Appleton Grp LLC, dba Appleton Group

Read the official release (oshrc.gov)

Plain-English summary

Appleton Group manufactured and tested heating cable systems at its Connecticut facility. OSHA alleged hazards involving extruding-line emergency stops, electrical-panel access, cable-testing work practices and protective equipment, an exit sign, and a portable propane cylinder. The judge found insufficient proof that the extruding-line condition was a recognized hazard likely to cause serious harm. The evidence also did not establish that the table near the electrical panel, the cable-testing practices, or the lack of specified protective equipment created the cited hazards. The propane-cylinder item failed on both noncompliance and employer knowledge, and the Secretary withdrew the exit-sign item. All six citation items were vacated, leaving no penalty.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1910.303(g)(1); 29 C.F.R. § 1910.333(a); 29 C.F.R. § 1910.335(a)(1)(i); 29 C.F.R. § 1910.37(b)(2); 29 C.F.R. § 1910.110(c)(5)(i)(i)
• Outcome: All citation items vacated; no penalty assessed.
• Key point: The Secretary must prove the alleged hazard and each required element with evidence specific to the workplace conditions.

Full text (OSHRC public release)



Appleton Grp LLC, dba Appleton Group, Docket No. 16-0718

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, D.C.

20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No.
1 6 -0 718

APPLETON GRP, LLC ,
d/b/a Appleton Group,

Respondent.

APPEARANCES:

For the Complainant:

Christine T. Eskilson, Esq.

Deputy Regional Solicitor

U.S. Department of Labor

Boston, Massachusetts

For the Respondent:

Julie O’Keefe,
Esq.

Armstrong Teasdale

St. Louis, Missouri

BEFORE:    William S. Coleman

Administrative Law Judge

DECISION AND ORDER

The Respondent,
Appleton GRP, LLC, d/b/a Appleton Group
(Appleton),
operates a facility in East Granby, Connecticut,
where it
manufactures heating cable systems
designed to prevent
ice from forming on roofs and in pipes . (T. 11, 211). On January
28,
2016,
an unidentified
person
contacted the
area office of the
Occupational Health and Safety Administration (OSHA)
located
in Hartford, Connecticut,
about
the
facility to
complain
(1)
that
emergency stops (“e-stops”) on
an extruding
line
were not functioning, and
(2)
that
employees who tested
heating cables
were
being
exposed to electrical hazards. (T. 11-12).

In response to that
complaint,
an OSHA
compliance safety and health officer (CO) from the
Hartford
area office
inspected the
facility
on three separate days: February 2 & 4, 2016, and March 15, 2016. (T.
12, 63-64,
95, 99). On March 28, 2016, as a result of the inspection,
OSHA
issued a “Citation and Notification of Penalty”
proposing penalties totaling $11,500 on two Citations: (1)
a four-item “serious”
citation
(Citation 1),
and
(2)
a two-item
“other than serious” citation (Citation 2).

Appleton timely contested the
Citations and proposed penalties
and thereby
brought
the matter before the Occupational Safety and Health Review Commission (Commission)
pursuant to
section 10(c) of the
Occupational Safety and Health
Act
of 1970
(Act).

29 U.S.C.
§
659(c).

The
Commission docketed the matter on May 6, 2016, and the
Secretary
thereafter
filed
his formal
complaint
pursuant to Commission Rule 34(a), 29 C.F.R.
§ 2200.34(a),
wherein the Secretary
re-alleged the
violations
and proposed penalties
set forth
in the
original
citations. The Commission’s Chief Judge assigned the matter to the undersigned on September 12, 2016, for hearing and decision. The
hearing
was conducted
in Hartford, Connecticut on February 15, 2017. Post-hearing briefing was completed on June 8, 2017.

The Secretary declared in his post-hearing brief that he was withdrawing item 1 of Citation 2. 1

See Morrison-Knudsen Co. , 16
BNA
OSHC 1105, 1123 (No.
88-572, 1993) (recognizing
that
the
Secretary
had
withdrawn
a
citation item
through the position stated in a
written brief). The following
five
alleged violations
remain
at issue, all of which were alleged to have occurred on or about the
first
day of the inspection,
February 2, 2016:

Citation 1, Item 1 : This citation item
was
amended
prior to the hearing
to
allege
a
serious
violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970 (the Act),
29 U.S.C. § 654(a)(1),
which is
commonly
known as the Act’s
“general duty clause.”

The Secretary alleges
that
Appleton violated
section 5(a)(1)
in that “the emergency stop provided on the main operating console [of the Davis-Standard Extruding Line 2] did not shut down the two Viteck pay-off units.” 2

The Secretary alleges
that
as a result of this condition,
employees were sometimes
exposed to being struck by wire
when shutting
down a payoff unit by using the
payoff unit’s
off switch.

The Secretary alleges
further that a feasible and acceptable method to correct the alleged hazard
would be “to re-wire the emergency stop control provided on the operator’s console to stop the pay-off units.”

Citation
1 , Item 2 . This citation item alleges
a
serious
violation of 29 C.F.R. § 1910.303(g)(1), which
provides:
“Sufficient access and working space
shall
be provided and maintained about all electric equipment to permit ready and safe operation and maintenance of such equipment.” The Secretary alleges
that Appleton violated the
standard
in that “a table that was being used as a workstation
was located in the working space” for a 120/208
volt
panelboard.

Citation
1 , Item 3a .

This citation item alleges
a
serious
violation of
29 C.F.R. § 1910.333(a), which
provides:
“Safety related work practices
shall
be employed to prevent
electric shock and other injuries
from either direct or indirect electrical contacts,
when work is performed near or on equipment
or circuits which are or may be energized.”

The Secretary alleges that
Appleton violated this standard
with regard to employees who conducted “Hi-Pot testing on spools of cable using test sets”
at
two
different
testing
locations at
the facility.

Citation
1 , Item 3b . This citation item alleges
a serious violation of 29 C.F.R. § 1910.335(a)(1)(i), which
provides:
“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.” The Secretary alleges that Appleton violated this standard in that employees who performed
hi-pot
electrical testing on spools of cable
at
three different testing areas of the facility were not provided personal protective equipment such as voltage-rated gloves and fire-resistive clothing.

Citation 2, Item 2 .
This citation item alleges
an “other than serious” violation of 29 C.F.R. § 1910.110(c)(5)(i)( i ), which provides
in relevant part
that containers used for storing
liquefied
petroleum gases “shall be located so as to minimize exposure to … physical damage.” The Secretary alleges that Appleton violated this standard by storing a
portable
propane cylinder
on a work bench
in an unsupported
“free-standing”
position.

The
issues
for decision
are:

· Did the
Secretary
prov e
by a preponderance of the evidence
that
Appleton or its industry recognized a hazard that was
causing or was
likely to cause death or serious physical harm
when , during certain malfunction events,
an employee
was required to
shut down a payoff unit by using
the payoff unit’s
off switch ?

(Citation 1, item
1
–
Section 5(a)(1)   ) .

· Did the Secretary
prove
by a preponderance of the evidence tha t
a work table that was located
underneath
a wall-mounted panelboard
caused there to be
insufficient access and working space to permit the
ready and safe operation
and maintenance
of
the panelboard ?
(Citation 1, item 2 -- §
1910.303(g)(1)     ).

· Did the Secretary
prove
by a preponderance of the evidence that the
safety-related
work practices Appleton used for
testing
insulated
heating cables
at two
test areas
were not consistent with the nature and extent of the associated electrical hazards ?

(Citation
1 , item
3a -- §   1910.333(a)    ).

· Did the Secretary prove
by a preponderance of the evidence that
the circumstances
under which employees tested
heating cables at three
test
areas was likely to give rise to potential electrical hazards requiring the wear of
voltage- rated gloves and
fire- resistive shirts ?
(Citation 1, item 3 b
-- § 1910.33 5 (a) (1)(i)   ).

· Did the
Secretary prove
by a preponderance of the evidence
that a portable propane cylinder
that
had been
placed
on a work bench
in a n unsupported upright
position
(a)
was not
located so as to minimize
its exposure
to physical damage ,
and
(b)
that Appleton knew or should have known that the cylinder had been
locat ed in that
position ? (Citation 2, item 2 -- §   1910.110(c)(5)(i)(i)    ).

As set forth below,
the Secretary did not meet his burden of proof as to any of these issues, and thus the
corresponding
citation items are vacated.

FINDINGS OF FACT

The following facts were established by at least a preponderance of the evidence:

1. Appleton
   employ s
   about 25
   employees
   at its 32,000 square foot facility in East Granby, Connecticut,
   where it
   manufactures
   and tests
   heating cable s
   that are used for
   roof-freeze
   and pipe-freeze protection
   systems . (T.
   11-15,
   27,
   175, 210-11).

Appleton
is engaged in a business that affects interstate commerce. (Answer, ¶¶
2
&
3 ).

Struck-by Hazard at Payoff Units

( Citation 1, item 1 – General Duty Clause )

2. Appleton’s Davis-Standard Extruding Line
   number
   2 (“DS-2”) is the subject of
   the alleged violation of the general duty clause set forth in amended
   Citation 1, i tem 1.
   The DS-2 was placed in service at the facility in
   1990 . (T . 200 ).

3. The
   function of the
   DS-2
   is to
   combine two bare copper wires to
   create
   a
   cable
   and
   then to
   coat th at
   cable with
   plastic
   insulation .

