1 of 202 DOCUMENTS

TURNER COMPANY


A. SCHONBEK & CO., INC.


NORANDA ALUMINUM, INC.


GENERAL MOTORS CORP., GM ASSEMBLY DIV.


ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.


CLEMENT FOOD COMPANY


MILLCON CORPORATION


FWA DRILLING COMPANY, INC.


CCI, INC.


GENERAL ELECTRIC COMPANY


CONSOLIDATED ALUMINUM CORPORATION


THE BRONZE CRAFT CORPORATION


CARGILL, INC.


CHAPMAN CONSTRUCTION CO., INC.


GALLO MECHANICAL CONTRACTORS, INC.


SPECIAL METALS CORPORATION


WILLAMETTE IRON AND STEEL COMPANY


NASHUA CORPORATION


WESTINGHOUSE ELECTRIC CORPORATION


RESEARCH-COTTRELL, INC.


ROCKWELL INTERNATIONAL CORPORATION


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.


BUNKOFF CONSTRUCTION CO., INC.


GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION


HARRIS BROTHERS ROOFING CO.


GENERAL DIVERS COMPANY


ORMET CORPORATION


R. ZOPPO CO., INC.


COEUR D'ALENE TRIBAL FARM


L. A. DREYFUS COMPANY


CMH COMPANY, INC.


BENTON FOUNDRY, INC.


MICHAEL CONSTRUCTION CO., INC.


WHIRLPOOL CORPORATION


BROWN & ROOT, POWER PLANT DIVISION


MARION POWER SHOVEL CO., INC.


ERSKINE-FRASER CO.


MORRISON-KNUDSEN AND ASSOCIATES


THE BOAM COMPANY


DIC-UNDERHILL, a Joint Venture


C. R. BURNETT AND SONS, INC.; HARLLEE FARMS


STRIPE-A-ZONE, INC.


FORTE BROTHERS, INC.


RAYBESTOS FRICTION MATERIALS COMPANY


TEXLAND DRILLING CORPORATION


THE ANACONDA COMPANY, WIRE AND CABLE DIVISION


SAM HALL & SONS, INC.


VAMPCO METAL PRODUCTS, INC.


LEONE INDUSTRIES, INC.


ASARCO, INC.


DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY


PLUM CREEK LUMBER COMPANY


PLUM CREEK LUMBER COMPANY


STEARNS-ROGER, INC.


FERRO CORPORATION, (ELECTRO DIVISION)


AMERICAN PACKAGE COMPANY, INC.


BROWN & ROOT, INC., POWER PLANT DIVISION


FLEETWOOD HOMES OF TEXAS, INC.


DONALD HARRIS, INC.


A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.


ELECTRICAL CONSTRUCTORS OF AMERICA, INC.


DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company)


ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY


NAVAJO FOREST PRODUCTS INDUSTRIES


METROPAK CONTAINERS CORPORATION


AUSTIN BUILDING COMPANY


BABCOCK AND WILCOX COMPANY


DARRAGH COMPANY


BABCOCK & WILCOX COMPANY


OTIS ELEVATOR COMPANY


R. ZOPPO COMPANY, INC.


LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS


PENNSYLVANIA POWER & LIGHT CO.


HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY


NORTHWEST AIRLINES, INC.


INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.


GENERAL MOTORS CORPORATION, INLAND DIVISION


WELDSHIP CORPORATION


S & S DIVING COMPANY


SNIDER INDUSTRIES, INC.


NATIONAL STEEL AND SHIPBUILDING COMPANY


MAXWELL WIREBOUND BOX CO., INC.


CONTINENTAL GRAIN COMPANY


MISSOURI FARMER'S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d/b/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY


CAPITAL CITY EXCAVATING CO., INC.


GAF CORPORATION


PPG INDUSTRIES (CARIBE) a Corporation


DRUTH PACKAGING CORPORATION


SOUTHWESTERN ELECTRIC POWER COMPANY


TUNNEL ELECTRIC CONSTRUCTION CO.


WEATHERBY ENGINEERING COMPANY


JOHNSON STEEL & WIRE CO., INC.


