SECRETARY OF LABOR,
Complainant,

v.

EMERSON ELECTRIC COMPANY, EMERSON
ELECTRIC MOTOR DIVISION,
Respondent.

OSHRC Docket No. 78- 0275

DECISION

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:

Emerson Electric Company, Emerson Electric Motor Division, manufactures electric motors at a plant in Oxford, Mississippi. In December 1 a compliance officer with the U.S. Department of Labor, Occupational Safety and Health Administration, conducted an inspection of the plant and thereafter the Secretary of Labor issued two citations alleging serious and nonserious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Emerson Electric contested the citations and a hearing was held before Administrative Law Judge John S. Patton. In his decision, Judge Patton vacated one citation item concerning an operation for transferring molten aluminum to die casting machines in the die casting area of the plant. He also affirmed two citation items concerning obstructions in a passageway and eye protection equipment for employees working in the stator core fabrication area. Commissioner Cottine and former Commissioner Barnako directed review of the case pursuant to section 12(j) of the Act, 29 U.S.C. 661(i), on issues relating to the three citation items. For the following reasons, we affirm in part and reverse in part.

Serious Citation Item 1 - The Molten Aluminum Transfer

I

In the die casting area of Emerson Electric's plant, the compliance officer observed the operation of a "monorail system" or "monorail crane," which was used to transfer molten aluminum from the pit to individual die casting machines. The monorail system consisted of a hook, ropes, and motor suspended by a trolley from a rail near the ceiling. The monorail system could lift objects up and down as well as back and forth. The movements were controlled by an operator with an electrical pendant control.

For use in transferring the molten aluminum, there was suspended from the monorail system a large, cylindrical container called a "pot," which the operator, who walked along the path of the monorail system, generally guided and steadied during operation by holding a handle or "tiltwheel" on one end.[[1]] About ten times each shift, the operator filled the pot at the molten aluminum pit, moved and guided the pot along the row of die casting machines, and poured molten aluminum into the machines. During the inspection, the compliance office" saw the operator raise the pot to a level above his head so as to clear an electrical conduit which was part of one of the adjacent machines and which projected into the passageway. At one time, the operator raised the pot so high that he was unable to hold onto the tiltwheel to steady it. The compliance officer feared that the aluminum could spill out of the pot and endanger the operator. He posited that a part of the monorail system might fail because of hitting the obstruction in the passageway and cause the pot to tip or fall, spilling molten aluminum onto the operator. The aluminum was as hot as 1350 degrees Fahrenheit. While the operator did not stand directly under the pot, he was generally within arm's reach of it. Also, because the compliance officer saw water on the floor in the passageway, he posited that a molten aluminum spill could cause an explosion by entrapping steam.[[2]]

The compliance officer suggested that any hazard to the operator could be eliminated by either elevating the operator on a platform along the passageway and correcting the problem of water in the passageway or implementing a remote control system for moving and guiding the monorail system. Emerson Electric's general maintenance foreman testified that the operators were instructed to keep the pot at or below waist, level except where necessary to raise the pot to a higher level in order to clear an obstruction. When the molten aluminum was poured into the die casting machines, the pot was higher than waist level but the operator stood on a platform, bringing him up next to the pot. The operators were also instructed not to stand under the pot. When operators were trained at the plant, they observed experienced operators perform the operation, they were instructed in the safety requirements, and their own performance of the operation was closely observed for a time. Employees who committed infractions of the safety requirements or rules were disciplined, with suspension if necessary.

II

The citation item concerning the monorail system for transferring molten aluminum alleged that Emerson Electric violated section 5(a)(1) of the Act.[[3]] During the hearing, Emerson Electric moved to dismiss the citation item on the basis that specific standards in 29 C.F.R. 1910.179 pertaining to overhead and gantry cranes applied to the monorail system in this case. Judge Patton reserved ruling at the hearing but in his decision he determined that Emerson Electric's monorail system was a crane within the meaning of definitional standards in section 1910.179.[[4]] Reasoning that citation to section 5(a)(1) is inappropriate where specific standards apply, Judge Patton dismissed the citation item. He declined to amend the citation item to allege a violation of any standard in section 1910.179 because the Secretary had not made a motion to amend.

