] terminate” the load-side wires to
three lugs and a ground bar in the bottom half of the disconnect.
The JSA listed “potential hazards” including “[e]lectricity shock, fire, arc flash,
blast or stored electrical energy.” Sky began the task by confirming that the load side
of the disconnect was deenergized, using a “test/test/test” procedure and wearing PPE
that included a Class E hardhat, safety glasses, voltage-rated gloves, an arc-rated face
shield, and a 40-calorie arc-rated “hot suit” covering his entire body. It is undisputed
that this PPE was appropriate to the entire task. However, Jacobs and ADM policies
permitted Sky to take off his gloves and face shield to complete the load-side wiring
after confirming the load side was deenergized, and he did so. Brabec left to attend
to other duties after confirming the load side was deenergized.
Working inside the disconnect, Sky terminated the load-side A, B, and C
phases, “taped off” the neutral wire, and reported to Brabec he was finished. Brabec
told him he must also attach the neutral wire to the ground bar, which was located
behind the three phases on the load side of the box. With access to the ground bar
now obstructed by the connected load-side cables, Sky decided to remove the ground
bar. Moving the ground bar loosened an uninsulated line-side ground wire which
entered the top of the box, ran along the back-left corner and down the left side of the
box, and connected to the ground bar. The loosened ground wire made contact with
the line-side A phase, triggering the arc flash.1 Sky suffered severe burns to his hands
and face and was hospitalized for several weeks before returning to work.
1
A Jacobs document defines arc flash as “a rapid (as little as 1/1000 of a
second), explosive discharge of electrical energy that usually results from a short
circuit fault. Metal vaporized by the 5,000+ degree temperatures of an arc flash
produces high temperature plasma. The main concerns with arc temperature and
incident energy are the flash flame/ignition of clothing and the onset of a second-
degree burn, which occurs at approximately 1.2 cal/cm2.” Arc flashes are inadvertent
incidents that can cause serious injuries or death.
-3-
Jacobs investigated the accident and notified OSHA. Compliance Safety and
Health Officer Brian Elmore interviewed management, and the Secretary issued the
citation for a single, serious violation of 29 C.F.R. § 1910.335(a)(1)(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.
Jacobs contested the citation, arguing the properly deenergized load side of the
disconnect was an “Electrically Safe Work Condition” under Articles 120 and 130 of
the National Fire Protection Association 70E Standard for Electrical Safety in the
Workplace (2015 ed.) (“NFPA 70E”), and both Jacobs policy and practice, and
industry practice more generally, then permit qualified employees such as Sky to
remove their PPE to complete the task. The ALJ held a two-day hearing at which
seven witnesses testified -- Sky, Brabec, Elmore, Jacobs’ electrical supervisor and its
Director of Health and Safety, and two experts, H. Landis Floyd for OSHA and
Michael Taubitz for Jacobs.
The Secretary alleged that Jacobs violated 29 C.F.R. § 1910.335(a)(1)(i) by
permitting Sky to take off his PPE after deenergizing the load side. Brabec, the
Secretary’s first witness, testified there was a potential catastrophic hazard of stored
electric energy before Sky began his work, which required him to wear PPE and
follow other safety procedures. However, “he no longer needed that level of
protection” the PPE provided once he performed the test/test/test procedure to verify
that electricity was no longer present on the load side of the disconnect, and he noted
that the line-side connector blades were disengaged and a four-by-eight-inch plastic
-4-
“arc shield” was in place above the line-side lugs.2 “[A]t that point, [they] assessed
it as an electrically safe work condition” and concluded it was not necessary to
deenergize the line side, which would “dramatically affect the process and the
production of ADM.” Brabec explained this is a “Jacobs’ standard” used at other job
sites and is consistent with ADM’s electrical safety program.
