Ben Shepherd dba Happy Candy Co.

Plain-English summary

Ben Shepherd ran Happy Candy Co., a small cotton candy production business in Secor, Illinois. After an OSHA complaint inspection, OSHA issued two citations covering a dirty production area and a series of electrical hazards, plus a lack of protective clothing. Shepherd contested the citations but did not show up for the hearing, even though he knew the date, time, and place. The Secretary presented her evidence unopposed, and Judge Spies weighed each item on the record. She affirmed all of the serious housekeeping and electrical violations, finding that the four employees were exposed to shock, fire, slip, and trip hazards in the cramped facility. She also affirmed one nonserious poison ivy protective-clothing item with no penalty. Total penalties came to $3,400: $1,400 for the grouped housekeeping and clear-space items and $2,000 for the five grouped electrical items.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.141(a)(3)(i); 29 C.F.R. § 1910.303(g)(1)(ii); 29 C.F.R. § 1910.303(b)(2); 29 C.F.R. § 1910.304(f)(4); 29 C.F.R. § 1910.305(g)(1)(iii); 29 C.F.R. § 1910.334(a)(2)(ii); 29 C.F.R. § 1910.334(b)(2); 29 C.F.R. § 1910.132(a)
• Outcome: Every cited item affirmed. Two serious groups affirmed at $1,400 and $2,000; one nonserious item affirmed with no penalty; $3,400 total.
• Key point: A contesting employer who skips the hearing does not win by default. The Secretary can prove her prima facie case on the unrebutted record and have each violation affirmed.

Full text (OSHRC public release)

))))))))))))))))))))))))))))))))))))))))))))),
Secretary of Labor, *
Complainant, *
*
v. * OSHRC Docket No. 99-1387
*
Ben Shepherd *
d/b/a Happy Candy Company, *
Respondent. *
)))))))))))))))))))))))))))))))))))))))))))))-

Appearances:

                 Helen Schuitmaker, Esq.
                         U. S. Department of Labor
                         Office of the Solicitor
                         Chicago, Illinois
                                  For the Complainant