The Secretary filed a petition for review in which he argued that the judge should have amended the citation to allege a violation of section 1910.179 (n)(3)(vi).[[5]] The Secretary argued that the hazard involved in this case was transferring molten aluminum over the heads of employees.

Commissioner Cottine granted the Secretary's petition. The following issues were specified in the direction for review:

1. Whether the administrative law judge erred in vacating Citation 1, item No. 1, alleging a violation of 5(a)(1) of the Act, on the ground that a specific standard, 29 C.F.R. 1910.179, was applicable to the cited hazardous condition.

2. If 29 C.F.R. 1910.179 is applicable, whether the administrative law judge erred in failing to amend the pleadings under Fed. R. Civ. P. 15(b) to allege noncompliance with 29 C.F.R. 1910.179.

The Secretary did not file a brief in response to the direction for review. Emerson Electric filed a brief in which the company argues that the monorail system was a crane within the meaning of the definitional standards in section 1910.179 on which Judge Patton relied, and that section 1910.179(n)(3)(vi) applies to the facts of this case because it pertains to the hazard of lifting loads over people. Emerson Electric maintains that it did not violate section 1910.179(n)(3)(vi).

The parties thus agree that section 1910.179(n)(3)(vi) applies to the facts of this case.[[6]] Therefore citation to section 5(a)(1) is inappropriate, e.g., Ted Wilkerson, Inc., 81 OSAHRC 70/D8, 9 BNA OSHC 2012, 1981 CCH OSHD 25,551 (No. 13390, 1980), and we turn to whether the citation item should be amended under Rule 15(b) of the Federal Rules of Civil Procedure[[7]] to allege a violation of section 1910.179(n)(3)(vi).

III

Under Federal Rule 15(b), amendment will be granted where, as in this case, the amendment does not add any new questions of fact, only a new legal theory; the party opposing the amendment has introduced or failed to object to evidence relevant to the unpleaded issue; and that party would not be prejudiced by the amendment. Farmers Cooperative Grain and Supply Co., 82 OSAHRC, 10 BNA OSHC 2086, 1982 CCH OSHD 26,301 (No. 79-1177, 1982), and cases cited therein; see also Morgan & Culpepper, Inc. v. OSHRC, 676 F.2d 1065 (5th Cir. 1982). In this case, the factual issues relevant both to the alleged section 5(a)(1) violation and a section 1910.179(n)(3)(vi) violation concern the conditions presented by Emerson Electric's operation using the monorail system to transfer molten aluminum, and the company's measures or practices against carrying the aluminum over the operator's head. Thus, the factual issues relevant to the amended charge were presented in the original charge and were fully tried. Moreover, Emerson Electric raised the matter of the applicability of standards in section 1910.179 and did not object to evidence showing that these standards were applicable. The company argues in its brief that it could have introduced different evidence to the amended charge than was introduced to the original charge, but the contention misconceives the nature of the amended charge. Emerson Electric argues that section 1910.179(n)(3)(vi) applies because the standard pertains to carrying loads, but the company interprets the standard to prohibit only carrying loads directly over employees. The company argues that, if the violation in this case had originally been tried under the standard rather than section 5(a)(1), the company could have defended showing that loads were not moved directly over the operator. However, properly interpreted, section 1910.179(n)(3)(vi) proscribes carrying loads over employees in general, not just carrying loads directly over employees. See note 6 supra. Under this interpretation, a charge under the standard and the section 5(a)(1) charge in this case are substantially the same and Emerson Electric's defenses to the Secretary's case should be substantially unaltered by the amendment. Also, as discussed in the following section of this opinion, we give Emerson Electric the opportunity to argue defenses to the amended charge. Accordingly, we reject the company's claim of prejudice and grant the Secretary's motion to amend.[[8]]

IV

There remains for consideration whether Emerson Electric committed a violation of section 1910.179(n)(3)(vi). The record reveals that loads of molten aluminum were carried over the monorail system operator's head and that, as a consequence, the operator was exposed to burn and explosion hazards. The record also reveals that Emerson Electric knew this, for the company knew that the pot had to be raised above head height to clear obstructions and instructed its operators simply to maintain the pot at the lowest level possible and never to stand under the pot.

