SECRETARY OF LABOR,

Complainant,

v.

ARMOUR FOOD COMPANY,

Respondent.

OSHRC Docket No. 86-0247

DECISION

Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

On February 14th and 18th, 1986, a compliance officer from the Occupational Safety and Health Administration, United States Department of Labor, ("Secretary") conducted an inspection of Armour Food Company's ("Armour's") meat processing facility in Eau Claire, Wisconsin. Following the inspection, the Secretary issued two multi-itemed citations, alleging that Armour violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act") by failing to comply with various occupational safety and health standards published in 29 C.F.R. Part 1910. One citation alleged serious violations of the Act, while the second alleged other-than-serious violations. Armour contested both citations. On October 28, 1986, following a hearing, Administrative Law Judge William R. Mullins issued a decision in which he affirmed 5 of the 10 serious items and 6 of the 10 other-than-serious items, and modified one serious item from serious to other-than-serious. Former Chairman Buckley directed review of all the issues raised in Armour's petition for discretionary review, which involved 9 of the 20 items decided by the judge. We affirm the judge's disposition in part and reverse in part.[[1/]]

Citation Number 1, Item 1

At issue in this item is whether Armour violated 29 C.F.R. 1910.132(a)[[2/]] by failing to require its employees to wear mesh gloves when sharpening blades on White Castle Slicers. The judge affirmed the item. He found that sharpening the blades exposed Armour's employees to a hazard and that Armour knew of the hazard. We find that the Secretary failed to establish the existence of a hazard requiring the use of personal protective equipment and vacate the item.

Each of the four slicers has a circular blade from 14 to 16 inches in diameter and is used to slice bricks of frozen ground meat. The slicer blades are sharpened by Armour employees four times per shift, one and sometimes two shifts a day, five to six days a week. To sharpen the blade, a flat stone two inches by eight inches by one inch is held against the blade as the blade is rotated by a hand crank.

The compliance officer testified that he observed an employee sharpening a blade on a White Castle Slicer without wearing personal protective equipment on his hands. The compliance officer recommended that Armour's employees wear metal mesh safety gloves to protect their hands when sharpening the blades. He testified that it was customary in the industry to wear mesh gloves for sharpening. He based this view on a previous visit to Armour's facility during which he observed that employees using knives to debone meat wore mesh gloves, but only on the hand that did not hold the knife.[[3/]]

Gordon C. Jaenke, Armour's plant engineer, supervises the employees who sharpen the blades. He testified that he was not aware of any employee receiving an injury while sharpening the slicers during his 23 years at the Eau Claire facility. Jaenke testified that he would have known of any injuries that did occur because he was on the Safety Committee. Fifteen to twenty years earlier, Jaenke had tried to use a steel mesh glove when he sharpened the blades but found that the mesh glove did not work because:

It doesn't fit tight because it doesn't stretch. And when you go sharpen with the steel-mesh glove on, the ends get caught on the blade and it jerks your hand....you lose the feel of the stone and the blade when you have a glove on.

Jaenke also testified that the boners who once worked at this facility never wore gloves when they sharpened their knives with a stone because "[t]hey lo[st] the feel of the knife, the blade; and that's important when you are sharpening a knife."

The judge found that Armour had actual knowledge of a hazard requiring the wearing of personal protective equipment because Jaenke was concerned enough about a hazard to wear the mesh gloves on occasion. He also found that under General Motors Corporation, GM Parts Division, 11 BNA OSHC 2062, 1984-85 CCH OSHD 26,961, (Nos. 78-1443 & 79-4478, 1984) ("General Motors"), aff'd, 764 F.2d 32 (1st Cir. 1985), there was sufficient evidence to establish that Armour could reasonably foresee a hazard involved in sharpening the blades.

In order to establish the existence of a hazard requiring the use of personal protective equipment, the Secretary must either show that the employer had actual knowledge that such a hazard existed 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 warranting the use of personal protective equipment. Evidence of industry custom and practice will aid such a determination, but it is not necessarily determinative. General Motors, 11 BNA OSHC at 2065, 1984-85 CCH OSHD at p. 34,611.

Armour argues that it established that (1) it did not have actual knowledge that wire mesh gloves were required when the blades were sharpened, and that (2) a reasonable person, familiar with respondent's industry, would recognize that mesh gloves were not necessary when sharpening these blades. We conclude that the evidence fails to establish that Armour had actual knowledge of a hazard requiring the wearing of mesh gloves or that a reasonable person familiar with the circumstances of the industry would have recognized a hazard requiring personal protective equipment.

The judge found that Armour had actual knowledge because Jaenke wore mesh gloves on occasion. However, we cannot attach such significance to Jaenke's brief experience sharpening blades with mesh gloves. Jaenke had tried mesh gloves 15 to 20 years before the inspection, but found them unsuitable and stopped wearing them. Any apprehension that may have caused him to try to wear the gloves when sharpening blades appears to have been laid to rest by the lack of any injuries either before or after he tried the gloves.

The evidence that no employee had been injured while sharpening the blades in over 20 years strongly suggests that no hazard was present. In General Motors, the Commission rejected the Secretary's claim that actual knowledge was shown by the number of injuries to employees because it found the injury rate to be very low. In General Motors, 5 foot injuries were received by 150 employees moving 1.5 million parts during the 2.5 years prior to the inspection. Here, none of Armour's employees had been injured while sharpening the 4 slicer blades 4 times a day during the 23 years prior to the inspection. Under these facts we conclude that the Secretary failed to prove actual knowledge of a need for mesh gloves.

We next turn to the "reasonable person" test. In General Motors, the Commission found that the most revealing evidence of whether a reasonable person familiar with the industry would have recognized a hazard requiring personal protective equipment was "the practice of those persons most clearly familiar with the industry -- the employees." 11 BNA OSHC at 2066, 1984-65 CCH OSHD at p. 34,612. Here, the evidence establishes that the employees who sharpened the slicer blades did not wear mesh gloves. Jaenke, their supervisor, had tried using mesh gloves "off and on" 15 to 20 years earlier, but he had stopped because they interfered with the sharpening of the blades and caused a hazard by catching on the blades. Evidence that Armour employees wore mesh gloves when they deboned meat does not establish that it is the practice in Armour's industry to wear mesh gloves when sharpening blades. See Grand Union Co., 3 BNA OSHC 1596, 1596-97, 1975-76 CCH OSHD 20,107, pp. 23,927-28 (Nos. 7031 & 7533, 1975) (industry practice of meat cutters in meat packing plants does not establish industry practice of meat cutters in retail stores). It may be industry practice to wear mesh gloves when performing certain tasks, such as deboning meat, but the Secretary introduced no evidence that it was the practice in Armour's industry for employees to wear mesh gloves when sharpening slicer blades. Under the circumstances, we find that the Secretary has failed to establish that a reasonable person familiar with the circumstances alleged in serious item 1, including any facts unique to that industry, would recognize that sharpening slicer blades presented a hazard requiring the use of personal protective equipment.[[4/]]

Accordingly, we reverse the judge's decision and vacate item 1 of citation 1.

Citation Number 1, Item 2(b)

Item 2(b) alleges that Armour failed to comply with 29 C.F.R. 1910.212(a)(1)[[5/]] by not providing machine guarding on a spice mixer on the formulation platform in the frying area of its plant. We find, however, that the Secretary failed to establish the existence of a hazard requiring guarding of the machine, and we therefore vacate this citation subitem.