AUSTIN ROAD CO.


MAYHEW STEEL PRODUCTS, INC.


LADISH CO., TRI-CLOVER DIVISION, a Corporation


PULLMAN POWER PRODUCTS, INC.


NATIONAL ROOFING CORPORATION


OSCO INDUSTRIES, INC.


HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY


S.J. GROVES AND SONS COMPANY


CAR AND TRUCK DOCTOR, INC.


PRESTRESSED SYSTEMS, INC.


TEXACO, INC.


GEORGIA HIGHWAY EXPRESS, INC.


RED LOBSTER INNS OF AMERICA, INC.


SUNRISE PLASTERING CORP.


STONE & WEBSTER ENGINEERING CORPORATION


H.B. ZACHRY COMPANY (INTERNATIONAL)


NATIONAL INDUSTRIAL CONSTRUCTORS, INC.


BUSHWICK COMMISSION COMPANY, INC.


CIRCLE T DRILLING CO., INC.


J.L. FOTI CONSTRUCTION COMPANY, INC.


TEXACO, INC.


KENNETH P. THOMPSON CO., INC.


HENRY C. BECK COMPANY


HEATH & STICH, INC.


FARMERS EXPORT COMPANY


FOSTER AND KLEISER


TURNER WELDING & ERECTION CO., INC.


TRI-CITY CONSTRUCTION CO.


THE DURIRON COMPANY, INC.


SAMSON PAPER BAG CO., INC.


MEL JARVIS CONSTRUCTION COMPANY, Inc.


MIDWEST STEEL ERECTION, INC.


GEISLER GANZ CORPORATION


NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY


NATIONAL MANUFACTURING COMPANY


WALLACE ROOFING COMPANY


REYNOLDS METALS COMPANY, INC.


UNIVERSAL ROOFING AND SHEET METAL COMPANY, INC.


SUFFOLK COUNTY CONTRACTORS, INC.


NORANDA ALUMINUM, INC.


ROOFING SYSTEMS CONSULTANTS, A DIVISION OF BIT U TECH, INC.


GENERAL ELECTRIC COMPANY


SERVICE SPECIALTY, INC.


ECCO HIGH FREQUENCY ELECTRIC CORP.


HENRY C. BECK COMPANY


REPUBLIC ROOFING CORPORATION


EASLEY ROOFING & SHEET METAL CO., INC.


MIDDLETOWN VOLKSWAGEN, INC.


RICHARD ROTHBARD, INC.


AUTOMATIC SPRINKLER CORPORATION OF AMERICA


PENNSUCO CEMENT AND AGGREGATES, INC.


AMFORGE DIVISION, ROCKWELL INTERNATIONAL


MASSMAN-JOHNSON (Luling), a joint venture; MASSMAN CONSTRUCTION CO.; AL JOHNSON CONSTRUCTION CO.


GENERAL MOTORS CORPORATION, CENTRAL FOUNDRY DIVISION


GENERAL DYNAMICS CORPORATION, ELECTRIC BOAT DIVISION


EDGEWATER STEEL CORPORATION


INTERLAKE, INC.


PRATT & WHITNEY AIRCRAFT, A DIVISION OF UNITED TECHNOLOGIES, INC.


UNITED STATES STEEL CORPORATION, DUQUESNE PLANT


KENT NOWLIN CONSTRUCTION CO., INC.


WANDER IRON WORKS, INC.


SITKIN SMELTING & REFINING, INC.


AMERICAN CYANAMID COMPANY


BETHLEHEM STEEL CORPORATION


J.L. FOTI CONSTRUCTION CO., INC.


WRIGHT AND LOPEZ, INC.


DELAWARE AND HUDSON RAILWAY CO.


O.E.C. CORPORATION


BROWN-McKEE, INC.


DUQUESNE LIGHT COMPANY; VECELLIO & GROGAN, INC.


REXCO INDUSTRIES, INC.


MASONRY CONTRACTORS, INC.


CARGILL, INC.