Before: Administrative Law Judge Nancy J. Spies

                                                                        DECISION AND ORDER

                 Ben Shepherd d/b/a Happy Candy Co. (Shepherd) is a sole proprietorship, which

produced cotton candy for shipment and sale. Shepherd contested two citations issued to him on
July 7, 1999, as a result of the Occupational Safety and Health Administration (OSHA) complaint
investigation of his small production facility in Secor, Illinois (Tr. 8). Having contested the
citation, however, Shepherd did not attend the scheduled hearing. As noted below, Shepherd had
full knowledge of the date, time, and location of the hearing. The Secretary put on evidence of
her prima facie case.
The citation alleges that Ben Shepherd violated: § 1910.141(a)(3)(i) (item 1a) because its
manufacturing facility was not kept as clean as the nature of the work permitted;
§ 1910.303(g)(1)(ii) (item 1b) because cardboard boxes and debris were stored directly in front of
an electrical panel and disconnect switch; § 1910.303(b)(2) (item 2a) because metal receptacle
boxes, designed to be mounted, were not installed as intended; § 1910.304(f)(4) (item 2b)
because machinery did not have a permanent and continuous ground; § 1910.305(g)(1)(iii) (item
2c) because flexible wiring was used as fixed wiring; § 1910.334(a)(2)(ii) (item 2d) because cords
without grounds were not removed from service; and § 1910.334(b)(2) (item 2e) because
employees had the practice of repetitively re-closing the circuit breakers. In addition, Citation
No. 2, alleges a violation of § 1910.132(a) (item 1) because employees were exposed to outside
environmental hazards without using gloves or other protective clothing.
Procedural Background
After securing a warrant for entry into the facility, compliance officer Tricia Rankin
conducted the inspection on June 22, 1999. On July 26, 1999, Shepherd contested the resulting
citation, and the case was designated for E-Z trial. At the pre-hearing telephone conference
conducted on November 17, 1999, and at a subsequent conference of December 8, 1999,
Shepherd stated that he was no longer operating any candy making company or acting as an
employer. He advised of his intention to file for personal bankruptcy and further stated that he
may not attend the hearing which was then scheduled for December 16. Nevertheless, he did not
wish to withdraw his contest of the citation. The parties advised that if and when Shepherd filed
for bankruptcy, they would be able to reach a settlement of the matter. Under those
circumstances, the parties’request for additional time to work out an agreement was granted. E-
Z trial proceedings were no longer the most appropriate for the case, and it was returned to
conventional proceedings. The undersigned continued the hearing until January 31, 2000, upon
the verbal concurrence of both parties.
On January 13, 2000, in response to repeated requests from the Judge’s office, Shepherd
contacted the Judge’s secretary and informed her that he had not yet filed for bankruptcy and, as
she understood him, stated that he would not attend the hearing. On January 14, 2000, the
undersigned issued an Order requiring Shepherd to report an intention to attend the January 31,
2000, hearing or to face the sanction of dismissal. On January 17, 2000, Shepherd telefaxed the
Judge stating, “Obviously a misunderstanding! I DO plan to attend any hearing you feel necessary
prior to any pre- or post-bankruptcy filing.” Since Shepherd’s telephone number was no longer
working, on January 26, 2000, the Order setting the specific location for the January 31 hearing
was telefaxed to him. Since the date of the hearing, Shepherd contacted the Judge’s office to
once again advise that he directed his attorney to file for bankruptcy. No circumstances which
could have prevented his participation in the hearing were addressed.
As discussed below, the Secretary proved each of the cited violations.
Jurisdiction
The OSH Act covers employers, and under section 3(5) of the Act, “[t]he term ‘employer’
means a person employed in a business affecting commerce who has employees . . .” Shepherd
employed Teresa Betts, who identified herself to Rankin as a supervisor, and three other persons
working at the candy making facility. Employees operated a candy spinning machine, a sealer,
and other equipment manufactured outside the state of Illinois. The sugar, which was spun and
sold as the business’s sole product, was grown and refined outside the State of Illinois (Exh. C-1;
Tr. 21-32). Ben Shepherd’s business activities affected commerce. Jurisdiction and coverage
are established.
Serious Citation No. 1
Item 1a: §1910.141(a)(3)(i)
The Secretary asserts that Shepherd violated the housekeeping requirements of
§ 1910.141(a)(3)(i). The standard requires:
All places of employment shall be kept clean to the extent that the
nature of the work allows.

    The videotape of the inspection (Exhibit C-1) and Rankin’s testimony support that the

five-room production facility was not maintained in a reasonably clean condition. Sugar and
liquid flavoring were on the floor and had drifted on the windowsills, vents, and pipes in the main
processing room. Boxes and cords were discarded but were left to clutter the area (Tr. 12). For
this, and for the electrical violations which follow, the violative conditions were in plain sight and
the knowledge of supervisor Teresa Betts is imputed to Ben Shepherd. See e.g., Pride Oil Well
Serv., 15 BNA OSHC 1809, 1814 (No. 87-692, 1992). At a minimum, Shepherd had
constructive knowledge of the violations sufficient to establish the element of knowledge.
The undersigned considers the appropriateness of the serious classification for each of the
alleged violations based on the unrebutted evidence of one party. Under § 17(k) of the Act a
violation is serious if there is a substantial probability that death or serious physical harm could
result. It is not necessary to prove that there is a substantial probability that an accident will
occur, but only that an accident is possible and that death or serious physical harm could result.
See, e.g., Bethlehem Steel Crop. v. OSHRC, 607 F.2d 1069 (3rd Cir. l979).
The floor was sticky in some places and slick in others. Four employees were exposed in
the relatively small working area. Anticipated hazards included slipping and tripping, or in case of
fire, delays in exiting through the discarded cords and boxes (Tr. 10, 23). The probable result of
falls onto the floor or into tables or equipment would be bruises or sprains, but could also include
broken bones. A delay in exiting from a fire could result in serious injury. The violation is
affirmed as serious.
Item 1b: §1910.303(g)(1)(ii)
The Secretary asserts that cardboard boxes and debris were stored directly in front of the
facility’s electrical panel and disconnect switch in violation of §1910.303(g)(1)(ii). The standard
requires:
Clear spaces. Working space required by this subpart may not be
used for storage . . . .

