United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

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

Washington, D.C. 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 16-0718

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 (“estops”) 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 

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.”

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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

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.

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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 hipot 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 prove 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 that 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 safetyrelated work practices Appleton used for testing insulated heating cables at two

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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 3b --

§ 1910.335(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 an 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 located 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 employs about 25 employees at its 32,000 square foot facility in East Granby, 

Connecticut, where it manufactures and tests heating cables that are used for roof-freeze and pipefreeze 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, item 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 that cable with plastic insulation. 

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4. The DS-2 has a linear configuration. The record does not reflect the length of the DS2, but the 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 five discrete units to the DS-2 that are arranged 

from beginning to end in the following sequence: 

a. The 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 Viteck brand “payoff units,” which

Appleton designated respectively as “Payoff #1” and “Payoff #2.” The two payoff units 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 Viteck 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 dispenses bare wire to the line. A control panel is mounted 

onto the housing for each payoff unit’s motor, 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 these two switches will turn off

the motor to the payoff unit. These two switches on the control panels for each payoff unit are

circled and annotated with the handwritten word “Stop” on Exhibit R-1-A. (T. 181-83). The ninesecond video clip at Exhibit R-2 accurately depicts one of the payoff units during normal operation, 

dispensing wire to the line. (T. 186-87).

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b. The second unit 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 third unit 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 unit of DS-2 is the “capstan,” which pulls the cable through the extrusion 

line.

e. The fifth and final unit of the extruding line is the “pickup reel,” where the freshly

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). 

3

A witness for Appleton described 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,

the accumulator is regarded to be a separate unit of the DS-2, rather than a part of the extruder 

unit. (T. 68).

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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 Payoff #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 panels 

for each of the two payoff units.

b. Each of the other two e-stops is located near one of the payoff units, on the opposite

side of the line from the side that the off switches 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, including the two that are situated near a payoff unit, were 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-stops 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 transmitted a signal to a limit switch on

the accumulator, which in turn caused each payoff unit to stop dispensing wire. (T. 189-190).

Thus, even though there was no electrical connection between any of the e-stops and the motors

for the payoff units, the DS-2 was designed so that the activation of an e-stop should result in the 

reels of wire loaded onto the payoff units to stop rotating and thus stop dispensing wire to the line. 

(T. 37-40). 

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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. 39-42). 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 2016. (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 to 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 2016. 

(T. 27, 30). Metz recalled experiencing the type of malfunction described in the preceding 

paragraph about six times over the course of the four years that he worked at the facility as the

principal operator of the DS-2 line. (T. 45).

10. Metz recalled the unraveling wire from a payoff unit striking him when he accessed

the stop switch for the payoff units, and he recalled sustaining 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 hazard. Metz also did not report having 

been struck or having sustained an injury. (T. 286-87). This was the only time that Metz reported

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the malfunction 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 been struck or injured 

from wire unreeling from the payoff units on the DS-2. (T. 288).

14. The 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 struck anyone. (T. 195-96). 

15. An employee named Roy 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 not 

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 

address 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 making this change, when 

any e-stop was activated the motors for the payoff units would stop, but the centrifugal force of 

the rotating reels would cause the reelsto continue to rotate and dispense wire until such centrifugal 

force dissipated. (T. 202-03). This continued unspooling by centrifugal force resulted in greater

time and effort being required to return the DS-2 to production after activation of an e-stop. (T.

204-205).

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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 on the DS-2 by using the off 

switches located on the control panel for each payoff unit during a malfunction when wire

unspooled from the payoff reel did not present a risk of serious injury to the employee who

manipulated 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 manipulated 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 Working Space For Electrical Panel 10

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

21. A 120/208-volt panelboard, identified 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). The cabinet had a dead front with a hinged door that 

opened to the switches on the panelboard. The 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-

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63). The photograph at Exhibit J-11 accurately depicts the cabinet for Panel 10 with the cabinet

door open. Appleton employees 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). The tabletop’s surface appears 

to have been plastic laminate glued onto particle board. The side edges of the particle board were

covered by a rubber or plastic strip, 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 situated 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-10. (T. 

207). 

24. The switches on the panelboard were at about chest height for any normal-sized adult

standing in front of the cabinet, as is depicted in the photograph at Exhibit R-5. Any adult of

normal size and capabilities would have been able to reach the switches on the panelboard without

having to stretch or strain while standing in any position within arm’s reach of the switches. (T.

290-93).

25. A legend was affixed to the inside surface of the cabinet door that indicated the

equipment or circuit that the corresponding switch on the panelboard controlled. The legend was 

printed in an oversized font that was readable to any person with normal vision who was within

arm’s reach of the switches on the panelboard. (Exs. J-11, R-5 & R-7). The legend was in template

form in that its layout simulated the layout of the switches on the panel. (Ex. J-10; T. 293).

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26. The presence of the worktable did not increase the risk of electrical shock to a person

who made contact with the panelboard or the cabinet that housed it. (T. 206-07).

27. The location of the worktable below the panelboard allowed for sufficient 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 Test Areas

(Citation 1, Items 3a and 3b -- §§ 1910.333(a) & 1910.335(a)(1)(i) )

28. Item 3a of Citation 1 faults Appleton’s safety-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 located 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 (TA2). 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 testing 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. “Hi-pot” is an abbreviation for “high potential.” Hi-pot testing is also known as 

“dielectric 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. The purpose of the testing is to determine the extent to

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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 testing equipment used in all three testing areas has insulated 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 manipulating the leads from having direct 

contact with the conductive clips. (T. 213-14, 218-19; Exs. J-12). The insulating plastic covers

on these leads are effective in preventing employees from inadvertently coming into direct contact 

with the conductive metal clips 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 protect 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). No Appleton employee has sustained electric shock or any injury upon conducting hi-pot 

testing at the facility at least since the year 2000. There 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 facility. (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 cannot 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 

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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 testing 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 the test area from time to time, the area is not on a designated aisle or

in an 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 inspection, an employee named Lenny DeGray was the only

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 sequence for the testing in TA-1 was for the operator to remove about one inch

of insulation from the 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 the testing equipment and detach the

test leads from the cable being tested. (T. 216-17; Ex. R-8).