4. The
   DS-2 has a linear configuration .

T he
record does not reflect the length of
the
DS-2 ,
but t he entirety of the testimonial and photographic evidence suggests that it is at least
30
feet long from beginning
to end. (T. 33-34). There are
f ive
discrete
uni ts to the
DS-2
that are
arranged
from beginning to end
in the following sequence :

a. T he
line starts with the
“payoff,”
which is the location of the hazard alleged in the citation item.

(T. 31).

The payoff
is
comprised of two separate
Vite c k brand
“payoff units , ”
which
Appleton
designated
respectively as
“Payoff #1” and
“Payoff #2 . ”

The two payoff un i ts are
oriented in line ,
with Payoff #1 positioned at the
start
of the
line
and Payoff #2 positioned next in line .
A single bare wire from each payoff unit is
“paid off”
from a
reel / spool
of wire
that is
loaded onto each payoff unit . (Tr. 178).

The photograph at Exhibit R-1-A accurately depicts a side view of the two
Vite c k
payoff units , and the photograph at Exhibit J-1 accurately depicts an oblique view down the line ,
with
Payoff #1 at the
start
of the line . Each payoff unit
is powered by
its own motor
which rotates
a
reel of wire
as it
dispense s
bare
wire to the
line . A control
panel
is mounted on to
the housing for
each
payoff unit’s m otor , the vertical
face
of which is accurately depicted in Exhibit J-4 . Each
control
panel
has
an
on/off switch
at the uppermost point on the vertical surface, and also
has a separate
run/stop switch at the lowermost point on the same vertical surface, as
is accurately
depicted on Exhibit J-4. When manipulated, either of the se
two switches will
turn off
the motor to the payoff unit. The se
two
switches
on the control
panel s for each payoff unit
are
circled and annotated with the handwritten word “Stop”
on Exhibit R-1-A. (T.
181-83 ).

The nine-second video clip
at
Exhibit R-2 accurately depicts one of the payoff units
during
normal operation ,
dispens ing
wire
to the line .

(T.
186-87 ).

b. The
second
uni t of the DS-2 is the “accumulator,” which is positioned immediately after Payoff #2, and
which
is accurately depicted in Exhibit J-5. 3 (T. 32-33).

The two bare wires
dispensed
from the payoff units
are pulled
through the accumulator , whose
function is to maintain the proper tension on the wires as they are combined to create a cable. (T. 31,
68,
179, 188; Exs. J-1 & J-2).

c. The
thir d
uni t
of DS-2
is
the
“ extruder ”
itself,
through
which the cable is pulled
and
where it is
coated with insulating plastic . (T. 188; Ex. J-5).

d. The
fourth
uni t of
DS-2
is
the
“ capstan , ”
which
pulls the
cable
through the extrusion line .

e. T he
f if th
and final
unit
of the extruding line is
the
“ pickup reel, ”
where
the
fresh ly insulated cable
is
wound onto a
reel.

(T. 178-179; 194).

5. From the time the
   DS-2
   was put in service at the facility in 1990 up to the commencement of the inspection on February 2, 2016,
   in order to shut off electrical power to
   a
   payoff unit ’s motor
   for any reason, the
   operator of the DS-2 would have to manipulate one of the two switches located on the control panel for that payoff unit. (T. 181; Exs. J-4 & R-1-A). These switches are located on the operator’s side of the motor housing for the payoff units, and the wire reel for that payoff unit is located on the opposite side of the motor housing. The
   straight-line
   distance between the switches and nearest point on the payoff reel (with the motor housing situated in between the two) is about 22 inches. (T. 183, 185; Ex. J-1).

6. The
   DS-2 has three emergency stops (e-stops). (T. 273).

a. One
e-stop
is located on the main console of the
DS-2 ,
which is more than ten feet from
Pa yoff #2 , and
which is depicted in Exhibit J-3 .
(T.
189-90,
194 ).

(This is the e-stop that the citation item alleges
could be
electrically connected to the payoff units in order to abate the alleged hazard.) The main console for the DS-2 is on the same side of the line as the control
panel s for each of the two payoff units.

b. Each of the other two e-stops
is
located
near
one of the
payoff unit s , on the
opposite
side
of the line
from
the
side
that the
off switch es
for
each
payoff unit
are
located .

The photograph at
Exhibit J-2
accurately depicts
the location of
each
of these two
e-stops .

c. All
three e-stops , incl uding the two
that are
situated near
a
payoff unit,
we re wired to shut off
electrical
power
only
to the extruder and
the capstan . None of the e-stops was
wired to shut off electrical power to
either of the payoff units .

The manufacturer of
the
DS-2
designed and manufactured
the
three
e-stops to function this way , and the
e-stops
had
functioned in that
manner
at the facility
since
the DS-2 was first
installed
there
in 1990 .

(T. 191, 196-201 , 259-262 ).

7. From the time the
   DS-2
   was put in service at the facility in 1990 up to the commencement of the inspection on February 2, 2016 ,
   when any
   of the three
   e-stop s
   on the DS-2 was activated, the capstan immediately stopped pulling the cable though the extruder. (T. 274). When the capstan stopped pulling the cable, the capstan
   transmit ted
   a
   signal
   to
   a limit switch
   on
   the
   accumulator , which in turn
   cause d
   each payoff unit to stop dispensing wire. (T. 189-190). Thus, even though there was no electrical connection bet ween any of the e-stops and
   the
   motors for the payoff units, the DS-2 was designed so t hat the activation of an
   e-stop should
   result in
   the
   reels of wire loaded onto the payoff units to stop
   rotati ng
   and thus stop dispensing wire to the line. (T. 37-40).

8. Similarly, the
   DS-2 was designed so that if wire that was being dispensed from the payoff units broke, the
   limit switch in the accumulator
   would signal the payoff units to stop dispensing wire. (T. 39-42). Sometimes, however, the limit switch on the accumulator
   would malfunction and fail to cause the payoff units to stop dispensing wire.

(T. 39-4 2 ). When
such a malfunction
occurred,
the wire reels on the payoff units continued to dispense wire , and the wire would unravel about a foot or so above the reel, with
the
unraveling wire “flying around to a degree”
and resembling a “big Slinky”
according to
Mr. John Metz, who was
the
principal
operator of the DS-2 from 2012 to 20 1 6. (T. 46-47).

The only way to
cause
the payoff units to stop dispensing wire during such a malfunction was for a worker
to go to the control
panel
for each payoff unit
and t o turn off the motor for the payoff unit
in order to stop the
rotation of the wire reels (thereby stopping
the
resulting dispensing of the wire from the reel) . (T. 38-43 ).

9. Mr. John Metz was the principal
   operator of the DS-2
   for four years from 2012 to 2 0 1 6. (T. 27, 30). Metz
   recalled
   experienc ing
   the type of malfunction described in the preceding paragraph about six times over the course of
   the
   four years
   that he worked at the fac ility
   as
   the principal operator of the DS-2 line . (T. 45).

10. Metz recalled the
    unraveling wire
    from a payoff unit
    str iking him
    when he access ed
    the stop switch for the payoff units , and
    he
    recall ed
    sustain ing
    a
    bruise on his arm
    from this
    contact , for which he did not seek or receive any medical treatment or first aid . (T. 55-56).

Metz did not report having sustained
this bruise
to Appleton. (T. 49-50,
287-88).

11. Following an apparent malfunction of the limit switch in the accumulator in 2015, Metz complained to a supervisor about one of the payoff units creating a “wire mess,” but Metz did not
    express
    a concern that this had presented a safety hazar d.

Metz also
did not
report having been struck or having sustained an injury. (T. 286-87). This was the only time
that
Metz reported
the ma lfunction that he had recalled
having occurred multiple times over the four years that he had operated the DS-2 line.

12. Appleton was unable to replicate
    or to determine the cause of the
    apparent malfunction of the limit switch in the accumulator
    that caused the malfunction that Metz described . (T. 286-87).

13. No Appleton employee has
    ever
    reported
    to Appleton having
    be en
    struck or
    injured from wire unreeling from the payoff units
    on
    the
    DS-2 . (T. 288).

14. T he director of operations at the facility had observed the payoff units
    in operation
    every day during
    the
    17 years
    he
    has
    worked
    at the facility , and he has
    never seen, nor
    has
    he
    been informed of ,
    any event where loose
    wire from a payoff unit
    str uck
    anyone. (T. 195-96).

15. An employee
    named
    R oy
    McCarter ,
    who has
    worked at the facility
    more than 28 years,
    and
    who
    is
    able to observe the DS-2 line from his work station a few feet away ,
    has
    n ot
    witnessed
    an event such as described in
    ¶
    8 ,
    supra , in which
    wire unraveled from a
    payoff reel on the DS-2
    in the manner that Metz described .

(T . 278-80).

16. Sometime between February 2, 2016 and March 15, 2016 , in a good faith effort to a ddress
    the safety concerns expressed by the CO, Appleton caused all three e-stops
    on the DS-2
    to be re-wired
    so that each e-stop
    shut off
    electrical power to the
    motors for the payoff units
    (in addition to
    power to the
    capstan and the extruder) . (T. 202-03). After
    m aking this
    change , when
    any
    e-stop
    was activated
    the motors for the payoff units would stop ,
    but
    the
    centrifugal force
    of the rotating reel s
    would cause
    the reels
    to continue to rotate and
    dispense wire until su ch centrifugal force dissipated .

(T. 202-03).

This
continued
unspooling by centrifugal force
result ed
in
greater
time and
effort
being
required
to
return the DS-2 to production after activation of an e-stop . (T. 204-205).