    Cardboard boxes, pallets, and other debris were piled in front of the large electrical panel

box, rated at 600 volts. Again, the employees worked in close quarters and were exposed to the
potential hazard, i.e., a delay in reaching the fuse breaker panel to disconnect the electricity in
case of an emergency (Exh. C-1; Tr. 15-16, 23). Given the relatively high voltage of the panel
and the other conditions which enhanced the possibility for electrical malfunction, the violation is
properly classified as serious.
The proposed penalties for items 1a and 1b are grouped. The Commission gives “due
consideration” to the size of the employer’s business, the gravity of the violation, the employer’s
good faith, and its history of past violations in determining an appropriate penalty. The gravity of
the violation is the primary element in the penalty assessment. Trinity Indus., 15 BNA OSHC
1481, 1483 (No. 88-691, 1992). The hazards created by these two violations concern delays in
responding to emergencies when access is blocked or crowded with debris.
Shepherd is a very small employer and is afforded full credit for size. His recent history of
a previous serious citation (while he was doing business as the Challenger Candy Co.) prevents
him from receiving a credit for past history. Shepherd had no safety program or positive
indication that the safety of employees played a part in his business decisions (Tr. 14, 15).
Accordingly, he is not entitled to a good faith credit. A penalty of $1,400 is assessed for grouped
items 1a and 1b.
Item 2a: § 1910.303(b)(2)
The Secretary asserts that Shepherd used metal receptacle boxes which were hung from
the ceiling or laid near the floor in violation of § 1910.303(b)(2). The standard requires:
Installation and use. Listed or labeled equipment shall be used or
installed in accordance with any instructions included in the listing
or labeling.

    According to Rankin, metal electrical receptacle boxes which are manufactured to be

mounted into fixed locations, were not properly installed. Shepherd strung electrical wire through
the metal boxes and left the boxes hanging loose from the ceiling, on a cart near the floor, or at
other locations (Exh. C-1; Tr. 16). Metal junction or receptacle boxes are used to join conduit. If
the junction box is left hanging or placed on a cart, the wires could be pulled away exposing
energized live wires and energizing surrounding metal or conduit. Also, junction boxes are
designed with easily dislodged knockouts, which could provide inadvertent access to live wires.
The violation exposed employees to the potential of an electrical shock as they operated
equipment or came into contact with the boxes and to a fire hazard (Tr. 16-17). A serious
violation is affirmed.
Item 2b: § 1910.304(f)(4)
The Secretary contends that the electrical equipment had no grounding path in violation of
§ 1910.304(f)(4). The standard requires:
Grounding path. The path to ground from circuits, equipment, and
enclosures shall be permanent and continuous.

    The candy spinning machine, the sealer, and the extension cord used to provide power did

not have grounding prongs. Their absence prevented the existence of a continuous path to
ground. Some of the receptacle plugs in use were blackened, indicating past electrical shorts (Tr.
23). Employees operated the ungrounded equipment, which subjected them to the hazards of
being shocked in case a fault occurred (Tr. 18, 25). Wet places on the concrete floor could
aggravate the possibility of a serious shock. A serious violation is affirmed.
Item 2c: § 1910.305(g)(1)(iii)
The alleged violation is that flexible cords, i.e., extension cords, were used as fixed wiring
in violation of § 1910.305(g)(1)(iii). The standard requires:
Unless specifically permitted in paragraph (g)(1)(i) of this section,
flexible cords and cables may not be used:

