960 F.3d 1027
8th Cir.2020Background:
- Timothy Sky, an apprentice electrician for Jacobs, suffered severe burns from an arc flash while working on a 480-volt disconnect at an ADM plant after removing a ground bar that loosened an uninsulated line-side ground wire which contacted an energized phase.
- Jacobs prepared a Job Safety Analysis (JSA); Sky initially verified the load side was deenergized using a test/test/test procedure while wearing full PPE (hardhat, safety glasses, voltage-rated gloves, arc-rated face shield, arc-rated suit); company policy permitted removal of gloves/face shield after confirming the load side was deenergized.
- The arc occurred when Sky moved the ground bar to attach the neutral; Brabec (foreman) had approved the JSA but did not inspect inside the disconnect or warn of the specific hazard posed by the uninsulated line-side ground wire.
- OSHA cited Jacobs for a single serious violation of 29 C.F.R. § 1910.335(a)(1)(i) (failure to ensure employees used appropriate electrical PPE); an ALJ upheld the citation and assessed a penalty of $11,408; the Commission denied Jacobs’ appeal.
- On judicial review, the Eighth Circuit rejected parts of the ALJ’s reliance on an uncited theory under § 1910.333, but affirmed the ALJ’s narrower holding that Jacobs applied a one-size-fits-all PPE policy and failed to reassess when the task changed, and that substantial evidence supports the citation.
- The court denied Jacobs’ petition for review, holding the citation stood despite a minor factual misstatement and rejecting Jacobs’ unpreventable-employee-misconduct defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1910.335(a)(1)(i) required PPE while working on a deenergized load side after verification | Jacobs violated PPE rule by allowing removal of gloves/face shield | Industry practice and NFPA 70E allow removal after establishing an Electrically Safe Work Condition | Court: Secretary failed to prove violation for the initial, post-test removal where ALJ relied on an uncited § 1910.333 theory; that part has no precedential value |
| Whether Jacobs violated PPE rule when Sky did not don PPE after removing the ground bar (task changed) | PPE was required because the job changed and exposed Sky to line-side hazards | Sky acted outside the assigned task and should have stopped for supervisor guidance | Court: Held Jacobs violated; employer applied one-size-fits-all policy and should have reassessed PPE given equipment-specific risks; substantial evidence supports citation |
| Employer knowledge / affirmative defense of unpreventable employee misconduct | Secretary: supervisor Brabec knew or should have known of risk; employer liable | Jacobs: Sky’s deviation was unforeseeable employee misconduct, so employer not liable | Court: Found Jacobs knew or should have known; unpreventable-misconduct defense not established |
| Citation scope / factual error (ground vs neutral; broader theory alleged) | Citation reasonably informed Jacobs of charges; minor error not fatal | Citation misstated the act and advanced an overbroad theory not proved | Court: Minor factual mistake did not require vacatur; Jacobs had fair notice of the contested PPE violation |
Key Cases Cited
- Wal-Mart Stores E., LP v. Acosta, 919 F.3d 1073 (8th Cir. 2019) (standard of review on OSHA decisions)
- Omaha Paper Stock Co. v. Sec'y of Labor, 304 F.3d 779 (8th Cir. 2002) (elements Secretary must prove for OSHA violation)
- Arkansas-Best Freight Sys., Inc. v. OSHRC, 529 F.2d 649 (8th Cir. 1976) (foreseeability requirement for PPE obligations)
- Cape & Vineyard Div. of New Bedford Gas v. OSHRC, 512 F.2d 1148 (1st Cir. 1975) (industry custom relevant but not dispositive)
- Voegele Co., Inc. v. OSHRC, 625 F.2d 1075 (3d Cir. 1980) (cannot ignore prevailing industry standards)
- Valdak Corp. v. OSHRC, 73 F.3d 1466 (8th Cir. 1996) (standards for unpreventable employee misconduct defense)
- Ames Crane & Rental Serv., Inc. v. Dunlop, 532 F.2d 123 (8th Cir. 1976) (distinguishing employee disregard of clear instructions)
- Brock v. Dow Chem. U.S.A., 801 F.2d 926 (7th Cir. 1986) (minor citation errors do not automatically require vacatur)