17. During
    the
    continuation of the
    inspection on
    March 15, 2016, the CO became aware
    that Appleton had rewired
    the three
    e-stops
    to become
    electrically connected to the payoff units .

The CO regarded this rewiring to have abated the
alleged violative condition . (T.99). Consequently, the
original
citation
item ,
which
had alleged a violation of the general machine guarding standard ,
indicated that the violation
had been “Corrected During Inspection.”

18. The
    task
    of shutting down
    either
    Payoff #1 or Payoff #2
    o n
    the DS-2 by using the
    off
    switches located on the control
    panel
    for each payoff unit
    during
    a malfunction when
    wire unspool ed
    from the
    payoff
    reel did not present a
    risk of
    serious injury
    to the employee who manipulat ed
    the off
    switch
    during such an
    malfunction event .

19.
Neither Appleton nor its industry recognized that the task of shutting down a payoff unit for the DS-2 by using the off
switch on the control
panel
for each payoff unit
presented a
risk of serious injury
to the worker who manipulat ed
the off
switch on the payoff units
during a malfunction when wire unspooled from the payoff reel .

(T. 196).

20. To the extent that
    unspooling wire
    from a payoff unit
    presented a hazard ,
    such
    hazard was not likely to cause death or serious injury.

Sufficiency
of Access and
Work ing Space For
Electrical
Panel 10

( Citation 1, item 2 -- § 1910.303(g)(1)  )

21. A
    120 /208-volt
    panelboard , identifi ed
    as
    “Panel 10,” was housed in a
    cabinet
    that was
    mounted on
    a wall in the facility. The cabinet was
    approximately
    20 inches
    high ,
    12
    inches wide ,
    and 4.5 inches deep. (T. 13 , 294 ).

T he cabinet had a dead front
with a hinged door that opened to the switches
on the panelboard . T he cabinet
itself was not
energized and could become energized only in the event of
some
fault, short, or
some kind of
loose connection , although there was no evidence of any
such events
having occurred
with respect to Panel 10 or any
electrical
cabinet
in the facility , and no evidence regarding the
incidence
of
such events
anywhere . (T. 162- 63).
The photograph at
Ex hibit
J-11
accurately depict s
the
cabinet for Panel 10
with the cabinet door open .
Appleton e mployees did not access
Panel 10
on a regular basis. (T. 111).

22. A
    portable
    work table
    that was 60 inches long, 30 inches wide, and about 30 inches
    high
    was placed
    lengthwise
    flush
    against
    the
    wall
    and
    underneath Panel 10. The
    underside
    of the cabinet
    was
    about
    18 inches
    above
    the tabletop .

(T. 13 ; Ex. J-10 ).

T he
table top ’s surface
appears to
have
be en
plastic
laminate
glued onto
particle
board . The side edges of the
particle board
were covered by
a
rubber or plastic st rip, as
is
depicted in Exhibit J-10 . (T. 145 , 158 ). The
folding
legs and
the
frame
that supported the
tabletop
were metallic. (T. 145).

23. Some office materials (e.g., in/out boxes, three-ring binders, three-hole punch,
    and a
    calculator) were situat ed on the left side of the table, and
    a
    desktop - sized
    electrical testing
    device
    was
    situated
    on the right side of the table,
    as
    is
    depicted in
    the photograph at
    Exhibit
    J - 1 0 . (T.
    207 ).

24. The switches on the panelboard
    were at about chest
    height
    for a ny
    normal - sized adult
    standing
    in front of the cabinet , as
    is
    depicted in
    the photograph at
    Exhibit R-5. An y
    adult of
    normal
    size
    and capabilities would
    have
    be en
    able
    to reach the switches on the panelboard without having to stretch or strain
    while standing in a ny position within arm’s reach of the switches . (T.
    290-9 3) .

25. A legend
    was affixed to the inside surface of the cabinet door
    that
    indicat ed
    the
    equipment or circuit
    that the corresponding
    switch on the panelboard controlled . The legend was printed in
    a n oversized
    font
    that
    was readable to any person with normal vision
    who
    was within arm’s reach of the switches
    on the panelboard .

(Ex s .
J-11, R-5 &
R-7 ) .

The legend
was in template form in that its
layout
simulated
the
layout of the
switche s on the panel .

( Ex. J-10;
T. 293) .

26. The presence of the worktable did not increase the risk of electrical shock to a person
    who
    m a de
    contact with the panelboard
    or the cabinet that housed it . (T.
    206-07 ).

27. The location of the worktable below the panelboard allowed for s ufficient access and working space to permit ready and safe operation and maintenance of
    the panelboard.

Safety-Related Work Practices
and PPE
in
Certain
Hi-Pot Te st Area s

( Citation 1, Items 3a and 3b

§ § 1910.333 ( a) & 1910.335(a)(1)(i )  )

28. Item 3a of Citation 1
    faults Appleton’s
    s afety-related work practices
    for the prevention of
    electric shock and other injuries in two hi-pot testing areas at the facility—one test area was identified as being “ outside
    the lab,” and the other test area was described as the “kit freeze” test area. For purposes of this decision ,
    the testing area that is loc ated outside the facility’s lab
    is identified as Test Area 1
    ( TA-1 )
    and the kit-freeze test area is identified as Test Area 2 (TA-2) .
    The alleged deficiencies in
    TA-1 and TA-2
    are alleged as two separate instances of
    the
    violation alleged
    in item 3a
    of Citation 1 .

29. Item 3b of Citation 1
    faults Appleton for
    not providing appropriate
    electrical protective equipment to employees who
    conducted
    hi-pot test ing in
    TA-1 and TA-2 , and also to employees
    who
    performed testing
    in a third hi-pot test area that is known as the “drum test” area , which for purposes of this decision is identified as Test Area 3 (TA-3). The alleged deficiencies in protective equipment provided to employees
    who conducted
    testing in these three areas
    are alleged as three separate instances of the violation alleged
    in item 3b .

30.
“ H i-pot” is
an abbreviation
for “high potential. ” Hi-pot testing
is also known as “dielec tric testing.” (Ex. R-8). In the
hi-pot testing done at the facility, insulated heating cable is subjected to higher voltages than
the cable
would be subjected to while in use for its
intended purpose as part of a heating cable system. Th e purpose of the testing
is to determine
the
extent to
which
voltage leaks from the
cable and
to determine whether
the cable
meets
the
specifications
for which
it
is to be certified . (T.
78, 153-54, 240).

31. The test ing
    equipment used in all
    three
    testing areas
    has
    insulat ed wire leads that are
    connected to the cable being tested. The ends of the wire leads have metal
    clips
    that are
    guarded
    by plastic insulating covers
    that
    prevent the person
    manipulat ing the leads from
    having direct
    contact
    with
    the conductive
    clips . (T. 21 3-14, 218-19; Exs. J-12). The
    insulating
    plastic covers
    on these
    leads are effective in preventing employees from inadvertently coming into direct contac t with the conductive metal clip s
    during the testing . (T. 219, 244). Appleton’s
    work instruction for hi-pot testing directs employees not to touch the test
    leads during the actual testing
    when current is flowing through the test leads to the cable being tested . This is so
    even though contact
    with only the plastic insulated
    covers on the test leads would pr otect
    a person who made contact with
    only
    the plastic
    covers
    from electric shock or other injury. (T. 213-14, 218-19, 221; Ex. R-8).

32. No Appleton employee has sustained electric shock
    or other injury
    upon manipulating the conductive metal leads that are
    shielded
    by the
    insulating
    plastic covers . (T. 214). N o Appleton employee has sustained electric shock
    or any injury
    up on conducting hi-pot testing
    at
    the
    facility
    at least since the year 2000. T here is no evidence
    that in the years preceding the year 2000,
    any Appleton employee
    had
    sustained an electrical shock
    or any injury
    while conducting hi-pot testing at the facilit y . (T. 214-15).

33. All cable
    on which
    Appleton conducts hi-pot testing
    is
    protected
    by two layers of insulation and
    also by a
    tin-plated copper braided
    jacket , which
    serves as grounding . This construction of the insulated cable is such that it is not possible for electricity to pass
    outside the insulated cable , and a person can not
    be shocked, electrocuted or burned from touching the
    insulated
    cable while
    it is energized during hi-pot testing. (T. 209-13, 245-48 ). When the
    completed cable product is in actual use for its intended purpose of protecting roofs and pipes from freezing, the insulated cables are energized and do not pose a shock or burn hazard to anyone touching them while energized. (T. 210-12).

34. At
    the
    TA-1
    test area , large spools of cable in
    lengths from 200
    to 1000 feet are brought to the test area on a pallet that holds
    up to
    twelve reels of wire . The reels of wire remain on the pallet
    as each one is tested .

(T. 215-16). The
test ing
equipment
at
TA-1
is
located
on
a small worktable that is
situated against a wall
in a corner . Although
TA-1
is not cordoned off ,
and other employees walk past th e
test area from time to time, the area is not
on
a designated aisle or
in a n area with much
foot- traffic . (T. 235-36 , 242 ).

The frequency of
testing
at TA-1
varied from once per week to once per month, depending on production. (T. 81).

35. At the time of the ins pection, an employee named L enny
    DeGray was the on ly employee who conducted
    testing
    at TA-1, and he had been doing so for years . (T. 217).

DeGray is knowledgeable and skilled in conducting the testing at TA-1 in accordance with prescribed procedures, and he is not known ever to have deviated from those prescribed procedures. (T. 217-18, 220, 223-24; Exs. R-8, R-9).

