UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 13401
PRATT & WHITNEY AIRCRAFT,
Respondent.

April 27, 1981

DECISION

Before BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge Foster Furcolo is before the Commission for review pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). The case[1] involves a 68-item other than serious citation issued to Respondent, Pratt & Whitney Aircraft (‘Pratt & Whitney’ or ‘P & W’), after four compliance officers of the Secretary of Labor (‘the Secretary’) inspected Pratt & Whitney’s aircraft parts manufacturing facility in North Haven, Connecticut. We review the affirmance of twelve of those items by Judge Furcolo.[2]

The Document Production Issue

Pratt & Whitney first contends that all items of the citation should be vacated because the judge refused to order the Secretary to turn over for inspection by P & W certain notes that the Secretary’s compliance officers (‘Co’s’) had made. During its cross-examination of the first compliance officer to testify, Pratt & Whitney requested production of any written notes that the compliance officer had prepared that were relevant to the case. P & W later extended its request to include notes made by the other three CO’s as well. The Secretary resisted the requests on a number of grounds, including (1) the notes contained the names of employees who had given information to the compliance officers and were exempt from disclosure under the informer’s privilege; (2) the notes were interagency memoranda exempt from disclosure under the Freedom of Information Act; (3) certain of the notes had been prepared at the request of the Secretary’s attorneys after the case was in litigation; and (4) certain parts of the notes reflected the mental impressions and conclusions of the compliance officers.

After hearing argument on P & W’s request, Judge Furcolo essentially ruled that the notes should be produced, but with some qualifications. He examined the notes in camera and authorized the deletion of material prepared at the request of the Secretary’s attorneys and of any information that would be protected by the informer’s privilege or other privileges. The net result was that P & W had the opportunity to examine ‘sanitized’ versions of the notes, but was denied the opportunity to examine the notes in their entirety. The original notes, consisting of ten documents, were placed by the judge in a manila envelope. The envelope was sealed and included in the official record of the proceedings in this case. Sanitized copies of all ten documents were produced by the Secretary as ordered, and, with one exception, were introduced into evidence.[3]

Pratt & Whitney argues that the judge erred in refusing to order production of the compliance officers’ notes in their entirety. P & W contends that Jencks v. United States, 353 U.S. 657(1957), requires the production of all pre-trial statements made by witnesses who testify at criminal trials and that NLRB v. Adhesive Products Corp., 258 F.2d 403 (2d Cir. 1958), applied that requirement to administrative hearings. P & W also points out that the proceedings of this Commission are subject to the Jencks rule, citing Frazee Construction Co., 73 OSAHRC 34/B5, 1 BNA OSHR 1270, 1973–74 CCH OSHD ¶16,409 (No. 1343, 1973) and Okland Construction Co., 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975–76 CCH OSHD ¶ 20,441 (No. 3395, 1976).

We conclude that the judge erred in failing to order the Secretary to turn over the withheld notes of the compliance officers for use by P & W during cross-examination of the compliance officers. We have held that:

[W]hen a witness has completed testifying for the Secretary on direct examination, the Secretary shall, upon motion by a respondent, turn over to it all the witness’s prior statements that are in the government’s possession and that relate to the subject matter of the witness’s testimony.

Massman-Johnson (Luling), 80 OSAHRC 44/B8, 8 BNA OSHC 1369, 1376, 1980 CCH OSHD ¶24,436 at p. 29,808 (No. 76–1484, 1980), pet. for review filed, No. 80–3413 (5th Cir. June 2, 1980). Massman-Johnson (Luling) was consistent with our earlier decision in Frazee Construction Co., supra, which predated the hearing in this case. Moreover, the requirement that a witness’s prior statements be produced after that witness has testified on direct examination does not depend on whether the statements include any material that would be exempt from pretrial discovery under the work product doctrine. Bethlehem Steel Corp., 81 OSAHRC ___, 9 BNA OSHC 1321, 1981 CCH OSHD ¶25,200 (No. 12817, 1981). However, any material in the statements that would reveal the identity of confidential informants need not be produced. See Massman-Johnson (Luling), supra. Thus, the judge erred in ruling that the Secretary need not produce the complete notes made by the compliance officers, with only the names of informants deleted, after the compliance officers had testified on direct examination concerning the subject matter contained in the notes.

Even though Pratt & Whitney was wrongfully barred from using the complete versions of the withheld notes, we reject its argument that all the contested items should be vacated as a result. If the judge’s action was a harmless error then it would offend common sense and the fair administration of justice to vacate those items. See Rosenberg v. United States, 360 U.S. 367 (1959). The harmless error doctrine is, however, strictly applied in these situations, and a judge’s erroneous ruling denying the production of a witness’s statement will only be deemed harmless when it is clear that the party aggrieved by the ruling could not have made any meaningful use of the statement at the hearing. Id. See Bethlehem Steel Corp., supra, 9 BNA OSHC at 1330–31, 1981 CCH OSHD at p. 31,112. Accordingly, we have examined the record to determine whether P & W could have made meaningful use of the documents improperly withheld from it.

The withheld notes consist primarily of worksheets on which the compliance officers recorded information they obtained during the inspection. The worksheets contain boxes for listing certain information. Spaces are provided for the compliance officers to record descriptions of conditions they believe may violate the Act, together with other information concerning their observations, such as the location at which the condition existed and the section of the Act that may have been violated.

Although the sanitized versions of the notes delete information on items not involved in this case, the sanitized notes contain exactly the same descriptions of the alleged violations as are contained in the withheld notes with respect to the items that are on review. Deleted are the section of the Act or the standard that the compliance officers listed for each item, certain numbers appearing in the boxes containing the descriptions of the observed conditions,[4] and, in some instances, names of employees.

In two instances, the sanitized version of the notes does not include information of a substantive nature that does appear in the withheld notes. As stated in note 3 supra, item 10 of the withheld notes is a photograph, on the back of which appear the written observations of a compliance officer, pertaining to subitem 61(k) of the citation. The exhibit made available to P & W lacked the compliance officer’s writings. However, the judge vacated subitem 61(k), and that subitem is not on review. Additionally, the description by compliance officer Cavalieri of the conditions cited in subitems 61(aa) and (dd) contain the circled designation ‘OK’ on the withheld notes. The sanitized notes have this designation omitted. The meaning of ‘OK’ is ambiguous, and P & W should have had the opportunity to cross-examine Cavalieri on its significance. However, for the reasons discussed later in this opinion, we vacate subitems 61(aa) and 61(dd) on their merits. Thus, although the judge’s error deprived P & W of material which it may have used meaningfully in the conduct of its cross-examination on subitems 61(aa) and 61(dd), our disposition of those subitems resolves the issue by eliminating P & W’s need for the withheld material.

As to the remaining items and subitems, Pratt & Whitney had available, in the sanitized notes, all the necessary substantive information enabling it to cross-examine the compliance officers to the same extent as if P & W had the complete notes. The judge’s error in not allowing P & W to examine the withheld material was, therefore, harmless, because P & W could not have made any meaningful use out of the withheld material.

Pratt & Whitney’s De Minimis Argument

Pratt & Whitney argues generally, with respect to all of the items on review, that if noncompliance with any of the cited standards occurred at all, any hazards to employees were either nonexistent or so slight as to warrant de minimis classifications for the items.[5]

The Commission has held that noncompliance with a standard should properly be classified as de minimis when the hazard involved bears such a negligible relationship to employee safety as to render inappropriate the imposition of a penalty or the entry of an abatement order. Continental Oil Co., 79 OSAHRC 42/C3, 7 BNA OSHC 1432, 1979 CCH OSHD ¶23,626 (No. 13750, 1979), and cases cited therein. However, in determining whether any particular violation of the Act warrants de minimis classification, we must bear in mind that the Act is intended to protect against minor as well as major injuries. Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974). Thus, the fact that noncompliance with a standard would likely result in only a minor injury is not alone sufficient for classifying the instance of noncompliance as de minimis. Instead, the de minimis classification is reserved for those unusual situations where the hazard is so trifling that an abatement order would not significantly promote the objective of employee safety or health.

With the one exception noted below, the instances of noncompliance that Pratt & Whitney committed in this case are of the type that have traditionally been classified as other than serious rather than de minimis, that is, the instances of noncompliance are of the type for which abatement will significantly promote employee safety even though they would not likely cause major injuries. Accordingly, in discussing the individual citation items below, we will not reiterate P & W’s argument that the items are de minimis because, with the noted exception, we reject the argument without further discussion.

We turn now to the individual violations on review.

Item 1—29 C.F.R. § 1910.22(a)(1)[6]

The Secretary alleges Pratt & Whitney failed to comply with section 1910.22(a)(1) in that it did not keep clean and orderly all places of employment, passageways, storerooms, and service rooms in the plant. The judge affirmed violations at eight different locations. Each of the eight will be discussed separately below.

Subitem (a). Compliance Officer Stanton testified that tripping hazards were present in the Arace Building. The area was a general storage area made disorderly by the presence of lumber, boxes, and other debris. Exhibits C–67 and C–68 illustrate the conditions referred to by the compliance officer. The judge found that the area was in a disorderly condition and affirmed the subitem. He found that tripping hazards were present, and that materials could drop onto the feet of employees.

Pratt & Whitney argues that the standard is applicable to sanitation and the prevention of disease, not to conditions that are merely disorderly or unclean. It also argues that even if the standard is applicable to the cited conditions, the photographs and testimony fail to establish a direct or immediate hazard to the employees in the area.

We reject Pratt & Whitney’s contention that the scope of the cited standard is limited to disease prevention and does not encompass tripping hazards. The standard’s requirement that places of employment be kept ‘in a sanitary condition’ is in addition to the requirement that workplaces be ‘clean and orderly’, thus demonstrating that the standard is directed not merely to sanitation but to all hazards arising from poor housekeeping, including tripping hazards. See Bunge Corp. v. Secretary of Labor, 638 F.2d 831 (5th Cir. 1981); General Electric Co., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1974–75 CCH OSHD ¶19,567 (No. 2739, 1975), rev’d on other grounds, 540 F.2d 67 (2nd Cir. 1976). The record supports the judge’s determination that the area was disorderly and presented a tripping hazard. We affirm subitem (a).

Subitem (c). Compliance officer Stanton testified that the Precipitron Crib area in department 2027 presented tripping hazards in that metal, wood, lumber, and other materials were stored there in a disorderly manner. Exhibit C–69 pictures the disorderly conditions in the area. The judge affirmed this subitem, finding that the area was in a disorderly condition that was hazardous to employees.

Pratt & Whitney contends that the standard is not applicable to disorderly conditions, but that even if it is applicable, the conditions observed did not fail to comply with the standard.

We affirm subitem (c). We conclude that the cited standard is applicable for the reasons stated in our discussion of subitem (a) and agree that the record supports the judge’s finding of noncompliance with the standard.

Subitem (d). Compliance officer Stanton testified that the Oil House of department 2032 presented fire hazards and slipping hazards because there was an excess of oil in and around the piping and because paper towels were located behind machine 37978. Exhibit C–70 shows a paper towel holder and some storage drums behind machine 37978. P & W’s safety engineer testified that an employees’ wash basin was located near the area depicted by the exhibit and that there may have been oil on the floor. In response to the Secretary’s request for admissions, P & W admits that grease, buckets, and miscellaneous materials were behind machine 37978. Judge Furcolo found that the area was not clean and orderly, and that the employees going into the area for maintenance purposes were subject to slipping and fire hazards.

Pratt & Whitney argues that the Secretary failed to prove employee exposure in that C–70 depicts an area not normally traversed by employees.

We agree with the judge that the standard is applicable and that the record supports a finding of employee access to the cited conditions. We affirm subitem (d).

Subitems (e), (f) and (g). Compliance officer Cavalieri testified that a fire hazard was created by the dust and oil that blocked the breathing vents of machine numbers 516113, 175543, and 501037. In its responses to the Secretary’s request for admissions, Pratt & Whitney admitted that the breathing vents on the machines were partially obstructed. Exhibit C–106 of the Secretary shows the partially clogged vents of one of the machines.

Judge Furcolo found that the blocked breathing vents of the machines presented a fire hazard and also resulted in the continual release of impure air that was breathed by employees. Pratt & Whitney argues that the standard is not applicable to either fire hazards or the hazard of impure air.

We conclude that the standard is inapplicable because the breathing vents of the three machines are neither ‘places of employment’, ‘passageways’, ‘storerooms’, nor ‘service rooms’ under the standard. The American National Standards Institute (‘ANSI’) source standard from which the cited standard is derived[7] defines a ‘[p]lace of [e]mployment’ as ‘[e]very place, within the scope of this standard, where any person is directly or indirectly employed.’ It would unduly strain the meaning of this definition to include part of a machine within its scope. The standard is directed at housekeeping, not machine maintenance, and if interpreted to apply here would not give adequate notice of the precautions it requires. We vacate subitems (e), (f), and (g).

Subitem (h). Compliance officer Cavalieri testified that Osborn Brushomatic machines numbered 175235, 175220, and 175648 were covered with dust and dirt. A Pratt & Whitney foreman admitted that the machines needed cleaning. The dusty condition of the machines is depicted in photographic exhibits C–107, C–108, and C–109. Judge Furcolo found that the machines were not in a clean condition, and that therefore employees were exposed to the hazard of breathing dust.

Pratt & Whitney argues that the standards dealing with airborne dust or contaminants are found in the section 1910.1000 series, not at section 1910.22. P & W also argues that the operation of the Brushomatics is inherently dusty and dirty so that these machines cannot be kept in a continuous state of cleanliness.

Acting Chairman Barnako and Commissioner Cottine conclude that the cited standard is inapplicable because the Brushomatics are neither places of employment, passageways, storerooms, nor service rooms under the cited standard. They vacate this subitem.

Commissioner Cleary concludes that the cited standard is applicable. Section 1910.1000 is directed, among other things, against employees breathing excessive dust and is only violated if an employee is exposed to excessive dust. The cited standard, however, is directed against unclean conditions in general and does not require the showing of a specific hazard. Thus, section 1910.1000 does not preempt section 1910.22(a)(1). Commissioner Cleary also finds that the record supports the judge’s finding of a violation. Pratt & Whitney’s assertion that the machines cannot be kept clean is unsupported by the record. P & W presented no evidence that the machines remained dirty despite frequent cleaning. Accordingly, Commissioner Cleary would affirm subitem (h).

Subitem (i). Compliance officer Terroux testified that there was an accumulation of trash and excess grease in back of a J & L grinder in department 2315. He found an oily rag inside the machine. Union representative Gilbert testified that there were rags, papers, and chicken bones in the area of the grinder. Pratt & Whitney admits that paper scraps were observed in the machine.

The judge made two separate findings with respect to this subitem. His primary finding was that because the trash and chicken bones in the area constituted a disorderly, unclean condition the alleged violation should be affirmed. Alternatively, however, he ruled that the unclean condition of the machine did not create a hazard, and if the standard requires proof of a hazard, he would vacate.

Pratt & Whitney argues, ‘[T]he hazard apparently alleged is a fire hazard by reason of the grease and trash . . .. Not only does the standard cited have nothing to do with fire hazards, it was proven that grinding machines are normally and inherently greasy internally.’ P & W also argues that even if the standard is applicable, the Secretary did not establish noncompliance with the standard.

We agree with the judge that the record supports a finding that the area around the grinder was unclean and disorderly. The Secretary has therefore proven noncompliance with the terms of the cited standard. Proof of a hazard is not necessary to the finding of noncompliance here because the standard assumes that unclean and disorderly conditions are hazardous. See Lee Way Motor Freight Inc., 74 OSAHRC 22/D12, 1 BNA OSHC 1689, 1973–74 CCH OSHD ¶17,693 (No. 1105, 1974), aff’d, 511 F.2d 864 (10th Cir. 1975). We find that noncompliance with the cited standard was proven.

Item 2—29 C.F.R. § 1910.22(a)(2)[8]

Subitem (b). Compliance officer Terroux testified that there was excessive oil on the wooden block floor of department 2317, and that the floor was so slippery he could skate on it. Union representative Gilbert corroborated that testimony. Pratt & Whitney admits that a ‘nominal’ amount of water was present, but P & W representative Kershaw testified that there was not an excessive amount of oil on the floor.

The judge credited the testimony of Terroux and Gilbert in finding that the floor was not kept in a clean and, insofar as possible, dry condition. He found that the presence of excessive oil created a slip and fall hazard for employees and affirmed the item.