Emerson Electric contends that, by giving these instructions, it complied with the standard. The company argues that, because the standard requires the employer to "avoid carrying loads over people," the standard simply advises the employer to comply where possible, it does not absolutely require compliance. However, the dictionary meaning of "avoid" is "to prevent the occurrence of,"[[9]] and thus the standard is mandatory, not advisory. Moreover, while the employer's duty to comply with a mandatory requirement is not absolute,[[10]] an employer in Emerson Electric's position, knowing of the noncompliance, must establish an affirmative defense such as impossibility of compliance or unpreventable employee misconduct in order to escape liability for the violation. See eg., General Electric Co., 82 OSAHRC 31/C2, 10 BNA OSHC 1687, 1982 CCH OSHD 26,071 (No. 77-4476, 1982) (impossibility of compliance); George C. Christopher & Sons, 82 OSAHRC 9/A2, 10 BNA OSHC 1436, 1982 CCH OSHD 25,956 (No. 76-647, 1982), and cases cited therein (impossibility of compliance); Daniel Construction Co., 82 OSAHRC 23/A2, 10 BNA OSHC 1549, 1982 CCH OSHD 26,027 (No. 16265, 1982) and cases cited therein (unpreventable employee misconduct).

We interpret Emerson Electric's argument regarding its instructions and their enforcement as raising the defense of unpreventable employee misconduct. To establish this defense, the employer must demonstrate that the noncomplying conduct by an employee was a departure from an enforced workrule designed to prevent the conduct. See Daniel Construction Co., supra; Bethlehem Steel Corp., 81 OSAHRC 86/A2, 9 BNA OSHC 2177, 1981 CCH OSHD 25,645 (No. 77-617, 1981), pet. denied, No. 81-2802 (3rd Cir. June 17, 1982); Daniel Construction Co. of Alabama, 81 OSAHRC 71/A2, 9 BNA OSHC 2002, 1981 CCH OSHD 25,553 (No. 13874, 1981); Frank Swidzinski Co., 81 OSAHRC 4/EI4, 9 BNA OSHC 1230, 1981 CCH OSHD 25,127, (No. 76-4627, 1981). Emerson Electric's instruction about keeping the pot as low as possible was designed, the company's general maintenance foreman freely admitted, to permit the employee to raise the pot above head height to clear obstructions, and the company's other instruction about not standing under the pot apparently permitted the employee to stand near enough to hold the elevated pot by the tiltwheel while guiding it overhead. Thus, Emerson Electric's instructions were not designed to prevent hazardous exposure due to raising the pot over the employee. Accordingly, an unpreventable employee misconduct defense has not been established on this record. This is not to say that Emerson Electric should have absolutely prohibited raising the pot despite obstructions in the passageway which required the pot to be raised. But there is evidence in this case that Emerson Electric could have eliminated the hazardous exposure of the monorail system operators by installing a remote control system, for example, and Emerson Electric does not argue that it was impossible to prevent the carrying of loads over the operator's head by this means.

Emerson Electric's argument and evidence imply only that physically removing the obstruction may have been impossible. Therefore, we conclude that Emerson Electric violated section 1910.179(n)(3)(vi). However, because Emerson Electric was not confronted when the case was tried under section 5(a)(1) with the burden of establishing the affirmative defenses we have mentioned in this opinion, our affirmance of the citation item for violation of section 1910.179(n)(3)(vi) will be conditional. Emerson Electric may request the opportunity to present argument on defenses to the amended charge. See Morgan & Culpepper, Inc. v. OSHRC, supra.