36. The sequ ence for th e
    testing
    in TA-1
    was
    for the operator
    to remove about one inch of insulation from th e end of the cable to be tested and then
    to
    clip the bus and grounding leads
    from the testing equipment to the
    cable. (T. 220-22 ; Ex. R-8 ). The operator
    would
    then turn on the testing equipment , whose
    output voltage when
    initially
    turned on would be
    zero . The operator would then
    gradually
    increase the voltage to
    between 1300 and 2200 volts, depending on the
    type of cable
    being tested ,
    and
    would
    maintain that
    level
    for one minute. (T. 222-23 , 226 ; Ex. R-8 ). After that minute
    elapsed , the
    operator
    would
    then turn off th e testing equipment and detach
    the t est
    leads from the
    cable
    being tested. (T.
    216-17 ; Ex. R-8 ).

37. At
    the
    TA-2
    test area ,
    the reels of cable being tested are small and are placed on the same tabletop on which the testing equipment is located, as depicted in Exhibit J-12. (T. 95-96, 211, 215, 225).

Testing in this area occurs every day.

(T. 96).
The employee conducting the testing connects the
insulated
test lead s
to the cable to be tested ,
connects
the green -colored
gro und lead to the cable’s braid ,
and then turn s
on the test
equipment , which then
deliver s
2500 volts
at zero amperage to the cable
for one minute .

(T. 97 ; Ex. R-10 ).

The test equipment shuts off automatically a fter
a minute
has
elapse d .

(T. 95-97 ; Ex. R-10 ). Because the test leads
at TA-2
transmit zero a mperage,
unsafe direct
contact with the
energized
leads could
cause a
burn but not an electrical shock . (T. 137-39).

38. A single employee performs the testing that is conducted at TA-2 , but t wo
    Appleton
    employees
    are authorized to conduct
    that
    testing . (T. 227-28).

Both
employees
have
been trained on the p rescribed procedures for
testing in this area .

(T.
225-28;
Exs. R-10, R-11, R-12 ) .

There is no evidence of either employee
having
ever
failed to
follow prescribed procedures.

39. Appleton met or exceeded the minimum training standards specified by § 1910.332 for employees who face the risk of electric shock. 4 (E.g., T. 173-74).

Appleton
employees who performed hi-pot tes ting had
demonstrated they were capable of working safely on the energized circuits involved in their respective test areas and that they were familiar with the proper use of special precautionary techniques, personal protective equipment, insulating and shielding
materials, and insulated tools, in the manner that is described in 29 C.F.R. § 1910.333(c)(2). 5 (T.
217-18, 220, 223-228;
Exs.
R-8, R-9, R-10, R-11, R-12 ).

40. T he safety-related work practices
    in place at
    the
    TA-1 and TA-2
    test areas
    were
    consistent with the nature and extent of the associated electrical hazards
    at those locations.

41. On February 2, 2016, employees
    who performed
    hi-pot
    testing on spools of cable
    at the
    TA-1, TA-2, and TA-3
    test areas
    were not provided with voltage-rated gloves
    or fire-resistive
    shirts . (T. 14 ,
    82,
    88, 97 , 244 ).

Employees in
all three areas wore
safety glasses. (T. 82,
88,
120). Employees in
TA-1 and TA-3
wore non-voltage rated cloth
gloves (T. 88 , 120 ) , but there
is no evidence whether employees who conducted testing
at
the
TA-2
test area
wore
such
gloves .

42. An employe e named Joe Grundy performed hi-pot testing done at
    TA-3 . Grundy was knowledgeable and skilled in
    conducting
    th at
    testing, which he performed on average once every one to two weeks, depending on production. (T. 87 , 235 ). Grundy is not known to have ever failed to perform the testing according to prescribed procedures. (T. 235).

43. Part of the testing done
    at TA-3
    required the
    operator
    to insert
    the
    probes
    of a
    multi meter
    through
    the
    access ports o f
    a box
    to
    cause the probes to
    contact
    copper terminals
    inside the box
    in order to
    measur e
    the current th at the
    testing
    equipment
    was delivering to the cable being tested. (T. 86, Ex. J-9
    & R-14). Another
    aspect of the hi-pot testing at
    TA-3
    required the
    operator
    to take heat measurements
    of the cable being tested by touching the cable being tested with a
    probe
    in order to
    test for consistency of the
    temperature of the cable
    while
    electric
    current
    was
    running
    through it . (T. 86-87 , 231-32 ). Other as pects of the hi-pot testing in TA-3
    involved connecting the cable to be tested to copper lugs
    in a box that was configured with a limit switch . The
    limit switch made it im possible for the box to be energized while
    the operator made this
    connection. (T. 140-45 , 229-34 ).

There are no
uninsulated energized
wires exposed during the hi-pot testing
at TA-3 .

44. The circumstances under which
    work
    is
    performed at the
    TA-1, TA-2, and TA-3
    test areas
    does not
    give rise to the need
    for employees
    to wear
    voltage-rated gloves and fire - resistive shirts
    in order
    to protect
    them
    against
    potential
    electrical
    hazards .

Placement of Portable Propane Cylinder

( Citation
2 , item
2
-- § 1910. 110 ( c ) ( 5 ) (i) (i)  )

45. During her walkthrough on
    February 2, 2016,
    the CO observed
    a
    14.1-ounce capacity
    propane cylinder
    ( w ith
    an
    attached torch )
    on
    a
    workbench
    near
    the D S-2 extruding line . (T. 13).

The cylinder was no more than 12 inches tall and its diameter was such that it could be easily grasped
with
one hand. The photograph at Exhibit J- 6
accurately reflects the placement of the cylinder, show ing
the cylinder standing on its base
and situated
in
between
what appears to be a
vice and
what
could
be
some kind of
a
press ,
both
of which were
bolted onto the top of the work bench .

46. No evidence was presented that it was reasonably possible for the cylinder to sustain physical damage simply by being topp l ed
    over
    on the table
    from its standing position
    on to its side.

47. If the cylinder
    had
    t oppled over
    from its standing position onto
    its side, there wa s no apparent route available
    for it
    then
    to roll off the workbench
    and
    onto the floor . Rather,
    the
    equipment and
    material on the workbench would have arrested
    a
    rolling
    cylinder
    before
    it
    reach ed
    the edge of the
    workbench . (T.
    251-53 ).

48. The placement of the propane cylinder on the worktable did not expose the cylinder to physical damage in that it was not reasonably possible that the cylinder would sustain damage by being toppled to its side from the position reflected in the photograph at Exhibit J-6, nor was it reasonably possible for the cylinder to roll off the workbench onto the floor if it were to have been toppled over on the workbench onto its side

49. No evidence was presented r egarding the length of time the
    c ylinder had been located in the
    position
    depicted in Exhibit J-6 .

50. No evidence was presented to establish who placed the cylinder in t hat position or
    whether any manager or supervisor had actual knowledge of the placement of the cylinder in this position.

DISCUSSION

The Commission
obtained
jurisdiction
of this matter
under section 10(c) of the Act upon Appleton’s timely contest of the citations and proposed penalties.

29 U.S.C.
§
659(c). At all relevant times, Appleton was an employer covered by the Act because it met the Act’s definition of
“employer . ”

2 9 U.S.C. §
652(5).

The Act’s general duty clause mandates that each employer “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). To establish
a violation of the general duty clause, the Secretary must
prove by a preponderance of the evidence
that: (1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) a feasible and effective means existed to eliminate or
materially reduce the hazard. Peacock Eng'g, Inc. , 26 BNA OSHC 1588, 1589 (No. 11-2780, 2017).

To establish a violation of a
workplace
safety or health
standard
promulgated pursuant to section 5(a)(2) of the Act, the Secretary must
prove
by a preponderance of the evidence that:
(1) the cited standard applies; (2) the terms of the standard were violated;
(3) employees were exposed
or had access
to the
violative condition;
and (4)
the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition.

Atl .
Battery Co. , 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994);
Astra Pharm. Prods ., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981),
aff’d in relevant part,
681 F.2d 69 (1st Cir. 1982).

Struck-by Hazard at Payoff Units

( Citation 1,
I tem
1
-- General Duty Clause )

The CO recommended citing Appleton for a violation involving the payoff units “[b] ecause employees would need to approach
an area with a hazard in order to turn off the payoff units in the event of a machine malfunc tion
and could possibly be exposed to being struck by the wire, cut, bruised or puncture wounds. ” (T. 104-05).
The amended citation item all eged that this hazardous condition existed because
“the emergency stop provided on the main operating console [of the
DS- 2] did not shut down ”
the two pay-off units.
The
amended citation item
allege d
further
that a feasible and acceptable method
for
correct ing
the alleged hazard w as
“to re-wire the emergency stop control provided on the operator’s console to stop the pay-off units.”

The
evidence
is insufficient to establish that
Appleton (or the
industry
within which Appleton operated)
recognized
the hazard
alleged—loose
wire
from the payoff units
that
was
causing
or was likely to cause
death or serious physical
harm
when employees were required to shut off a payoff unit at the payoff unit’s control
panel
during a malfunction.

In his case-in-chief, t he Secretary presented the testimony
of
the principal operator of the DS-2 at the time of the inspection,
John Metz. Metz’s testimony is insufficiently weighty to establish that Appleton or its industry recognized the hazard alleged.