STEWART-WARNER CORPORATION


LOUISIANA PACIFIC CORP.; WEYERHAEUSER COMPANY; WEYERHAEUSER COMPANY; KONKOLVILLE LUMBER COMPANY; CONTINENTAL KITCHENS, INC.; BOISE CASCADE CORPORATION; NOBLECRAFT INDUSTRIES, INC.; DIAMOND INTERNATIONAL CORPORATION


REBCO STEEL CORPORATION


S & H RIGGERS & ERECTORS, INC.


FOREST PARK ROOFING COMPANY


LLOYD C. LOCKREM, INC.


ED JACKMAN PONTIAC-OLDS, INC.


CEMENT ASBESTOS PRODUCTS CO.


HARSHAW CHEMICAL COMPANY


ARMSTRONG CORK COMPANY


DIAMOND ROOFING COMPANY, INC.


BROWN & ROOT, INC., POWER PLANT DIVISION

OSHRC Docket No. 76-3942

Occupational Safety and Health Review Commission

February 29, 1980

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Joe M. Stevens, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a proceeding under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678, ("the Act"). A decision of Administrative Law Judge Dee C. Blythe is before the Commission for review pursuant to section 12(j) of the Act, 29 U.S.C. 661(i). In his decision, the judge reaffirmed his trial ruling granting the Secretary's motion to amend a serious citation to allege a violation of the Act for failure to comply with the construction safety standard at 29 C.F.R. 1926.500(d)(5) rather than the general industry standard at 29 C.F.R. 1910.212(a)(3)(ii). He affirmed the serious citation as amended, n1 and assessed a penalty of $400 for the violation. For the reasons that follow, we affirm the judge's decision.

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n1 The case also concerned a nonserious citation alleging violations of general industry standards in twenty-four items and violations of construction standards in eleven items. At the hearing, the Secretary moved to amend his complaint with respect to seventeen of the twentyfour general industry items, either in full or respecting particular sub-items, to allege in the alternative violations of construction standards. In his decision, the judge granted the amendment, and he affirmed as construction standard violations fifteen of the amended items, either in full or respecting particular sub-items or instances. He additionally affirmed nine of the items untouched by the amendment, and he vacated the remaining items and portions of items on the bases either that a violation was not established or that the Secretary had withdrawn the charge for lack of proof.

Neither party sought review, and review was not directed concerning the nonserious citation. The judge's decision respecting this citation therefore is not before us for review pursuant to Commission Rule 91a, 29 C.F.R. 2200.91a.

[*2]

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Respondent Brown & Root was constructing the Comanche Peak Generation Plant, a nuclear power plant, in Glen Rose, Texas, when a team of compliance officers inspected the extensive worksite from May 24 through June 15, 1976. A rock crushing operation, used primarily to produce fill material, was located at the worksite. A conveyer, which was four to five feet wide, carried rocks in an east-to-west direction to the hopper of a rock crusher, measuring eight feet by eight feet, into which the rocks were dropped. Several feet below the drop point was the point of operation, known as the jaws, which crushed the rocks in a rotating up-and-down motion.

On the north side of the conveyer toward its west end, a "demolition machine" was mounted on a platform. The demolition machine was used to break large rocks down to a size which could then be crushed in the rock crusher jaws. The platform on which the demolition machine was located was square, measuring four to six feet on a side, and was positioned approximately six feet above the conveyer; the south edge was located above, but adjacent and parallel to, [*3] the conveyer. The demolition machine consisted of a portion of a backhoe having a jackhammer rather than a bucket attached to the articulated boom. The machine was mounted on the platform in a north-south direction near the center of the south edge, so that the boom extended over the conveyer. Although the other three sides of the platform had guardrails, the south side was open except where blocked by this machine. Hence there were two open spaces on the demolition machine platform, each measuring approximately sixteen inches, on each side of the machine.

An employee operated the demolition machine while sitting behind it, near the center of the platform, but close enough to the south edge to see the rock he was demolishing. However, until he was needed to demolish a rock, the operator generally waited somewhere on the platform with no duty to perform. When the compliance officer saw the operator during the inspection, he was standing near the west open space, i.e., the space nearer to the crusher, leaning against the pole that supported the cover or roof over the demolition machine. He was either watching the conveyer or observing other operations on the southern [*4] part of the worksite, but, as has been said, he had no duty requiring him to be where he was at the time. Since the conveyer belt was moving at that time, the demolition machine operator could fall into the rock crusher by falling onto the conveyer.