The mixer is contained in a mixing unit underneath a steel formulating tub. Armour's employees stand on the platform in front of the mixing unit and formulating tub and dump spices, water, and other materials into the tub. The contents of the tub are then dumped into the mixer below. There is an opening between the top of the mixing unit and the formulating tub above it which varies between "[a] few inches to 8 or 10 inches." Employees also introduce materials into the mixer through this opening. The mixer blades, which move at 10 to 30 r.p.m. and are shaped like paddles, are located approximately 12 to 14 inches down from the top of the mixing unit. The blades are at waist level, or approximately three and one half feet above the platform.

According to the compliance officer, employees who add spices or other material into the mixing unit or who occasionally check on the progress of the mixing process could reach into the mixer while the blades are moving. He suggested that the mixer blades be guarded by placing a funnel over them or by installing an interlock so that the employee working on the platform could not reach into the mixer while it was running. The compliance officer admitted that the narrowness of the space between the tub and the mixer blades would prevent an employee from falling into the blades and also would make it difficult for anyone to reach the blades with their hand.

Plant engineer Jaenke was not aware of any injuries involving the mixer blades. He testified that, although it was possible to reach into the tub and touch the mixer blades, it would be very difficult because "you would have to crawl in under the [top] tub and reach down in to the mixer." Disagreeing with the compliance officer's suggested guarding methods, Jaenke explained that the top tub is now positioned so employees can see the contents of both the tub and the mixer and can determine whether the contents are mixing properly. Jaenke stated that it would be "very difficult" to place a funnel or chute over the mixer because the formulating tub would have to be raised. This would require either the building of another platform or the raising of the existing platform so employees could reach the raised tub.

The judge affirmed the citation subitem. He found that "[t]he evidence establishes that the standard has been violated, that the employees are thereby exposed to a hazard, and that the probability of serious injury is present." He noted that although Armour contended it would be difficult to use the funnel, Armour did not attempt to prove that an interlocking device would be infeasible. On review, however, Armour argues that the judge erred in failing to address the preliminary issue of whether there was a hazard that made it necessary to install any type of guarding on the machine.

In order to establish a violation of section 1910.212(a)(1). the Secretary must first prove the existence of a hazard. Papertronics, Division of Hammermill Paper Co., 6 BNA OSHC 1818, 1819, 1978 CCH OSHD 22,898, pp. 27,694-95 (No. 76-3517, 1978). While it was physically possible for Armour's employees to reach into the mixer and touch the blades, the mere fact that it was not impossible for an employee to get his hands into the mixer blades does not demonstrate that the employee was exposed to a hazard. See Rockwell International Corp., 9 BNA OSHC 1092, 1097, 1980 CCH OSHD 24,979, p. 30,846 (No. 12470, 1980). Whether a machine exposes an employee to a hazard must be determined based on the manner in which the machine functions and how it is operated by the employees. 9 BNA OSHC at 1097-98, 1980 CCH OSHD at p. 30,846. Here, the Secretary presented no evidence that the operation of the machine requires Armour's employees to insert their hands into the area surrounding the mixer blades, and although it is not impossible for an employee to insert his hands into the mixer and to touch the blades, even the Secretary's witness admitted that employees have no reason to put their hands in the mixer and that it would be difficult for them to do so.

The Secretary also presented no evidence that injuries were caused by the mixer blades. While occurrence of an injury is not a necessary predicate for establishing a violation, the absence of any injuries supports a finding that there was no hazard. See Rockwell, 9 BNA OSHC at 1098, 1980 CCH OSHD at p. 30,846. Under these circumstances, we find that the Secretary has failed to show a hazard requiring guarding under section 1910.212(a)(1). Accordingly, item 2 (b) of citation 1 is vacated.

Citation Number 1, Item 2 (c)

The Secretary also alleged that Armour failed to comply with section 1910. 212(a)(1), supra at n. 5, by not providing guarding for the conveyor nip point on the outfeed of the White Castle Slicers on lines 1, 2, 3 and 4. We find that the Secretary has proved this allegation, and we therefore affirm this citation subitem.

The evidence establishes that Armour employees stand by the conveyors, which move at speeds of up to 60 feet a minute, and sort hamburger patties. The conveyor belts are loose enough that they absorb the impact of hamburger patties landing on them, so loose that they occasionally lose traction and stop.

The compliance officer testified that there are nip points on all four lines where the rubber conveyor belt goes over an end roller, and that Armour's employees who sort the patties on the belt are exposed to these nip points. The compliance officer testified that the "medium slow" speed of the belt made it more likely that employees would be injured because the slackness of the belt enlarges the nip point. He did not believe that it would be easy for an employee to pull his hand out from the nip point. He testified that if an accident occurred, a fracture of a finger or a severe abrasion would likely result. The compliance officer testified that such a nip point is usually guarded by "a piece of metal, . . . or in some case[s] another solid material that is affixed to the frame of the equipment and then closely approaches the belt" in the vicinity of the nip point without quite touching it. This arrangement minimizes the possibility that a body part or piece of clothing could be caught in the nip point and pulled into the roller.

Plant engineer Jaenke stated that he has never known anyone to get caught in the nip point. He testified that if someone's finger or hand was caught, they could stop the belt with their other hand. He also testified that a finger could go around the pulley without injury because of the slackness of the belt.

The judge affirmed this subitem but found that the likelihood of serious injury was not established and that any injury would be minor. He modified the citation from "serious" to "other-than-serious" and did not assess a penalty. Armour contends that the nip point is not a hazard.

In Papertronics, the Commission vacated a citation alleging a failure to guard similar nip and pinch points, largely because the conveyor was equipped with a microswitch that cut power off if an object even smaller than a hand were inserted into the nip point. Here, although the belts moved slowly, there was no microswitch to cut off power. Employees who routinely placed their hands in the immediate vicinity of the nip points could inadvertently put their hands into the nip point. This evidence establishes that Armour's employees were exposed to a hazard under section 1910.212(a)(1). Since Armour failed to guard the nip point as required by section 1910.212(a)(1) item 2(c) of citation 1 is affirmed.

Citation Number 1, Item 4(a)

Item 4(a) alleges that Armour violated 29 C.F.R. 1910.219 (f)(3)[[6/]] by failing to enclose a sprocket wheel and chain "near [the] end of retail line in the basement." We find that the Secretary failed to prove the factual allegations of the citation and the complaint, and we therefore vacate this citation subitem.

At issue is the identity of the cited machine. The Secretary introduced into evidence and relies heavily on what she asserts is a photograph of the cited sprocket wheel and chain. Armour claims that the photograph is of different machines, a Pittman fryer and a breader in the fryer department on the ground floor.

The compliance officer testified that in the lower right corner of the photograph "is a sprocket wheel and chain,[[7/]] which is near the end of the retail line in the basement; and as you can see in the photograph, the equipment is immediately adjacent to a walkway or an aisle . . . ." (Emphasis added.) When asked to further describe the photograph, he testified: "This is the basement, and the sprocket wheel and chain is right here on the edge of the aisle, as you can see is evident in the photograph. And you can see there is no guard there whatsoever." (Emphasis added.) The cross-examination of the compliance officer proceeded as follows:

Q: Mr. Gawin, showing you [the] photograph which is [exhibit] 2F and shows a picture of Item 4a, you say that's in the basement. Are you sure of that?