A violation is serious if an accident could have occurred and if death or serious physical harm was substantially probable as a result. Kaiser Aluminum & Chemical Co., 82 OSAHRC 41/B1, 10 BNA OSHC 1893, 1982 CCH OSHD 26,162 (No. 77-699, 1982), and cases cited therein; Wright & Lopez, Inc., 81 OSAHRC 92/D10, 10 BNA OSHC 1108, 1981 CCH OSHD 25,728 (No. 76- 256, 1981). Because the record in this case shows that the results of a molten aluminum spill would likely have been severe burns or death, we conclude that the violation was serious. Having considered Emerson Electric's size, prior history, and good faith, along with the gravity of the violation, we assess a penalty of $300, which is the amount originally proposed by the Secretary in the citation.

Nonserious Citation Item 1 - Obstructions in the Passageway

During the inspection, the compliance officer saw a pipe on the floor of the passageway where the operator of the monorail system walked when guiding the pot of molten aluminum. The compliance officer believed that the pipe presented a tripping hazard. He also saw the pot bump into the obstruction in the passage-way, a piece of electrical conduit which was part of one of the adjacent machines. As has been discussed, the pot could be raised enough to move above the conduit without striking it and Emerson Electric intended operators to raise the pot. However, the compliance officer believed that striking the conduit presented a hazard of damage to the monorail system and spills of molten aluminum. Accordingly, OSHA alleged in the nonserious citation that Emerson Electric violated 29 C.F.R. 1910.22(b)(1). [[11]]

Judge Patton affirmed the item and Emerson Electric filed a petition for review. In it Emerson Electric argued that the cited standard is inapplicable to tripping hazards such as the pipe involved in this case, that standards in section 1910.179 apply specifically to obstructions in the path of a crane, and that the electrical conduit in this case did not obstruct passage of the crane. Former Commissioner Barnako directed review of the Judge's decision on this item.

In Pratt & Whitney Aircraft, Division of United Technologies Corp., 81 OSAHRC 39/A2, 9 BNA OSHC 1653, 1981 CCH OSHD 25,359 (No. 13401, 1981)., appeal withdrawn, No. 81-4104 (2d Cir. Aug. 3, 1981), the Commission held that section 1910.22(b)(1) "is applicable only to operators of mechanical handling equipment and not to pedestrians" or "employees using the aisle as pedestrians." 9 BNA OSHC at 1661, 1981 CCH OSHD at pp. 31,508-31,509. Because the operator of the monorail system in this case used the passageway only as a pedestrian, we conclude that section 1910.22(b)(1) does not apply to the facts of this case involving the hazard of the pedestrian operator tripping over the pipe. Accordingly, we vacate the citation item insofar as it relates to this hazard.[[12]]

We turn now to Emerson Electric's arguments relating to the electrical conduit which the Secretary alleged was an obstruction creating a hazard under section 1910.22(b)(1). The standards which Emerson Electric contends specifically apply to the facts in this case are 29 C.F.R. 1910.179(b)(6) and 29 C.F.R. 1910.179(n)(2)(iii).[[13]] Emerson Electric suggests that these standards permit obstructions in passageways alongside cranes so long as the load can be manipulated around obstructions. However, our examination of the standards indicates otherwise. Section 1910.179(b)(6)(ii) explicitly prohibits obstructions in passageways if the "safety of personnel will be jeopardized by movements of the crane." And section 1910.179(n)(2)(iii) requires "care...to make certain" that the load does not bump into obstructions. Reading these standards together, we conclude that they require employers to take all reasonable and possible steps to eliminate obstructions presenting hazards to employees. Where the employer can alter the operation or use engineering devices to eliminate the hazard presented by an obstruction, under these standards the employer is required to do so. Instructions to crane operators to be careful to clear the obstructions cannot be substituted for these possible physical changes or devices. Cf. American Luggage Works, Inc., 82 OSAHRC 30/C7, 10 BNA OSHC 1678, 1982 CCH OSHD 26,072 (No. 77-893, 1982), appeal filed, No. 82-1572 (1st Cir. July 19, 1982) cases therein (29 C.F.R. 1910.212(a)(3)(ii) providing for guards to protect employees from point of operation hazards at machines requires a physical device and does not allow reliance on employee skill and attentiveness to instructions); Concrete Construction Co., 76 OSAHRC 139/A2, 4 BNA OSHC 1828, 1976-77 CCH OSHD 21,269 (No. 6592, 1976), aff'd per curium, 589 F.2d 1031 (6th Cir. 1979) (29 C.F.R. 1926.550(a)(9) specifying that the swing radius of cranes "shall be barricaded" requires a physical device and an employee cannot act as a substitute). Thus, these standards impose the same requirement as the cited standard, section 1910.22(b)(1) which explicitly prohibits any "obstruction . . . that could create a hazard." Because the record in this case shows that the electrical conduit was located where, when the pot of molten aluminum was kept below the monorail system operator's head, the conduit would obstruct the movement of the pot and thereby create a hazard to the operator, the Secretary has established a violation of both the cited standard and the standards to which Emerson Electric points. Moreover, Emerson Electric's sole defense to the merits of the charge must be rejected, for the company's instruction to raise the pot to clear an obstruction is not sufficient under all of these standards where, as in this case, the employer has not demonstrated that it was impossible to alter the operation or surroundings to eliminate the obstruction. Accordingly, we find it unnecessary to decide whether the standards in section 1910.179 are more specifically applicable than the cited standard, and we affirm the nonserious citation item. [[14/]] Having considered the record relating to Emerson Electric's size, good faith, and prior history, as well as the gravity of this violation, we assess $0 in penalty.