Another employee, the rock crusher operator, was required to watch the size of the rocks on the conveyer from his vantage point to the west of the crusher, with a full view of the conveyer. When he saw a rock requiring demolition, the demolition machine operator was summoned to the demolition machine, either by the crusher operator himself or by a third employee, the operator in the main control tower, located south of the conveyer. Either the crusher operator or the operator in the control tower also stopped the conveyer using controls located at their respective stations. When the demolition machine operator approached the demolition machine to seat himself at the controls, he had to approach the open spaces. Since, at that time, the conveyer could still be moving, this was another occasion when the operator could fall into the crusher by falling onto the conveyer.

If the demolition machine operator were to fall from the west [*5] open space, he would land on the conveyer two to five feet from the point where he would drop into the crusher. Neither party measured the speed of the conveyer belt, but, according to the estimate of Brown & Root's crushing department foreman who stated the speed was very slow, it was "less than a mile per hour." The judge took official notice that at one mile per hour the conveyer would move the two to five feet in anywhere from one to three seconds.

The compliance officer opined that natural reaction time plus possible inattention or inability to see that the demolition machine operator had fallen on the conveyer would prevent stopping the conveyer in time. He noted that the view of the west side of the demolition machine from the main control tower could be partially blocked by the machine itself because the tower was located slightly to the southeast of the demolition machine platform. He also noted that the crusher operator was not looking in the direction of the conveyer at all times. Opposing the compliance officer's opinion, the crushing department foreman opined that the conveyer could be stopped in time because the crusher operator had a full view of the conveyer and [*6] was required to watch the rocks on it.

During the inspection, the compliance officer discussed with Brown & Root personnel the use of a guardrail along the south side of the platform. Specifically, they discussed whether the guardrail would interfere with the boom or with any duty of the demolition machine operator, as well as whether any particular consideration caused Brown & Root to decide not to install a guardrail prior to the inspection. The Brown & Root personnel had agreed a guardrail could be installed, and informed the compliance officer that the hazard was being abated using a guardrail.

The Amendment

On August 20, 1976, the Secretary issued to Brown & Root a serious citation alleging that the company had violated the Act by failing to comply with the standard at 29 C.F.R. 1910.212(a)(3)(ii) n2 in the following manner:

Point(s) of operation of machinery were not guarded to prevent employee(s) from having any part of their body [sic] in the danger zone(s) during operating cycle(s):

Demolition machine operator was exposed to a fall into the rock conveyer feeding the open jaws of the rock crusher. No safeguard devices were supplied or in use.

Essentially the [*7] same allegation was made in the complaint, but on January 4, 1977, which was six calendar days before the scheduled January 10 hearing, the Secretary filed a motion to amend the citation and complaint to allege instead a violation of 29 C.F.R. 1926.500(d)(5) n3 in the following terms:

. . . [R]espondent failed to guard with standard guardrails, regardless of height, open-sided floors, walkways, platforms, or runways above or adjacent to a rock conveyer feeding the open jaws of a rock crusher, which was considered to be dangerous equipment. Specifically, standard guardrails should have been provided to prevent the fall of a demolition machine operator into the rock conveyer feeding the open jaws of the rock crusher.

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n2 29 C.F.R. 1910.212(a)(3)(ii) provides as follows:

1910.212 General requirements for all machines.

(a) Machine guarding.

* * *

(3) Point of operation guarding.

* * *

(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

n3 29 C.F.R. 1926.500(d)(5) provides the following:

1926.500 Guardrails, handrails and covers.

* * *

(d) Guarding of open-sided floors, platforms, and runways.

* * *

(5) Regardless of height, open-sided floors, walkways, platforms, or runways above or adjacent to dangerous equipment, pickling or galvanizing tanks, degreasing units, and similar hazards shall be guarded with a standard railing and toeboard.