Pratt & Whitney argues again that section 1910.22 is a sanitation standard directed against the spread of disease and not to slipping hazards. Even if the standard is applicable, however, P & W argues that noncompliance was not proven in that (1) the Secretary’s exhibit C–136 does not demonstrate a slippery condition and (2) P & W’s representative testified that the oil on the floor was not excessive.

Pratt & Whitney’s challenge to the applicability of the cited standard is rejected. The standard requires workroom floors to be kept clean and dry, and P & W has offered no persuasive reason why we should limit the standard’s application to sanitation hazards. Moreover, the Commission has previously applied the standard to slip and fall hazards. Armco Steel Corp., 77 OSAHRC 76/B9, 5 BNA OSHC 1415, 1977–78 CCH OSHD ¶21,805 (No. 11764, 1977). The Commission agrees with the judge that noncompliance with the cited standard was proven by the Secretary. Item 2(b) is affirmed.

Item 3—29 C.F.R. § 1910.22(b)(1)[9]

Subitem (a). Compliance officer Hatcher testified that the aisle in the service crib for departments 2042–2056 was not wide enough to turn a cart around. He testified that the aisle was 24 inches wide in most places and 21 inches wide in some places, and that a cart he saw in the area could not make it through the aisle. The CO also testified that metal gauges on racks and pegboards protruded into the aisle so that employees had to walk sideways to avoid them. He testified that the gauges could cause head injuries. Union representative DeRoy testified that gauges and tools extending beyond the racks obstructed the passageway used by the crib attendant. DeRoy also testified that pegboards and brackets protruded into the aisle so much that it was sometimes safer to walk sideways. Exhibit C–123 of the Secretary shows the aisle as well as certain objects protruding from the shelves of bins and some brackets protruding from a pegboard.

Pratt & Whitney representative Cote testified that the aisles were between 27 and 36 inches wide and provided plenty of room for safe passage. He also testified that the cart observed by the CO was only 20 ½ inches wide. The judge, finding that gauges and other materials protruding from the shelves, racks, and pegboards constituted hazardous obstructions in the aisle, affirmed the alleged violation.

Pratt & Whitney argues that the cited standard is inapplicable because the source of the standard is the Walsh-Healey standard at 41 C.F.R. § 50–204.3, and Walsh-Healey Inspection Survey Guide section 20.4.4 makes it clear that the source standard refers only to aisles used by industrial motorized trucks. The aisle pictured in C–123, however, is not used by industrial trucks. P & W also argues that even if the standard is applicable, the Secretary did not prove noncompliance with the standard. P & W contends it established that the cart involved was only 20 ½ inches wide while the narrowest part of the aisle was between 27 and 36 inches wide and that exhibit C–123 does not disclose any obstruction from gauges.

Acting Chairman Barnako and Commissioner Cleary agree with Pratt & Whitney that this subitem should be vacated. The Commission has earlier held that the cited standard is applicable only to operators of mechanical handling equipment and not to pedestrians. Love Box Co., 76 OSAHRC 45/D5, 4 BNA OSHC 1138, 1975–76 CCH OSHD ¶20,588 (No. 6286, 1976). The compliance officer’s testimony on this item indicates that he was wholly concerned with hazards to employees using that aisle as pedestrians. He stated:

Some of the hooks are just about eye level, and in a narrow aisle, if someone comes down the aisle, then it is possible that they may get an eye injury or their face gashed or something like that, or they may get hit in the head with them.

The compliance officer himself, however, testified that the cart in the area was too wide to travel through the aisle. He also testified that the cart did not have anything to do with the danger presented by the narrow aisle. Therefore, on the basis of the just-mentioned testimony of the CO, we conclude that the standard does not apply to the conditions for which P & W was cited. Subitem 3(a) is vacated.

Commissioner Cottine disagrees with the interpretation of the cited standard set forth in Love Box Co., supra, and would overrule that case to the extent it holds that the standard is intended to protect only operators of mechanical handling equipment. While the first sentence of the standard refers to aisles and passageways where mechanical handling equipment is used, the second sentence is not by its terms limited to aisles and passageways where such equipment is used. By reading the ‘mechanical handling equipment’ limitation into the second sentence, the majority renders the second sentence redundant in that the first sentence states the requirement for safe clearance in aisles where mechanical handling equipment is used. Commissioner Cottine would read the second sentence of the standard to require aisles and passageways free of hazardous obstructions regardless of whether mechanical handling equipment is used in those aisles and passageways. He points out that the Commission, in Love Box Co., did not offer any rationale for limiting the entire standard to aisles and passageways where mechanical handling equipment is used, but simply accepted without explanation the employer’s argument that the standard should be so limited. He would affirm subitem 3(a) on the basis of the compliance officer’s testimony that the aisle was obstructed and that the obstructions created hazards to employees.

Subitem (e). Compliance officer Terroux testified that a rubbish barrel, steel drums, dollies, hand trucks, and other materials were in an aisle in department 2315 near column B–61. He did not recall any mechanized equipment other than hand carts using the aisle. Union representative Gilbert testified that the barrels in the aisles were there for changing coolant in the machines and usually stayed there for two or three hours but had occasionally remained for as long as 48 hours. He testified that the barrels obstructed the aisle and could be placed between machines instead. Kershaw, P & W’s representative, testified that the barrels were only in the aisle when coolant was to be changed. Exhibit C–141 of the Secretary shows barrels and hand trucks in the aisle. Judge Furcolo ruled that the testimony of Terroux and Gilbert was corroborated by exhibit C–141, and that the aisle could have been kept clear by temporarily storing the coolant barrels between machines. He affirmed subitem (e).

Pratt & Whitney argues that the cited standard is inapplicable, but that even if the standard is applicable, the temporary presence of oil drums in the aisle was a normal adjunct to the process of draining coolant oil from the machines and did not create a hazard.

The Commission agrees with the judge that the record supports a finding that P & W failed to comply with the cited standard. Numerous items including a rubbish barrel, hand trucks, and metal drums are shown blocking the aisle in exhibit C–141. The record amply demonstrates that hand trucks and barrel carts were used in the aisle. Further, as mentioned in the majority’s discussion of subitem (a) above, Acting Chairman Barnako and Commissioner Cleary acknowledge that the cited standard does not apply to pedestrian hazards. They do not, however, consider the employees pushing the hand trucks and barrel carts down the aisle to be pedestrians. Such employees were the operators of mechanical handling equipment and as such were subjected to the hazard of bumping against the metal barrels and unused hand trucks that blocked the aisle. Hand trucks and barrel carts fall within the dictionary definitions of the language ‘mechanical handling equipment’ used in the cited standard. ‘Mechanical’ means ‘[o]perated or produced by a machine’. The American Heritage Dictionary of the English Language 813 (1976). The definitions of ‘machine’ do not restrict that word to vehicles with motors in them; they include ‘[a] simple device, such as a lever, pulley, or inclined plane, that alters the magnitude or direction or both, of an applied force . . .’ Id. at 780. Commissioner Cottine would conclude that the standard applies regardless of whether the exposed employees are considered the operators of mechanical handling equipment. He believes that the majority’s strained interpretation of section 1910.22(b)(1) is evident from the distinction they find it necessary to draw between ‘pedestrians’ and employees pushing hand trucks and carts.

Acting Chairman Barnako and Commissioner Cleary also note that the Walsh-Healey source standard at 41 C.F.R. § 50–204.3 cited by P & W does not restrict its terms to aisles used by motorized trucks. Even if the Walsh-Healey standard was interpreted to apply only to motorized trucks, however, the Commission would not be bound by such a restrictive interpretation.[10] See Lee Way Motor Freight, Inc., supra. Accordingly, subitem (e) is affirmed.

Item 13—29 C.F.R. § 1910.94(d)(9)(v)[11]

The Secretary alleges that Pratt & Whitney violated the standard at section 1910.94(d)(9)(v) by failing to require its plating operators in department 2432 to wear either tight-fitting chemical goggles or face shields while working around open-surface plating tanks where there was a danger of splashing. Compliance officer Terroux testified that employees worked waist-high against. tanks containing cyanide, sulfuric acid, and nitric acid. The employees wore ordinary safety glasses while putting various parts in and out of the tanks; a chain hoist was used for the heaviest parts. According to Terroux, the employees were exposed to the hazard of chemical burns resulting from the splashing of the tanks’ contents if a part dropped or a sling broke. One of P & W’s plating department employees, Champney, testified that on one occasion he had to jump back from a tank in order to prevent a splash going over his head and that, on another occasion, he was splashed on his shirt sleeves by a hydrofluoric acid nickel solution. He had once seen hooks break and a part drop into a tank. Pratt & Whitney admitted that the plating operators were wearing ordinary safety glasses. Judge Furcolo found the Secretary proved a hazardous condition existed from the danger of splashing. He relied primarily on the above testimony of Champney.

Pratt & Whitney argues that the standard is inapplicable here because it is directed by its terms to employees manually adding or removing chemicals from tanks, not at employees dipping parts into tanks. If the standard is found applicable, however, P & W argues that the danger of splashing was not proven because the Secretary did not show any injuries had resulted from the splashing of chemicals in the tanks and because employee Champney’s narrow miss involved water or degreasing solvents, not corrosives.

Pratt & Whitney’s challenge to the applicability of the cited standard is rejected. Since the terms ‘when additions are made manually to the tanks, or when acids and chemicals are removed from the tanks’ are preceded by ‘for example’, the former terms are plainly intended to be illustrative only and not to limit the protection against splashing dangers to the times when tank additions or removals are made. Further, we agree that the judge’s finding of noncompliance is supported by the evidence. As to the absence of injuries, the Commission has consistently ruled that the absence of proof of injuries does not negate the existence of a hazard. Arkansas-Best Freight Systems, Inc., 75 OSAHRC 35/D6, 2 BNA OSHC 1620, 1974–75 CCH OSHD ¶19,326 (No. 2375, 1975), aff’d, 529 F.2d 649 (8th Cir. 1976). ‘One purpose of the Act is to prevent the first accident,’ Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 870 (10th Cir. 1975). Accordingly, item 13 is affirmed.

Items 21(b) and 22—29 C.F.R. §§ 1910.108(c)(2)(i) and 1910.108(c)(3)(i)[12]

The Secretary alleges that Pratt & Whitney failed to comply with sections 1910.108(c)(2)(i) and 1910.108(c)(3)(i) in that P & W did not equip two large Varsol tanks in departments 2979–2154 with overflow pipes and bottom drains.[13] Compliance officer Terroux testified that the hazard presented by the lack of overflow pipes was that if a fire in the vicinity served to activate the sprinkler system, and if water from the sprinkler system filled the tanks, the Varsol could overflow. The Varsol, which has a flash point of between 110 and 115 degrees, could then fuel the fire’s flames. Terroux also testified that the bottom drains were necessary for quickly draining the tanks in the event of a fire or rupture of the tanks. The two interconnected tanks are pictured in P & W exhibits 5A and 5B. P & W admits that the tanks are not equipped with either overflow pipes or bottom drains. P & W also admits that the tanks are over 500 gallons in capacity and have over ten square feet in liquid surface area. P & W contends, however, that the tanks did not present a hazard because they were protected by fusible wires that would cause their lids to close when heated and thus preclude sprinkler system water from filling up the tanks and causing the Varsol in them to overflow and fuel the flames of a fire.

On the basis of the above admissions, Judge Furcolo held that P & W failed to comply with the cited standards. The judge also held, alternatively, that if proof of a hazard is an essential element of the alleged violations, then the standards had not been violated because a hazard had not been proven. The judge found that the tanks were adequately protected against the hazard that concerned the compliance officer by the fusible wires.

Pratt & Whitney admits on review that the tanks fall within the literal terms of the standards. It argues first, however, that only a de minimis violation was proven because the fusible wires on the tanks would melt if there was a fire and thereby cause the tank covers to fall, sealing the tanks. Water from the sprinkler system could not therefore penetrate the cover and cause the contents of the tanks to overflow. Also, P & W contends that because it has an elaborate fire fighting system in the building, it is not necessary for the tanks with fusible wire covers to have bottom drains for the rapid draining of their contents in case of fire. Pratt & Whitney further argues that section 1910.108(c)(2)(i), by the words ‘property will not be endangered,’ and section 1910.108(c)(3)(ii),[14] by its terms ‘which will not endanger property,’ reveal an intention to protect property rather than persons.

Commissioners Cleary and Cottine affirm the judge’s finding of noncompliance on the basis of P & W’s admissions. The cited standards seek to protect against a fire that could increase in intensity after being fueled by Varsol overflowing from the dip tanks. Because the increased intensity of a fire might well present a significant hazard to employees in the area, noncompliance is not de minimis. See Belger Cartage Service, Inc., 79 OSAHRC 16/B4, 7 BNA OSHC 1233, 1979 CCH OSHD ¶23,440 (No. 76–1480, 1979). Commissioners Cleary and Cottine also reject the argument that the standards are intended to protect only property. While property protection may be one purpose underlying the standards, employee safety is also adversely affected by noncompliance with the standards. See Continental Oil Co., supra.

Acting Chairman Barnako would vacate both items. He agrees with P & W’s contention that the cited standards are intended to protect property rather than persons. See Continental Oil Co., supra (concurring and dissenting opinion).[15] Section 1910.108(c)(2)(i) explicitly evidences that intention by its terms that ‘the overflow pipe should be so located and arranged that if the entire combustible contents of the dip tank is overflowed through overflow pipe by the application of water during fire fighting, property will not be endangered.’ While the terms of cited section 1910.108(c)(3)(i) do not specifically refer to property, the terms of the immediately following subsection, section 1910.108(c)(3)(ii), reveal that the intention of both subsections is also to protect property. Section 1910.108(c)(3)(ii) provides that bottom drains shall be trapped and ‘discharge to a closed properly vented salvage tank or to a safe location outside which will not endanger property.’

Item 23—29 C.F.R. § 1910.132(a)[16]

The Secretary, in this item with its five subitems, alleges Pratt & Whitney’s failure to provide or assure the use of certain protective equipment.

Subitems (a) and (b). Compliance officer Cavalieri testified that the asbestos around a hot steam pipe in department 2562 had fallen off and that anyone contacting the hot pipe would be burned. He also testified that a steam pipe on the degreasing machine in department 2435 was generating a great deal of heat but did not have any protective guarding. The pipes are pictured in exhibits C–110 and C–111. The judge affirmed these subitems after finding that Pratt & Whitney did not provide, use, and maintain adequate protective shields or barriers for the hazardous pipes.

Pratt & Whitney argues that the cited standard is inapplicable because it deals with personal protective equipment to be worn by employees, not protective covering for pipes. P & W also argues that if the standard is applicable, a hazard was not shown because the pipes are located in areas where employees are not normally located and because the Secretary did not prove that the pipes were hot enough to injure employees.

The Commission concludes that the standard is inapplicable to the cited conditions had vacates subitems (a) and (b). The cited standard is listed in Subpart I of the general industry standards. That subpart is entitled ‘Personal Protective Equipment.’ Although section 1910.132(a) does include the term ‘barriers,’ which might be construed to include objects other than those that an employee could wear, all the other equipment mentioned in the cited standard refers to objects that may be worn by employees. Reading the standard as a whole, we conclude that its terms do not encompass the covering of hot pipes.

Subitems (c), (d) and (f). Compliance officer Cavalieri, in testifying about subitem (c), stated that he observed women employees in department 2555 working with sharp-edged parts weighing about 13 pounds each while not wearing safety shoes. One of the employees was wearing canvas shoes. Equipment was being moved around the area by a buggy. P & W admits that one of the employees in the department was wearing canvas shoes, and that the employees regularly handled parts weighing more than 12 pounds.

Compliance officer Cavalieri testified, regarding subitem (d), that a machine operator in department 2551 was wearing moccasins while handling a piece of metal weighing 20–25 pounds. There were materials on skids and pallets in department 255§ that were to be lifted by truck. P & W admits the machine operator was wearing moccasins.

Subitem (f) encompasses a substantial number of the employees at the North Haven plant. In subitem (f), the Secretary alleges that P & W failed to require that protective footwear be worn by (1) plant and machine maintenance personnel, (2) material handlers, (3) machine operators, and (4) bench assemblers and inspectors. Testimony on this subitem was elicited from all four compliance officers. The compliance officers observed many employees throughout the North Haven plant not wearing safety shoes. These employees handled parts and sharp-edged materials weighing over thirteen pounds. Some of the parts were oily and slippery. Certain materials weighing over twenty pounds were stacked in an unstable manner. In moving the parts and materials, the employees used forklift trucks, dollies, carts, moveable racks, and other equipment. The compliance officers testified that the employees they observed subject to the hazards created by the above-mentioned conditions included maintenance employees, material handlers, machine operators, and assemblers and inspectors.