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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 leads to the cable to be tested, connects the green-colored ground

lead to the cable’s braid, and then turns on the test equipment, which then delivers 2500 volts at 

zero amperage to the cable for one minute. (T. 97; Ex. R-10). The test equipment shuts off

automatically after a minute has elapsed. (T. 95-97; Ex. R-10). Because the test leads at TA-2

transmit zero amperage, 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 two Appleton 

employees are authorized to conduct that testing. (T. 227-28). Both employees have been trained 

on the prescribed 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 testing 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 

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.

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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. The 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 employee named Joe Grundy performed hi-pot testing done at TA-3. Grundy was

knowledgeable and skilled in conducting that 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

multimeter through the access ports of a box to cause the probes to contact copper terminals inside

the box in order to measure the current that 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 

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.

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through it. (T. 86-87, 231-32). Other aspects 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 impossible 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 (with an attached torch) on a workbench near the DS-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, showing 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

workbench. 

46. No evidence was presented that it was reasonably possible for the cylinder to sustain

physical damage simply by being toppled over on the table from its standing position onto its side.

47. If the cylinder had toppled over from its standing position onto its side, there was 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 reached

the edge of the workbench. (T. 251-53).

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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 regarding the length of time the cylinder had been located

in the position depicted in Exhibit J-6. 

50. No evidence was presented to establish who placed the cylinder in that 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.” 29 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 

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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, Item 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 malfunction and could possibly be exposed to being struck by the wire, cut, 

bruised or puncture wounds.” (T. 104-05). The amended citation item alleged that this hazardous 

condition existed because “the emergency stop provided on the main operating console [of the DS2] did not shut down” the two pay-off units. The amended citation item alleged further that a

feasible and acceptable method for correcting the alleged hazard was “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.

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In his case-in-chief, the 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 noted 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

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 halfdozen 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).

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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).

He could reasonably be understood to have testified 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 Schulze that he was concerned about having “to get in 

harm’s way” to shut off the payoff 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 any evidence of other employees 

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 

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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 testified 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). (The uncontroverted evidence is that 

none of the three e-stops were 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 estops 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

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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 if the wire coming off the payoff unit

did break. (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 inspections of other facilities in the wire

and cable industry, that she recalled seeing records that indicated employees having sustained

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 recognized 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). 

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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 substantiated. 

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 does 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 

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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 -- § 1910.303(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 equipment. 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.”

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Section 1910.303(g)(1) constitutes a “performance” standard, in that it identifies an

objective but does not specify the method or manner in which that objective is to be achieved.

7

See Cent. Fla. Equip. Rentals, Inc., 25 BNA OSHC 2147, 2151 (No. 08-1656, 2016). “[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 forth in the Findings of Fact ¶¶ 21-27, the evidence presented was 

insufficient to establish the facts that are essential to proving non-compliance with section 

1910.303(g)(1). 

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.” Noncompliance 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). 

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The CO believed the placement of the worktable did not provide an employee who 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 metallic legs or the metallic 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 speed 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 the Secretary’s prima facie case principally with 

Pathak’s testimony. 

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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. 

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 director of operations for heating cable

systems as well as the acting plant manager. Pathak has undergraduate 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 he 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).

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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.

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Safety-Related Work Practices in Hi-Pot Test Areas

(Citation 1, item 3a, instances “a” & “b” -- § 1910.333(a) )

Item 3a of Citation 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 respect 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 “isolating the test sets

and material being tested to guard against accidental contact” and “providing insulated surfaces 

for the test equipment.” There was no testimony in support of the allegations 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) “providing insulated surfaces ... for the employees

to stand on.”

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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 the “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 for 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 

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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 the Secretary’s prima facie case

with Pathak’s testimony.9

As between these 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

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.

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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 that 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 section 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 likelihood 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. There 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).

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For these reasons, greater weight is accorded to Pathak’s testimony, and the Findings of

Fact 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. Item 3a of Citation 1 must

therefore be vacated.

Electrical Protective Equipment

(Citation 1, item 3b, instances “a,” “b,” & “c” -- § 1910.335(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 three test areas to wear electrical protective equipment “such 

as, but not limited to, voltage-rated gloves and fire-resistive clothing.”

Section 1910.335(a)(1)(i) is a broadly worded performance standard that applies 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) (requiring 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”).

“To establish the applicability of a PPE standard that, by its terms, applies only where a

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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. 2016); see also Weirton Steel Corp., 20 BNA OSHC

1255 (No 98-0701, 2003) (applying § 1910.134(a)(2), which requires an employer to provide an 

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). “The 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, in 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).

The 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 whether voltage-rated gloves or fire-resistive shirts “were appropriate

10The 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.

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.... for the work to be performed” at the three test areas. Moreover, there was positive 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 incidents had 

occurred before that 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 areas. 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 findings of fact

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 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, with

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an attached torch, on a workbench in an unsupported “freestanding” position. The CO was

concerned 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 cylinder 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 no substantial evidence

that would support a reasonable inference that it was possible for the cylinder to sustain physical

damage simply by being knocked onto 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 comply 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

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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.

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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

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