Metz’s
testimony
regarding the
number of times it was necessary for him to turn off the payoff units during malfunctions when wire was “flying around to a degree” was
varying ,
inexact , uncorroborated by other evidence, and lacked
any
other
indicia of reliability . 6

The variability of
Metz’s
testimony
on this important point raises significant doubts regarding
the
reliability of this aspect of his testimony
and the
reliability of
his testimony as a whole .

Metz testified also that he told
Appleton’s
maintenance manager, Richard Schulze, about these malfunction events each time they
had happened . (T. 49). In contrast,
Schulze
testified for Appleton and
recalled Metz making such a report only one time ;
Schulze
not ed
further that Appleton had been unable to replicate
or determine the cause of
the
sole
malfunction event that Metz
reported . (T. 49, 286-87). Further,
the
Appleton
employee who operated the extruding line
that was
adjacent to DS-2 during the entire time that Metz was the principal operator of DS-2 (Roy McCarter), testified credibly that he did not recall having ever seen the DS-2 malfunction in the manner that Metz described , either when Metz was the operator of the DS-2, or at any other time over the more than 28 years that he has worked at the facility . (T.
278,
281). Schulze and
McCarter
provided more reliable and weightier testimony than Metz. The greater weight of the evidence is
that Metz reported the malfunction
that he described in his testimony
to Appleton management
only one time .

Metz’s testimony about whether he had reported being struck by and injured by the wire when he turned off the payoff unit
during a malfunction
was somewhat ambiguous. (T. 55-56). H e could
reasonably be
understood
to have
testif ied
either (1)
that
he had reported to Schulze
only
that there had been a malfunction,
or (2) he had reported to Schulze that there had been a malfunction
and
that he had been injured while attending to it . (T. 55-56). Weighed against Schulze’s unambiguous and credible testimony that Metz had not reported being struck and injured by the wire, and the positive evidence that no Appleton employee had ever reported having been struck or injured by wire in the manner that Metz described (T. 288), Metz’s ambiguous
testimony
is
insufficient to
support a finding
that
Metz
had
in actuality reported being struck by the wire and injured .

Metz testified
also
that he told
Schul z e
that he was concerned about having “to get in harm’s way” to shut off the pay off unit during the malfunctions
(T. 50), but Schultz testified he recalled Metz complaining only
one time
of the resulting “mess”
from a malfunction,
and not expressing any safety concern. (T. 287). Given the absence of a ny evidence of other employee s sustaining injuries at the Appleton facility in the manner that Metz described, Metz’s testimony that he communicated a safety concern to the maintenance manager is insufficiently weighty to prove by a preponderance of the evidence that Metz
actually
did effectively communicate his apparent
safety
concern to Appleton management.

In sum, the
weight of the
evidence is insufficient to establish that Metz reported
to Appleton management (or
to
anyone else)
either (1)
that
a
hazard existed
involving loose wire from the payoff units, or
(2)
that he had been
struck or injured by
any such loose
wire . Rather,
the greater
weight of the evidence establishes that no Appleton employee had ever
complained of such a struck-by hazard or
reported to management having been struck or injured by wire in the manner that Metz described. (Finding of Fact
¶
13 ,
supra ).

The evidence is also insufficient to establish that
the
industry within which Appleton operated recognized the hazard alleged. Metz testi fied that he had worked in the wire and cable industry for 38 years
and
that
every
place he
had
worked “had basically the same technology . ” (T. 34-35). He testified that the
principal difference between the machinery at Appleton and
the machinery
at other facilities
where he had been employed
is that the e-stops at the other facilities
“ were functional. ” (T. 49).
Metz recognized that the e-stop
on DS-2’s
main console
was not electrically connected to the payoff units, although it is unclear
whether
Metz
correctly understood that this was how that e-stop was designed and manufactured to operate , or
whether
he
held the erroneous belief that this was a defect in the e-stop . (T. 38). ( T he
uncontroverted
evidence is that none of the three e-stops w ere designed or manufactured to be
electrically connected to the payoff units ,
as described in
Finding of Fact ¶
6,
supra . )

There is no evidence that Metz had
operated
Viteck brand equipment
anywhere else
(T. 55), and
there
is no evidence that
the wiring of the
e-stops at other facilities
where Metz had
been employed
had been wired
to payoff units
for
safety
reasons .

Given the variability of other testimony from Metz, and the absence of any corroboration of his testimony about the equipment at other facilities in the wire and cable industry, Metz’s testimony
is insufficient to establish that
the wire and cable industry recognized the hazard alleged in the citation item.

Neither does the CO’s testimony establish industry recognition of the alleged hazard. The CO testified that she had inspected facilities
similar to
Appleton’s over the course of her career, and that in those inspections she had been cautioned to “to be mindful of the wire and the machine
operations, so that if wire breaks that I don’t get hit.” (T. 71). She was concerned that wire
breaking
“under tension”
could result in the broken wire
“whipping out” and “snapping or striking someone . ”

(T. 73-74).

Nothing in the record suggests that the CO had ever personally witnessed such an occurrence,
or that anyone had ever reported such an occurrence to her,
and the video of the payoff unit dispensing wire does not give rise to a reasonable inference that any such
violent
“whipping” or
forceful “snapping” of the wire would occur i f the wire
coming off the payoff unit
did
br eak . (Ex. R-2).

Moreover, under the scenario posited by the CO, the wire
under tension
would have broken
and
potentially
“snapped”
before
the time that an
employee would have had cause to approach the control
panel
for the payoff unit
in order
to shut it off . An employee approaching the control panel for the payoff unit after the wire had broken
would
in all likelihood
be in a position to avoid contact with any wire that was “whipping”
around
or unspooling
in the vicinity of the payoff
unit ’s off switch.

The CO
testified
further
that in
the course of
her inspection s
of other facilities
in the wire and cable industry ,
that
she recalled seeing records
that
indicated employees having sustain ed
injuries from being struck by wire. (T. 106-07).
This testimony regarding unspecified other facilities with unspecified other equipment
and unspecified other injuries
is far too general and imprecise to support a finding
that the
industry
in which Appleton operated
recogni zed
a
hazard
involving
loose wire from the payoff units .

The Secretary failed
also
to prove that being struck by loose wire from
a
payoff unit was causing or
was
likely to cause serious physical harm
or death .

The CO’s testimony that she believed the loose wire could inflict eye injuries, puncture wounds, and lacerations
was conclusory and
uncorroborated , and insufficient to establish the alleged hazard was likely to cause such injuries . (T. 105).

The CO’s belief that the loose wire could result in lacerations or puncture wounds is not substantiated by any other evidence. The evidence of record
that depicts the
speed with which the payoff units dispense wire ,
the
gauge of the wire
(Ex. R-2) ,
and the
distance
and obstacles between
the reels of wire and controls for the payoff unit
(e.g., T. 47, 183) , do not support the inference that
any
contact with the wire from
a
payoff
unit
was likely to cause a laceration or puncture wound.

As for potential eye injuries, there is no evidence that the operator of DS-2 was not required to wear safety glasses. Rather, the photograph at Exhibit J-1 indicates that Metz did in actuality wear eye protection when operating the DS-2 line.

(T. 152).

Moreover, there is substantial evidence that other employees in the facility were required to wear safety glasses as a matter of course. (T. 82, 88, 120). Given other safety measures in place at the facility, the
CO ’s supposition that the alleged
hazard of unspooling wire at the payoff unit
was likely to cause
an eye injury
is not s ubstantiated .

Metz’s recollection that he had sustained a bruise
on his arm
as a result of
being struck by the wire from the payoff
unit
is insufficiently weighty to establish by a preponderance of the evidence that this contact
with the wire
did in actuality
cause
any bruising , or
that
such
contact
was likely to inflict any bruising . On cross-examination by Appleton’s attorney, Metz’s initial response to a question about whether he had been injured by contact with the wire from the payoff was that he had sustained “just bumps and bruises,” but upon
further exploration of this initial response, he testified that
he had simply been bruised on his arm. (T. 55-56). Even if Metz’s
testimony about being bruised is
accepted at face value,
such an injury
generally do es
not constitute serious physical harm. See
Powell Constr. Co. , 5
BNA
OSHC 1740, 1742 (No. 14926, 1977) (stating that bruises and contusions do not support a classification of “serious”). Moreover, no
other aspect of
Metz’s
testimony permits the reasonable inference that the contact with the wire that he described was likely to
result in
serious physical harm.

The Secretary has failed to prove by a preponderance of the evidence that unspooling wire at the payoff units
presented a hazard recognized by Appleton or its industry, or that any hazard
that
such unspooling wire did
in actuality
present
was causing or was likely to cause death or serious physical injury .
See Anoplate Corp. , 12
BNA
OSHC 1678,
1686
(No. 80-4109, 1986) ( observing that Congress intended to limit application of general duty clause “to conditions that few could doubt are dangerous enough to warrant abatement”).

The Secretary having failed to establish by a preponderance of the evidence essential elements of a violation of the general duty clause, Citation 1, item 1, must be vacated.