Union representative Neal testified that thousands of pats are transported throughout the plant each month, and that consequently forklifts, skids, and movable racks move from place to place with great frequency. He also testified that many parts are easy to drop because they are oily and slippery. He has seen materials dropped from hoists, pallets, and broken boxes.

Union representative Gilbert testified that in departments 2315 and 2317 up to 200 shuttles weighing as much as 38 pounds are handled everyday. Hammers, grinding wheels, wrenches, and shuttles are moved about on heavy-duty trucks, racks, and carts. He had seen materials dropped many times and could not recall a day when a tray, tool, or part did not fall in his vicinity. All employees in his department did not wear safety shoes.

Union representative DeRoy testified that metal parts of various sizes are dropped frequently, and that there are dents in the floor rom dropped parts. He had dropped materials on his toes or hit his toes against objects at the plant several times. Pratt & Whitney’s nurse testified about eight specific employees who had sustained foot or toe injuries. Exhibits C–9 through C–28 of the Secretary are OSHA forms listing toe and foot injuries sustained by ten plant employees between January 1974 and April 1975 as a result of having parts or materials dropped onto their feet or of having forklifts or carts run over their toes or feet.

Pratt & Whitney admits that safety-toed shoes are sold to employees at the plant but also admits that employees are not required to wear the shoes. Exhibit C–2 of the Secretary is a nearly two-inch high sheaf of about 400 job descriptions prepared by P & W. Each job description lists as one of the unavoidable hazards of the job crushed hands or feet from dropped parts, boxes, wheels, or equipment. The job descriptions include those for maintenance personnel, material handlers, machine operators, bench assemblers, and inspectors, as cited in the complaint.

Judge Furcolo affirmed subitems (c) and (d) on the basis of the uncontroverted evidence that employees did not wear safety shoes while exposed to the hazard of foot injuries from the 12 to 25 pound metal parts that could fall on their feet. The judge also affirmed subitem (f), which dealt with maintenance personnel, material handlers, machine operators, bench assemblers, and inspectors. He stated that the plant was an extremely busy worksite with hundreds of employees handling thousands of pieces of equipment of every conceivable size and weight. He also found that equipment was moved by various mechanical means, that some equipment was slippery, and that there was a hazard of injury from frequently dropped materials.

P & W raises four arguments in support of its position that these subitems should be vacated: (1) the cited standard does not apply to the hazard of traumatic injury, (2) the standard only requires that protective equipment be ‘provided,’ (3) if the standard is applicable, it is unenforceable because there is no approved specification for women’s safety-toe footwear, and (4) even if the standard is both applicable and enforceable, the hazards involved here do not warrant the use of safety shoes.

In support of its first argument, Pratt & Whitney asserts that the standard’s legislative history shows that the standard was intended to protect against chemicals, radiation, and mechanical irritants that could enter the body or cause skin irritation. P & W argues that ‘physical contact’ as used in the standard means contact between an employee’s body and chemical and radiological hazards or mechanical irritants, not contact with parts or other equipment.

P & W next argues that the word ‘used’ in the standard should be considered a nullity because it was improperly added to the standard by the Secretary as part of a miscellaneous amendment to correct typographical errors. It states that it did ‘provide’ shoes for its employees through its safety shoe sales program.

In support of its third argument, P & W claims that compliance with the standard would force it to discharge all its female employees because it has established that there is no approved specification for women’s footwear. P & W points out that the standard at section 1910.136 provides that ‘Safety-toe footwear for employees shall meet the requirements and specifications in American National Standard for Men’s (emphasis supplied) Safety-Toe Footwear, Z41.1–1967.’ It further asserts that anatomical differences prevent women from wearing safety toe footwear designed for men.

Pratt & Whitney finally argues that protective footwear is not ‘necessary by reason of hazards of processes or environment.’ It contends that nearly all the Review Commission’s safety shoe cases deal with shipping and receiving facilities where materials are hand-loaded and there is a danger of toes being run over by mechanized equipment. For this plant, however, the company argues that it proved the toe injury rate was only 0.0005 per man-year, and that such a figure does not realistically represent exposure to a hazard. P & W further argues that the employees in its plant should not be forced to spend $1,125,000 for safety shoes at $25 a pair to pay for unnecessary protection.

The Commission rejects Pratt & Whitney’s argument that the standard does not apply to traumatic injuries. The argument is contrary to the plain language of the standard, and the Commission has applied the standard to protect against the hazard of traumatic injuries on many occasions. See, e. g., Chief Freight Lines, Inc., 76 OSAHRC 38/A2, 3 BNA OSHC 2083, 1975–76 CCH OSHD ¶ 20,507 (No. 6483, 1976); Modern Automotive Service Inc., 74 OSAHRC 9/All, 1 BNA OSHC 1544, 1973–74 CCH OSHD ¶17,369 (No. 1541, 1974).

We also reject P & W’s argument that the standard does not impose a use requirement. The contention that the word ‘used’ was improperly added to the standard was recently considered by the Commission in General Motors Corp., GM Parts Division, 81 OSAHRC ___, 9 BNA OSHC 1331, 1981 CCH OSHD ¶25,202 (No. 79–4478, 1981), pet. for review filed, No. 81–3194 (6th Cir. Apr. 6, 1981). We noted there that the argument involves an amendment made to the standard under the Walsh-Healey Act, 41 U.S.C. §§ 35–45, not any alleged impropriety in the manner in which the standard was promulgated under the Occupational Safety and Health Act. We held that the validity of an OSHA standard cannot be challenged on the ground that the established federal standard from which it was derived was invalidly amended before its adoption under the Occupational Safety and Health Act. Accordingly, the current version of the standard, including the use requirement, is fully enforceable under the Occupational Safety and Health Act.

The Commission further rejects P & W’s argument that the standard is unenforceable because safety shoes for women do not meet the requirements of section 1910.136. Pratt & Whitney was cited for failing to comply with section 1910.132(a) by not requiring its employees to wear safety shoes. P & W was not cited for failing to comply with section 1910.136 by not requiring women employees to wear safety shoes meeting the specifications of ANSI Z41.1–1967, as referred to in section 1910.136. P & W safety engineer, James A. Martin, testified that safety-toe shoes for women were sold at this very plant.

P & W’s final argument on this issue is that the Secretary failed to prove its employees were exposed to hazards warranting the use of safety shoes. The Commission rejects this argument as well. The hazards involved parts and equipment of various sizes and weights being dropped on the feet of employees. The hazards also included mechanized equipment that could run over the feet of employees. These hazards have been found to require protection to the feet of employees by the use of safety shoes in numerous cases. See United Parcel Service, Inc. v. OSHRC, 577 F.2d 743 (6th Cir. 1978); Arkansas-Best Freight Systems, Inc. v. OSHRC, 529 F.2d 649 (8th Cir. 1976); Yellow Freight System, Inc., 75 OSAHRC 50/C9, 2 BNA OSHC 1690, 1974–75 CCH OSHD ¶19,439 (No. 2658, 1975), aff’d, 530 F.2d 1095 (D.C. Cir. 1976). Further, the P & W job description forms contained in exhibit C–2 indicate P & W realizes that its employees working as maintenance personnel, material handlers, machine operators, bench assemblers, and inspectors are exposed to foot injuries. All such employees are required to wear an appropriate type of protective footwear. See United Parcel Service of Ohio, Inc., 76 OSAHRC 72/E11, 7 BNA OSHC 1685, 1979 CCH OSHD ¶23,837 (No. 76–3621, 1979).

The Commission therefore agrees with the judge that the evidence demonstrates subitems (c), (d), and (f) of item 23 should be affirmed.

Item 32—29 C.F.R. § 1910.176(b)[17]

Subitems (a) and (b). The Secretary alleges that Pratt & Whitney created a hazard by its material storage practices in the Arace Building and in a chemical storage crib of the main plant. With respect to the Arace Building, compliance officer Stanton testified that he observed storage bins with boxes placed in the bins that were about 10 feet above the floor and that protruded over the edges of the bins. Stanton also observed a box that was stored on top of a rafter that was about 15 feet above the plant floor. Exhibit C–75 shows the boxes that extended over the edge of the bins; exhibit C–76 shows the box on the rafter.

The compliance officer also testified that there were three pallets of metal barrels stacked on top of each other in a chemical storage area of the main plant. Because some of the metal barrels had been removed from the bottom two pallets, the compliance officer believed that mechanical handling equipment used in the area could hit the pallets and topple the stored barrels. Exhibit C–77 shows the stacked pallets and barrels. Judge Furcolo ruled that the above testimony and photographic exhibits established P & W’s failure to comply with the cited standard.

P & W argues that the Secretary failed to establish that the stored materials constituted a hazard. P & W argues with respect to subitem (a) that the compliance officer did not establish what, if anything, was inside the stored boxes, and that empty boxes do not constitute a hazard. With respect to subitem (b), P & W argues that the Secretary did not prove the stacked pallets were unstable. It argues that the compliance officer testified the containers on the pallets might fall if a forklift truck hit them, but did not testify that the containers could fall by themselves.

The Commission agrees with the judge that the evidence referred to above is sufficient to find that P & W failed to comply with the cited standard. Absent any evidence to the contrary, we will presume that boxes stored in bins are not empty. Also, heavy cardboard boxes of the size pictured in the exhibits, even if empty, could be hazardous to employees. With respect to the metal barrels, the Secretary need not prove that the barrels could fall off by themselves. Proof that the barrels were on pallets in areas used by mechanical handling equipment is sufficient. Subitems 32(a) and (b) are affirmed.

Item 35—29 C.F.R. § 1910.178(m)(12)(i)[18]

The Secretary, in his citation, alleged that P & W failed to equip a safety platform on a forklift truck with a 42-inch high standard railing. In his complaint, however, the Secretary attempted to amend the citation to allege that P & W had violated that standard by failing ‘to provide a safety platform secured to the lifting carriage and/or forks.’ During the hearing, the Secretary’s evidence was directed at establishing the initial description of the violation as it appeared in the citation, that is, the lack of a standard 42-inch high railing. At one point in the hearing, compliance officer Terroux even admitted that the platform was ‘secured to the forklift truck.’ Otherwise, Terroux testified that the railing was only about 28 inches high, and that the employees working on the platform, which had been raised to a height of ten feet by the forklift, could fall over the low railing. P & W admitted that the top rail of the platform was not more than 28 inches high.

In his brief to the judge, the Secretary moved to alternatively allege noncompliance with section 1910.23(a)(2),[19] but argued that he had established noncompliance under either standard. The Secretary stated, in behalf of his amendment motion, that the issue of railing height was tried at the hearing.

The judge denied the Secretary’s motion to alternatively allege noncompliance with section 1910.23(a)(2), but ruled that P & W failed to comply with section 1910.178(m)(12)(i) in that ‘Respondent did not controvert the evidence.’

Pratt & Whitney argues that this item should be vacated because the cited standard does not impose any particular height requirement for the railing on its safety platform. P & W asserts that the Secretary, in effect, recognized that the standard was inapplicable by seeking to amend the citation to allege noncompliance with section 1910.23(a)(2). Pratt & Whitney also argues that section 1910.23(e)(1)[20] is also inapplicable to platforms on powered industrial trucks because powered industrial trucks are governed elsewhere in the standards, at section 1910.178. P & W further contends that the cited standard is inapplicable because the platform here did not have its own elevatable controls and was elevatable only by controls on the vehicle.

Commissioners Cleary and Cottine reverse the judge’s action in finding that Pratt & Whitney failed to comply with section 1910.178(m)(12)(i). They conclude that this standard is inapplicable because it applies only to trucks having elevatable controls, and the truck in question did not have such controls. Further, they would not amend to section 1910.23(a)(2), as the Secretary requests, because that section is also inapplicable. It applies to ladderway platforms, and P & W’s platform was not a ladderway platform.

Commissioners Cleary and Cottine find, however, that noncompliance with the standard at section 1910.23(c)(1)[21] was tried by the implied consent of the parties. That standard requires a standard railing on all platforms that are four feet or higher above the adjacent ground level. A standard railing has a height of 42 inches.[22] The parties clearly tried the issue of the height of the railing, as both parties introduced evidence relevant to that issue. See D. Fortunato, Inc., 79 OSAHRC 69/B12, 7 BNA OSHC 1643, 1979 CCH OSHD ¶23,781 (No. 76–3103, 1979); Kaiser Aluminum and Chemical Corp., 76 OSAHRC 52/C10, 4 BNA OSHC 1162, 1975–76 CCH OSHD ¶20,675 (No. 3685, 1976), aff’d after show cause order, 77 OSAHRC 39/E8, 5 BNA OSHC 1180, 1977–78 CCH OSHD ¶21, 692 (1977). The evidence establishes that the platform’s railing was 28 inches high and, accordingly, that P & W failed to comply with section 1910.23(c)(1). Because P & W participated fully in trying the issue of the railing height, it would not have tried the case any differently if it had originally been cited under section 1910.23(c)(1) and would not, therefore, be prejudiced by an amendment to that standard. Consequently, Commissioners Cleary and Cottine amend the citation, pursuant to Rule 15(b) of the Federal Rules of Civil Procedure, to allege that Pratt & Whitney failed to comply with section 1910.23(c)(1). They affirm item 35 as so amended.

Acting Chairman Barnako agrees that both the cited standard, section 1910.178(m)(12)(i), and section 1910.23(a)(2), to which the Secretary sought to amend, are inapplicable. He would not amend to section 1910.23(c)(1) because Pratt & Whitney neither expressly nor impliedly consented to the amendment. Section 1910.23(c)(1) was never mentioned at or prior to the hearing, and the parties plainly did not believe that they were trying a violation of that standard. See McLean-Behm Steel Erectors, inc., 78 OSAHRC 93/A9, 6 BNA OSHC 2081, 1978 CCH OSHD ¶23,139 (No. 15582, 1978) (dissenting opinion), rev’d, 608 F.2d 580 (5th Cir. 1979). Although P & W questioned the compliance officer at the hearing on the railing height, it did so in conjunction with trial of the cited standard, section 1910.178(m)(12)(i), and P & W objected to the evidence on the basis that the conditions were not covered by the cited standard. This does not constitute consent to litigate noncompliance with another standard. See D. Fortunato, Inc., supra (concurring and dissenting opinion); Carlstrom Brothers Construction, 78 OSAHRC 96/A2, 6 BNA OSHC 2101, 1978 CCH OSHD ¶23,155 (No. 13502, 1978) (dissenting opinion). Accordingly, Acting Chairman Barnako would vacate item 35.

Item 40—29 C.F.R. § 1910.212(a)(1)[23]

The Secretary alleges that Pratt & Whitney failed to guard numerous machines located throughout the plant. the judge affirmed 22 of the subitems in citation item 40, and P & W contests his action in doing so.

Subitems (a), (b), (c), (p), (q), (t), (u), (x), and (z). Compliance officers Terroux and Stanton testified that thirteen lathes in various areas of the plant had unguarded rotating chucks[24] containing protrusions or indentations that could catch the hands, hair, or clothing of employees. Partt & Whitney admitted that the lathes were not equipped with physical barrier guards. Judge Furcolo found the lathe chucks constituted rotating parts, within the meaning of section 1910.212(a)(1), that had not been guarded. He stated that the testimony and photographic exhibits support a conclusion that the protrusions and indentations of a rotating chuck could easily catch the clothing, hair, or hands of employees. Accordingly, the judge affirmed the nine subitems.

On review, Pratt & Whitney argues that lathe chucks need not be guarded because the NASI Bll committee, which was charged with setting standards for metal working machine tools, never reached a consensus on whether chucks should be guarded. It cites the testimony of one of its witnesses, a certified safety professional, to this effect. P & W also points out that the same any safer. P & W further argues that do not make working around the lathes any safer. P. & W. further argues that the Secretary did not introduce any evidence of injuries suffered from contact with rotating chucks at this plant.