A: That's what the notes reflect that I have based on my conversation with the employer representative.

Q: Okay, showing you or pointing to what's in the photograph, this item right there. Isn't that a fryer machine? Do you know a fryer machine?

A: I can't identify in the photograph what that is.

Q: This portion of it, is that a -- would you say that was a heat controller?

A: Well, I can't identify that for sure.

Q: You don't know what that is?

A: I couldn't tell you what that is, no.

Q: And you don't know whether the equipment that is attached to [it] is a fryer? Do you know what a fryer is, don't you?

A: Yes.

Q: Is that a fryer?

A: If the question you're asking is if it's possible to identify it, to correctly identify it as a fryer, I'm just not certainly able to tell you that. It's possible that it could be a fryer.

Q: You don't know whether it is a fryer?

A: Right.

Q: And you say this piece of equipment and this belt and sprocket is in the basement?

A: I believe it's in the basement.

Plant engineer Jaenke later testified that the photograph is of a Pittman fryer and a breader found on the ground floor in the fryer department. He testified that he was sure that the picture was not of the retail line and was not taken in the basement.

The judge found that "[t]he compliance officer cited this machine and provided a photograph which was submitted as complainant's exhibit 2(f)." (Emphasis added.) The judge treated Armour's argument as a claim that there was no evidence of the violation cited in the complaint because the machine referred to in the complaint was actually located on the ground floor rather than in the basement. The judge amended the complaint under Fed. R. Civ. P. 15(b)[[8/]] apparently to change the location of the cited sprocket wheel and chain from the basement to the ground floor, but not to change the description of the machine to conform to the machine depicted in the photograph. The judge found that Armour had consented to the amendment because it received the photograph from the Secretary one week before the hearing, but did not object to its admission into evidence. The judge also found that Armour's "witness and counsel obviously knew which machine was pictured and therefore there was no prejudice to respondent."

Amendment under the first half of Rule 15 (b) is proper only if two findings can be made -- that the parties tried an unpleaded issue and that they consented to do so. McWilliams Forge Co., 11 BNA OSHC 2128, 2129-30, 1984-85 CCH OSHD 26,979, p. 34,669 (No. 80-5868, 1984). Consent can be found only when the parties knew, that is, "squarely recognized," that they were trying an unpleaded issue. Id. Here, the judge amended the citation to change the location of the cited machine from the retail line in the basement to the retail line on the ground floor. He found that the compliance officer's testimony established that the sprocket wheel was accessible to employees, and he also found that it was not disputed that employees worked in the area. However, the evidence suggests that the machine in the photograph, which the Secretary claims was the machine cited here, is not on the retail line in either the basement or on the ground floor. Since the Secretary's evidence concerns a machine on the retail line and Armour's only argument was that the machine in the photograph was not on the retail line, it cannot be said that the parties tried the unpleaded issue when they never agreed which machine was being tried. Under these circumstances, we find that the judge improperly amended the citation.

We now turn to the originally cited charge. Because there was no evidence that the machine "near the end of the retail line" mentioned in the original citation had an unguarded chain and sprocket, we find that the Secretary failed to establish noncompliance with the cited standard. In addition, because the compliance officer's testimony on employee exposure was apparently based solely on the photograph and his notes and because it is not clear whether either relate to the cited machine, we further find that the Secretary failed to establish employee exposure to the cited conditions. Accordingly, item 4(a) is vacated.

Citation Number 1, Item 4(b)

Item 4(b) alleges that Armour violated section 1910.219(f)(3), supra at n.6, because the sprocket wheel and chain on the auger drive in the White Castle formulation area was not equipped with full enclosure guarding. We find that the Secretary failed to establish employee exposure to the cited conditions and therefore vacate this citation subitem.

The nip point created when the incoming chain contacts the side of the sprocket wheel is about eight to ten inches above ground. Above the wheel is a motor in a transfer case that extends approximately ten inches out over the sprocket. The sprocket wheel turns intermittently at about 1/8 of a turn each time at about five to six RPM. The compliance officer testified that the sprocket wheel was not fully enclosed and that it was located next to an aisle where employees occasionally walked. No Armour employee worked in the area of the sprocket wheel, but the compliance officer testified that employees could get their long, white coats caught in the sprocket wheel and chain.

Plant engineer Jaenke testified that "it would be difficult to get your foot in the sprocket because the transfer case is out over it" and that "if somebody slipped and fell or got down on the floor and stuck their foot up in there, then they would have to wait because" of the slow speed of the sprocket wheel and chain. To get one's foot in the nip point, Jaenke testified that someone would have to "probably get down on the floor and hold your leg up in there." He further testified that the coats the employees wear are knee length, and could not get caught in the sprocket. Jaenke also stated that in his 23 years at the Eau Claire facility, the cited sprocket wheel and chain had not caused any injuries.

The judge affirmed the item. He found that employees who worked in the area were exposed to the sprocket wheel and chain and that the probability of serious injury was present.

In order to show exposure to a violative condition, the Secretary must "show that employees either while in the course of their assigned working duties, their personal comfort activities while on the job, or their normal means of ingress-egress to their assigned workplaces, will be, are, or have been in a zone of danger." Gilles & Cotting. Inc., 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD 20,448 at p. 24,425 (No. 504, 1976). The Secretary has not shown that the employees are in the zone of danger of the nip point. It might be possible to get a long coat, pants leg or some other article of clothing caught by the nip point, but it appears unlikely. The photographic exhibits demonstrate that employees have sufficient space to walk by the nip points without having to get near them. In addition, Armour has no history of injuries was attributable to the nip point. We conclude that the Secretary has failed to establish that Armour's employees were exposed to the unenclosed nip points on the auger drive's sprocket wheel and chain. Accordingly, item 4(b) of citation 1 is vacated.

Citation Number 1, Item 4(d)

Item 4(d) alleges that Armour failed to comply with section 1910.219(f)(3), supra at n.6, because the sprocket wheels and chains on the infeed and the outfeed of the corn dog fryer lacked full enclosure guarding. In addition to the issue of whether there was employee exposure to the violative condition, the direction for review posed the questions of whether the violation was serious and whether compliance with the standard was infeasible. We find that Armour has not shown that compliance is infeasible and affirm a serous violation.

Jaenke testified that the two partial enclosures protect the employees from getting caught in the sprockets if they fall or lean up against the machine. He testified that the partial enclosures protect the employees from injury and that even if an employee "worked his hand in there," the injury would not be severe. In Jaenke's opinion, the sprocket wheel and chain drive could not operate with a full enclosure on the sprockets.

The judge found that Armour's employees were exposed to the sprocket wheel and chain drive and that the drive could be more fully guarded to prevent employee exposure. He affirmed a violation of section 1910.219(f)(3).[[9/]]

A threshold question here is the meaning to be given the word "enclosed" as used in section 1910.219(f)(3). The Commission has yet to interpret the term. When faced with such a broad term in a standard, the Commission has often looked to other standards or codes to give that term meaning. See Gold Kist, Inc., 7 BNA OSHC 1855, 1859-60, 1980 CCH OSHD 24,205, p. 29,443 (No. 76-2049, 1979).