Sufficiency of Access and Working Space for Panel 10

( Citation 1, item 2 -- §
1 910.303(g)(1)  )

Citation 1, item 2 involves
§ 1910.303(g) , which
is included in the electrical subpart of the general industry standards that contains “design safety standards for electric utilization systems.” See
29 C.F.R. § 1910.302. Section 1910.303(g) by its terms
applies only
“ to electric equipment operating at 600 volts, nominal, or less to ground. ”

This citation item alleges that Appleton violated subparagraph (1)
of section 1910.303(g) , which provides as follows: “ (1)
Space about electrical equipmen t . Sufficient access and working space shall be provided and maintained about all electric equipment to permit ready and safe operation and maintenance of such equipment. ”
The citation item alleges that Appleton violated this standard
in the following manner : “[A]
table that was being used as a workstation was located in the working space for Panel 10, a Square D 120/208 volt panelboard. ”

S ection 1910.303(g)(1)
constitutes a
“performance ”
standard , in that
it
identifies
an
obje ctive
but does not specify the m ethod or m anner in which that objective is to be achieved . 7
See
Cent. Fla. Equip. Rentals, Inc. , 2 5
BNA OSHC 21 47 , 21 51
(No. 0 8 - 1656 , 20 16 ) .

“[B] ecause performance standards . . . do not identify specific obligations, they are interpreted in light of what is reasonable.”

Id., quoting
Thomas Indus. Coatings, Inc. , 21 BNA OSHC 2283, 2287 (No. 97-1073, 2007).

Thus,
in order to
establish that Appleton violated section 1910.303(g)(1), the Secretary was required to prove that
the placement of the table
underneath Panel 10
did not reasonably provide for
“[s]ufficient access and working space” about Panel 10 “to permit [its] ready and safe operation and maintenance.” As set for th in the Findings of Fact ¶¶ 21 - 27 , the evidence presented was insufficient to establish
th e
facts
that are
essential to proving
non-compliance with section 1910.303(g)(1).

The CO believed
the placement of the worktable did not provide an employee w ho
needed to access Panel 10
under
emergency
circumstances
with “adequate space to approach the panel . ” (T. 109). She thought an employee might have to lean against the table to
reach
the switches on the panelboard, and
also might
have difficulty reading the legend
for the panel
to
identify
the appropriate switch,
thereby
potentially
delaying
responsive action
in
an emergency . (T. 109). The CO also believed that the presence of the table presented a shock hazard to a person who made contact with the panelboard
or
its
cabinet , because that person
might make
also
contact
with
the table’s
metal lic
legs
or the metal lic
electric equipment placed on the table ,
and
thereby
create a path to ground
that could
result in an electric
shock or electrocution. (T. 110-11 , 159 ).

Mr. Shriram Pathak was Appleton’s director of operations for heating cable systems
and also the acting plant manager at the time of the inspection. He
testified that he
could not envision a scenario where
a person manipulating the switches on the panelboard
would be at risk of sustaining an electrical shock
if such person were to simultaneously be in contact with
the panelboard and
either the
table
or the electrical testing equipment that was situated on the table . (T. 207). Further,
Appleton presented substantial
evidence that the presence of the table below the panelboard did not impede access to
the panel
and would not
affect the spee d with which a person could
read and understand
the legend and identify the appropriate switch
on the panelboard . (T.
288-94; Exs. R-5, R-6 & R-7).

The CO’s testimony constituted
prima facie evidence
to prove non-compliance with the performance standard , but Appleton rebutted th e Secretary’s
prima facie case
principally
with Pathak’s testimony .

The testimony of both the CO and Pathak on the issue
constituted
lay testimony,
in that
neither was offered or qualified to present expert testimony. 8 The undersigned, as the trier of fact, possesses no special knowledge or experience regarding the sufficiency of access and working space to permit the ready and safe operation and maintenance of electrical equipment, and there is little basis in the record for discerning the relative reliability of the testimony of one lay witness over the other on this issue . However,
Pathak’s greater formal education in electrical engineering ,
and his
far greater knowledge
and experience in the
operations of the facility , weighs in favor of according
his
testimony more weight than the CO’s ,
notwithstanding his obvious interest in having the East Granby
facility
determined to have been in compliance with OSHA standards .

While the admission
of
appropriate
expert testimony might well have provided a
basis
for according greater weight to the
CO’s conclusions over Pathak’s
on this issue, no such expert testimony was presented. See
Falcon Steel Co. , 16 BNA OSHC 1179,
1191
(No. 89-2883 , 1993)
(consolidated)
(noting that an “experienced compliance officer’s reasonable suggestion” on
a
technical matter may be sufficient for the Secretary to make out a prima facie case without having to present expert testimony on the matter);
Consol. Constr., Inc. ,
16
BNA
OSHC 1001,
1006 n. 6
(No. 89-2839, 1993) (noting that the Secretary was not required to present expert testimony to prove his case, but that “when the Secretary chooses not to produce an expert witness, he risks the possibility, as here, of not being able to refute the employer's evidence”);
Gen. Motors Corp., Delco Prod. Div. , 11 BNA OSHC 1482, 1484 (No. 78-5476 , 1983) (observing that “had the Secretary met his
prima facie
burden, it is questionable whether, without expert testimony, the Secretary's case would have been capable of withstanding rebuttal” from the respondent).

Even if equal weight were accorded
the lay testimony of the CO and Pathak, the Secretary
would have
failed to meet his burden to prove by a preponderance of the evidence that the presence of the table created a shock hazard or impeded the ease and speed of access to Panel 10. See
Stanley Roofing Co., Inc. , 21
BNA OSHC
1462 , 1464 (No. 03-0997,
2006)
(concluding that Secretary did not meet her burden of proof on a matter where the evidence was “ essentially in equipoise ”);
Schaffer v. Weast , 546 U.S.
49,
56
(2005)
( observing that the “ burden of persuasion ”
answers “which party loses if the evidence is closely balanced”) .

The Secretary having failed to establish by a preponderance of the evidence that the placement of the worktable
underneath
Panel 10
caused there to be insufficient working space about Panel 10 to permit its ready and safe operation and maintenance, item 2 of Citation 1 must be vacated.

Safety-Related Work Practices in Hi-Pot Te st Area s

( Citation 1, item
3a , instances “a” & “b”
-- § 1910.3 3 3( a )  )

Item 3a of C itation
1
alleges a serious violation of 29 C.F.R. § 1910.333(a), which provides :

General.
Safety related work practices shall be employed to prevent electric shock and other injuries from either direct or indirect electrical contacts, when work is performed near or on equipment or circuits which are or may be energized.

The specific safety-related work practices shall be consistent with the nature and extent of the
associated electrical hazards.

The
Secretary
alleged that Appleton
violated this standard
with re spect
to employees who conducted
“Hi-Pot testing on spools of cable using test sets”
in
two areas (TA-1 and TA-2) in
the following manner:

The employer had not developed and implemented safe work procedures for high voltage testing stations.

Safe work practices to protect employees from electric shock include, but are not limited to, provided insulated surfaces for the test equipment and for the employees to stand on, providing cut-out switches to disconnect test equipment from the power supply in case of an emergency and isolating the test sets and material being tested to guard against accidental contact.

The CO’s testimony regarding the
safe
work practices to protect employees from electric shock that she believed were needed at TA-1 and TA-2 appear to pertain to “ isolat ing
the test sets and material being tested to guard against accidental contact ” and “ provid ing
insulated surfaces for the test equipment .” There was no testimony
in support of the allegation s
that
Appleton should have ,
but had failed ,
to
provide
either (1)
“ cut-out switches to disconnect test equipment from the power supply in case of an emergency , ”
or (2) “ provid ing
insulated surfaces
… for the employees to stand on.”

The CO testified that she
believed the
TA-1
test area did not meet the cited standard
because
it was located in a “walking aisle” and
“ the configuration of the testing
station exposed employees, both the person doing the test and employees that could be passing by, to the potential of electrical shock and burns. ” (T.
81-82,
114 -15 ). She believed th e
“configuration” of TA-1 exposed employees to the potential of such injury because “ the test unit, itself, was sitting on a metal table ” and the
“ test
unit and the reels of material were located next to the metal uprights of the rack system, and there was no shielding or protection to protect anyone from the material being tested. ” (T. 114-15).

The CO testified that she believed the TA-2 test area did not meet the cited standard because the employee conducting the testing
could come into contact
with
the
small
spool
of wire that was being tested,
and that “ if the employee made contact with the spool when it was under the test load, and made contact with a surface that could cause them to be
grounded, then the voltage test
load would want to seek ground” and “ could cause a spark .” (T. 115 ;
see also
T. 119 ).

In contrast, Appleton’s director of operations for heating cable systems
and acting plant manager , Mr. Shriram Pathak,
testified about Appleton’s safe work practices at TA-1 and TA-2, including the practices and written procedures respecting the “ proper use of special precautionary techniques, personal protective equipment, insulating and shielding materials, and insulated tools ,”
as are described in
section 1910.333(c)(2)
as elements of safety related work practices.

Those
elements
are properly taken into account in assessing whether the safety related work practices in any given workplace are “ consistent with the nature and extent of the associated electrical hazards ”
as required by
the cited standard, section 1910.333(a). (T. 114; Ex. C-2). Pathak
testified
further about
Appleton’s
training and evaluation records f or the TA-1 and TA-2 test areas. He controverted the CO’s description of the location of TA-1 as being in a “walking aisle”
with
frequent foot traffic. (T. 235-36). Pathak
believed that in view of the safety related work practices in place at the facility ,
and the protection
provided by
the insulation on the cables and
by the
testing equipment’s
insulated leads ,
it would not be possible for an employee to be shocked or burned by making contact with the cables
or leads
during testing. (T. 206-207 ).

To prove non-compliance with the standard, the Secretary was required to establish that
Appleton’s
safety related
work practices
to prevent electric shock and other injuries at
the TA-1 and TA-2
test
stations were not “consistent with the nature and extent of the associated electrical hazards”
present at those stations. Section 1910.333(a).