We reject Pratt & Whitney’s argument that section 1910.212(a)(1) does not require guarding of lathe chucks because an ANSI committee purportedly did not reach a consensus as to whether such chucks should be guarded. Section 1910.212 was not derived from an ANSI standard but from an established federal standard. See generally Rockwell International Corp., 80 OSAHRC ___, 9 BNA OSHC 1092, 1980 CCH OSHD ¶24,979 (No. 12470, 1980). By its terms, section 1910.212 applies to all machines. Thus, on its face, the standard applies to lathes and requires the guarding of lathe chucks to the extent that such chucks present hazards to employees. This interpretation is not affected by the fact that a private organization has not decided whether it is necessary to guard lathe chucks. See Diebold, Inc., 76 OSAHRC 3/E5, 3 BNA OSHC 1897, 1899 n. 6, 1975–76 CCH OSHD ¶ 20,333 at p. 24,249 n. 6 (No. 6767, 1976), rev’d on other grounds, 585 F.2d 1327 (6th Cir. 1978).

We conclude that the cited standard applies to P & W’s lathes and that the unguarded chucks presented a hazard to P & W’s employees. Acting Chairman Barnako and Commissioner Cleary conclude, however, that the violation is de minimis. This case is indistinguishable from Southwestern Electric Power Co., 80 OSAHRC ___, 8 BNA OSHC 1974, 1980 CCH OSHD ¶24,732 (No. 77–3391, 1980), in which the Commission found that the hazard presented by unguarded lathe chucks was too trifling to warrant the imposition of an abatement requirement or the assessment of a penalty. Commissioner Cottine would find that noncompliance by P & W was other than serious rather than de minimis for the reasons stated in his dissenting opinion in Southwestern Electric Power Co., supra.

Subitems (f), (h), (i), (j), (k), (m), (n), (o),. Compliance officer Cavalieri testified that he observed unguarded shafts[25] capable of rotating at high rates of speed on machines at the eight cited locations. He also testified that, although most of the shafts were located in the back of the machines where only maintenance personnel would be likely to have access to them, some of the shafts were adjacent to walkways. The shafts were not guarded by any barriers to prevent clothing or hands from being caught by rotating shafts. Cavalieri testified that a U-shaped metal barrier should be placed over the rotating shafts to protect employees from touching the shafts when the shafts are rotating. Judge Furcolo found that employees were exposed to the hazard of injury from the improperly guarded rotating parts and affirmed the eight subitems.

Pratt & Whitney argues that employee exposure to the unguarded shafts was unlikely, that the foreseeability of injury was remote in that there was no testimony of past injuries, and that its witness testified there was no consensus reached in the ANSI B–11 committee on whether rotating shafts required barrier-type guards.

The Commission finds that maintenance employees had access to the revolving shafts, which are ‘rotating parts’ under the standard, and that the shafts should have been guarded. We reject Pratt & Whitney’s argument that the standard does not apply to rotating shafts for the same reason we rejected its similar argument made with respect to the lathe chucks. We also reject the argument that no hazard was proven because there was no testimony that the unguarded shafts had injured employees. Evidence of past injuries is not necessary to prove a hazard. See A. E. Burgess Leather Co., 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1977–78 CCH OSHD ¶21,573 (No. 12501, 1977), aff’d, 576 F.2d 948 (1st Cir. 1978). Subitems (f), (h), (i), (j), (k), (m), (n), and (o) are affirmed.

Subitem (1). The Secretary alleges that the oblong-shaped metal ram on a Browne & Sharpe grinder near column P–55 in department 2550 extended into the walkway and was not guarded against accidental contact. Compliance officer Cavalieri testified that the ram proceeded back and forth on a horizontal plane while conveying materials to and from the grinding wheel and reached a point about 2½ feet from the machine when fully extended in an outward direction. He testified that the ram was not equipped with a barrier to protect employees walking between the grinder and other machines.

Union representative Joseph testified that the unguarded ram would have knocked him into some stacked boxes or barrels stored near the grinder if he had walked past the machine in a particular direction Instead, however, he was warned not to proceed further in that direction by a foreman. Joseph stated that he could have been hurt if he had been pushed against the boxes and could have been crushed if he had been knocked against more solid objects. He also testified that both employees working in the area and maintenance employees could be exposed to these hazards. The judge found that employees of P & W were exposed to the improperly guarded ram and affirmed the subitem.

Pratt & Whitney argues that its employees were not exposed to the unguarded ram and that if they were exposed, there was not a hazard. We conclude that the record supports the judge’s finding that the ram exposed P & W’s employees to a hazard and affirm this subitem.

Subitem (r). Compliance officer Stanton testified that a machine with a set of electrically-run rollers, through which an employee hand-fed a belt, was not equipped with a barrier guard to prevent the machine operator’s hands from entering the roller area. The machine is pictured in exhibit C–82 and was located in department 2033. Judge Furcolo, finding that the evidence of noncompliance was uncontradicted, affirmed subitem (r).

Pratt & Whitney argues there was a failure of proof that a hazard existed, since the compliance officer never saw the machine in operation and did not know how close the operator’s hands normally got to the rollers. We reject P & W’s argument because the compliance officer testified that the operator demonstrated the machine’s operation to the CO. The evidence supports the judge’s finding of noncompliance and we affirm subitem (r).

Subitem (v). Compliance officer Stanton testified that there was not a point-of-operation guard on pneumatic press 175834 in department 2986. The machine is similar in operation to a punch press and was used to stamp numbers on metal parts. Stanton testified that the part to be stamped was hand-fed into an opening at the front of the machine. Foot pedals were then used to bring the press down and punch a number into the part. Because the point-of-operation was not guarded, the CO testified, a machine operator’s hand or fingers could get crushed if they were in the point-of-operation when the foot pedals were pushed. Exhibit C–83 shows the pneumatic press.

The judge found that the evidence was not contradicted. He affirmed subitem (v) because P & W’s failure to guard the press subjected those who operated it to a hazard.

Pratt & Whitney argues that the compliance officer failed to establish the degree or amount of access an operator had to the point-of-operation. P & W also states that the Commission in Collator Corp., 78 OSAHRC 32/A2, 3 BNA OSHC 2041, 1975–76 CCH OSHD ¶20,446 (No. 2004, 1976), vacated a section 1910.212(a)(1) allegation where the access distance was only ¼ inch or less.

The preponderant evidence supports the finding of noncompliance. We particularly rely on the compliance officer’s testimony that the metal parts put into the machine for stamping were more than ¼-inch high, and that an operator could put his hand into the point-of-operation and activate the machine without a metal part being in the machine. See American Package Co., 80 OSAHRC ___, 8 BNA OSHC 2167, 1980 CCH OSHD ¶24,871 (No. 76–2349, 1980). We affirm subitem (v).

Subitems (bb) and (cc). Compliance officer Stanton testified that the unused portions of the blades of two different hand-fed band saws were not guarded. One was a vertical DoAll saw located in department 2038; the other was a horizontal saw in department 2032. Although the compliance officer testified that the portion of each blade used for cutting did not need guarding because the material being cut served to guard these portions, he also testified that portions of the blades not being used for cutting were similarly exposed on each saw and did need guarding. The hazard was that a machine operator could have his fingers or a hand cut off from contact with the unguarded portions of the saws not being used for cutting. Exhibits C–80 and C–81 show the vertical and horizontal saws, respectively, and the unguarded, exposed blade edges that were not used for cutting.

Judge Furcolo found that the uncontradicted evidence established that operators of both the unguarded saws were exposed to a hazard.

Pratt & Witney argues that the Secretary failed to prove noncompliance with the standard because the CO did not see either saw in operation. P & W also argues that the length of the used portion of the horizontal saw blade varied with the width of the material being cut and that if the piece being cut extended over the full width of the exposed blade, there would be no unused portion of the blade.

We affirm subitems (bb) and (cc). Exhibit C–80, which pictures the vertical saw, clearly shows the unguarded, unused portion of the saw blade above that portion of the blade used for cutting. Although the CO did not testify that he viewed the saw in operation, the saw was available for use and constituted a hazard to employees. Palmer Christiansen Co., 76 OSAHRC 39/D10, 4 BNA OSHC 1020, 1975–76 CCH OSHD ¶20,517 (No. 3108, 1976). Exhibit C–81 shows an unguarded portion of horizontal saw blade to the left of adjustable guides between which material is fed for cutting. The compliance officer testified that the machine operator had told him he operated the machine in that condition. That employee was, therefore, exposed to the hazard created by the unguarded, unused portion of the saw blade.

Item 54—29 C.F.R. § 1910.252(a)(2)(iv)(c)[26]

Subitem (b). The Secretary alleges Pratt & Whitney filed to store oxygen cylinders separate from fuel gas cylinders. Compliance officer Stanton testified that tanks of oxygen, acetylene, and flammable propane were stored together in the corner of a refrigerator crib. Regulators and hoses were attached to the tanks. Dust had accumulated on the tops of the tanks and on the regulators. Stanton also testified that the department head told him the tanks had not been used in ‘quite awhile’.

P & W representative Dupre recognized that storing oxygen and acetylene together was contrary to the regulations and could be hazardous. Exhibit C–94 shows the different tanks tied together in a corner of the refrigerator crib.

Judge Furcolo affirmed this subitem. He ruled that the presence of dust on the cylinders, together with the statement of the department head that the cylinders had not been used for ‘quite awhile,’ established that the oxygen cylinders were in storage. Since the oxygen cylinders were not separated by a distance of at least twenty feet from the other fuel gas cylinders, the judge found that noncompliance with the cited standard was proven.

Pratt & Whitney contends that the cylinders were not in storage and that the presence of the hoses and regulators probably meant that the tanks were about to be used or had just been used. P & W argues that the dust on the regulators did not indicate when the cylinders were last used because the cylinders could have been used without touching the regulators.

We agree with Judge Furcolo and affirm subitem 54(b). While P & W’s representative did recognize the hazard of storing oxygen with flammable gases, he could only speculate about when the cylinders had been used or were to be used. The fact that the cylinders were tied together in a corner of the crib gives rise to an inference that the cylinders were being stored. Further, the department head’s statement that the cylinders had not been used in ‘quite awhile’ indicates that the cylinders were not intended to be available for immediate use. Cf. Grossman Steel & Aluminum Corp., 78 OSAHRC 85/A2, 6 BNA OSHC 2020, 1978 CCH OSHD ¶23,097 (No. 76–2834, 1978) (gas tanks that are located in a position where they are used intermittently are not in storage).

Item 61—29 C.F.R. § 1910.309(a)[27]

The Secretary alleges that Pratt & Whitney failed to guard against accidental contact the live parts of certain electrical equipment operating at 50 volts or more. Guarding is required by Article 110–17[28] of the National Electrical Code, NFPA 70–1971, ANSI C1–1971 (Rev. of C1–1968). This item contains nineteen subitems.

Subitems (a) and (e). Both subitems concern electrical outlet boxes with missing ‘knockout’ caps. Knockouts are coin-shaped pieces of metal that cover the circular holes through which wires or cords are fed into outlet boxes. Because the knockout caps were missing, employees had access to the live parts inside the outlets. Compliance officer Terroux, testifying about subitem (a), said that exhibit C–144 shows a hoist pendant control with three knockouts missing from its flush mount receptacle. The receptacle contained the on/off switch for control of the hoist. The CO also testified that the switch was located at about eye level and contained a bare terminal wire visible through the center knockout. The voltage at the switch exceeded 100 volts.

Union representative Gilbert testified that he also observed the missing knockout on the switch and the exposed live wire located about one inch into the switch box. He also testified that a person operating a hoist must hold the hoist with one hand and the pendant box with the other. Because the operator’s eyes are focused on the material he is attaching to the hoist, Gilbert testified, the operator must reach for the dangling pendant box with his free hand and operate its switch or buttons by feel.

Compliance officer Stanton, testifying about subitem (e), said that exhibit C–97 shows a hoist with a metal box switch pendant that had one knockout missing from its base and bare wires in the box. The voltage exceeded 50 volts. He also testified that it would be easy for anyone grasping the box to have his finger pass two inches through the knockout hole and touch the live wires inside the box.

Judge Furcolo affirmed subitems (a) and (e). He found that the knockouts were missing, that live parts were exposed within the outlet boxes, and that the voltages in the boxes exceeded 50 volts. He also emphasized that because the boxes were pendant and not fixed any employee operating them could, without difficulty, accidentally put a finger into the knockout holes and get shocked.

Pratt & Whitney argues that it cannot be penalized for intentional conduct and that an employee would have to intentionally insert a finger into the knockout holes in order to get shocked.

We affirm subitems (a) and (e). The evidence supports the judge’s finding that any employee could accidentally put a finger into the empty knockout holes of the outlet boxes and be shocked by the live parts within. The violation is not predicated on possible deliberate misconduct by an employee but on P & W’s failure to adequately guard live parts as required by the standard.

Subitem (j). Compliance officer Hatcher testified that the 110-volt raceway[29] along the front side of a table near lathe number 292349 in department 2320 was broken. He testified that the break exposed bare terminal ends at an electrical outlet on the raceway. He also testified that an employee could get shocked from contact with the bare terminal ends while plugging electrical tools into the outlet box unless the employee was very careful. Exhibit C–125 shows the broken raceway and plug.

P & W representative Cote testified that employees positioned themselves right up against the table while working there with metal tools and equipment. He testified that the face plate belonging on the bench outlet was missing, but that all the involved wires were insulated and that an employee would have to work ‘real hard’ to touch exposed terminal ends.

Judge Furcolo, finding that the CO’s testimony about the presence of bare terminal ends was not contradicted and finding that accidental contact with the exposed terminal ends was probable, affirmed subitem (j).

Pratt & Whitney argues for vacation on the basis that the CO’s testimony was contradicted by Cote’s.

We agree with the judge that the evidence establishes noncompliance with the cited standard. Cote did not contradict the CO’s testimony about the presence of bare terminal ends. Indeed, Cote’s testimony tends to indicate that employees were exposed to a shock hazard because they worked right up against the table with the broken raceway. Accordingly, subitem (j) is affirmed.

Subitem (m). Compliance officer Hatcher testified that he observed wires, the ends of which were not completely taped, in an open junction box of 220 volts. The box, pictured in exhibit C–127, was about seven feet above the floor and near machine 501051 in department 2963. The CO also testified that a person could reach up to the box, inadvertently touch the wires, and receive a shock. Pratt & Whitney admits that two electrical boxes on machine 501051 were not fitted with covers. P & W representative Cote admitted that the junction box shown in C–127 was not covered, but stated that there were no exposed live parts in the box.

Judge Furcolo noted that Cote’s testimony and that of the CO appeared to conflict. He found, however, that Cote never specifically contradicted the CO’s testimony about the wires not being completely taped. The judge, therefore, affirmed subitem (m).

Pratt & Whitney argues that the CO’s testimony about being able to see bare wires in a junction box seven or eight feet above the floor was incredible. P & W also argues that even if there were live parts in the junction box, the parts would not expose employees to injury because the box was located so high above the floor.

Acting Chairman Barnako and Commissioner Cleary affirm subitem (m). They conclude that the judge properly based his finding of a violation on the fact that Cote’s testimony had not contradicted the more specific testimony of the CO that the ends of the wires were not completely taped. They also find that the judge properly accepted the CO’s opinion testimony that an employee reaching a hand over his head could get shocked upon contact with the partially bare wires in the box. Additionally, Article 110–17(a)(4) of the NEC, note 28 supra, states that the live parts of electrical equipment are guarded if they are elevated at least eight feet above the floor. Judge Furcolo credited the CO’s testimony here that the junction box was only about seven feet above the floor.

Commissioner Cottine would vacate subitem (m). He finds that the testimony offered by Hatcher and Cote is in conflict and concludes that there is no basis in the record to review the judge’s implied credibility finding in favor of CO Hatcher. See Asplundh Tree Expert Co., 78 OSAHRC 109/A2, 7 BNA OSHC 2074, 1980 CCH OSHD ¶24,147 (No. 16162, 1979). He would accordingly conclude that the Secretary has not proven the violation by a preponderance of the evidence.

Subitem (p). Compliance officer Hatcher testified that there was a broken live wire with a switch attached in department 2963 at machine 2391. The wire carried 220 volts. Exhibits C–128 and C–129 show the wire. Pratt & Whitney representative Cote testified that although the outer jacket was pulled away from the cord grip, there was not any section of bare wire exposed because the wires were covered with an inner layer of insulation. Judge Furcolo affirmed the subitem. He found that the aforementioned testimony and exhibits established that the wire was broken and exposed.

Pratt & Whitney argues for vacation on the basis that Cote was a more credible witness than the CO.