According to section 1910.221, section 1910.219 is derived from the Safety Code for Mechanical Power Transmission Apparatus (ANSI B15.1-1953). Section 1910.219(f)(3) essentially follows the language of Rule 231 of that code which directs that "[a]ll sprocket wheels and chains shall be enclosed unless more than seven (7) feet above the floor or platform." Rule 401(b) of the code, which sets design standards for guards, states that "[g]uards should be designed so as not to interfere with the usual machine operations, but give the maximum protection to the operator."

In a revised version of the code, ANSI B15.1-1972, Section 7.1.1 describes the function of an enclosure as "prevent[ing] access or physical contact by parts of the body to moving parts at all times by enclosing or shielding the hazard . . . includ[ing] but . . . not limited to, completely enclosed guards. . . ." Section 8.1 of the revised code requires an enclosure guard to "prevent indirect placing of any part of the body in, on or over edges of the guard where it might contact a moving part."

The Accident Prevention Manual for Industrial Operations (6th ed. 1973), which cites ANSI B15.1 in its list of references, states that "[s]procket wheels or chains . . . should be guarded in the same manner as belts and pulleys." (p.681) The section on belts and pulleys states that ''[s]heaves, regardless of speed, should be enclosed at least to the in-running nip point." (p.679)

These definitions indicate that a sprocket wheel and chain enclosure need not be a complete enclosure but that at least the in-running nip point should be fully enclosed. Armour contends that the sprocket wheels and chains are partially enclosed, but the photographs and testimony demonstrate that the partial enclosure does not include a barrier between the employee's work station and the in-running nip point. Hence, the sprocket wheels and chains are not enclosed within the meaning of the standard.

We also find that Armour failed to prove the affirmative defense of infeasibility. Armour did not specifically argue that it was infeasible to enclose the sprocket wheels and chains, but its claim that it could not guard the nip points as the compliance officer suggested raises the defense. In order to establish the affirmative defense of infeasibility, an employer must make an initial showing that compliance with the standard's requirements is infeasible. Dun-Par Engineered Form Co., 12 BNA OSHC 1949, 1956, 1986-87 CCH OSHD 27,650, p.36,024 (No. 79-2553, 1986), rev'd on other grounds, 843 F.2d 1135 (8th Cir. 1988). The compliance officer testified that it would be possible to enclose the sprocket wheels and chains to prevent access to the hazard and still allow the machine to operate. However, he conceded that it would be more difficult to install an enclosure on this machine than on simpler sprocket wheels and chains. Plant engineer Jaenke testified that a full enclosure on the infeed of the corn dog fryer would prevent it from operating because the enclosure would interfere with the removal of corn dog sticks that could jam and break the machine.

Armour apparently interpreted the compliance officer's testimony as requiring a cover for the entire front of the machine, which would inhibit access to the corn dogs. However, the compliance officer testified that the sprocket wheels and chains could be enclosed without enclosing the entire front of the machine, and this testimony was not disputed. See Clement Food Co., 11 BNA OSHC 2120, 2124, 1984-85 CCH OSHD 26,972, p. 34,634 (No. 80-607, 1984) (infeasibility defense fails where employer fails to consider other methods of abatement). Because Armour has not shown that it cannot enclose the area around the sprocket wheels and chains, it has failed to prove the first element of the affirmative defense of infeasibility.

The compliance officer testified that despite the slow speed of the sprocket mechanism there was a high probability that if an accident occurred either a crushing injury or an amputation would likely result. Plant engineer Jaenke stated that the existing partial enclosures protect the employee from injury from the sprockets and that no employees had been injured by the infeed's sprocket wheels and chains in 23 years. He testified that any injuries would not be severe, but he was describing injuries that could be received from the belt rather than the sprocket wheels and chains. The judge found that the probability of serious injury was established by a photograph of the sprocket wheel and chain drive introduced by Armour. He found that employees could be exposed and that the sprocket wheel and chain drive could be more fully guarded to prevent employee exposure. We affirm the judge's finding that the violation was serious. The compliance officer gave uncontradicted testimony that contact with the chain and sprocket wheel could cause crushing injury or amputation.

Accordingly, we affirm item 4 (d) of citation 1 as to the infeed mechanism. Applying the penalty assessment criteria of section 17(j) of the Act, we find that a penalty of $100 is appropriate.

Citation Number 2, Item 6

Item 6 alleges that Armour failed to comply with 29 C.F.R. 1910.212(a)(4) [[10/]] because it did not equip the cover of a centrifuge with an interlock. The cited standard requires that "[r]evolving drums, barrels, and containers shall be guarded by an enclosure which is interlocked with the drive mechanism, so that the barrel, drum, or container cannot revolve unless the guard enclosure is in place." We find that the standard does not apply to the centrifuge and vacate the item.

The centrifuge is housed in a drum shaped container which does not rotate. The top of the container is covered with a hinged lid. Inside the container is what is variously described as a "table", "plate" or "wheel" that is flat and circular in shape, with rings or "holders" around its edge that are designed to hold such items as test tubes. According to the compliance officer, this table rotates, and it is possible to open the drum shaped container while the table is still rotating. Plant engineer Jaenke considered the table or plate inside the centrifuge to be a "holder" rather than a container. He compared it to a hand: "Your hand is not a container, it's a holder; and that basically is what this does."

The judge affirmed the citation. He found that section 1910.212(a)(4) seeks to prevent someone reaching in the centrifuge when it is still spinning. He found that the guarded enclosure or lid needed to be interlocked with the drive mechanism to avoid this potential danger.

Armour contends that section 1910.212(a)(4) does not apply to the centrifuge because the centrifuge itself does not revolve and that it does not apply to the table because the table is not a container. We agree. The exterior of the centrifuge, which contains the rotating table inside, does not itself revolve. Since the standard applies to "revolving drums, barrels, and containers" it would not apply to the drum shaped container. Nor would the standard apply to the table inside the centrifuge since, although it revolves, it is neither a drum, barrel, or container. Accordingly, item 6 of citation 2 is vacated.

Citation Number 2, Item 9

Item 9 alleged that Armour failed to comply with 29 C.F.R. 1910.252(a)(2)(ii)(b) [[11/]] because it did not secure compressed gas cylinders in the mechanical area.[[12/]] There was no dispute that the cylinders were used for "cutting torches and welding" and were in the mechanical room "[f]or the purpose of being on the machine or in a cart to continue . . . work . . . [w]ithin a 15-minute period probably." What is at issue is whether the cylinders were in storage within the meaning of the standard. We find that the cylinders were not in storage and vacate the item.

The judge found that "[t]he danger sought to be avoided by this standard dictates a finding of a violation under these facts." The judge rejected Armour's reliance on Grossman Steel & Aluminum Corp., 6 BNA OSHC 2020, 1978 CCH OSHD 23,097 (No. 76-2834, 1978), a case in which the Commission found that a different subsection of section 1910.252 that addressed the storage of oxygen cylinders did not apply where the cylinders were not in storage but were available for use. The judge distinguished Grossman, reasoning that the cylinders were in use in Grossman while plant engineer Jaenke testified that the cylinders in this case would not be in use until they were on a cart or hooked to a machine.