The CO’s testimony
constituted
prima facie
evidence
to prove non-compliance , but Appleton
rebutted
th e Secretary’s
prima facie
case
with Pathak’s testimony. 9

As between the se
two
lay witnesses , Pathak’s testimony
regarding the safety-related work practices employed at the facility
was
the
weightier, in that he had greater education and training in the
properties of electricity ,
and
he
had
far greater familiarity with the
work practices,
systems and equipment in place at the facility .

See
Conagra Flour Milling Co. ,
16 BNA OSHC 1137, 1141 (No. 88-1250 , 1993) (noting that “[g] enerally speaking, where employees testify from their own knowledge and experience on matters that pertain to their specific work activities, their testimony
should be given greater weight than that of witnesses who do not have first-hand experience with the operation in question ”) ,
rev’d on other grounds
25 F.3d 653 (8th Cir. 1984).

And while the Act is intended to prevent the first accident , the positive
evidence
t hat there had been no electric
shock or other injuries sustained by employees
testing
cable at
the test stations
since at least the year 2000
( and the
absence of
evidence
that there had been
any such incidents
in the years before
2000 ) , is corroborative of Appleton’s evidence that the safety-related work practices at TA-1 and TA-2 were “ consistent with the nature and extent of the
associated electrical hazards” as sec tion
1910.333(a)
requires . Cf. Conagra Flour , 16 BNA OSHC at 1142
(upholding an employer’s determination that certain personal protective equipment was not required, in part because “ the absence of any injuries is consistent with a finding that a reasonable person, considering all the circumstances, would not perceive a sufficient likeliho od of a hazard to warrant the use of personal protective equipment”).

The Secretary cites to evidence that
Appleton had
a project in progress
to improve safety at
its testing stations . The Secretary suggests that
the existence
of
this
project
is probative of whether the
safety-related work practices at TA-1 and TA-2
met
the cited standard. (Sec’y Brief, p. 8). This
suggestion
is rejected .

T here was no showing that the impetus for the
improvement
project was to
meet the
minimum
regulatory
requirements. See Gen. Motors Corp., GM Parts Div. , 11 BNA OSHC 2062, 2066 (No. 78-1443, 1984) (consolidated) ( stating that an
“employer’s safety recommendations do not establish that such precautions were necessary in
order to comply with a standard ”
and observing further that
“ [i] f employers are not to be dissuaded from taking precautions beyond the minimum regulatory requirements, they must be able to do so free from concern that their efforts will be relied on to establish their knowledge of an alleged hazard”),
aff’d , 764 F.2d 32 (1st Cir. 1985).

For th ese
reason s ,
greater weight i s accorded to P athak’s testimony, and the
F indings of
F act at ¶¶
31 - 40 ,
supra ,
respecting
the safety
related work practices at
TA-1 and TA-2
are based on his
weightier testimony . The Secretary has thus failed to meet his burden to prove by a preponderance of the evidence that the safety-related work practices employed at
the
TA-1 and TA-2
test stations
were inadequate to prevent electric shock or other injuries given “the nature and extent of the associated electrical hazards” present at
those stations . I tem 3a of Citation 1 must
therefore
be vacated.

Electric al Protective Equipment

( Citation 1, item
3b, instances “ a ,”
“ b ,”
&
“ c ”
-- § 1910.3 35 ( a ) (1)(i)  )

Item 3b of Citation 1 alleges three instances
(one instance each at TA-1, TA-2 and TA-3)
of a violation of § 1910.335(a)(1)(i), which provides
as follows:

(a)
Use of protective equipment —(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.

NOTE: Personal protective equipment requirements are contained in subpart I of this part.

The citation item alleged that Appleton violated this standard because it did not require employees
who conducted hi-pot testing at
the
th r e e test areas
to
wear
electrical protective equipment
“ such
as, but not limited to, voltage- rated glo ves and fire- resistive clothing.”

Section 1910.335(a)(1)(i)
is a broadly worded
performance standard
that
appl ies
to countless conditions and circumstances. The same is true of
many other
standards that prescribe
the use of
personal protective equipment (PPE) . See, e.g.
§
1910.132(a)
( requir ing
the use of PPE “ wherever it is necessary by reason of hazards
…
encountered in a manner capable of causing injury or impairment in the function of any part of the body ” ).

“ T o establish the applicability of a PPE standard that, by its terms, applies only where a
hazard is present,” Secretary must demonstrate that “there is a significant risk of harm and that the employer had actual knowledge of a need for protective equipment, or 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 . ”

Wal-Mart Distrib. Ctr. No. 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. 201 6);
see also
Weirton Steel Corp. , 20 BNA OSHC 1255 (No 98-0701, 2003)
( applying § 1910.134(a)(2), which
requires
an
employer to provide a n employee a
respirator that is “applicable and suitable for the purpose intended” when such a respirator “is necessary to protect the health ”
of
the
employee) .

“T he Secretary must show more than the mere possibility of or a potential for injury . ”

Andrew Catapano Enters., Inc. , 17 BNA OSHC 1776 , 1783
(No. 90-0050, 1996)
(consolidated) . Rather, i n order to
establish
that a potential hazard presents a “significant risk of harm,” the Secretary must prove
that the
circumstances in the workplace are “likely to give rise
to the alleged hazard”
for which
the
PPE is needed.

See
Pratt & Whitney Aircraft v. Donovan , 715 F.2d 57, 63-67 (2d Cir. 1983) .

T he Secretary presented
a prima facie case
through
the CO’s testimony that
the
circumstances in the three test areas were likely to give rise to
electrical
hazards that required the use of voltage-rated gloves
and a fire- resistive shirt, but the CO’s lay testimony on this issue was rebutted by the lay testimony of Pathak. 10 As with the
evidence regarding
the
sufficiency of the
workspace
about
Panel 10 ,
and the
safety-related work practices
for TA-1 and TA-2 , no expert testimony was presented on wheth er voltage-rated gloves or fire- resistive shirts “were appropriate
…. for the work to be performed” at the three test are as. Moreover, there was posi tive evidence that no employee conducting testing at the three test areas had sustained
an
electric shock or
had
otherwise been injured since the year 2000, and there was no evidence that any such incident s
had occurred before th at
year.
See
Armour Food , 14 BNA OSHC
1817,
1820
(No. 86-247, 1990)
(noting that “the evidence that no employee had been injured while sharpening the blades in over 20 years strongly suggests that no hazard was present”);
Conagra Flour , 16 BNA OSHC at 1141.

For the same reasons described
previously
in assessing the relative weight to accord the
lay
testimony of the CO and Pathak, greater weight is accorded to Pathak’s testimony
with regard to the need for voltage-rated gloves
and fire- resistive shirts in the three test area s. Pathak’s testimony was
grounded in many years of experience in the industry and at the facility . Further, his testimony is consistent with
affirmative evidence that no employees have sustained electric shock or other injuries while conducting testing at any of the three test areas. The
f indings of
f act at ¶¶
31 - 44
supra
are based
largely
on
Pathak’s
more
persuasive
testimony.

The Secretary having failed to prove that the circumstances under which
employees tested heating cables
in
the TA- 1, TA-2, and TA-3 test areas were
likely to give rise to
potential electrical hazards requiring the wear of voltage-rated gloves and fire- resistive shirts, item 3b of Citation 1 must be vacated.

Placement of Portable Propane Cylinder

( Citation
2 , item
2
-- § 1910. 110 ( c ) (5)(i)(i)  )

Item 2 of
Citation 2
alleges an “other than se rious” violation of 29 C.F.R. §  1910.110(c)(5)(i)(i), which provides in relevant part that containers used for storing liquefied petroleum gases “shall be located so as to minimize exposure to … physical damage.” The Secretary alleges that Appleton violated this standard by storing a portable propane cylinder , with
an attached torch,
on a
workbench
in a n unsupported
“ freestanding ”
position. The CO was conce rned that
the cylinder
“ could
be
knocked over
or possibly fall to the floor. ” (T. 77).

As detailed in
¶¶
45-50
of the
Findings of Fact,
supra ,
the Secretary failed to establish by the greater weight of the evidence that
the
portable
cylind er was at reasonable risk of sustaining physical damage if it had been
knocked
onto its side
from its standing position
on the table . The cylinder was
lightweight and
capable of being
held by
one hand. There is n o
substantial
evidence t hat would support a
reasonable
inference that
it was possible for the cylinder to sustain physical damage
simply
by being
knocked o nto its side on the tabletop .
Further, the evidence fails to establish that if the cylinder
were
tipped over
to it side that it could
then
roll
off the workbench
onto the floor. The Secretary
having failed to prove that the cylinder was at reasonable risk of sustaining physical damage
as a consequence of its placement as
reflected in the photograph at Exhibit J-6,
the evidence is insufficient to establish that
Appleton
failed to
compl y
with the
cited
standard.

Further,
the Secretary has failed to prove that Appleton
knew, or with the exercise of reasonable diligence could have known, of the
alleged
violative condition. There is no evidence that any
Appleton
managerial employee had actual knowledge of the
alleged
violative condition
before the CO
brought it to Appleton’s attention . In order to prove the violation, therefore, the Secretary had to prove that
Appleton
had constructive knowledge of the violative condition.