Because the Commission is unable to discern any broken live wire in the aforementioned exhibits, we do not agree with the judge that the exhibits corroborate the compliance officer’s testimony. Acting Chairman Barnako and Commissioner Cleary would affirm this subitem, however, because the judge impliedly credited the testimony of the CO over that of Cote in finding the violation, and there is no basis in the record to reject that finding. See Williams Enterprises, Inc., 78 OSAHRC 80/D12, 6 BNA OSHC 1986, 1978 CCH OSHD ¶ 23,064 (No. 76–1801, 1978). Commissioner Cottine would vacate subitem (p) because the judge’s decision contains no basis for review of the judge’s implied credibility finding, and the evidence therefore does not preponderate in favor of finding a violation. See Asplundh Tree Expert Co., supra.

Subitems (r) and (s). Compliance officer Cavalieri testified with respect to subitem (r) that the interlock handle had broken off the panel box at broaching machine 506866 on column No. p–41. The hazard was that more than 400 volts of power was supplied to the machine and that the power could not be turned off without the handle. Union representative Joseph corroborated the CO’s testimony. Joseph and union representative Gilbert also stated that employees would routinely go into electrical panel boxes for a variety of unauthorized reasons. The employees had, however, been told not to go into any electrical boxes shortly after a fatality that occurred on April 11, 1975, when an employee who opened an electrical box was electrocuted.

With respect to subitem (s), the CO testified that the power could not be turned off machine 101182 because the interlock handle from the panel box there was missing as well. P & W admitted that the handles were broken or missing from the electrical panels of machines 506866 and 101182. Judge Furcolo affirmed subitems (r) and (s), finding that each panel box had a broken or missing part and that the boxes were not guarded against accidental contact.

Pratt & Whitney advances several arguments in behalf of its position that subitems (r) and (s) should be vacated. P & W states that these arguments are also applicable to the panel boxes listed in the citation as subitems (w), (x), (y), (z), (aa), (bb), (cc), (dd), (ee), (gg), (ii) and (jj) of item 61 and discussed below. P & W states first that the panel boxes are electrical distribution boxes associated with metalworking machine tools and that he standards governing metalworking machine tools[30] are found in a standard published by the National Fire Protection Association, NFPA No. 79, not in the National Electrical Code (‘NEC’). Chapter 160 of NFPA No. 79, entitled ‘Control Enclosures and Compartments,’ is directed at interlocks and reads:

16–13. Interlocks. All door(s) which permit access to live parts operating at 50 volts or more shall be so interlocked that the door(s) cannot be opened unless all power is disconnected.

Note—Means may be provided for qualified persons to gain access without removing power, if the interlocking is reactivated automatically when the door(s) is closed.

Pratt & Whitney states that ‘(s)ince § 1910.309(a) adopts only certain portions of the National Electric Code and none of NFPA No. 79, it is apparent that the Respondent cannot be found to be in violation of § 1910.309(a) for alleged deficiencies with respect to electrical panel boxes on metal working machine tools.’

Pratt & Whitney’s second argument is that even if Chapter 160–13 had been adopted by section 1910.309(a), there still would not be a violation here because neither NFPA No. 79 nor the NEC require electrical panel boxes to be bolted or locked. Instead, P & W argues, the basic protective device specified is an interlock which shuts off power before a panel box door can be opened but also permits power to be reactivated by a qualified person when the door is opened. P & W contends that all the cited panel boxes that contained relays were equipped with the interlocks specified in Chapter 160–13, NFPA No. 79.

The third argument made by P & W is that even if Article 110–17 of the NEC is applicable, the Secretary did not prove employee exposure. With respect to subitem (r), P & W asserts the compliance officer testified that he did not determine whether the door to the panel box cited in that subitem could be opened without a handle. With respect to the panel box in subitem (s), P & W alleges the CO testified that it would take a special instrument to open the door to that box. Since it would have taken an intentional rather than an accidental act to open either of these two doors and gain access to the live parts within, P & W argues, there can be no violation.

The Commission rejects the argument that P & W cannot be found in noncompliance with section 1910.309(a) because a more specific standard, NFPA No. 79, is applicable to P & W’s panel boxes. The National Fire Protection Association is a private organization, and, absent promulgation by the Secretary pursuant to the procedures in Section 6 of the Act, 29 U.S.C. § 655, an NFPA standard cannot preempt the application of a duly promulgated OSHA standard. Diebold, Inc., supra.

Commissioners Cleary and Cottine agree with Pratt & Whitney, however, that Chapter 160–13 of NFPA No. 79 provides appropriate criteria for determining whether the panel boxes complied with the cited standard. Article 110–17(a) of the NEC[31] permits guarding of live electrical parts by approved cabinets or other forms of approved enclosures. In Article 100 of the NEC, the word ‘approved’ is defined as ‘(a)cceptable to the authority enforcing this Code.’ This definition, read alone, gives little guidance as to the requirements panel boxes must meet to be approved. The Commission has held, however, that even if the words of a standard are broad, the standard ‘can acquire meaning when read together with other standards or codes and industry custom.’ Gold Kist, Inc., 79 OSAHRC 93/C8, 7 BNA OSHC 1855, 1859–60, 1979 CCH OSHD ¶23,998 (No. 76–2049, 1979).

As Pratt & Whitney points out, a private standard, NFPA No. 79, contains criteria for preventing accidental contact with the live parts in electrical panel boxes. Commissioners Cleary and Cottine conclude that the criteria set forth in that standard are appropriately applied under Article 110–17 of the NEC. The NFPA standard requires that the door of a panel box be interlocked so that the door cannot be opened unless the power is disconnected. It also contains a provision for qualified persons to gain access without removing the power. This latter provision, however, is consistent with Article 110–17 of the NCE, which generally contemplates that live parts must be accessible to qualified persons. Commissioners Cleary and Cottine therefore conclude that a panel box, to comply with Article 110–17 of the NEC, must have a properly functioning interlock that shuts off power to the exposed parts inside the box when the door is opened. The box may also contain a means whereby a qualified person can restore the power when the door is open as long as the interlock is reactivated automatically when the door is closed.

Acting Chairman Barnako agrees that a standard is not necessarily unenforceable simply because it is broadly worded. Gold Kist, Inc., supra (dissenting opinion). However, a standard must provide some guidance as to its proper interpretation. In this case, an electrical panel box meets the requirement of the cited standard only if it is ‘acceptable to the authority enforcing (the standard).’ On its face, this gives unbridled discretion to the Secretary or the Commission to determine what characteristics panel boxes must have in order to comply. Acting Chairman Barnako does not agree with his colleagues that this problem can be cured by referring to other standards to develop appropriate criteria. While such a course is appropriate when a standard provides some guidance as to its requirements, a standard that provides no guidance at all cannot, in Acting Chairman Barnako’s view, be read to contain objective criteria simply because other standards dealing with the same subject exist. The Secretary has the power to promulgate standards under the Act, and Acting Chairman Barnako would not permit him to, in effect, enforce unpromulgated private standards through citations alleging violations of standards that themselves provide no notice of the precautions they require. Accordingly, Acting Chairman Barnako would not attempt to establish the criteria that electrical panel boxes or other enclosures must meet in order to be ‘approved.’ Acting Chairman Barnako would vacate all the subitems within item 61 that involve live electrical parts protected within a panel box or other enclosure. He would not inquire whether the boxes or enclosures were interlocked in some manner.

Commissioners Cleary and Cottine would affirm subitems (r) and (s). The handles that normally were used to open the panel boxes were broken, thus permitting the boxes to be opened without activating the interlocks that would shut off the power. The boxes therefore did not have properly functioning interlocks. Commissioners Cleary and Cottine also reject both P & W’s argument that there was no employee exposure to the live parts and its related argument that it would take an intentional act to open the doors of the boxes. Gilbert’s testimony establishes that unqualified employees routinely entered panel boxes for a variety of unauthorized reasons, such as to store their lunches, clothing, or tools or to activate the reset buttons in the panel boxes.

Acting Chairman Barnako would vacate subitems (r) and (s) because the live parts were guarded by their enclosure within panel boxes, and the standard cannot be read to require additional precautions for the reasons set forth above.

Subitem (w). Compliance officer Terroux testified that one of the electrical control panel box doors for a grinding machine in department 2318 was open. The panel box is pictured in exhibit C–156. Although the panel box was equipped with an interlock device, the CO testified that there were still live parts within the box with 440 volts running through them. At the same machine, the CO also observed an energized junction box with its cover off and employees working in the area. The junction box is depicted in exhibit C–157.

Union representative Gilbert also testified that the above mentioned panel box door was open. He further testified that the Cincinnati grinding machine which the box activated was running at the time. Gilbert stated that there were no indications, like tags or an electrical cart, that maintenance work was being performed on either the panel box shown in C–156 or the junction box shown in C–157, but that both boxes were open and energized. P & W representative Kershaw testified the electrical foreman told him that neither box was energized and that the grinding machine was not running because maintenance work was being performed on it.

Judge Furcolo affirmed subitem (w). He found that the Secretary’s testimony about the panel box being open and the junction box being uncovered was uncontradicted. He also found that, since P & W had asserted the defense, it should have, but did not, produce its electrical foreman to testify that maintenance work was being performed on the panel box. He then credited the testimony of the Secretary’s witnesses that the panel box was energized and the machine was running.

Pratt and Whitney argues that there was a conflict in the testimony with respect to whether the power was on or off. It states that there was no dispute about the panel box being equipped with an interlock device, and that therefore if the door was open and the power was off, only an intentional act by a qualified person could have caused the parts in the box to have become energized. P & W further states that in such circumstances it was inconceivable for Judge Furcolo to disbelieve Kershaw’s testimony that qualified electricians were working on the box.

We affirm subitem (w). As the judge indicates, there was no dispute about the panel box door being open and the junction box cover being off. But whereas P & W witness Kershaw only introduced hearsay evidence about the panel box not being energized, the CO’s testimony about the box being energized was corroborated by the union representative’s testimony to the same effect. Further, both of the Secretary’s witnesses testified that there was no one in the area working on the panel box. One of those witnesses, the union representative, also testified there were no indications that an electrician was working on the box.

Subitem (x). Compliance officer Terroux testified that in department 2243 he observed the panel box to machine 175390 shown in exhibit C–158. The box was not locked, was not equipped with an interlock system, and had live connections inside it of over 100 volts. Judge Furcolo, finding that the CO’s testimony was essentially uncontroverted, affirmed the subitem.

Pratt & Whitney argues that the evidence does not show exposure of employees to accidental contact with live parts because the box did not contain any overload relay switches, and machine operators only entered boxes with overload relay switches.

Commissioners Cleary and Cottine affirm subitem (x) because the record establishes that employees and access to the unlocked, energized panel box which was not equipped with an interlock. Acting Chairman Barnako would vacate because the live electrical parts were enclosed in the panel box and he would not base the violation on the failure of the panel box to be ‘approved.’

Subitems (y) and (z). Compliance officer Hatcher testified that in department 2963 he observed the two panel boxes pictured in C–131, No. 501074, and C–132, No. 101246. The boxes were not locked and the interlock system on one of them was not working. The boxes each carried 440 volts.

Union representative DeRoy testified that the panel boxes were unlocked and could be opened by the turn of a handle. He also testified that the boxes and separate power handles that remained in the ‘On’ position after the doors were opened. P & W representative Cote testified that the control box pictured in C–131 was equipped with an interlocking device and that, therefore, when the panel box was open there were no exposed live parts. Cote also testified that the interlock engaged a switch inside the box and that the power was cut off from all points below the switch in the box. He further testified that even if the box door was open employees could not have gotten shocked from contact with the bus bars above the switch because the bus bars should have been insulated.

Judge Furcolo affirmed subitems (y) and (z). He found that ‘the interlock on each box was either not working or the box opened simply by turning the handle. . . .’ He also found that each panel had live parts in excess of 50 volts and was not properly guarded against accidental contact.

Pratt & Whitney argues that its representative testified both boxes had functioning interlocks and that his testimony was more credible than that of the Secretary’s witnesses.

Acting Chairman Barnako and Commissioner Cottine vacate subitems (y) and (z). Acting Chairman Barnako points out that the live electrical parts were enclosed in panel boxes and that consequently he would not base a violation on the boxes not being ‘approved.’ Commissioner Cottine concludes that a violation was not proven. Although the judge made a credibility finding that the interlocks did not work properly, the judge failed to explain the basis for his finding and Commissioner Cottine therefore does not accept the finding. See Asplundh Tree Expert Co., supra. Because panel boxes with properly functioning interlocks satisfy the requirements of the standard and because the record fails to establish that the interlocks did not function properly, Commissioner Cottine determines that the Secretary failed to sustain his burden of proof.

Commissioner Cleary would affirm subitems (y) and (z). He notes that in finding that the interlocks were not working properly, the judge impliedly credited the testimony of Hatcher and DeRoy over that of Cote, and he would accept the judge’s finding. Based on that finding, P & W failed to comply with the guarding requirements of Article 110–17 of the NEC because the boxes were not approved.

Subitems (aa), (bb), (cc) and (dd). Compliance officer Cavalieri testified that the panel box to machine 506272 at column Q–37 was unlocked. The box, cited in subitem (aa) is pictured in exhibit C–118. Although the box was equipped with a functioning interlock that cut off the power when the door was open, the CO testified that the power could be reactivated with the door open by maneuvering certain parts within the box. The box was posted with a ‘Danger, Keep Out’ sign.

The CO testified that the panel box for machine 175772 in department 2551 was not locked. The panel box is cited in subitem (bb). The CO also testified that the panel box to machine 505978, cited by subitem (cc), was also unlocked. The box was at column N–33 and was equipped with an interlock; it is pictured in exhibit C–119 with a ‘Danger, Keep Out’ sign posted on it. The compliance officer also testified that the panel box to machine 101869, cited in subitem (dd), was unlocked. The box had a functioning interlock and was located at column S–37. It is pictured in exhibit C–120.

The judge affirmed violations of subitems (aa), (bb), (cc) and (dd). He held that the CO’s testimony was uncontroverted and that the panel boxes were not properly guarded against accidental contact.

Pratt & Whitney argues that the boxes were equipped with interlocks and that, even though the CO was concerned about the power being reactivated with the doors to the boxes open, Chapter 160–13 of NFPA No. 79 specifically permits that to be done.

We vacate subitems (aa), (bb), (cc), and (dd). As discussed above, Commissioners Clearly and Cottine interpret Article 110–17 of the NEC to permit live parts to be guarded by enclosure in a panel box equipped with an interlock which shuts off the power to the exposed parts when the box is opened. The interlock system of the box may also permit the parts to be reenergized by a qualified person when the box is open. The panel boxes cited in these subitems met these requirements. Acting Chairman Barnako would vacate these subitems because the live electrical parts were enclosed in panel boxes and thereby conformed to the requirements of Article 110–17.

Subitems (ee) and (gg). Compliance officer Stanton testified that the electrical control box to machine 506073 in department 2036 was not locked. The box, cited in subitem (ee), is pictured in exhibit C–99; it contained live parts carrying up to 400 volts. The box had a functioning interlock. Union representative Neal testified that the panel box was open and contained metallic input wires that were not covered. He observed the CO test the box for live parts and heard the testing equipment make a sound indicating that parts in the box were live. P & W representative DuPre testified that the panel box had an interlock switch, and that there were no live parts below the switch on the incoming side but that it was difficult to tell if all the parts in the box were completely covered.

The compliance officer also testified that the panel box to machine 175941 in department 2034, cited in subitem (gg), was not locked. The box, pictured in exhibit C–100, carried 400 volts that would not be completely shut off by an interlock. Union representative Neal also testified that the box was unlocked. Although the box was equipped with an interlock, Neal stated that live voltage was still present in the box with its door open because the interlock had a part missing. Pratt & Whitney representative DuPre testified that he did not know if the interlock switch on this box was working, and that during the course of the inspection he did observe one or two instances where interlocks did not work.

Judge Furcolo affirmed subitems (ee) and (gg). He found that the Secretary’s testimony was essentially uncontroverted and that the boxes were not properly guarded against accidental contact.

P & W argues that the subitems should be vacated because the interlocks for both boxes were operational.

Commissioners Cleary and Cottine affirm subitems (ee) and (gg). Although the panel boxes were equipped with interlocks, the interlocks did not fully deenergize the boxes. P & W representative DuPre did not testify to the contrary. Acting Chairman Barnako would vacate because the live parts were enclosed by the panel boxes.