We disagree. The facts here are not distinguishable from Grossman. Armour's cylinders were at the location where they were soon to be put in use. They were not shown to be "in storage" within the meaning of the standard. Therefore, the standard does not apply. Grossman; see also MCC of Florida, Inc., 9 BNA OSHC 1895, 1897, 1981 CCH OSHD 25,420, p. 31,681 (No. 15757, 1981) (cylinders are not "in storage" where they are "available for immediate use in the area where they were located"), Pratt & Whitney Aircraft, 9 BNA OSHC 1653, 1672, 1981 CCH OSHD 25,359, p. 31,519 (No. 13401, 1981) (cylinders tied together in a corner covered with dust and not used for "quite awhile" were not available for immediate use.) We therefore vacate item 9 of citation 2.

ORDER

Accordingly, items 2(c) and 4(d) of citation 1 are affirmed. Items 1, 2(b), 4(a) and 4(b) of citation 1, and items 6 and 9 of citation 2 are vacated. A penalty of $100 is assessed for item 4(d).

Edwin G. Foulke,
Jr. Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: September 24, 1990



SECRETARY OF LABOR,

Complainant,

v.

ARMOUR FOOD COMPANY,

a Corporation,

Respondent.

OSHRC DOCKET NO. 86-0247

APPEARANCES:

For the Complainant:
Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois

For the Respondent:
Dean G. Kratz, Esq., McGrath, North, O'Malley & Kratz, P.C., Omaha, Nebraska

DECISION AND ORDER

Mullins, Judge:

On February 14, 1986, a two-day inspection was commenced of respondent's plant in Eau Claire, Wisconsin. The Occupational Safety and Health Administration (OSHA) compliance officer was William M. Gawin. On completion of that inspection Mr. Gawin issued one serious citation containing four items. Three of the items had more than one instance cited and he recommended the assessment of a fine totaling $1,260.00. Mr. Gawin also issued an other-than-serious citation with ten items listed.

The hearing in this matter was conducted July 15 and 16 in Eau Claire, Wisconsin. Notice of the trial date had been given affected employees, but there was no appearance made by the employees or by anyone on their behalf.

OSHA, hereinafter referred to as complainant, called one witness, Mr. Gawin. He testified that he was an OSHA compliance officer and specifically a safety specialist. He further testified that he had been employed by OSHA for seven years.

Armour Food Company, (hereinafter referred to as respondent) called two witnesses. Mr. Wayne R. Bellinger who is the Corporate Safety Officer with Con Agra, the parent company for Armour Food Company, was called for the purpose of identifying certain photos that he had taken at the inspection site. Mr. Gordon G. Jaenke was called as respondent's primary witness. Mr. Jaenke testified that he was the plant engineer at the inspected plant. He testified that he had been employed with Armour Foods for 23 years and further testified that he had worked those 23 years as a welder, a mechanic, and for the past three years as plant engineer. All of his employment with the respondent had been in the maintenance area.

Prior to the commencement of the hearing, both counsel for complainant and for respondent stipulated that jurisdiction to hear this case was vested with the Occupational Safety and Health Review Commission.

Serious Citation 1, item 1

29 CFR 1910.132(a): Protective equipment was not used when necessary whenever hazards capable of causing injury and impairment were encountered:

(a) mesh gloves were not used while sharpening blades on White Castle slicers. (2/18/86)

The compliance officer testified that he observed an employee sharpening the blades of this slicer without the use of protective equipment. He recommended the use of mesh gloves. The slicer was described as having a 16 to 20 inch blade and was used to slice large blocks of frozen meat. The slicer was sharpened four times per eight-hour shift and there were four of these machines located in the plant. (T-258)

The respondent's primary witness, Mr. Jaenke, testified that he sharpened these machines himself for three years while he was a mechanic and that he was never injured nor had he heard of anyone being injured during his 23 years of employment with the respondent. The blades were sharpened with a flat stone approximately two inches wide, one inch thick and about eight inches long. (T-259) While sharpening the blade, the stone was held by hand. He also testified that the blade was turned by hand, not power, while being sharpened. (T-259) He stated that fifteen to twenty years ago he had used gloves while sharpening these machines because he had a fear of being cut and had used the gloves at different times. (T-261) He also testified that the mesh gloves would catch on the blade and that the person wearing the glove lost the feel for the sharpening process. He further testified that the manufacturers of the gloves warned of using them on machines with moving parts. (T-266)

The evidence establishes that this activity is a hazard and that the employees were exposed to the hazard. The respondent argues that since there has not been an injury in the past 23 years, that there was no knowledge on the part of the employer of the hazard. Throughout the respondent's case in chief, Mr. Jaenke testified that he had never heard of, or known of, an accident on the machines he was testifying about during his 23 years of employment with respondent. In his brief, counsel for the respondent, continually argues in each instance that there has never been an accident in the past 23 years and therefore the employer had no knowledge. There was no testimony presented from the plant safety officer nor were safety records of the plant introduced. The only testimony received was from Mr. Jaenke who had worked in maintenance for 23 years and was never involved in production. Counsel for the respondent suggests that since Mr. Jaenke wasn't aware of any accidents in those 23 years then the conclusion should be made that there weren't any accidents. That conclusion simply cannot be made under the evidence. In this first citation there was obvious employer knowledge because Mr. Jaenke was concerned enough about the hazard to wear the mesh gloves on occasion. And even if not, then under the case cited by respondent, General Motors Corporation, GM Parts Division, 11 BNA OSHC 2062, OSAHRC Docket Nos. 78-1443 and 79-4478, there is sufficient evidence here to find that the employer could reasonably foresee the hazard involved in sharpening these blades. Counsel for respondent argues that the use of mesh gloves would be dangerous because the manufacturer of those gloves discourages their use on machines with moving parts. But in this instance, Mr. Jaenke testified that power was not used and that the blades were turned by hand while sharpening. This would negate the danger involved if the glove was caught in the machine while sharpening.

For these reasons, item 1 of Serious Citation 1 will be AFFIRMED and a penalty of $180.00 will be ASSESSED.

Serious Citation No. 1, item 2

29 CFR 1910.212(a)(1): Machine guarding was not provided to protect operators and other employees from hazards created by exposed nip points and moving parts of equipment:

(a) enclosure guard needed for auger in No. 2 formulation area, (2/14/86)

(b) a guard, chute or interlocked cover needed to protect employees from mixer blades on the spice formulating platform in the fryer area, (2/14/86)

(c) guard needed for conveyor nip point on outfeed of White Castle slicers on lines 1, 2, 3 and 4. (2/18/86)

Instance (a)

The compliance officer cited an auger in the formulation area of respondent's plant and indicated an enclosure guard was required. Complainant introduced a picture of this auger which is marked complainant's exhibit 2(a). A side rail or barrier is shown in this photo which the compliance officer estimated to be 30 to 36 inches high. He testified that he did not know the frequency of employees in this area.

Mr. Jaenke testified for the respondent that there was an aisle that passed near this auger but there was not a work station there. He further testified that the side barrier was 45 inches high. (T-245)

Although the respondent argues that there was no employee exposure to a hazard, the issue here involves the type of guarding required. The compliance officer suggests enclosure guarding, but the standard requires simply guarding. Because of the lack of a work area at this location and only occasional passage by employees, the 45 inch barrier guard satisfies the standard and instance (a) of item 2 Serious Citation No. 1 is hereby VACATED.