The second witness, Jacobs’ electrical supervisor Gerald Keller, agreed that
Sky was working in an electrically safe work condition “[b]ecause the bottom half of
the disconnect was verified, the top half was guarded, and where he was working was
. . . eight, ten inches below the guarded [live] pieces.” Other witnesses testified that
it is a “common practice” to work on the load side of a disconnect while the line side
remains energized.
Sky testified that, after he terminated the load-side cables, Brabec told him to
attach the load-side neutral wire to the ground bar behind the load-side cables. To
gain access, he moved the ground bar, to which the line-side ground wire was
attached. When moved, the ground wire contacted the line-side A phase above the
load side of the box, resulting in an arc flash that burned Sky. He testified that
“[t]erminating the neutral wire would have been a part of my assigned task,” but
removing the ground bar was “never part of the JSA” and “wasn’t anything that was
intended to happen.”
The Secretary’s last witness was expert Floyd, a retired consultant with over
forty years experience in occupational electrical safety. His testimony was consistent
with his preliminary report, which opined that “Mr. Sky was exposed to both electric
shock and arc flash hazards . . . due to inadequate risk assessment . . . for the task
2
An arc shield is needed on a 480-volt disconnect to extinguish arcs that can
damage equipment or injure workers when an electrician pulls the lever outside of the
box from the “ON” to “OFF” position. The arc shield also prevents incidental contact
with live parts by employees working on the load side from the front side of the box.
-5-
being performed and failure to deenergize the line side terminals as required by
OSHA [§] 1910.333.” Jacobs “overestimated effectiveness of the Arc Shield as a
control measure to reduce risk of worker contact with hazardous energy and
underestimated the residual risk of allowing the line side portion of the switch to
remain energized.” A “contributing factor . . . was the wire that ran along the left side
on the inside of the 480V disconnect switch. . . . Jacobs should have identified the
wire running in close proximity to the line side terminal as a risk [to] . . . workers
from unintentional movement of the wire.” Thus, Jacobs failed to comply with 29
C.F.R. § 1910.335(a)(1)(i) requirements for the use of PPE “to safeguard Mr. Sky
from electric shock and arc flash hazards from the energized line side terminals.”
The ALJ’s twenty-eight-page Decision and Order upheld the citation of a
serious violation and imposed a penalty of $11,408. In concluding the standard in
§ 1910.335(a)(1)(i) applied and was violated, the ALJ noted that Jacobs applied its
policy of permitting Sky to remove his PPE when the load side was deenergized
“without considering any unique circumstances about the equipment being worked
on.” The ALJ also noted that, “[a]ccording to Floyd, . . . the arc shield was not
everything that [Jacobs] claims it to be,” quoting Floyd’s testimony that it was “open
on the sides and top in such a manner that I can actually put my fingers in and touch
energized conductors.” Not all disconnects are the same, and aspects of this
disconnect -- the gaps on the sides and top and the line-side ground wire that was
attached to the load-side ground bar, rather than being grounded in the top of the box
-- “ended up being significant factors in the subsequent arc flash.” As Brabec did not
look inside the disconnect in approving the JSA and did not warn Sky of the potential
hazard if the uninsulated line-side wire were moved while Sky was working on the
load side, Brabec’s permissive PPE instructions, premised on company policy, “were
insufficient to eliminate the hazard of arc flash and incidental contact.”
-6-
II. Discussion.
Like other OSHA standards, a violation of § 1910.335(a)(1)(i) requires the
Secretary to prove (1) “the cited standard applies and that its requirements were not
met”; (2) “employees were exposed to, or had access to, the violative condition”; and
(3) “the employer knew or, through the exercise of reasonable diligence, could have
known of this condition.” Omaha Paper Stock Co. v. Sec’y of Labor, 304 F.3d 779,
784 (8th Cir. 2002). “Standards under the Act should be given a reasonable,
commonsense interpretation.” Donovan v. Anheuser-Busch, Inc., 666 F.2d 315, 326
(8th Cir. 1981) (quotation omitted); see Perez v. Loren Cook Co., 803 F.3d 935, 940-
41 (8th Cir. 2015) (en banc). Where the dispute on appeal is primarily factual, our
review under the governing substantial evidence standard is narrow. See 29 U.S.C.