Nonserious Citation Item 11 - Eye Protection Equipment

During inspection of operations in the stator core fabrication area of Emerson Electric's facility, the compliance officer observed employees hand-dipping parts into a small, rotating dip tank. The dip tank contained a resin which was identified as an acid. Emerson Electric's data sheet on the resin identified it by chemical name and contained a numerical description of its acidity, but there was no testimony relating this information to a hazard of corrosion to eyes. Also, the compliance officer indicated that the container of the resin did not specify that the resin was corrosive to eyes and that the resin might be only a mild irritant. However, according to the container which the compliance officer examined, eye protection should be used and, if any of the substance contacted the eyes, the eyes should be flushed with water. The employees were not wearing eye protection equipment. Because the compliance officer believed that the resin might splash or be introduced into the employees' eyes from their hands, OSHA alleged that Emerson Electric violated 29 C.F.R. 1910.133(a)(1).[[15]]

Judge Pat' a affirmed the item and Emerson Electric filed a petition for review in which the company argued that there was no hazard warranting eye protection equipment. Former Commissioner Barnako directed review of the item on this issue.

To establish a violation of section 1910.133(a)(1), the Secretary must establish that there existed "a reasonable probability of injury that can be prevented" by use of protective eye equipment. See Tobacco River Lumber Co., 75 OSAHRC 52/A2, 3 BNA OSHC 1059, 1974-75 CCH OSHD 19,565 (No. 1694, 1975), and cases cited therein; see also Consolidated Rail Corp., 82 OSAHRC 42/A2, 10 BNA OSHC 1869, 1982 CCH OSHD 26,164 (No. 78-2546, 1982) (section 1910.133(a)(1) was violated where the record demonstrated that employees were not wearing eye protective equipment and there was a danger of eye injury); cf. Auto Sun Products, 81 OSAHRC 71/E14, 9 BNA OSHC 2008, 1981 CCH OSHD 25,808 (No. 71-2616, 1981) (29 C.F.R. 1910.94(d)(9)(v), requiring eye protection equipment "whenever there is a danger of splashing," was violated where the record demonstrated a possibility of injury from splashing). The compliance officer's testimony establishes that the resin was an acid and that the directions for use provided on the container for the resin in Emerson Electric's facility specified that eye protection equipment be used and that eyes be flushed after contact with the resin. From this evidence, an inference arises that the resin was hazardous to the eyes. Emerson Electric has not rebutted this inference with the evidence to the contrary.