[*8]

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Before the citation issued, the team of compliance officers and the Secretary's area director decided to cite respondent under the general industry standard, since the rock crushing operation was similar to a "fixed establishment" in general industry. The operation was in a fixed location; it functioned to supply material for the construction being performed elsewhere on the site; and the employees associated with rock crushing did not participate in the actual construction. After receiving the citation, officials of Brown & Root told the area director that construction standards rather than general industry standards should have been cited in both of the citations, n4 but at that time the area director did not alter the citations to change the standards.

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n4 See note 1 supra.

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With his motion to amend, the Secretary filed his certification that he had served a copy of the motion on Brown & Root's attorney by mail on January [*9] 4, 1977. At the outset of the January 10 hearing, which began on a Monday, the Secretary's attorney stated that he had orally advised Brown & Root's attorney "last Monday," or January 3, 1977, of his intent to amend the serious citation from section 1910.212(a)(3)(ii) to section 1926.500(d)(5). The Secretary's attorney stated that the first time he realized there was an error in the standard cited was around the time he advised Brown & Root's attorney of the motion. Brown & Root's attorney never denied learning of the intent to amend before actually receiving the written motion; he only asserted the motion was not received until the Friday immediately preceding the Monday hearing on January 10, 1977.

Judge Blythe granted the amendment at the beginning of the hearing. Although Brown & Root asserted that the amendment represented a material change of fact and law, the jodge considered that the amendment was merely a change in the standard cited, and that Brown & Root was not prejudiced by it, even though the amendment was made shortly before the hearing. He also stated that if any prejudice did exist, it could be cured by a continuance.

In response Brown & Root agreed to proceed [*10] with the evidentiary hearing and decide at the close of the Secretary's case whether a continuance was needed. When the Secretary rested, Brown & Root simply proceeded with its evidence, with no reference to a continuance. Moreover the company expressly agreed to close the evidentiary record at the close of the hearing on January 12, 1977. In view of this response to the offer of a continuance, as well as his finding that the amendment did not prejudice respondent, the judge in his decision reaffirmed his ruling at the hearing granting the amendment.

On review, Brown & Root continues to argue that the factual and legal issues were substantially altered by the amendment, that the Secretary unduly delayed in seeking the amendment, and that the company thereby was prejudiced in the preparation and presentation of its defense. The Secretary counters by arguing that the delay in amending was justified by a genuine question whether construction standards applied, and that Brown & Root was not prejudiced since the amendment did not substantially alter the factual and legal issues of the violation as originally alleged. Accordingly the Secretary contends the amendment was proper within [*11] the terms of Federal Rule of Civil Procedure 15(a). n5

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n5 Federal Rule of Civil Procedure 15(a) provides the following in pertinent part:

Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

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We agree that the amendment is permissible under Rule 15(a). Under this rule, leave to amend is freely given when justice so requires. Accordingly, the [*12] Commission has consistently held that pre-hearing amendments should be granted as long as the objecting party would not be prejudiced in the preparation and presentation of its case. Moreover, the Commission has recognized that amendments well before the hearing rarely result in any prejudice.

The Secretary's motion to amend is not prejudicial since it does not change the thrust of the Secretary's claim. The general test for determining whether there is a change in the cause of action is whether the original and amended charges arise out of the same conduct, transaction, or occurrence. Miller Brewing Co., supra, and cases cited therein. The original citation and the complaint gave Brown & Root notice that the allegedly hazardous condition was the demolition machine operator's exposure ". . . to a fall into the rock conveyer feeding the open jaws of the rock crusher." In the amendment, the Secretary again alleged that the hazardous condition was ". . . the fall of a demolition machine operator into the rock conveyer feeding the open jaws of the rock crusher." Clearly the same [*13] condition -- the demolition machine operator's presence above or adjacent to a conveyer leading to a rock crusher -- forms the factual basis of the Secretary's original and amended charges. Therefore, it is clear that they arise out of the same conduct, transaction, or occurrence.