Subitems (ii) and (jj). Compliance officer Stanton testified that the panel box pictured in exhibit C–101 had provision for a lock but was not locked. This ‘B’ panel, cited in subitem (ii), was located in department 2431. A ‘Danger, High Voltage’ sign was posted on the door to the box. Although the box had an interlock, the interlock did not fully deenergize the box. The CO was told by an electrician in the area that over 50 volts remained after the interlock was opened.

Compliance officer Stanton also testified that the panel box cited in subsection (jj) was similar to the other control boxes he observed. It was not locked and not fully deenergized by its interlock. Live parts were around the box’s reset button and pressing the button would reactivate the machine controlled by the panel box. The citation alleged that the panel box was in department 2033 and that it controlled machine number 109860.

P & W representative Dupre testified that the panel box cited in subitem (ii) was equipped with an interlock that shut the machine down when the panel box door was opened. He also testified, however, that the box was unlocked and could be reenergized with the door open.

Judge Furcolo, finding that the CO’s testimony was essentially uncontradicted as to subitem (ii) and uncontradicted as to subitem (jj), affirmed both subitems. He ruled that the panel boxes had live parts in excess of fifty volts, were not properly guarded, and were hazardous to employees.

Pratt & Whitney argues that subitems (ii) and (jj) should be vacated because there is no provision either in the National Electric Code or NFPA No. 79 for the doors of electrical boxes to be locked or bolted, and because the capacity to reenergize an electrical box is in conformity with Chapter 160–13 NFPA No. 79 as cited above.

Commissioners Cleary and Cottine affirm subitems (ii) and (jj). The interlocks on the panel boxes did not function properly because they did not completely shut off the power when the doors were opened. Accordingly, the panel boxes did not comply with Article 110–17 of the NEC. Acting Chairman Barnako would vacate because the live electrical parts were enclosed by the panel boxes.

Penalty for Item 61

The Secretary had proposed an $80 penalty for item 61. Judge Furcolo assessed a penalty totaling $14,000 for this item. He assessed $1,000 each for the panel box violations found in subitems (r), (s), (w), (x), (y), (z), (aa), (bb), (cc), (dd), (ee), (gg), (ii) and (jj). He did so after finding that Pratt & Whitney should have known about the practice of unqualified employees going into electrical panel boxes to start machines, reset controls, and store personal items. A union representative had continually protested against such conditions from March 4, 1975 to April 11, 1975. On the latter date, as mentioned above, an unqualified employee was electrocuted after reaching into an electrical control panel. Pratt & Whitney’s investigation report on the accident concluded that the primary cause of the accident was unauthorized entrance into the electrical panel. A secondary cause was the failure to post a sign limiting access to the panel to authorized personnel.

The judge assessed separate penalties for the different subitems of item 61 after interpreting the words ‘each such violation’ in sections 17 (b) and (c) of the Act[32] to mean that a penalty could be imposed for each instance of noncompliance with a cited standard grouped within a single citation item. In the event that his interpretation proved to be erroneous, however, he indicated he would assess a total penalty of $1000 for all of the affirmed subitems of item 61.

Pratt & Whitney argues that it has already been penalized for the electrocution death of its employee. P & W asserts that it was cited for a violation of section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), after that employee’s death and paid the proposed $700 penalty when it elected not to contest the citation. Further, P & W argues that it abated the earlier cited violation when it immediately advised all unqualified employees not to enter electrical boxes. P & W also contends that a written rule prohibiting unauthorized entry into electrical control boxes appeared in its employee handbook long before the fatality.[33]

The Commission will not consider each subitem separately for penalty assessment purposes. The Secretary chose to combine a number of violations into one item and to propose a single combined penalty. He did so even though he knew that an employee had died by electrocution after unauthorized entry into an electrical panel box and even though willful noncompliance might have been alleged here. For the Commission to now separately penalize P & W for each separate instance of noncompliance with section 1910.309(a) would greatly increase the $1000 maximum that P & W would normally be subjected to for failing to comply with a single standard. Under the circumstances of this case, the Commission will not sanction separate penalties for separate instances of noncompliance.

The Commission has permitted the Secretary to amend his pleadings to seek a higher penalty than he originally proposed. P.A.F. Equipment Co., 79 OSAHRC 18/A2, 7 BNA OSHC 1209, 1979 CCH OSHD ¶23,421 (No. 14315, 1979), aff’d, 637 F.2d 741 (10th Cir. 1980); Long Manufacturing Co., N.C., 79 OSAHRC 50/D6, 4 BNA OSHC 1154, 1975–76 CCH OSHD ¶20,658 (No. 9994, 1976), aff’d, 554 F.2d 903 (8th Cir. 1977). In those cases, however, the amendment placed the employers on notice that the Secretary sought a higher penalty than he originally proposed, and the parties had an opportunity to fully litigate the question. Since the Secretary did not seek such an amendment here,[34] P & W was entitled to assume at the hearing that the maximum penalty to which it could be subjected for noncompliance with section 1910.309(a) was $1000. Indeed, P & W may well have refrained from presenting further evidence relevant to the penalty assessment factors on the belief that $1000 was its maximum possible liability.

The Commission assesses a total penalty of $1,000 for item 61.[35] Although the Secretary originally proposed a penalty of only $80 for this item, the Commission agrees with the statement in the Secretary’s posthearing brief to the judge that the $80 penalty proposed ‘is inappropriately low and should be substantially raised.’ Pratt & Whitney is a large employer with about 4,500 employees at the North Haven plant. P & W has received several citations which have become final orders. Also, although item 61 is categorized as other than serious by the Secretary, the gravity of the violation is high because employees could be killed upon contact with live parts in the electrical control boxes.

Penalties for All Other Affirmed Items

Judge Furcolo assessed the following penalties for the other items affirmed in his decision:

Item	Penalty
1	$30
2	0
3	15
13	80
21	25
22	0
23	60
32	35
35	35
40	50
54	30

Pratt & Whitney has not directly disputed the appropriateness of these penalty figures. The Commission, after a consideration of the penalty factors set forth in section 17(j) of the Act,[36] determines that the penalties assessed by the judge are appropriate penalty amounts for each of the items and subitems that the Commission by this decision affirms.

By this decision, we affirm the following items and subitems of the other than serious citation: 1(a), 1(c), 1(d), 1(i), 2(b), 3(e), 13, 21(b), 22, 23(c), 23(d), 23(f), 32(a), 32(b), 40(f), 40(h), 40(i), 40(j), 40(k), 40(l), 40(m), 40(n), 40(o), 40(r), 40(v), 40(bb), 40(cc), 54(b), 61(a), 61(e), 61(j), 61(m), 61(p), 61(r), 61(s), 61(w), 61(x), 61(ee), 61(gg), 61(ii), and 61(jj). We amend item 35 to allege noncompliance with 29 C.F.R. § 1910.23(c)(1) and affirm item 35 as so amended. The following subitems are affirmed as de minimis violations: 40(a), 40(b), 40(c), 40(p), 40(q), 40(t), 40(u), 40(x), and 40(z). The following subitems are vacated: 1(e), 1(f), 1(g), 1(h), 3(a), 23(a), 23(b), 61(y), 61(z), 61(aa), 61(bb), 61(cc), and 61(dd). A total penalty of $1360 is assessed. SO ORDERED.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: APR 27, 1981

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 13401
PRATT & WHITNEY AIRCRAFT,
Respondent.

June 21, 1976

APPEARANCES:

For Complainant:

Jerrold Solomon, Esq.

Joan Entmacher, Attorney

For Respondent:

Joseph C. Wells, Esq.

John A. McGuinn, Esq.

Furcolo, Judge:

This is a proceeding pursuant to the Occupational Safety and Health Act of 1970, as amended (29 U.S.C., § 651 et seq.) hereinafter called the Act. The Complainant alleges that the Respondent has violated § 5(a)(2) of the Act (§ 654) by not complying with the Occupational Safety and Health Standards listed below.

The Respondent is a corporation engaged in the business of manufacturing aircraft parts, and its business affects the Commerce of the United States.

The Respondent’s worksite at 415 Washington Avenue, North Haven, Connecticut, was inspected by the Occupational Safety and Health Administration (hereinafter called OSHA) on April 15–17, 1975.

On April 29, 1975, the Respondent was charged in Citation No. 2 with the non-serious violation of 68 items. Most of the items were subdivided by alphabetical letters into specific locations or descriptions to total some 281 allegations of failure to comply with the various standards cited.

A Notice of Proposed Penalties for a total of $1,265 was also issued to the Respondent on April 29, 1975.

On May 20, 1975, the Respondent filed a Notification of Intent to contest all items of Citation No. 2, and all the penalties proposed.

The hearing began on January 13, 1976, and was concluded on January 28, after testimony by some 18 witnesses and the introduction of almost 200 exhibits. The attorneys on both sides were officially commended for the excellence of their preparation of this extremely complicated case because, without such diligence on their part, the hearing would have taken much longer . . . Transcript, Vol. XI, pp. 54.

Before and during the hearing, various items were settled either by the Complainant withdrawing the charge or the Respondent withdrawing its Notice of Contest. There were other items that, practically, were determined by admissions of the Respondent. As a result, evidence was not introduced on all 68 items of the citation; and the decision reflects that several of the originally contested items have been affirmed because of the Respondent’s withdrawal of Notice of Contest, and some have been vacated by virtue of the withdrawal by the Complainant.

There were some instances where, by amendment, the allegation was transferred from one numbered item to another, resulting in effect in the deletion or withdrawal of the original item. By amendment, Items 44–A and B became Items 40–BB and CC, and Item 44 was deleted; and, by amendment, Items 45–A and B became Items 40–DD and EE, and Item 45 was deleted.

Because of such action by the parties, the following items were withdrawn by the Complainant: Items 9–B, 11, 13 (insofar as it referred to Respondent’s Department 2729/2153), 14, 16, 17, 20, 24–A, 24–B, 29–B, 29–C, 40–D, 40–E, 40–s, 41, 47–e, 53–a, 55, 56, 57, 58, 60, 61–l, 61–o, 61–q, 61–t, 65, 66, 67, 68–B, 68–C, 68–D, and 68–H . . . Vol. I, pp. 6, 7.

Because of the Respondent’s withdrawal of its Notice of Contest, the following items and related penalties will be affirmed: Items 4, 6–A, 7, 8, 9–A, 10, 15, 18, 19, 24–C, 24–D, 25, 26, 27, 28, 29–A, 31, 34, 36, 42, 43, 47–A, 47–B, 47–C, 47–d, 47–f, 51, 53–b, 54–c, 59, 61–hh, 61–mm, 63–c, 68–a, 68–e, 68–f, and 68–G, . . . Vol. I, pp. 7.

By amendment, Items 44 and 45 were deleted (both items being transferred to Item 40 . . . Vol. I, pp. 32 and Vol. II, pp. 3.

The substance of the contested standards (all in 29 C.F.R. 1910) together with the proposed penalties are:

STANDARD PROPOSED PENALTY

Item Number 1, Standard .22(a)(1) $35.00

‘All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly . . .’

Item Number 2, Standard .22(a)(2) -0-

‘The floor of every workroom shall be maintained in a clean and, so far as possible, a dry condition . . .’

Item Number 3, Standard .22(b)(1) 45.00

‘Where mechanical-handling equipment is used, sufficient, safe clearance shall be allowed for aisles . . . through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear . . . with no obstruction . . . that could create a hazard’

Item Number 5, Standard .23(c)(1) 35.00

Opensided floor or platform four feet high shall be guarded by a standard railing

Item Number 6, Standard .24(b) -0-

‘Fixed stairs shall be provided for access from one structure level to another where operations necessitate regular travel between levels . . . also . . . where access to elevations is daily or at each shift for such purposes as gauging . . . or for which purposes the carrying of tools or equipment by hand is normally required. (It is not the intent of this section to preclude the use of fixed ladders for access of elevated tanks . . . where the use of fixed ladders is common practice) . .

Item Number 12, Standard .37(q)(1) -0-

‘Exits shall be marked by a readily-visible sign . . .’

Item Number 13, Standard .94(d)(9)(V) 80.00

‘Whenever there is a danger of splashing . . . employees so engaged shall . . . wear . . . chemical goggles or an effective face shield . . .’

Item Number 21, Standard .108(c)(2)(i) $50.00

‘Dip tanks of over 150 gallons . . . or ten square feet in liquid surface area . . . shall be equipped with . . . overflow pipe . . . Smaller dip tanks . . . also . . . where practical’

Item Number 22, Standard .108(c)(3)(i) -0-

‘Dip tanks over 500 gallons . . . shall be equipped with bottom drains . . .’

Item Number 23, Standard .132(a) 80.00

‘Protective equipment . . . for . . . extremities . . . shall be . . . used . . . whenever it is necessary . . .’

Item Number 30, Standard .157(d)(4)(V)(iii) -0-

Fire extinguishers shall have a test-date tag

Item Number 32, Standard .176(b) 35.00

‘Storage of material shall not create a hazard. Bags, containers . . . and so forth . . . shall be stacked . . . so that they are stable and secure . . .’

Item Number 33, Standard .176(c) -0-

‘Storage areas shall be kept free from accumulation of materials that constitute hazards from tripping, fire . . .’

Item Number 35, Standard .178(m)(12)(i) 35.00

Whenever a truck is equipped with forks for lifting personnel, a safety platform shall be firmly secured to the forks.

Item Number 37, Standard .179(b)(5) -0-

‘The rated load of the crane shall be plainly marked on each side of the crane . . .’

Item Number 38, Standard .179(g)(1)(V) —0-

‘Pendant control boxes shall be . . . clearly marked for identification . . .’

Item Number 39, Standard .179(g)(5)(i) -0-

‘The power supply . . . shall be controlled by a switch . . . locked in the open position.’

Item Number 40, Standard .212(a)(1) $60.00

‘One or more methods of machine guarding shall be provided to protect . . . from hazards such as those created by point of operation . . . rotating parts . . . chips . .

Item Number 46, Standard .215(a)(2) -0-

The safety guard shall be properly mounted

Item Number 48, Standard .219(d)(1) 35.00

Pulleys shall be guarded

Item Number 49, Standard .219(e)(1)(i) -0-

Horizontal belts shall be enclosed

Item Number 50, Standard .219(e)(3)(i) -0-

‘Vertical . . . belts . . . shall be enclosed by a guard . . .’

Item Number 52, Standard .242(b) -0-

‘Compressed air shall not be used for cleaning except . . .’

Item Number 54, Standard .252(a)(2)(IV)(c) 65.00

‘Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (esp. oil or grease) a minimum distance of 20 feet . . .’

Item Number 61, Standard .309(a)

‘. . . National Electrical Code, NFPA 70–1971; ANSI Cl–1971 . .. shall apply to all electrical installations and utilization equipment: Article 110–17 Guarding of Live Parts (not more than 600 volts):

SUBSECTION A: Except as elsewhere required or permitted by this code, live parts of electrical equipment operating at 50 volts or more shall be guarded against accidental contact by approved cabinets or other forms of approved enclosures, or any of the following means:

1. By location in a room, vault, or similar enclosure which is accessible only to qualified persons;

2. By suitable permanent, substantial partitions or screens so arranged that only qualified persons will have access to the space within reach of the live parts. Any openings in such partitions or screens shall be so sized and located that persons are not likely to come into accidental contact with the live parts or to bring conducting objects into contact with them.

3. By location on a suitable balcony, gallery, or platform so elevated and arranged as to exclude unqualified persons.

4. By elevation at least eight feet above the floor or other working surface.

SUBSECTION B: In locations where electrical equipment would be exposed to physical damage, enclosures or guards shall be so arranged and of such strength as to prevent such damage.

SUBSECTION C: Entrances to rooms and other guarded locations containing exposed live parts shall be marked with conspicuous warning signs forbidding unqualified persons to enter.

STANDARD PROPOSED PENALTY

Item Number 62, Standard .309(a) (See Item No. 61, above) $50.00

Article 110–22 ‘Each disconnecting means . . . shall be legibly marked . . .’

Item Number 63, Standard .309(a) (See Item No. 61, above) -0-

Article 250–45(d) Metal parts of cord and plug-connected equipment which are liable to become energized shall be grounded in accordance with 250–45(d)

Item Number 64, Standard .309(a) (See Item No. 61, above) -0-

Article 250–45(d) Failed to provide a permanent and continuous path to ground

Stipulation on Penalties

The parties also stipulated that, for those items completely withdrawn by the Complainant, there will be no proposed penalty; but for those items where the Respondent has withdrawn its Notice of Contest, the proposed penalties will be as stated in the Notification of Proposed Penalties that was issued following the citations, except for Items 24 and 54. It was stipulated that the penalty for Item 24 would be $30 and $45 for Item 54 . . . Vol. I, pp. 8–10.