The record also demonstrates that there was a reasonable probability of contact with the eyes. Emerson Electric's employees were hand-dipping parts in a tank of resin. According to the terms of a similar standard pertaining to eye protection equipment, this activity presents a "danger of splashing." See 29 C.F.R. 1910.94(d)(9)(v) ("[w]henever there is a danger of splashing, for example, when additions are made manually to the tanks . . ."). Thus, there was a hazard of liquids in this case presenting a reasonable probability of injury that could be prevented by eye protection equipment. Accordingly, we affirm the judge's decision affirming this item.[[16]] Having considered the record relating to Emerson Electric's size, good faith, and prior history, as well as the gravity of this violation, we assess $0 in penalty.

ORDER

We amend serious citation item 1 to allege a violation of 29 C.F.R. 1910.179(n)(3)(vi). On the basis of the existing record, we conditionally affirm the item and assess $300 in penalty. In view of the amendment, Emerson Electric may submit a request within ten days of the issuance of this order that our order respecting this item be set aside and that the opportunity be given to the company to present argument on defenses to the amended charge. If Emerson Electric does not submit a request within the time permitted, the order will become a final order of the Commission. We vacate nonserious citation item 1 insofar as it alleges a violation of 29 C.F.R. 1910.22(b)(1) respecting the tripping hazard allegedly posed by the pipe in the passageway in this case. We affirm this item insofar as it alleged a violation of the standard respecting the electric conduit. We assess no penalty ($O) for this item. We also affirm nonserious citation item 11 alleging a violation of 29 C.F.R. 1910.133(a)(1). We assess no penalty ($O) for this item. SO ORDERED.

FOR THE COMMISSION

RAY H DARLING, JR.
EXECUTIVE SECRETARY

DATED: APR 27 1983


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FOOTNOTES:

[[1]]The pot was shaped like a cylinder slung on its side. At the top, along the length of the cylinder, there was an opening to receive molten aluminum when the pot was lowered into the pit of molten aluminum. On one side, there was a pour spout through which the molten aluminum was emptied into the individual die casting machines. On the bottom, there were legs capable of holding the pot in an upright position if it rested on a surface. On one end of the cylinder, there was the tiltwheel used to guide and steady the pot. The tiltwheel was also used to tip the pot when the molten aluminum was emptied into a die casting machine.

[[2]]The theory was that the hot metal layer over the water would vaporize the water and the resulting steam, in expanding, would explode. See United States Steel Corp., 82 OSAHRC 35/A2, 10 BNA OSHC 1752, 1982 CCH OSHD 26,123 (No. 77-1796, 1982).

[[3]] Section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1), provides:

Sec. 5.(a) Each employer--

(1) shall 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;

The citation alleged that Emerson Electric violated 5(a)(1) in the following manner:

A molten aluminum transfer pot was used to deliver hot metal to die casting machine in the die casting area. Sufficient safe clearance was not provided for the operation, therefore, the transfer pot had to be lifted above the employee's head numerous times during the transfer sequence. Also, the employee must guide the pot over an area with heavy concentrations of moisture. During the entire transfer, the employee was in close proximity to the molten aluminum pot. Failure of a critical element of the hoisting unit causing the pot to drop, or should it bounce off another object, the employee could be in a hazardous position and would not be able to avoid the dangers involved.

[[4]] The judge referred to 29 C.F.R. 1910.179(a)(1), (a)(5), (a)(8), and (b). Section 1910.179(a)(1) defines a "crane" as "a machine for lifting and lowering a load and moving it horizontally, with the hoisting mechanism an integral part of the machine." Section 1910.179(a)(5) defines a "floor-operated crane" as "a crane which is pendant or nonconductive rope controlled by an operator on the floor or an independent platform." Section 1910.179(a)(8) defines an "overhead crane as a crane with "a movable bridge carrying a movable or fixed hoisting mechanism and traveling on an overhead fixed runway structure." Section 1910.179(b) states that "[t]his section applies to overhead and gantry cranes, . . . These cranes are grouped because they all have trolleys and similar characteristics."

[[5]] 29 C.F.R. 1910.179(n)(3)(vi) provides:

1910.179 Overhead and gantry cranes.

(n) Handling the load--

* * *
(3) Moving the load.

(vi) The employer shall require that the operator avoid carrying loads over people.