In addition, Brown & Root has not indicated how it would be prejudiced by the Secretary's amendment. Any prejudice to Brown & Root's preparation and presentation of its defenses could have been cured by a continuance. However, the company did not seek a continuance. Moreover, the company does not argue that its failure to do so was justified by, for example, the current unavailability of witnesses or other evidence bearing on the defenses. See Cornell & Co. v. OSHRC, 573 F.2d 820 (3rd Cir. 1978). Moreover, it appears from the record that there was reasonable time to determine the nature and extent of the company's ability to cure any possible prejudice by requesting a continuance. To aid in this, the information and knowledge of the crushing department general foreman employed on the worksite during the inspection was available to Brown & Root, for the company called this employee as a witness. [*14] Moreover, the company has never argued the impossibility or greater hazard of using guardrails. It follows then that there actually was no prejudice to the company's defense of the violation respecting guardrails, and that the company realized this at the time of the hearing. Thus, while the judge's offer of a continuance was proper, a continuance would not have been necessary.

Brown & Root's principal claim of prejudice is that it devoted considerable time and expense to preparing defenses that would apply to the original charge but not to the amended charge. These defenses are inapplicability of the cited general industry standard, lack of particularity of the citation about general machine guarding techniques, and necessity for and feasibility of machine guards. Claiming that the Secretary's undue delay in amending maximized the prejudicial misdirection of resources, Brown & Root argues that the motion to amend should be denied.

Clearly, this argument demonstrates no actual prejudice. An amendment prior to the hearing legitimately serves to cure deficiencies in the pleadings and to clarify and narrow the issues. See Cornell & Co. v. OSHRC, supra. Moreover, [*15] as long as the party opposing an amendment has adequate opportunity to prepare and present its defense to the amended allegations, any delay in making an amendment, even though trial-preparation time and expense may have been directed to isssues eliminated from the case, does not constitute prejudice that warrants denying the amendment. Southern Colorado Prestress Co. v. OSHRC, 586 F.2d 1342 (10th Cir. 1978); Cornell & Co. v. OSHRC, supra; see also, Carlstrom Brothers Construction, 78 OSAHRC 96/A2, 6 BNA OSHC 2101, 1978 CCH OSHD P23,155 (No. 13502, 1978). Accordingly, we reject Brown & Root's claim and we conclude that the judge properly granted the amendment.

Violation of 29 C.F.R. 1926.500(d)(5)

Brown & Root argues that the judge erred in several respects in affirming the serious citation for failure to comply with the standard at section 1926.500(d)(5). The company contends that the Secretary failed to prove exposure of the demolition machine operator to a fall hazard, that the company established it took all reasonable and necessary steps to prevent exposure to the hazard, and, with respect to the "serious" characterization, that the hazard did [*16] not present a "substantial probability" of death or serious physical harm within the meaning of section 17(k) of the Act. For the following reasons, we reject these arguments and affirm the decision of the judge.

Respecting proof of exposure, Brown & Root argues that the compliance officer's observation of the operator near the open edge should have been given no weight because the compliance officer admitted he was approximately 60 feet away and at an "awkward angle" when he made the observation. The compliance officer, however, maintained he could see clearly from this vantage point, and Brown & Root neither refuted the substance of his testimony nor attempted further to show why it was unreliable. Accordingly, the evidence is sufficient to show actual exposure of the operator to the hazard, and the judge's finding of exposure based on this testimony is accepted. See Stephenson Enterprises, Inc., 76 OSAHRC 122/A2, 4 BNA OSHC 1702, 1976-77 CCH OSHD P21,120 (No. 5873, 1976), aff'd, 578 F.2d 1021 (5th Cir., 1978).

The company argues that, assuming the operator was exposed to a fall hazard during the inspection, the instance of exposure was unpreventable since the [*17] operator's foreman had instructed him to stay behind the demolition machine until the conveyer stopped. Moreover, the operator usually followed this instruction, to the best of the knowledge of Brown & Root's supervisors involved in the operation. The Secretary counters that the instruction, even if rigorously enforced and obeyed, was not enough to prevent the hazardous exposure here because the operator always had access to the open edge no matter where he stood on the platform throughout the time he was assigned there to operate the demolition machine. In our view, the Secretary correctly identifies the flaw in Brown & Root's argument.