Motions

(1) The Respondent moved to quash Subpoena No. 2433 (calling for the production by the Respondent of over 400 current hourly job descriptions) and Subpoena No. 2434 (calling for the Respondent to produce OSHA forms 100–102 from January 1, 1971, to the present time).

The motion to quash Subpoena No. 2433 was denied and the motion to quash Subpoena No. 2434 was allowed insofar as it related to records prior to January 1, 1974 . . . Vol. I, pp. 12–28.

(2) The Complainant’s motion to amend the citation to delete Items 44–A and B and 45–A and B, and to add such items respectively to Item 40 as Items 40–BB, CC, DD, and EE was allowed. The Respondent was not prejudiced because the allowance of the motion did not in any way change the evidence that would be produced by the Complainant to prove the alleged violations . . . Vol. I, pp. 31–33, and Vol. II, pp. 3, 7.

(3) The Complainant moved for summary judgment against the Respondent on Items 1–B, 1–D, 1–E, 1–F, 1–G, 1–I, 3–A–E, 21–B, 22, 40, and 45, citing the Respondent’s Answers to the Complainant’s Requests for Admission. The Respondent objected, counsel for the Respondent stating that the Respondent planned to introduce evidence on the items. The motion for summary judgment was denied on the grounds that, regardless of the Respondent’s Answers to Requests for Admission, the Respondent still had the right to introduce evidence or submit arguments contesting the cited items . . . Vol. I, pp. 35–46. (In the decision itself, as hereinafter indicated, the Complainant prevailed in all the items that were the subject of this motion for summary judgement.)

(4) On August 28, 1975, the Respondent moved to consolidate this case with Docket No. 13591 on the grounds that there existed common parties and common questions of law and fact. The motion was denied on September 4, 1975.

(5) On Page 47 of the Complainant’s Brief (filed May 4, 1976), the Complainant ‘moves’ to amend by alleging a violation of Standard 29 CFR 1910.23(a)(2) in the alternative to the citation in Item 35 of a violation of 29 CFR 1910.178(m)(12)(i). Treating the language as a Motion to Amend, it is denied.

Rulings on Which Counsel Requested Review

During the hearing, the Respondent called for the production of various notes and papers prepared by the witness Stanton, one of the compliance officers who made the inspection for the Complainant. The Complainant objected to the production of any of said materials. Upon examination of the witness Stanton, it appeared that he had made the following notes or statements (described as indicated) during or after his inspection but had not reviewed any of such materials on the witness stand or in preparation for his testimony:

(1) ‘Rough notes’ made during the inspection.

(2) More formalized ‘transcribed notes’ made from the ‘rough notes’; the ‘transcribed notes’ were the basis for the citations recommended by him as a compliance officer.

(3) ‘Information requested by the Solicitor’ after the Respondent had filed a Notice of Contest to the citations.

(4) ‘The Department of Labor Form 1–C,’ which is the regular form for a statement made by the compliance officer pertaining to the inspection.

(5) Notes on the back of photographs taken during the inspection.

(6) Notes of ‘names of individuals’ in the Respondent’s plant.

It was ruled that, subject to in camera deletions to be made by the Administrative Law Judge relating to such matters as ‘privilege,’ ‘work product,’ ‘protection of employees,’ and similar exclusions, the Complainant must produce the materials described in Numbers 2, 4, and 5, above. Counsel for the Complainant were given an opportunity to recommend deletions they felt should be made, not waiving their objection to the order to produce.

I did not order the production of materials described in Nos. 1, 3, and 6 for the following reasons: the witness Stanton had testified, and I find as a fact, that the notes described in No. 1 had been destroyed immediately after he had prepared the material in No. 2; and the witness Stanton testified (and corroborated by the Complainant’s attorneys) and I find as a fact that the material in No. 3 had been prepared by the witness Stanton at the specific request of attorneys for the Complainant for their trial preparation after the formal complaint and answer had been filed; and the ‘names of individuals’ in No. 6 consisted of identified employees of the Respondent.

Both the Complainant and Respondent objected to my ruling, the Complainant on the ground that I had ordered the production of too much and the Respondent on the ground that I had ordered too little.

I stated to counsel that I would forward to the Review Commission the original and deleted versions of the materials that had been requested by the Respondent; and, in order to preserve the confidentiality of such material, it would be sent in a sealed envelope and not in the ‘excluded evidence’ envelope or as a part of the record. I asked the parties for any recommendations or suggestions of a different way to achieve the result of providing the Review Commission with the necessary documents without revealing their contents to anyone else, but neither party had any alternative suggestion.

The Respondent moved for an interlocutory appeal under Occupational Safety and Health Review Commission Rules of Procedure No. 75. I denied the motion on the ground that, although there is an important question of law where there is substantial ground for difference of opinion, an immediate appeal would not materially expedite the proceedings . . . Vol. III, pp. 36 and Vol. IV, pp. 10, 11.

The Respondent made similar requests for the ‘notes’ of the other witnesses who had made inspections in their capacities as compliance officers for OSHA. The rulings made and the procedures adopted by me for the ‘notes’ of the witnesses Cavalieri, Terroux, and Hatcher, were the same as those described for the witness Stanton . . . Vol. II, pp. 151–167; 167; Vol. III, pp. 15–17, 23–25; Vol. IV, pp. 5–9; Vol. V, pp. 17, 29, 30–41, 143–145; Vol. VI, pp. 3–6, 45–49, 57–68. The Respondent also requested the production of notes made on the back of photographs that had been taken by the witness Stanton . . . Vol. II, pp. 142–144. There was testimony, and I find as a fact, that such notes were made by the witness Stanton at the request of counsel for the Complainant after the Notice of Contest. I denied the Respondent’s request for production of such notes; however, when it was later agreed by counsel for both parties that counsel for the Complainant had earlier allowed counsel for the Respondent to inspect such photographs and the notes on the back, I then allowed the Respondent’s request for such notes. I did so on the ground that, even if such notes were privileged because made at the request of counsel for the Complainant, any such privilege had been waived by the earlier inspection the Complainant allowed the Respondent to make . . . Vol. III, pp. 49 and Vol. VI, pp. 45–49, 57–68.

The Complainant offered OSHA records 100 and 101 for the years from January 1, 1971, through April, 1975, as Exhibits for identification C–9 through C–64 and C–66. Those from January 1, 1974, through April, 1975 (Exhibits C–9–28), were admitted but those before January 1, 1974 (Exhibits for identification C–29–64 and C–66), were excluded on the objection of the Respondent. The witness DuPre had earlier been questioned on their authenticity and contents and that testimony was understood by the parties and me to constitute an offer of proof. Those excluded records showed various foot and toe injuries sustained during the years 1971 through 1973 by employees of the Respondent who were performing jobs similar or identical to those that were the subjects of the instant citations . . . Vol. II, pp. 73 and Vol. V, pp. 3, 4. Exhibits for identification C–29–64 and C–66 have been included in the file under the heading ‘Excluded Evidence.’

Evidence

In the April 15–17 inspection, the Respondent’s plant at North Haven, Connecticut, was divided into four quadrants, compliance officer Stanton taking the northeast quadrant; compliance officer Cavalieri the southeast quadrant; compliance officer Hatcher the northwest quadrant; and compliance officer Terroux the southwest quadrant. The various departments are indicated on Exhibit C–1. Stanton was accompanied by Charles DuPre, representing the Respondent, and Arnold Neal, representing the union. Cavalieri was accompanied by John Engle, representing the Respondent, and Edward Joseph, representing the union. Hatcher was accompanied by Wilfred Cote, representing the Respondent, and Joseph DeRoy, representing the union. Terroux was accompanied by Milton Kershaw, representing the Respondent, and Wayne Gilbert, representing the union.

Compliance officers Stanton, Cavalieri, Hatcher, and Terroux explained the procedure they would follow and asked the Respondent’s representatives to agree or disagree with any comments they would make on conditions in the plant . . . Vol. II, pp. 101; Vol. V, pp. 9, 148; Vol. VI, pp. 85. The compliance officers also made notes and took photographs.

The background of those representing the Complainant or the Respondent in the inspecting party follows:

John Stanton testified that he has been a compliance officer for three years, had several weeks of training in various courses at the Training Institute for Safety and Health Officers, including an electrical seminar for three days, and was in electronics maintenance for 23 years with the United States Air Force . . . Vol. II, pp. 98.

Sindo Cavalieri testified he has been a compliance officer for three years and was in the Safety Department of the New Haven Railroad for 25 years, the last ten as Chief in Charge of Safety . . . Vol. V, pp. 11.

Joseph Hatcher testified he has been a compliance officer for two years and was in the Motor Equipment Division of the General Services Administration for 13 years, and was employed by the Veteran’s Administration for five years and was in the military service for six and a half years . . . Vol. V, pp. 146.

Gordon Terroux testified that he has been with OSHA since 1972 and he is now in South Carolina monitoring that state’s safety program but, at the time of the inspection, he was a compliance officer in the Hartford, Connecticut, office. He was in the Air Force from 1969 to 1972 as Ground Safety Superintendent in an industrial installation that had every conceivable shop, including mechanical, engineering, sheet metal, electronics, and maintenance of electronics; and virtually every type of equipment was used there. He testified that he had also been a technician in Airborne Electronics and was responsible for safety as it related to airborne electronics . . . Vol. VI, pp. 78–82.

Charles DuPre testified he has been the Safety Engineer of the Respondent’s North Haven plant from 1957 through 1975; spends about 75% of his time on the factory floor; and is familiar with the work performed by the Respondent’s employees . . . Vol. II, pp. 63.

Milton Kershaw testified that he has been employed by the Respondent since 1960 as a safety engineer and has been the Respondent’s unit supervisor of safety engineering since August, 1975. He has a Bachelor of Science Degree in electrical engineering, has specialized in electrical safety for 15 1/2 years, and has worked with the National Electrical Code . . . Vol. IX, pp. 141.

Wilfred Cote testified that he has been employed by the Respondent as a safety engineer for over 25 years and had previously been an industrial nurse and a physical demands analyst . . . Vol. IX, pp. 3.

John Engle did not testify but he was identified as the Respondent’s personnel advisor . . . Vol. V, pp. 8.

At its North Haven plant, the Respondent has approximately 4,500 employees who regularly receive, handle, and work with goods which have been moved, and are moving across state lines in interstate commerce . . . Answer, Paragraph 1.

The Alleged Violations

Insofar as possible, the format of this decision will be to discuss the allegations item by item. However, in several instances where practically the same evidence applies to more than one item, they are considered together. There are also some instances where the standard cited made no reference of any kind to the existence of a hazard, thus raising the question of whether there can be a violation if the condition does not affect the health or safety of employees. For example, under Standard 1910.22(a), if we assume a situation where empty cans and clean trash are simply thrown into an unused corner, can that be a ‘violation’ if there is no evidence of ‘hazard’? Let us assume such a condition exists without any hazard from tripping or fire or other accident, sanitation and health are not even remotely affected, and the condition does not bother any employee and is not a nuisance or menace—can such a condition be found to be a violation of the Act merely because it is unsightly and disorderly? If the evidence merely discloses noncompliance with the exact words of the standard—‘all places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition’—but there is no ‘hazard,’ can a violation be found? Does the same reasoning follow in another standard [1910.108(c)(2)(i)] where the intent was clearly to prevent the hazard of fire, but the standard merely calls for an overflow drain without mentioning hazard, can a violation be found if the evidence discloses no hazard?

The 10th Circuit Court of Appeals touched on the subject in Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F (2) 864, when it considered Standard 29 CFR 1910.22(c), the pertinent words being: ‘. . . guardrails shall be provided to protect personnel from the hazards of open pits . . .’ The Court said: ‘The Review Commission also held that the Secretary was not required to show that a hazard existed in order to show noncompliance with the standard, since ‘the standard by its plain terms assumes the existence of a hazard with regard to open pits and does not require that a hazard be proven before noncompliance with its terms is established.’ Later on the Court continued: ‘. . . the Review Commission so held that a hazard, as such, need not be shown in order to show noncompliance with this particular standard. The standard presupposes the obvious, namely, that an open unguarded pit necessarily presents the hazard that someone may fall into it. We agree.’ And later: ‘. . . the Review Commission . . . determined that the hazard of someone tripping, slipping, or falling into the open service pit had a direct connection to employees’ safety.’

In the instant case (Pratt and Whitney Aircraft), the standards concerned with the question do not use the word ‘hazard,’ which may distinguish them from the standard involved in the Lee Way case cited above. (Concerning de minimis: if there be no hazard, trifling or otherwise, the legal ‘out’ of de minimis is neither consistent nor appropriate—in my opinion, at least.)

The instant case has at least two such possible violations. Since I have discovered conflict of opinion on the point without any clear resolution of it, I have made an alternative finding in the instances herein where the question has arisen. In that way, if my own interpretation of the law be erroneous, it may easily be corrected upon review. (Incidentally, in neither case does the evidence indicate that the Respondent applied for a variance.)

Standard .22(a)

Concerning Item 1–A, compliance officer Stanton testified that the Arace Building was 70 feet long by 30 to 40 feet wide; was a general storage area, and not for storing parts they were making in the plant; materials were stacked on both sides of a 10 to 12 foot wide dividing aisle; the area and most of the bins in it were disorderly from lumber, boxes, and debris; and while the materials did not block the exit, a person would have to go around them to get to it. Two employees worked full-time in the area. The hazards were the possibility of tripping or falling, or items could slide or drop on an employee’s feet . . . Vol. II, pp. 104–120.

Exhibits C–67 and C–68 are photographs of materials stored in the area.

The Respondent’s representative, Charles DuPre, testified that the Respondent has a special housekeeping program, including regular and special cleaning programs. Normally there is only one employee in the area shown by Exhibit C–67; there may be two or three employees who come and go there. Storing the pallet as shown in C–67 is not the safest way to store but it is not a hazard . . . Vol. IX, pp. 51.

In its Response No. 1 to the Complainant’s Request for Admissions, the Respondent admitted that parts, lumber, and boxes were stored in the Arace Building.

As concerns Item 1–A, Exhibit C–67 corroborates witness Stanton’s testimony and I find the area was in a disorderly condition. There was a hazard of tripping or the possibility of materials sliding or dropping on the feet of an employee. I find the Complainant has sustained the burden of proving a violation of .22(a).

Concerning Item 1–B, compliance officer Stanton testified the flammable liquid storage area is a lean-to building about 15 feet by six or seven feet, enclosed in the back, the sides, and roof, with a chain fence in front. There were tanks of acetylene, oxygen, and argon there and some flammable liquid and spilled 15 or 20 feet away from the storage area, not in the storage area itself. A fire truck was called to hose it down. There was a collection about one foot in width and three to four inches in depth of leaves and small papers around the base of the tanks. It was an accumulation of more than one day. There was no one working there. There was a fire hazard if the debris was ignited . . . Vol. II, pp. 120–130.

In its Response No. 2 to the Complainant’s Request for Admissions, the Respondent admitted that leaves and paper had been blown into the storage area by the wind.

As concerns Item 1–B, I find that, considering the location and the amount of debris, the evidence falls short of the proof necessary to constitute a violation of .22(a).

Concerning Item 1–C, compliance officer Stanton testified that in the Precipitron Crib (Department 2027), there was a general disorderly storage of metal, wood, lumber, and other materials in a work area. The hazard was that someone might trip or fall against such material or that material might fall on an employee’s feet. The union representative, Neal, and the Respondent’s representative, DuPre, both told him that men worked in and out of the area . . . Vol. II, pp. 133–136.

The Respondent’s representative, DuPre, testified that there is usually just one employee in the Precipitron Crib.

In its Response No. 3 to the Complainant’s Request for Admissions, the Respondent admitted that metal, cardboard, and dollies were located in the Precipitron Crib.

Exhibit C–69 is a photograph of the area.

As concerns Item 1–C, Exhibit C–69 corroborates the witness Stanton’s testimony, and I find the area was in a disorderly condition that was hazardous to employees. I find the Complainant has sustained the burden of proving a violation of .22(a).

As concerns Item 1–D, compliance officer Stanton testified that in the Oil House (Department 2032), there was an excess of oil in and around the piping; and there were paper towels behind Machine 37978. Employees would go in the area for maintenance purposes and the hazard was slipping or a fire starting . . . Vol. II, pp. 146–150.