[[6]] Commissioner Cleary and Commissioner Cottine note that, as Judge Patton determined and Emerson Electric argues, the company's monorail system met the specifications for cranes which appear in 1910.179. See note 4 supra. They further note that the Secretary's citation, see note 3 supra, and the evidence in this case concerned hazards presented by carrying a load above an employee and that 1910.179(n)(3)(vi) covers the hazards. The standard proscribes "carrying loads over people." In this case, while the employees operating the monorail system were not directly under the load, the employees were where they could be harmed if the load spilled or fell. Because the standard is not explicitly limited to the hazard of a load dropping directly onto an employee, it must be interpreted to encompass all hazards arising from "carrying loads over people," including lateral spills and explosions from water entrapment. Cf. Bunge Corp. v. Secretary of Labor, 638 F.2d 821 (5th Cir. 1981) (the occupational housekeeping standard 1910.22(a)(1) is not explicitly limited to the hazards of slipping or tripping and therefore applies to fire and explosion hazards arising from excessive dust accumulations), followed in Pratt & Whitney Aircraft Div. of United Technologies Corp., 81 OSAHRC 39/A2, 9 BNA OSHC 1653, 1981 CCH OSHD 25,359 (No. 13401, 1981), Appeal withdrawn, No. 81-4104 (2d Cir. Aug. 3, 1981). As this case illustrates, an employee does not have to be directly under a load to be exposed to harm. Accordingly, Commissioner Cleary and Commissioner Cottine conclude that the record as evaluated in light of the parties' arguments indicates that 1910.179(n)(3)(vi) applies in this case.

Chairman Rowland finds it unnecessary to decide whether the facts show that 1910.179(n)(3)(vi) is applicable to the conditions cited by the Secretary. Chairman Rowland agrees that the question of a violation of 5(a)(1) is no longer in the case because the Secretary has abandoned the charge and the parties now consider that 1910.179(n)(3)(vi) is the applicable standard.

[[7]] Federal Rule 15(b) provides in pertinent part:

Federal Rule 15. Amended and Supplemental Pleadings.
* * *
(b) AMENDMENTS TO CONFORM TO THE EVIDENCE. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleading as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. . . .

[[8]] Chairman Rowland dissents from the majority's decision to amend the citation to allege a violation of this standard. In his view, the parties did not impliedly consent to try an alleged violation of the standard rather than 5(a)(1). Although Emerson Electric defended at the hearing on the basis that standards in 1910.179 applied to the monorail system involved in this case, the Secretary did not recognize the applicability of any standard and make a motion to amend his citation and complaint until he filed his petition for review. Rather, the Secretary maintained throughout the proceedings before the judge that the proper charge was 5(a)(1). Moreover, all of the evidence introduced at the hearing relevant to a charge under 1910.179(n)(3)(vi) was also relevant to the pleaded 5(a)(1) charge. Thus, neither party squarely recognized during the hearing that they were trying an unpleaded charge and consent cannot be implied regardless of whether Emerson Electric failed to object to the Secretary's evidence. Farmers Coop. Grain & Supply Co., Supra (Rowland, Chairman, dissenting). Accordingly Chairman Rowland would vacate item 1 of the serious citation.

[[9]] Webster's Third New International Dictionary, 1971.

[[10]] See, e.g., Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976), Brennan v. OSHRC (Alsea Lumber Co.), 511 F.2d 1139 (9th Cir. 1975), and General Electric Co., 81 OSAHRC 42/A2, 9 BNA OSHC 1722, 1981 CCH OSHD 25,345 (No. 13732, 1981) (the Secretary must establish that the employer knew or could have known, with the exercise of reasonable diligence, of the noncomplying condition).

[[11/]] 29 C.F.R. 1910.22(b)(1) provides, in pertinent part:

1910.22 General requirements. (b) Aisles and passageways. (1) Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repairs, with no obstruction across or in aisles that could create a hazard.