To prove constructive knowledge, the Secretary must show that Appleton’s failure to discover the
alleged
violative condition was due to a lack of reasonable diligence. An employer can “be charged with constructive knowledge of conditions that could be detected through an inspection or examination of the worksite.” Texas A.C.A., Inc. , 17 BNA OSHC 1048, 1050 (No. 91–3467, 1995). “Where the employer maintains an adequate inspection program, the burden is
on the Secretary to demonstrate that the employer’s failure to discover the violative condition was due to a lack of reasonable diligence.” Trinity Marine Nashville, Inc. , 19 BNA OSHC 1015, 1017 (No. 98-0144, 2000),
rev’d on other grounds,
275 F.3d 423 (5th Cir. 2001). Whether an employer should have discovered a violative condition that is plainly visible requires consideration of how long the violative condition existed. Thos. Indus. Coatings, Inc. , 23 BNA OSHC 2082, 2086 (No. 06-1542, 2012) (ruling that the absence of evidence of how long a violative condition existed precludes finding that the employer could have known of the condition with the exercise of reasonable diligence.)

The evidence is insufficient to support a finding that in the exercise of reasonable diligence, Appleton could have known of the alleged violative condition. There is no evidence respecting how long the propane cylinder had been in the position observed by the CO on February 2, 2016, or the circumstances
under
which it had been put there. Cf.
Major Constr.,
20
BNA OSHC 2109 (No. 99-0943, 2005)
(concluding that where there was no evidence of how long the violative condition existed, Commission is unable
to evaluate whether
the employer
could have known of the condition if it had been reasonably diligent).

While the whole of the evidence might support a reasonable inference that
Appleton
could have known of the violative condition in the exercise of reasonable diligence,
such evidence is not
preponderant.

Accordingly,
citation 2, item 2
must be
vacated
because the evidence is insufficient to establish either that Appleton failed to comply with the cited standard or
that Appleton
had actual or constructive knowledge of the alleged violative condition.

ORDER

The foregoing decision constitutes findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a). If any finding is in actuality a conclusion of law or any legal conclusion stated is in actuality a finding of fact, it shall be deemed so, any label to the contrary notwithstanding. Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

1. Citation 1, item 1, alleging a violation of the 29 U.S.C. § 654(a), having not been proven, is VACATED.

2. Citation 1, item 2, alleging a serious violation of 29 C.F.R. § 1910. 303(g)(1) , having not been proven, is VACATED.

3. Citation 1, item 3a, alleging two instances of a serious violation of 29 C.F.R. § 1910.333(a), having not been proven, is VACATED.

4. Citation 1, item 3b, alleging three instances of a serious violation of 29 C.F.R. § 1910.335(a)(1)(i), having not been proven, is VACATED.

5. Citation 2, item
   1 ,
   alleging an other than serious violation of 29 C.F.R. § 1910.37(b)(2), having been
   withdrawn by the Secretary ,
   is VACATED.

6. Citation 2, item 2, alleging an other than serious violation of 29 C.F.R. § 1910.110(c)(5)(i)(i), having not been proven, is VACATED.

/s/ William S. Coleman

WILLIAM S. COLEMAN

Administrative Law Judge

Dated:
June
12, 2018

"

1
This withdrawn citation item had alleged an “other than serious” violation of 29 C.F.R. § 1910.37(b)(2), which requires that each exit be marked by a sign reading “Exit.”

2
As originally issued, this citation item had alleged a violation of the machine guarding standard at 29 C.F.R. § 1910.212(a)(1). The amended citation item’s description of the alleged violation of the general duty clause, which is quoted in the text, is identical to the description of the originally alleged violation of the machine guarding standard.

3 A witness for Appleton
describ ed
the DS-2
as being comprised of “four units.” (T. 194). This witness described the accumulator as being located between the first unit (payoff units) and second unit (extruder) in the DS-2 line, but he did not expressly describe the accumulator as being a part of the extruder unit. (T. 188) . For purposes of the description of the DS-2 in this decision, t he accumulator
is regarded to be
a separate
unit of the DS-2,
rather than a part of
the extruder unit . (T. 68).

4
Section 1910.332 prescribes training requirements regarding safety-related work practices. The Secretary has not contended that Appleton did not provide this required training, and in the absence of any evidence to the contrary, Appleton is entitled to the presumption that it was in compliance with this training standard.

5
Section 1910.333(c)(2) requires that employees who “work on
electric
circuit parts or equipment that have
not been deenergized
…
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. ”

The Secretary has not contended that any such Appleton employees did not possess these competencies and knowledge, and in the absence of any evidence to the contrary, Appleton is entitled to the presumption that it was in compliance with this standard.

6
Metz’s
testimony regarding the frequency of the malfunctions was wildly disparate over the span of a mere two transcript pages. (T. 45-46). He first testified that during the four years that he was the principal operator of the DS-2 line, the malfunction had occurred “almost a half-dozen times, plus.” But then moments later, he testified that it happened “once a couple of months” (in response to a leading question that suggested this very answer). And moments after that, he provided testimony that could be construed as suggesting that the malfunction occurred about every two weeks and sometimes occurred two or three times in a single day. (T. 45-46).

7
Subparagraph (1) of section 1910.303(g) has seven subparagraphs, many of which have subparagraphs of their own. Included in some of these subparagraphs are some “specification” standards that specify minimum distances that must be maintained to provide for “sufficient access and working space” about certain equipment. For example, subparagraph (g)(1)(vii)(A)( 1 ) requires that certain panelboards be located in a “dedicated space” that is “equal to the width and depth of the equipment and extending from the floor to a height of 1.83 m. (6.0 ft) above the equipment or to the structural ceiling, whichever is lower.” N onco mpliance with a specification standard such as subparagraph (g)(1)(vii)(A)( 1 ) establishes the
existence of a hazardous condition. Joseph J. Stolar Constr. Co. , 9 BNA OSHC 2020, 2024 n.9 (No. 78-2528, 1981) (noting that “when a standard prescribes specific means of enhancing employee safety, a hazard is presumed to exist if the terms of the standard are violated”).

The issue adjudicated in this decision is whether the Secretary proved non-compliance with the performance standard set forth in subparagraph (g)(1) of section 1910.303. The question of whether another standard is applicable to the condition here is not adjudicated—that question has not been raised by either party and was not tried by consent, either expressed or implied. Cf.
Pa. Steel Foundry & Mach .
Co. , 12
BNA
OSHC 2017, 2029 (No. 78-638, 1986) (declining to amend
sua sponte
a citation to allege an applicable specification machine guarding standard in lieu of the performance machine guarding standard that had been pleaded and tried).

8
The CO who inspected the facility,
Ms. Jayne Hollows ,
has been employed by OSHA as a safety engineer for 27 years. She has an undergraduate degree in industrial engineering and operations research and has been a certified safety professional since 1994. She has conducted over 1,000 compliance inspections while at OSHA, most of which have included inspection of electrical issues. In
the course of
her career
at
OSHA, she has inspected about 10 other facilities similar to Appleton’s East Granby facility, some of them
multiple times . (T. 60-65).

Mr. Shriram Pathak has been employed at Appleton’s East Granby
facility
since the year 2000, and
since 2014
has been serving as the company’s
d irector of
o perations for heating cable systems
as well as the acting plant manager . Pathak has unde rgraduate and masters degrees
in chemical engineering. As part of his undergraduate studies, he took at least two semesters of electrical engineering courses , which
included coverage of basic concepts and properties of electricity and protective measures when working around electricity. (T. 172-73).

From 2000 to 2004, Pathak served as “senior development engineer,” with responsibilities that included developing new products and supporting the manufacturing from an engineering perspective, including electrical testing of finished products. (T. 166-67). In 2004 h e was promoted to engineering manager, and in that position he continued to perform his prior responsibilities as “senior development engineer” with additional managerial responsibilities, including management of the extrusion process of which the DS-2 extrusion line is a part. (T. 168). After four years as the engineering manager, Pathak was promoted in 2008 to plant manager of the East Granby facility,
and in that capacity he was
responsible for the operations of the entire facility. In 2014, he was promoted to his current position of director of operations for heating cable systems, but
also continued to serve as
the
“ acting ”
plant manager. (T. 169). In his current position, Pathak
spends, on average,
about 20% of his time on the floor of the facility. (T. 176). Pathak was present during the
CO’s
inspection and
he
accompanied the CO during about 80% of the time that she was she was on the premises of the facility. (T. 176).

9
As noted earlier , both the CO and Pathak provided lay testimony, as neither was offered or qualified to present expert testimony. The undersigned, as the trier of fact, possesses no special knowledge or experience in safety related work practices to prevent electric shock or other injuries, and there is little basis in the record for discerning the relative reliability of the testimony of one lay witness over the other on this issue. As with the evidence regarding the sufficiency of the workspace around Panel 10 discussed
supra , the introduction of properly admitted expert testimony
could conceivably
have provided a foundation for according greater weight to the testimony of
the CO over that of Pathak , but no such expert testimony was presented. See
Falcon Steel Co. , 16 BNA OSHC at 1191 ;
Consol. Constr., Inc. , 16
BNA
OSHC at 1006 n.6 ;
Gen. Motors Corp., Delco Prod. Div. , 11 BNA OSHC at
1484 .

10 The CO made
an oblique
reference to a potential
need
for use of a face shield for
an
employee conducting testing at TA-3, but that testimony was not sufficiently developed to
constitute substantial evidence
that a hazard existed
that would call for
a face shield.

(T. 121) . Moreover, the Secretary
has not argued in his
closing brief
that the cited standard requires the use of a face shield in that test area .