§ 660(a); Astra Pharm. Prod., Inc. v. OSHRC, 681 F.2d 69, 72 (1st Cir. 1982).
The regulation governing use of electrical PPE, 29 C.F.R. § 1910.335(a)(1)(i),
like the general PPE requirements in § 1910.132, is a broadly worded performance
standard that applies to countless conditions and circumstances. For this type of
standard, we require the Secretary to prove that the need for employees to be provided
and use particular PPE was objectively foreseeable. See Arkansas-Best Freight Sys.,
Inc. v. OSHRC, 529 F.2d 649, 655 (8th Cir. 1976). The relevance of industry practice
is a recurring issue in PPE disputes. In general, we agree with the First Circuit:
[M]ost often, . . . reference to industry custom and practice will establish
the standard of conduct. There may, however, be instances where
industry practice fails to take reasonable precautions against hazards
generally known in the industry.
Cape & Vineyard Div. of New Bedford Gas v. OSHRC, 512 F.2d 1148, 1152 (1st Cir.
1975). Thus, while the compliance issue is not whether use of PPE is customary in
-7-
the industry, “it would be error totally to ignore or fail to consider prevailing industry
standards.” Voegele Co., Inc. v. OSHRC, 625 F.2d 1075, 1080 (3d Cir. 1980).
A. Applying these standards, we do not uphold important aspects of the ALJ’s
analysis of why § 1910.335(a)(1)(i) applied and was violated. The Secretary’s
position at the hearing, as reflected by Compliance Officer Elmore’s testimony and
the text of the citation, was that Jacobs’ policy of not deenergizing the line side of a
disconnect when employees will be working on the deenergized load side
categorically violates OSHA electrical safety standards. That was the opinion
expressed in expert Floyd’s report and testimony -- that Jacobs violated 29 C.F.R.
§ 1910.333(a)(1) when it failed to deenergize the line-side terminals and
therefore violated § 1910.335(a)(1)(i) by permitting Sky to remove his PPE, the “last
line of defense” to the risk associated with the energized line-side cables. The ALJ’s
decision “placed substantial weight on the testimony of Floyd,” and much of the
ALJ’s analysis was an endorsement of Floyd’s interpretation of § 1910.333(a)(1) and
NFPA 70E standards of industry conduct, versus what the ALJ called Jacobs’
“relaxed” interpretation and electrical safety policy.
We have a serious problem with this analysis. OSHA expert Floyd opined that
failure to deenergize the line side before attaching the load-side cables violated 29
C.F.R. § 1910.333(a)(1), regardless of industry practice, and thus § 1910.335(a)(1)(i)
required Jacobs to ensure that Sky never took off his gloves and face shield while
working on the load side. But Jacobs was not cited for a violation of
§ 1910.333(a)(1) and thus was not given fair opportunity to defend its position with
evidence of industry custom and practice going beyond this one incident. In this
respect, the decision ignored and failed to consider prevailing industry standards. See
Voegele Co., 625 F.2d at 1080. Thus, the Secretary failed to prove a violation of
§ 1910.335(a)(1)(i) when Sky was initially permitted to take off his PPE gloves and
face shield once the load side was deenergized. This part of the ALJ’s opinion should
be given no precedential value.