[[12]] Commissioner Cottine disagrees with the majority that 1910.22(b)(1) does not apply to the tripping hazard alleged in this item of the nonserious citation. In Commissioner Cottine's view, the standard sets forth two independent requirements. The second sentence of the standard proscribes hazardous obstructions in aisles and passageways regardless of whether mechanical handling equipment is being used. Pratt & Whitney Aircraft, Div. of United Technologies Corp., 4 BNA OSHC at 1661-62-,1981 CCH OSHD at p. 31,509. Because the record demonstrates that a pipe in the passageway presented a tripping hazard to the monorail system operator, Commissioner Cottine would affirm item 1 of the nonserious citation in this respect.

[[13]]29 C.F.R. 1910.179(b)(6) and (n)(2)(iii) provide, in pertinent part:

1910.179 Overhead and gantry cranes.

(b) General requirements--
* * *

(6) Clearance from obstruction. (i) Minimum clearance of 3 inches overhead and 2 inches laterally shall be provided and maintained between crane and obstructions in conformity with Crane Manufacturers Association of America, Inc., Specification No. 61 (formerly the Electrical Overhead Crane Institute, Inc.).

(ii) Where passageways or walkways are provided obstructions shall not be placed so that safety of personnel will be jeopardized by movements of the crane.
* * *

(n) Handling the load--

* * *

(2) Attaching the load.
* * *

(iii) Care shall be taken to make certain that the sling clears all obstacles.

[[14]] Chairman Rowland does not agree with the majority's determination to affirm the item with respect to the electrical conduit as a violation of the cited standard. He concludes that the Commission should treat 1910.179(b)(6) and (n)(2)(iii) as the specifically applicable standards. As evidenced by their
actions with respect to serious citation item 1 in this case, the parties have agreed that the monorail system was a crane covered by standards in 1910.179. Moreover, sections 1910.179(b)(6) and (n)(2)(iii) concern the problem of hazardous obstructions and therefore apply to the facts which in this case the Secretary alleged constituted a violation. However, because the Secretary has not asked to amend to the specifically applicable standards and because the parties never impliedly consented to try a violation of the unpleaded standards, Chairman Rowland would not amend the citation item to allege a violation of the specifically applicable standards. See note 8 supra. Accordingly, Chairman Rowland would vacate this item with respect to the electrical conduit. He concludes that this rationale is equally applicable with respect to the pipe obstruction and would apply it together with the reasoning in the text to vacate the item insofar as it concerns the pipe obstruction.

[[15]] 29 C.F.R. 1910.133(a)(1) provides, in pertinent part:

1910.133 Eye and face protection.

(a) General. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.

[[16]]Chairman Rowland disagrees with the majority's determination that the record contains sufficient evidence to show a reasonable probability of injury warranting eye protection equipment. The Secretary did not prove that the resin in question would be hazardous if it contacted the employees' eyes and that there was a reasonable probability of such contact. As the majority's recitation of the facts indicates, there was no evidence relating the acidity of the resin to a hazard to the eyes. Thus the record does not reveal that the resin was sufficiently acidic to present a hazard of eye tissue corrosion. Moreover, the compliance officer indicated that he did not perform any tests to determine whether the resin was other than a mild acid, and he admitted that the warning on the resin container regarding the use of eye protection equipment and flushing of eyes after contact with the resin could simply indicate that the resin was a mild eye irritant. Accordingly, contrary to the majority's opinion, the warning on the resin container does not provide a basis for an inference that the resin presented a corrosion hazard for the eyes. The record is similarly insubstantial concerning the likelihood that the resin could contact the employees' eyes. The compliance officer speculated that the resin could be carried to the employees' eyes by their hands and he simply concluded that splashing was a possibility when the employees manually dipped parts in the resin. The compliance officer's opinions, unsupported by any specific evidence, are not sufficient bases on which to find a violation. See Snyder Well Servicing, Inc., 82 OSAHRC 10/C5, 10 BNA OSHC 1371, 1380, 1982 CCH OSHD 25,943, p. 32,515 (No. 77-1334, 1982).

The majority relies on another standard to conclude that there was a reasonable probability of such contact. However, the standard at issue here requires factual proof of a hazard and Chairman Rowland would therefore not infer from the language of another standard that a hazard exists under the cited standard in this case. Accordingly, Chairman Rowland would vacate this item.