Instance (b)

Complainant's exhibit 2(b) and respondent's exhibits 2 and 3 are pictures of the spice formulating platform and mixer in the frying area of respondent's plant which was cited for not having machine guarding. The compliance officer testified that the employee working on the platform could reach into the mixer while running and could easily sustain a serious injury. The compliance officer suggested a funnel over the mixer blade or an interlock requiring stoppage of the mixer as appropriate guards to satisfy the standard.

Respondent's witness, Mr. Jaenke, testified that the side of the mixing bowl was 42 inches above the platform where the employees stood and that the mixing blades were 12 to 14 inches below the edge. He stated that the formulation tub was approximately 8 to 10 inches above the edge of the mixing bowl and it would be difficult for an employee to reach down into the mixer. (T-273)

Respondent argues that the abatement of this citation would be difficult and then speaks to the use of the funnel suggested by the compliance officer, but respondent did not address the issue or the feasibility of the interlocking device. The standard suggests machine guarding and the burden of proof is on the respondent to show that compliance is infeasible under these particular circumstances. Ace Sheeting and Repair v. Occupational Safety and Health Review Commission, 555 F.2d 439 (1977). Respondent has failed to meet his burden.

The evidence establishes that the standard has been violated, that the employees are thereby exposed to a hazard, and that the probability of serious injury is present as a result.

Therefore, instance (b) of item 2 Serious Citation 1 is AFFIRMED.

Instance (c)

The compliance officer identified complainant's exhibit 3(c) as the photo of the machine cited in this instance.

He testified that there was employee exposure here and that there was probability of injury and if so, said injury would be serious.

The respondent's witness, Jaenke, testified that the belts were turning so slowly that the serious injury would not occur and that there was little possibility of any injury.

The undersigned finds that under the evidence the likelihood of serious injury was not established and that if any injury at all, it would be minor. Accordingly, instance (c) of item 2 Serious Citation No. 1 is modified to "other-than-serious" and no fine will be assessed.

Based on these findings, the penalty for item 2 Serious Citation No. 1 is ASSESSED at $120.00.

Serious Citation No.1, item 3

29 CFR 1910.219(d)(1): Pulleys with parts seven feet or less from the floor or work platform were not guarded in accordance with the requirements specified at 29 CFR 1910.219(m) & (o):

(a) full enclosure guarding needed for belt and pulley below No. 1 breader machine in fry room, (2/14/86)

(b) full enclosure guarding needed for the belt and pulley below thin slice conveyor in basement. (2/14/86)

Instance (a)

The compliance officer testified that the belt pulleys cited here were approximately one foot above the floor and located by a work platform. He did testify that the pulley was partially guarded by the frame of the machine and the complainant introduced and there was admitted the photograph marked complainant's exhibit 2(d).

Respondent's witness, Mr. Jaenke, testified that the pulley (nip point) was located 24 inches beyond the frame of the machine and that the only way an employee would be exposed to the nip point was if he deliberately reached beyond the machine barrier. He did testify that janitorial or maintenance personnel might have occasion to reach under and through the machine barrier, but this was only done when the machine was shut off. Since the evidence failed to show employee exposure, instance (a) of item 3 Serious Citation No.1 is VACATED.

Instance (b)

The compliance officer cited a belt pulley located on a thin slice conveyor located in the basement. (Complainant's exhibit 2(e)) Respondent's witness testified that no employees worked in the area of the machine and that only maintenance personnel worked there and then only when the machine was not running.

Again, lack of employee exposure under the evidence requires that instance (b) of item 3 of Serious Citation No. 1 be vacated.

Therefore, item 3 of Serious Citation No. 1 is hereby VACATED.

Serious Citation No.1, item 4

29 CFR 1910.219(f)(3): Sprocket wheels and chains which were seven feet or less above floors or platforms were not enclosed:

(a) full enclosure guarding needed for sprocket wheel and chain near end of retail line in basement (2/14/86)

(b) full enclosure guarding needed for sprocket wheel and chain on auger drive in white Castle formulation area, (2/18/86)

(c) full enclosure guarding needed for sprocket wheel and chain on filter for line #2 in fryer area, (2/14/86)

(d) fall enclosure guarding needed for sprocket wheels and chains on infeed and outfeed of corn dog fryer. (2/14/86)

Instance (a)

The compliance officer cited this machine and provided a photograph which was submitted as complainant's exhibit 2(f). The compliance officer testified that this sprocket wheel and chain was located at the end of a retail line in the basement. This witness did testify that a Mr. Dorn, who works for the respondent and had accompanied the compliance officer on this inspection, stated that the sprocket wheel and chains referred to in instances (a), (b) and (c) of item 4 of Serious Citation No. 1 were inadvertently not guarded and that guards would be installed. (T- 137)

The compliance officer testified that the employees were exposed to this sprocket wheel and chain and that any injury sustained therefrom would be serious.

Mr. Jaenke testified that the machine cited in instance (a) was not in the basement but was on the ground. (T-288) The undersigned must assume that he meant the ground floor which was referred to as ground floor in respondent's brief.

The respondent argues that since the complaint refers to a machine in the basement and the machine was actually located on the ground floor, then there is no evidence of the violation cited in the complaint.

The counsel for the complainant did not move to amend the pleadings to conform to the evidence at this time or at the close of the trial. The testimony of the compliance officer did establish that the machine in the picture was in violation of the standard. The question then is what impact, if any, that the citation described a machine not physically located as stated.

A judge may amend pleadings to conform to the evidence when objected to at the time of the trial "when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the submission of such evidence would prejudice him in maintaining his action and defense on the merits." Federal Rules of Civil Procedure 15(b)

Here the respondent was furnished, one week before the trial and pursuant to the court's pre-trial order, the exhibits that were to be offered by the complainant. Included was the picture of the machine cited here, the admission of which was not objected to by respondent. Respondent's witness and counsel obviously knew which machine was pictured and therefore there was no prejudice to respondent. The pleadings will be amended accordingly by the undersigned and the violation cited in instance (a) of item 4 Serious Citation No. 1 is AFFIRMED.

Instance (b)

In this instance a sprocket wheel and chain were cited for being exposed. Respondent's witness testified that the sprocket and chain moved intermittently and due to the location was inaccessible to the employees. (T-289, 290) The fact that the employees worked in this area was undisputed.

The standard required enclosure of sprocket wheels and chains. Employees were working in this area and were exposed and the probability of serious injury is present; therefore, instance (b) of item 4 of Serious Citation No. 1 is AFFIRMED.

Instance (c)

The sprocket wheel and chain cited here are depicted in respondent's photograph exhibit 5(a). The respondent testified that no employees worked within 25 to 30 feet of the cited sprocket and wheel. He testified the only employees who would have occasion to go near this area would be the maintenance or janitorial personnel and then only when the machine was turned off.

The evidence fails to establish employee exposure to this hazard and instance (c) of item 4 of Serious Citation No. 1 is VACATED.

Instance (d)

The sprocket wheel and chain cited here was located in the corn dog fryer area and is depicted in the photographs marked as complainant's exhibit 2(g) and respondent's exhibits 6(a) and 6(b). The evidence established that the sprocket wheel and chain were not fully guarded, but respondent argues that the partial guarding eliminates exposure and that there was no likelihood of serious injury.

Respondent's witness testified at length about how slowly the belt on this machine moved and how loose it was to the extent that if an employee caught a finger in the belt, the belt would slip rather than pull the employee's finger into it. (T- 295) He further testified that there was an enclosure, but not a full enclosure, and that if a full enclosure was used, the machine would not operate.