Section 1926.500(d)(5) specifies that platforms above or adjacent to dangerous equipment shall be guarded. The platform in this case was no more than a 4-to-6-foot square. The demolition machine operator waited on the platform until needed at the machine's controls. He had no duties to occupy him in a protected position while he waited. Also, the record shows that the operator did have to approach the open edges to mount and dismount the demolition machine, during which times the conveyer could be moving. Accordingly, the record demonstrates [*18] that the operator had access to the open edges throughout his time on the platform. Charles A. Gaetano Construction Corp., 78 OSAHRC 24/A2, 6 BNA OSHC 1463, 1978 CCH OSHD P22,630 (No. 14886, 1978); Cornell & Co., 77 OSAHRC 164/F5, 5 BNA OSHC 1736, 1977-78 CCH OSHD P22,095 (No. 8721, 1977); cf. Vecco Concrete Construction Inc., 77 OSAHRC 183/A2, 5 BNA OSHC 1960, 1977-78 CCH OSHD P22,247 (No. 15579, 1977). Although a work rule designed to protect against a hazard is a necessary element of the unpreventable employee misconduct defense. n6 Brown & Root's work rule was insufficient because the employee's access to the hazard existed even if the employee complied fully with the rule. Accordingly, the unpreventability defense must be rejected, regardless of evidence on communication, enforcement, and belief that the operator adhered to the instruction.

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n6 For a discussion of the unpreventable employee misconduct defense, see Jensen Construction Co., 79 OSAHRC    /   , 7 BNA OSHC 1477, 1979 CCH OSHD P23,664 (No. 76-1538, 1979).

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Brown & Root asserts that the fall hazard did not present a substantial probability of serious harm because the conveyer could be stopped before it carried the employee into the crusher. In Brown & Root's view, the violation therefore was not serious within the meaning of section 17(k) of the Act. n7

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n7 Section 17(k), 29 U.S.C. 666(j), provides the following, in pertinent part:

For the purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use . . . .

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The Commission repeatedly has held that whether a violation is serious depends on the probability that the harm resulting from an accident would be death or serious physical harm, not upon the probability that an accident might occur. E.g. Boonville Division of Ethan [*20] Allen, Inc., 78 OSAHRC 105/B4, 6 BNA OSHC 2169, 1978 CCH OSHD P23,219 (No. 76-2419, 1978). Brown & Root's argument purports to question whether the violation is serious, but the company does not question that an employee carried into the rock crusher would suffer serious physical harm or death. Instead, the company's argument is that there was little, if any, danger that an employee who fell onto the conveyer would be carried into the rock crusher. This is so, according to Brown & Root, because the conveyer could be quickly stopped if an employee fell onto it. This argument concerns whether the equipment was "dangerous" within the meaning of the standard. It therefore goes to the merits of the violation, not whether the violation is serious.

We conclude that Brown & Root's argument that the equipment is not "dangerous" is without merit.

As has been indicated, the distance from the point at which the operator could fall onto the conveyer to the hopper of the rock crusher is two to five feet. The crushing department foreman estimated the speed of the conveyer belt at "less than a mile per hour." His opinion that the belt could be stopped in time was based principally on the [*21] consideration that the crusher operator watched the conveyer constantly so that he could stop it before an oversized rock or a person fell into the crusher. The assumption that clearly underlies this opinion is that inattention or other slight delay would be avoided at all times. The compliance officer expressed the view that normal reaction time, inattention, or inability to see the employee on the conveyer would prevent stopping the conveyer in time. In any event, it is clear from the record that the conveyer speed was fast enough to require quick action by another employee to prevent serious harm should an employee fall onto the conveyer from the platform. The requirement to comply with section 1926.500(d)(5) concerning guardrails to prevent falls into dangerous equipment does not hinge on the ability of other employees to react quickly to avert the danger. Because in this case only the quick reaction of other employees stands between the fallen employee and the crusher, we conclude there was exposure to dangerous equipment within the meaning of the standard. Furthermoe, because an employee carried into the crusher would suffer serious harm, the violation was serious.

We [*22] conclude that the judge's assessment of a $400 penalty is appropriate for the reasons he assigned. Accordingly, the judge's decision is affirmed. It is so ORDERED.