-8-
B. However, the ALJ also decided the case on a narrower ground, one that was
within the scope of the Secretary’s citation, identified by the parties in discovery, and
thoroughly defended by Jacobs at the evidentiary hearing -- in the words of the ALJ,
that Jacobs “attempted to apply a policy/practice in a one-size-fits-all manner without
considering any unique circumstances about the equipment being worked on” by
electrician Sky. Jacobs recognized that safety measures adequate to deal with
potentially catastrophic electrical hazards like arc flash were needed before Sky and
Hoadley could safely work on the 480-volt disconnect. Thus, Jacobs required Sky
to wear adequate PPE while entering the box and confirming the load side was
deenergized. Jacobs then permitted Sky to remove the protective gloves and face
shield to finish the task, consistent with Jacobs and ADM policy. The issue is
whether a violation occurred when Sky was not required to put this PPE back on
when he decided to remove the ground bar from behind the terminated load-side
cables to gain access to attach the load-side neutral wire. Not surprisingly, NFPA
70E expressly addresses this issue in Article 130.6(A)(3):
Employees shall be instructed to be alert for changes in the job or task
that may lead the person outside of the electrically safe work condition
or expose the person to additional hazards that were not part of the
original plan.
Although Sky was completing work on a deenergized load side that was
unlikely to result in incidental contact with the energized line side, this disconnect
box had an uninsulated ground wire coming down from the line side and attached to
a load-side ground bar, and a two-inch gap between that side of the box and its
operative parts, including the line-side arc shield. Brabec acknowledged at the
hearing that removing the ground bar created a risk that moving the line-side ground
wire could result in a line-side arc flash, as in fact happened. He also testified that
Sky was trained that “if [he had] any issues or something changes, stop, call and ask
for help, get somebody else involved.”
-9-
Q. [H]ad [Sky] in fact prior to this accident stopped work when
he had a question about the scope of the task?
A. Yes, he has.
Q. Did he do that on multiple occasions?
A. Quite frequent.
Q. But he didn’t do it on this occasion?
A. No.
Q. Should he have?
A. Yes.
Q. Why?
A. The scope of the job, it tremendously changed once he made
a decision to remove or wanted to remove the ground wire.
Q. Why did the scope of the task change tremendously once he
made that decision?
A. A ground wire is associated with the line side of that
disconnect, which means it comes from the same area as line
voltage. So when he removes the ground wire, he’s essentially
messing with the line side, voltage components.
This testimony was strong evidence that Brabec and Sky were not made aware that
changes in completing the job could necessitate additional PPE given the unique
nature of the equipment on which Sky was working. Sky did not recognize the
dangers when he decided to remove the ground bar, and Brabec did not alert Sky to
potential dangers in finishing a job Sky thought was completed. Instead, Brabec
-10-
followed a “one-size-fits-all” policy in determining that this disconnect, which he had
not examined beforehand, was still in an electrically safe work condition.
On appeal, Jacobs argues the Secretary nonetheless failed to prove a PPE
violation of 29 C.F.R. § 1910.335(a)(1)(i) for a number of reasons. First, Jacobs
argues the Secretary failed to prove that Sky was not provided PPE “appropriate . . .
for the work to be performed” because Sky went outside the “scope of his assigned
task” when he removed the ground bar. Instead, he should have stopped work and
sought help from his supervisor, or removed the three newly installed load-side
phases to regain access to attach the neutral wire to the ground bar. Because the arc
shield provided Sky sufficient protection from the potential electrical hazard
addressed in the JSA, he would not have been exposed to the arc flash hazard if he
had stayed within the scope of that assigned task. The ALJ explicitly found that Sky
stayed within the scope of his task, which was to connect the load-side cables and
neutral wire to the lugs and ground bar on the deenergized side of the disconnect.
We find this an unfocused argument, supported only by Jacobs urging us to
adopt a “reasonable, commonsense interpretation” of the “work to be performed” term
in the regulation and citing a readily distinguishable ALJ decision, Pike Electric, 21
OSHC (BNA) 2153 (No. 06-0166, 2007). One issue was whether Jacobs “knew or,
through the exercise of reasonable diligence, could have known” that Sky was being
exposed to a violative condition. Omaha Paper, 304 F.3d at 784. Accidents resulting
from a “reckless act” of an employee can violate the Act, absent evidence that the
employer established the affirmative defense of unpreventable employee misconduct.