The danger sought to be avoided here does not involve employee exposure to the belt, but to the sprocket wheel and chain. Respondent's exhibit 6(b) clearly shows that employees could be exposed and that the sprocket wheel and chain could be more fully guarded to prevent employee exposure.

The standard cited has been violated, the employees do have exposure to the danger and the probability of serious injury has been established. Instance (d) of item 4 Serious Citation No. 1 is AFFIRMED.

Based on the findings above, the penalty for item 4 of Serious Citation No. 1 is ASSESSED at $315.00.

Other-Than-Serious Violations - Citation No. 2

Item 1

29 CFR 1910.36(b)(6): Building(s) or structure(s) equipped for artificial illumination were not provided with adequate and reliable illumination for all exit facilities:

(a) emergency lights needed in blast freezer, and blast freezer entrance area and White Castle cooler. (2/18/86)

The compliance officer in this instance alleged a violation for lack of emergency lights in a blast freezer, blast freezer entrance area and a White Castle cooler. The standard does not speak to the issue of emergency lighting and it has been held that the standard does not apply to emergency lighting. Arsyn Lightning Company, Inc. 9 BNA OSHC 1239, OSAHRC Docket No. 78-1339.

The citation is therefore VACATED.

Item 2

29 CFR 1910.37(f)(1): Exit(s) were not so located and exit access(es) arranged that exits were readily accessible at all times:

(a) the exit door in the northeast corner of the fryer area was frozen shut. (2/14/86)

Here the compliance officer testified that an exit door in the freezer area was frozen shut and therefore a violation. The respondent's witness testified that there were two other exits from this area in addition to the door frozen shut. (T- 314) The issue is whether, when an exit is not readily accessible, there is a violation even though there are two other exits available. The respondent argues that the frozen door was readily accessible but there was no egress available and therefore the compliance officer has cited the wrong standard. This argument is, at best, absurd. If the door is frozen shut, then it is obviously no longer an exit that is readily accessible.

The respondent cites Westinghouse Broadcasting Company, 7 BNA OSHC 2159, OSAHRC Docket No. 76-1036. The holding cited here is distinguishable because it dealt with another standard, 1910.36(d)(1) dealing with "required exit" versus "readily accessible exits" in the instant case.

The standard cited here requires that each exit be readily accessible. The requirement for at least two readily accessible exits is simply a minimum. One of the three exits being frozen shut would constitute a non-serious violation of the standard.

Item 2 of other-than-serious Citation No. 2 is AFFIRMED.

Item 3

29 CFR 1910.134(e)(4): Frequent random inspections were not conducted by a qualified individual to assure that respirators were properly selected, used, cleaned and maintained:

(a) the canister was expired on the MSA ammonia respirator No. 14F-58 in the basement. (2/14/86)

The standard cited here involves the requirement for frequent random inspections of respirators. The compliance officer testified that this citation was written based on his finding an MSA ammonia respirator with an expired canister during his inspection. The respondent did not dispute that the respirator canister was expired, but argued that this expiration was not proof of a failure to make the required inspections. The expired canister is a clear example of circumstantial evidence tending to prove the failure to inspect standard had not been complied with. Since the respondent did not present evidence rebutting this circumstantial evidence, the violation must be AFFIRMED.

Item 4

29 CFR 1910.151(c): Where employees were exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body were not provided within the work area for immediate emergency use:

(a) eye wash needed in battery charging areas. (2/14/86)

The citation here was for failure to have eyewash in an area that the compliance officer testified was a battery charging area. Although there was some dispute about whether or not batteries were regularly charged here, respondent's witness did testify that there was a connected waterhose within 10 to 12 feet of the area in question. Since the waterhose was present and compliance officer testified that plastic eyewash bottles were on the wall in this area, then the totality of this evidence fails to show a violation of the standard cited. E.I. du Pont de Nemours & Company, Inc., 10 BNA OSHC 1320, OSAHRC Docket No. 76-2400.

Item 4 of other-than-serious Citation No. 2 is therefore VACATED.

Item 5

29 CFR 1910.212(a)(3)(ii): Points of operation of machinery were not guarded to prevent employees from having any part of their body in the danger zones during operating cycles:

(a) the outfeed of the Berkel slicers on White Castle lines No. 1, 2, 3 and 4 were not guarded so as to prevent the entry of employees' hands into the danger area. (2/18/86)

This citation involves the same slicers that were referred to in Serious Citation No. 1, item 1. The compliance officer testified that the guards had been installed but they only partially guarded employees who might be attempting to reach into the cutting area to remove debris or for other reasons. He stated that the reason this was written as an other-than-serious violation was because the employer had installed a partial guard and probably had no knowledge that there was still some danger. Respondent's witness testified that there had been no injuries since the installation of the partial guard. Since guards had been installed on these machines and there is no showing of injury since this installation, then this citation should be VACATED.

Item 6

29 CFR 1910.212(a)(4): Revolving drums, barrels, or containers were not guarded by enclosures which were interlocked with the drive mechanism so that the barrels, drums, or containers could not revolve unless the encloses (sic) were in place:

(a) no interlock on cover of Garver centrifuge Serial No. 12300 in lab area. (2/18/86)

The compliance officer testified that the cover of the Garver centrifuge was not interlocked with the drive mechanism as required by the standard. The respondent's witness testified that the spinning portion of the centrifuge was like a candlestick holder and was not a revolving drum, barrel, or container as specified in the standard. (T-321) He further testified that the outside container or guard did not revolve as specified in the standard and therefore, argues counsel, the standard does not apply. Respondent's Exhibit #7 depicts this machine.

The danger sought to be avoided here is obviously someone reaching in to the area of the centrifuge while it was still spinning. The guarded enclosure is present, it simply needs to be interlocked with the drive mechanism to avoid this potential danger.

Therefore, this citation will be AFFIRMED.

Item 7

29 CFR 1910.215(a)(4): Work rest(s) on grinding machinery were not adjusted closely to the wheel with a maximum opening of one-eighth inch:

(a) work rest was improperly adjusted on Wissota grinder Serial No. N167R in the mechanical area. (2/14/86)

This citation was confessed by counsel for respondent in his brief and it will be AFFIRMED.

Item 8

29 CFR 1910.219(i)(2): Revolving surfaces of shaft coupling(s) were not covered by a safety sleeve:

(a) guard needed for shaft coupling on batter mixer in frying area. (2/14/86)

In this citation the compliance officer testified that there was no guard on the machine in question. However, the respondent's witness testified that the bolts, nuts, and set screws on the shaft couplings were counter sunk and used parallel with the shafting. (T-322)

This is an exception allowed under the standard and therefore the citation will be VACATED.