    The inspection videotape follows extension cords and other flexible wiring through rooms

and hallways, around holes in walls, ceilings, and windows, and behind walls and ceilings, into the
main area where the wiring was used to power the equipment (Tr. 18, 23-25). This flexible
wiring was used in place of fixed wiring, which is prohibited by the standard. Since flexible wiring
is not designed with a heavy enough gage to prevent an electrical overload and since flexible
wiring is more easily damaged, frayed, or cut, the likelihood of a fire, or conditions causing
electrical shock are high. The violation is affirmed as serious.
Item 2d: § 1910.334(a)(2)(ii)
The Secretary asserts that Ben Shepherd failed to remove from service the equipment or
extension cords which did not have grounding prongs in violation of § 1910.334(a)(2)(ii). The
standard provides:
If there is a defect or evidence of damage that might expose an
employee to injury, the defective or damaged item shall be removed
from service, and no employee may use it until repairs and tests
necessary to render the equipment safe have been made.

   The ungrounded equipment and ungrounded electrical cords were not removed from

service, even though the grounding pins were obviously missing from the plugs. Repairs should
have been made to the cords and plugs and the extension cords replaced before employees
continued to use them. The physical appearance of the male and female receptacles indicated past
electrical shorts, since some plugs were blackened and had parts of the receptacle prongs melted
away (Tr. 18, 22-23, 25). The violation exposed employees to shocks, which given the other
conditions in the facility, could have been severe. The violation is affirmed as serious.
Item 2e: § 1910.334(b)(2)
The Secretary contends that Ben Shepherd failed to prohibit the employees’practice of
re-closing the circuit breakers in violation of § 1910.334(b)(2). The standard provides:
Reclosing circuits after protective device operation. After a circuit
is deenergized by a circuit protective device, the circuit may not be
manually reenergized until it has been determined that the
equipment and circuit can be safely energized. The repetitive
manual reclosing of circuit breakers or reenergizing circuits through
replaced fuses is prohibited.

   Teresa Betts admitted that the circuit breaker in the back room repeatedly tripped and had

to be reset. Betts did not determine the cause for the trip but simply reset the circuit so that the
employees could continue operating the machinery (Tr. 19). Circuits are designed to trip if
problems exist on the circuit, for example, if too much current is being pulled through a maze of
extension cords. Ignoring a repeated trip permits the underlying problem to exist and could result
in a fire or a serious electrical shock, especially under the circumstances in this facility. The
violation is affirmed as serious.
Considering the penalty factors previously discussed, together with the facts related to the
gravity of hazards associated with the electrical violations, the penalty for the five grouped
violations is assessed at the recommended amount of $2,000.
Other Citation No. 2
Item 1: § 1910.132(a)
Citation No. 2, alleges a nonserious violation of § 1910.132(a) because employees were
exposed to environmental hazards without being provided with gloves or other protective
clothing. Teresa Betts advised Rankin that the path that employees had to use taking trash to the
dumpster at the back of the building required them to pass through poison ivy. Betts stated that
other employees performed this task since she did not wish to be subjected to the plant irritants
which cause rashes in susceptible people. Shepherd did not provide protective clothing for
employees who encountered the environmental irritant in the course of performing their assigned
work. Nor did he remove the irritants. Because of the very low gravity of the nonserious
violation, no penalty is recommended and none is assessed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a), Fed. R. Civ.P.
ORDER
Based on the foregoing decision, it is ORDERED:
Serious Citation No. 1
Item Standard Disposition Penalty
1a § 1910.141(a)(3)(i) affirmed ) grouped $1,400.00
1b § 1910.303(g)(1)(ii) affirmed )

          2a            § 1910.303(b)(2)        affirmed         )
          2b            § 1910.304(f)(4)        affirmed         )
          2c            § 1910.305(g)(1)(iii)   affirmed         ) grouped $2,000.00
          2d            § 1910.334(a)(2)(ii)    affirmed         )
          2e            § 1910.334(b)(2)        affirmed         )

                               Other Citation No. 2

          Item            Standard              Disposition      Penalty

          1             § 1910.132(a)           affirmed         -0-




                                                 /s/
                                                NANCY J. SPIES
                                                Judge

Date: February 22, 2000