Valdak Corp. v. OSHRC, 73 F.3d 1466, 1469 (8th Cir. 1996); see Danco Const. Co.
v. OSHRC, 586 F.2d 1243, 1247 (8th Cir. 1978). “A supervisor’s knowledge of a
violative condition can be imputed to the employer.” Calpine Corp. v. OSHRC, 774
F. App’x 879, 883 (5th Cir. 2019).
-11-
Here, Sky consulted with Brabec after Sky terminated the three load-side
phases. Brabec did not caution against moving the ground bar, and he testified that
an electrician could complete the JSA task by terminating the three phases before the
neutral wire, or vice versa. If Brabec did not have actual knowledge of the increased
risk moving the ground bar would create, it was only because he never looked inside
and evaluated the configuration of this disconnect. Of course, Sky could have, and
perhaps should have, realized that his unplanned action created increased risk. But
Sky was an apprentice electrician given no reason to believe that Jacobs’ “one-size-
fits-all” approach to disconnects might be an inappropriate answer to the PPE issue
in this situation. Although the issue is not free from doubt, our standard of review is
deferential. Accordingly, we conclude that substantial evidence supports the ALJ’s
finding that Jacobs knew or should have known of the need to reevaluate its
permissive PPE policy when Sky was told he had not finished the work.
Second, Jacobs argues the ALJ erred in concluding Jacobs failed to establish
the affirmative defense of “unpreventable employee misconduct.” This defense
“stems from the scope of the Act’s prohibitions, which reach only those harms that
are preventable.” S. Hens, Inc. v. OSHRC, 930 F.3d 667, 678 (5th Cir. 2019). To
establish this defense, the employer must prove “that it had a work rule in place which
implemented the standard, and that it communicated and enforced the rule.” Valdak
Corp., 73 F.3d at 1469. “[T]he relevant inquiry is whether the employee caused the
violation -- not whether the employee could have avoided injury despite the
employer’s violation.” Packers Sanitation Servs., Inc. v. OSHRC, 795 F. App’x 814,
821 (11th Cir. 2020).
Jacobs argues Sky violated its work rule requiring employees to stay within the
scope of their assigned work and, if they had a question about the scope, to stop and
reassess the situation with a supervisor. This is a general admonition, not a specific
work rule. Based on Brabec’s testimony, Sky doubtless would have prevented the
violation had he sought Brabec’s guidance before removing the ground bar. But Sky
-12-
did not cause the violation, so Jacobs did not prove this affirmative defense. This is
not a case where an employee “disregarded clear and adequate safety instructions.”
Ames Crane & Rental Serv., Inc. v. Dunlop, 532 F.2d 123, 125 (8th Cir. 1976).
Jacobs next argues that 29 C.F.R. § 1910.335(a)(1)(i) does not impose a legal
duty on employers to ensure that employees wear appropriate PPE because the
regulation provides that “[e]mployees working in areas where there are potential
electrical hazards shall be provided with, and shall use” appropriate PPE. Jacobs
cites no authority supporting this assertion. We conclude it is without merit. The
PPE “general requirements” in § 1910.132(a) include that “personal protective
equipment . . . shall be provided, used, and maintained in a sanitary and reliable
condition.” In Arkansas-Best, 529 F.2d at 655, we held that employers are
responsible for violating this objective standard. That ruling also applies to a specific
implementation of those general requirements in § 1910.335(a)(1)(i).
Finally, Jacobs argues we should vacate the citation because it mistakenly
stated that Sky was terminating the ground wire when the arc flash occurred, when
in fact he was terminating the load-side neutral wire. This fact error tends to confirm
that the citation reflected a broader theory of PPE liability than was ultimately
proved. But the citation plainly gave Jacobs full and fair opportunity to contest the
narrower § 1910.335(a)(1)(i) violation that was thoroughly explored at the hearing.
Thus, this minor factual mistake does not warrant vacating the ALJ’s final decision.
Compare, e.g., Brock v. Dow Chem. U.S.A., 801 F.2d 926, 932 (7th Cir. 1986).
The petition for review is denied.
______________________________
-13-