Item 9

29 C.F.R. 1910.252(a)(2)(ii)(b): Assigned storage spaces for compressed gas cylinders were so located as to subject such cylinders to the possibility of being knocked over or damaged by passing or falling objects:

(a) compressed gas cylinders in the mechanical area were not secured. (2/14/86)

At the outset of this hearing, counsel for the complainant moved to amend the cited standard from 1910.252(a)(2)(iii)(b) to 1910.252(a)(2)(ii)(b). This amendment was allowed over the objection of the respondent. (T-7 through T-9)

The compliance officer testified that there were two compressed gas cylinders in the mechanical area of the plant that were not secured. Respondent's witness testified that they were positioned there for the purpose of being placed on a machine or cart, and would probably be used within 15 minutes. Respondent cites several cases where the Judge found no violation where the cylinders were not in storage. Williams & Davis Boilers, Inc., 8 BNA OSHC 2148, OSAHRC Docket No. 79-3817; United Engineers & Constructors, Inc., 3 BNA OSHC 1313, OSAHRC Docket No. 2414, Grossman Steel & Aluminum Corporation, 6 BNA OSHC 2020, OSAHRC No.6-2834;Bergeron Marine, Inc., 8 BNA OSHC 1986, OSAHRC Docket No. 79-5493; and Sea-Land Associations, Inc., 8 BNA OSHC 2194, OSAHRC Docket No. 79-4135. In each of these cases the finding was made that the cylinders were in use. In the instant case the respondent's witness testified that the cylinders would not be in use until they were on a cart or hooked to a machine. (T-324) The danger sought to be avoided by this standard dictates a finding of a violation under these facts.

Therefore, the violation cited in item 9, other-than-serious citation No. 2 is AFFIRMED.

Item 10

29 CFR 1910.303(f): Each service, feeder and branch circuit, at its disconnecting means or overcurrent device, was not legibly marked to indicate its purpose, nor located and arranged so the purpose was evident:

(a) electrical switches were not identified as to function in the White Castle formulation area. (2/18/86)

This citation was confessed by counsel by the respondent in his brief and the citation is therefore AFFIRMED.

Findings of Fact and Conclusions of Law

All findings of fact and conclusions of law necessary to a determination of the contested issues are contained in the opinion above. See Rule 52(a) of the Federal Rules of Civil Procedure. Neither complainant nor respondent submitted proposed findings of fact or conclusions of law.

Order

Based on the findings of fact and conclusions of law, as set out in the opinion above, and the entire record, it is ordered as follows:

1. Serious Citation No. 1, item 1 is hereby AFFIRMED and penalty is assessed at $180.00.

2. Serious Citation No. 1, item. 2, instance (a) is VACATED, instance (b) AFFIRMED, instance (c) is modified to other-than-serious and the penalty assessed for item 2, instance (b) is set at $120.00.

3. Serious Citation No. 1, item 3, instance (a) is hereby VACATED and instance (b) is hereby VACATED.

4. Serious Citation No. 1, item 4, instance (a) is AFFIRMED, instance (b) is AFFIRMED, instance (c) is VACATED and instance (d) is AFFIRMED. The penalty assessed for item 4, instances (a), (b) and (d) of Serious Citation No. 1 is set at $315.00. The total penalty assessed for the serious citation is $615.00.

5. Other Citation No. 2, item 1 is VACATED, item 2 is AFFIRMED, item 3 is AFFIRMED, item 4 is VACATED, item 5 is VACATED, item 6 is AFFIRMED, item 7 is AFFIRMED, item 8 is VACATED, item 9 is AFFIRMED and item 10 is AFFIRMED and no penalty is assessed for the other-than-serious citation.

William R. Mullins
Judge, OSHRC

Dated: October 28, 1986


FOOTNOTES:

[[1/]] Under Commission Rule 92(a) and Hamilton Die Cast, Inc., 12 BNA OSHC 1797, 1986-87 CCH OSHD 27,576 (No. 83-308, 1986), the entire judge's decision is before the Commission in cases directed for review. However, because the remaining 11 items were not mentioned in the direction for review and the parties make no argument regarding those items, we will not consider the judge's disposition of those items. Accordingly, the judge's decision on those items is a final order of the Commission, with the precedential value of an unreviewed judge's decision. Leone Construction Co., 3 BNA OSHC 1979, 1981, 1975-76 CCH OSHD 20,387, p. 24, 322 (No. 4090, 1976).

[[2/]] The standard provides:

1910.132 General Requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition whenever it is necessary by reason of hazard of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

[[3/]] The record indicates that Armour closed its boning room about seven years prior to the hearing.

[[4/]] In General Motors, the Commission found that it did not need to decide whether the Commission's reasonable person test or the Fifth Circuit's test was more appropriate. The Fifth Circuit's test requires the Secretary to show that an employer's conduct did not conform to that of the industry in order to prove a violation of a broad standard such as section 1910.132(a). See S&H Riggers & Erectors. Inc. v. OSHRC, 659 F.2d 1273 (5th Cir. Unit B 1981). We again need not choose a test here. The Secretary failed to establish a violation under either test.

[[5/]] The standard provides:

1910.212 General requirements for all machines.

(a) Machine guarding--
(1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are--barrier, guards, two-hand tripping devices, electronic safety devices, etc.

[[6/]] The standard provides:

1910.219 Mechanical power-transmission apparatus

(f) Gears, sprockets, and chains.

(3) Sprockets and chains. All sprocket wheels and chains shall be enclosed unless they are more than seven (7) feet above the floor or platform. Where the drive extends over other machine or working areas, protection against falling shall be provided. This subparagraph does not apply to manually operated sprockets.

[[7/]] Throughout the transcript a sprocket wheel and chain was identified as a "sprocket, wheel and chain." For clarity, all quotes from the transcript omit the extraneous comma.

[[8/]] The rule provides:

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 pleadings 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. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

[[9/]] By affirming the citation, the judge found violations at both the outfeed and infeed areas of the corn dog fryer. However, although the citation alleges that violations existed in both areas and there are photographic exhibits of both areas, the Secretary did not present evidence of employee access to the outfeed sprocket wheels and chains. In the absence of any proof of employee exposure, we find that the Secretary failed to meet her burden of proving a violation at the outfeed sprocket wheels and chains. By itself, the photograph of the outfeed areas does not establish a failure to comply with the standard.

[[10/]] The standard provides:

1910.212 General requirements for all machines.

(a) Machine guarding

(4) Barrels, containers,and drums. Revolving drums, barrels, and containers shall be guarded by an enclosure which is interlocked with the drive mechanism, so that the barrel, drum, or container cannot revolve unless the guard enclosure is in place.

[[11/]] The standard provides:

1910.252 Welding, cutting, and brazing.

(a) Installation and operation of oxygen-fuel gas systems for welding and cutting

(2) Cylinders and containers

(ii) Storage of cylinders--general.

(b) Inside of buildings, cylinders shall be stored in a well- protected, well-ventilated, dry location, at least 20 feet from highly combustible materials such as oil or excelsior. Cylinders should be stored in definitely assigned places away from elevators, stairs, or gangways. Assigned storage spaces shall be located where cylinders will not be knocked over or damaged by passing or falling objects, or subject to tampering by unauthorized persons. Cylinders shall not be kept in unventilated enclosures such as lockers and cupboards.

[[12/]] At the beginning of the hearing, the Secretary moved to amend the cited standard from 1910.252(a)(2)(iii)(b) to 1910.252(a)(2)(ii)(b). Armour objected to the amendment claiming that their case would be prejudiced "[b]ecause we prepared to defend against the section cited, and this has changed the section." The Secretary proposed to offer as an exhibit the form prepared by the compliance officer, already exchanged between the parties, showing the correct standard. The Secretary asserted it was "clear a typographical error was [committed] at the time" the Citation and Notification of Penalty Form was typed, and the judge overruled Armour's objection. Armour did not raise the issue in its brief in response to direction for review. Therefore, we will not consider this issue.