The Respondent’s representative, DuPre, testified there may have been oil film on the floor but there was no grease. There is no hazard and normally no employees are there . . . Vol. IX, pp. 60.

Exhibit C–70 is a photograph of the area behind Machine 37978.

In its Response No. 4 to the Complainant’s Request for Admissions, the Respondent admitted that grease, buckets, and miscellaneous materials were behind Machine 37978.

As concerns Item 1–D, while Exhibit C–70 is not too clear, it does appear to corroborate witness Stanton’s testimony of excessive oil. In addition, the Respondent’s representative testified there may have been an oil film on the floor. I find the area was not clean and orderly and was hazardous in that it might cause an employee to slip and fall. I find the Complainant has sustained the burden of proving a violation of .22(a).

As concerns Items 1–E, 1–F, and I–G, compliance officer Cavalieri testified that breathing vents on machines were blocked by dust and oil, preventing the intake of air, and causing a fire hazard because the purpose of the vent is to cool the motor. Breathing air in the area was also affected. A cleaning employee was in the area . . . Vol. V, pp. 11, 12.

Exhibit C–106 is a photograph of the breathing vents.

The Respondent’s representative, DuPre, testified that the breathing vents were not clogged enough to cause the motor to overheat. If a motor overheats, it cuts out (stops). He recalls some motor fires but does not know the cause . . . Vol. IX, pp. 61, 62.

In its Responses 5, 6, and 7 to the Complainant’s Request for Admissions, the Respondent admitted that the breathing vents on the machines were partially obstructed.

As Concerns Items 1–E, 1–F, and 1–G, Exhibit C–106 corroborates the witness Cavalieri’s testimony. The testimony of the Respondent’s representative, DuPre, and the Respondent’s Admissions 5, 6, and 7 also indicate the presence of some dust and oil on the breather vents. I find that the breathing vents were blocked by dust and oil and were not kept in a clean condition. The hazard to employees was breathing impure air or the possibility of a fire, both remote hazards. I find the Complainant has sustained the burden of proving a violation of .22(a).

As concerns Item 1–H, compliance officer Cavalieri testified the Osborn Brushomatic machines were covered with dust and dirt; the Respondent’s foreman admitted cleaning was needed; the foreman said they clean once a week; there would be dust expected but not this much . . . Vol. V, pp. 11–27.

Exhibits C–107, 108, and 109 are photographs of Brushomatic machines.

The Respondent’s representative, DuPre, said it is a dirty operation; the policy is for the operator to clean it after each shift and the Building Services also clean periodically . . . Vol. IX, pp. 65.

In its Answer No. 8 to the Complainant’s Request for Admissions, the Respondent denied the presence of ‘excessive’ dirt and dust.

As concerns Item 1–H, I find that Cavalieri’s testimony, coupled with the admission made by the Respondent’s foreman, established the presence of excessive dust and dirt. I find the machines in question were not kept in a clean condition. The hazard was the breathing of dust by employees. I find the Complainant has sustained the burden of proving a violation of .22(a).

As concerns Item 1–I, compliance officer Terroux testified that in Department 2315 there was an accumulation of trash and excess grease in back of a J & L grinder, and an oily rag inside the machine. This machine was an exception to the general rule . . . Vol. VI, pp. 87.

The union representative, Gilbert, testified grease and oil accumulation in the tray is normal in J & L grinders; and there were rags and papers and chicken bones in the area of the grinder . . . Vol. VIII, pp. 72–75.

Exhibit C–134 is a photograph of the J & L grinder.

The Respondent’s representative, Kershaw, testified the presence of oil is normal.

In its Response No. 9 to the Complainant’s Request for Admissions, the Respondent admitted that paper scraps were observed in the machine.

As concerns Item 1–I, while the presence of grease and oil might be explained satisfactorily, there was no contradiction of the testimony about the trash and the chicken bones. I find that trash and chicken bones in the area constituted an unclean and disorderly condition; and I find the Complainant has sustained the burden of proving a violation of .22(a).

Alternatively, I find that the unclean and disorderly conditions did not create any hazard to the Respondent’s employees. Can there be a violation if there is no hazard?

In Paragraph 8 of Section 3 of the Act, the following appears:

‘The term ‘Occupational Safety and Health Standard’ means a standard which requires conditions . . . reasonably necessary or appropriate to provide safe or healthful employment and places of employment.’

Standard .22(a) makes no reference to hazard.

The USA Standard Z4.1–1968, approved by USA Standards Institute on 2/26/68 has the following:

1.2 ‘The purpose of this standard is to prescribe minimum sanitary requirements for the protection of the health of employees. . .’

2 Definitions Sanitary Conditions:

‘. . . that physical condition of working quarters which will tend to prevent the incidence and spread of disease.’

3.1 Housekeeping—the wording is identical with that in Standard.22(a).

3.3.2 All sweepings, solid or liquid wastes, refuse, and garbage shall be removed in such a manner as to avoid creating a nuisance or menace to health and as often as necessary to maintain the place of employment in a sanitary condition.

The evidence did not disclose anything that would have a bearing on the health of employees or on the incidence and spread of disease or on nuisance or menace to health. If the law requires that a ‘hazard’ be found, my alternative finding is that there is no hazard and there is no violation of .22(a).

Standard .22(a)(2)

Concerning Item 2–A, compliance officer Terroux testified that there was about one-half inch or less of water below a floor grating in a pit that had electrical equipment . . . Vol. VI, pp. 98–108.

The Respondent’s representative, Kershaw, testified that there was a leak in the water pipe and a plumber would be fixing it . . . Vol. IX, pp. 144.

Exhibit C–135 is a photograph of the location.

In its Response No. 10 to the Complainant’s Request for Admissions, the Respondent admitted that a ‘nominal’ quantity of water was present.

As concerns Item 2–A, there is no controversy about the presence of water in the area. However, there was no evidence as to the length of time it had been there; in addition, the Respondent’s representative testified that there was a leak that would soon be fixed. In that state of the evidence, and taking into consideration the standard’s words ‘so far as possible,’ I find that the Complainant has not sustained the burden of proving a violation of .22(a)(2).

Concerning Item 2–B, compliance officer Terroux testified that in Department 2317 there was excessive oil on the wooden block floor, so slippery he could skate on it . . . Vol. VI, pp. 110.

The union’s representative, Gilbert, testified the floor was quite oily and very slippery; in some places there were oil puddles; machines spray oil but this was excessive; he had suggested pans be put under the machine; and the cleaning-up program is not enforced . . . Vol. VIII, pp. 76–81.

Exhibit C–136 is a photograph of the area.

The Respondent’s representative, Kershaw, testified there was not an excessive amount of oil there.

As concerns Item 2–B, the witnesses Terroux and Gilbert were emphatic and very convincing in their illustrations. I find that the floor in the area was not maintained in a clean and (so far as possible) a dry condition because of the presence of excessive oil, which was hazardous because of the possibility of employees slipping on it and falling. I find the Complainant has sustained the burden of proving a violation of .22(a)(2).

Standard .22(b)(1)

Concerning Item 3–A, compliance officer Hatcher testified that the aisle in the Service Crib for Department 2042/2056 was not wide enough to turn a cart around, being 24 inches wide in most places and 21 inches in others; he said there was a cart there that could not go through the aisle way; metal gauges weighing from three to 12 pounds are on racks, shelves, and pegboards that protrude into the aisle; and a person must go sideways to avoid them. Many gauges have long rods that do not fit into the shelves; and an employee said another employee had his face gashed by a gauge. The hazard is that the gauges at eye level could cause an eye injury and those in the racks could injure the head . . . Vol. V, pp. 151–169.

Exhibit C–123 is a photograph of the aisle in question.

The union representative, DeRoy, testified that gauges and tools which extended beyond the shelves obstructed the passageway of the crib attendant. Brackets extended six to eight inches and the pegboards protruded into the aisle so much that, in some instances, it was safer to go sideways . . . Vol. VIII, pp. 22–25.

The Respondent’s representative, Cote, testified that each wooden block is three inches wide; the aisle is 36 inches wide where there are 12 blocks and 27 inches where there are nine; and there is plenty of room for safe passage. There are normally three employees in this crib. The cart is 20 1/2 inches wide and a wheel table is also used . . . Vol. IX, pp. 7–9.

As concerns Item 3–A, I find that the testimony establishes that the gauges and other materials protruding from the shelves, racks, and pegboards constitute a hazardous obstruction in the aisle; and the Complainant has sustained the burden of proving a violation of .22(b)(1).

Concerning Item 3–B, compliance officer Terroux testified that the aisle in Department 2320 is a forklift route; a pallet extending into it is a hazard; there might not be room for personnel and forklift to go by; and the forklift is not a hazard when it is attended . . . Vol. VI, pp. 115–119.

Exhibit C–137 is a photograph of the aisle.

The Respondent’s representative, Kershaw, testified that the aisle affords safe passage.

As concerns Item 3–B, I find that the testimony of two equally credible witnesses is conflicting. In addition, Exhibit C–137 does not indicate any obstruction that could create a hazard. In that state of the evidence, I find that the Complainant has not sustained the burden of proving a violation of .22(b)(1).

Concerning Item 3–C, compliance officer Terroux testified that a forklift could not go through the aisle without difficulty; that it was hazardous even if there was room for safe passage; that while he did not see any forklift, the materials were of the type that usually are moved by forklift or hand truck. There was a trash barrel and a movable rack in the aisle. He did not see any equipment that would be blocked by the barrel; and it ‘is difficult to say’ whether the rack blocks the aisle . . . Vol. VI, pp. 121–128.

The union representative, DeRoy, testified that forklifts and trucks use the aisle. The steel barrel, which is for chips from the work, is put near one of the main aisles for pick-up by an employee who does nothing but that. He has been such barrels stand around for quite a few hours before pick-up . . . Vol. VIII, pp. 28–37.

The Respondent’s representative, Kershaw, testified the barrel, truck, and pallets do not create any hazard . . . Vol. IX, pp. 150, 151.

Exhibit C–138 is a photograph of the barrel, pallets, and the rack in the aisle.

Concerning Item 3–C, I find that the evidence falls far short of establishing any obstruction in the aisle that creates a hazard; and the Complainant has not sustained the burden of proving a violation of .22(b)(1).

Concerning Item 3-D, compliance officer Terroux testified that there are two pallets and a forklift in the aisle which is about ten feet wide. There is ample room for a forklift to go by material in the aisle . . . Vol. VI, pp. 129, 130.

The union representative, DeRoy, testified that machinery from three to eight or ten feet wide is moved in the aisle. A bulldozer could get by pallets shown in the aisle in Exhibit C–139. It would be difficult to maneuver some equipment by the obstruction in the aisle shown in Exhibit C–140 . . . Vol. VIII, pp. 28–37.

Exhibit C–139 is a photograph showing the pallets in the aisle. Exhibit C–140 is a photograph showing the forklift in the aisle.

The Respondent’s representative, Kershaw, testified that none of the items constitute a hazard. It is a main aisle and there would be forklifts and other equipment using it . . . Vol. IX, pp. 151–160.

As concerns Item 3–D, the testimony falls short of establishing any obstruction that would constitute a hazard; and the photographic Exhibits C–139 and C–140 tend to indicate that the alleged hazard does not exist. I find that the Complainant has not sustained the burden of proving a violation of .22(b)(1).

Concerning Item 3–E, compliance officer Terroux testified that a rubbish barrel, steel drums, dollies, hand trucks, and other material were in the aisle. He does not recall any mechanized equipment other than hand carts using the aisle . . . Vol. VI, pp. 133–136.

The union representative, Gilbert, testified that the barrels in the aisle are there temporarily for changing coolant for the machines. They usually stay an average of about two the three hours but he once saw barrels in the aisle for 48 hours. They obstruct the aisle. They could be placed between the machines instead . . . Vol. VIII, pp. 83, 84.

The Respondent’s representative, Kershaw, testified that the barrels are only in the aisle when coolant is to be changed . . . Vol. IX, pp. 153, 154.

Exhibit C–141 is a photograph showing the aisle.

Concerning Item 3–E, I find that Exhibit C–141 corroborates the testimony of witnesses Terroux and Gilbert that mechanical equipment use the aisle, it was obstructed by various items, and the obstruction created a hazard that could easily be corrected by temporarily storing the coolant barrels between the machines. I find that the Complainant has sustained the burden of proving a violation of .22(b)(1).

Concerning Item 3–F, compliance officer Stanton testified there were pallets in the aisle; two men were working there; the pathway around the pallets was one and a half to two feet on one side and two and a half feet on the other. The hazard was that the pallets constituted an obstruction to free and easy egress from the area. The pallets would have been taken there ‘possibly’ with forklift trucks . . . Vol. III, pp. 54–58.

Exhibit C–71 is a photograph of the area.

I find that the testimony falls far short of establishing either an obstruction in the aisle or a hazardous condition. Exhibit C–71 corroborates that conclusion. I find that, as far as Item F is concerned, the Complainant has not sustained the burden of proving a violation of .22(b)(1).

Standard .23(c)(1)

As concerns Item 5, in its Answer, Paragraph 3, Subsection 5, the Respondent admitted this allegation. I find that the Respondent violated .23(c)(1).

Standard .24(b)

As concerns Item 6–B, compliance officer Terroux testified that two large storage tanks, not elevated, had ladders that were not enclosed; and an employee of the Respondent said he used the ladder daily during the heating season and carried tools for sampling and gauging. The hazard is that the ladder is exposed to the elements, could become slippery, and an employee might fall . .. Vol. VI, pp. 136–146.

The Respondent’s representative, Kershaw, testified that an employee who climbs the ladder to gauge the fuel normally does not carry anything because the dipstick is kept at the top of the tank . . . Vol. IX, pp. 163, 164.

Exhibits R–4A and R–4B are photographs of the tanks.

The Respondent’s explanation appears reasonable and credible. In addition, the Complainant’s evidence is based on hearsay (what an unidentified employee said). I find that the Complainant has not sustained the burden of proving a violation of .24(b).

Standard .37(q)(1)

As concerns Item 12, in its Answer, Paragraph 3, Subsection 12, the Respondent admitted this allegation. I find that the Respondent violated .37(q)(1).

Standard .94(d)(9)(V)

As concerns Item 13, compliance officer Terroux testified that in the Plating Department (2432) there are tanks with contents ranging from cold water to solutions of cyanide, sulfuric acid, and nitric acid. Employees working waist-high against the tanks, or a couple of inches away, put various parts in and out of the tanks, using a chain hoist for the heavier parts. Employees were wearing ordinary safety glasses which would give very little protection against a significant splash; chemical goggles were necessary. The hazard is a chemical burn if a significant splash were caused by a part dropping or a sling breaking. The Respondent’s safety supervisor, Kershaw, said that protective face shields were required for the job in the Plating Department. In tanks with water only, there is no need for protective equipment. He (Terroux) did not ask if there had been any burns or splashing . . . Vol. VI, pp. 147–167.

Champney, an employee of the Respondent doing plating in Department 2432, testified that the speed of lowering the part into the tank has a bearing on the size of the splash. He jumped back once, otherwise the splash could have gone over his head . . . Vol. VII, pp. 139. He once saw hooks break and a part drop. He has never had a splash to his face, just to his hands and sleeves . . . Vol. VII, pp. 123–145.

In its Response No. 27 to the Complainant’s Request for Admissions, the Respondent admitted the plating operators were wearing ordinary safety glasses.

As concerns Item 13, Standard .94(d)(9)(V) refers to Standard 1910.133, which requires protective equipment where there is a reasonable probability that injury can be prevented by such equipment. The Complainant has introduced evidence of injuries sustained by the Respondent’s employees in the year and a half before the inspection but none involve this standard. While that is not conclusive, of course, it is nevertheless significant. However, I think Champney’s testimony of a narrow miss is even more significant of the possibility of an employee sustaining injury. While it is a close case, the evidence here does sustain the Complainant’s burden of proving a hazardous condition from splashing and I find that the Complainant has proven a violation of .94(d)(9)(V).

Standards .108(c)(2)(i) and .108(c)(3)(i)

Item 21 [.108(c)(2)(i)] and Item 22 [.108(c)(3)(i)] will be considered together.

As concerns Item 21–A, compliance officer Terroux testified that in Department 2311 a tank of Varsol measured three feet by three feet by three feet or 27 cubic Feet with 7.48 gallons per cubic foot; he measured the outside of the tank but did not place anything in the tank to measure the depth; and it could be possible to have a three or four inch false bottom but he heard nothing that would lead him to believe it was other than the true bottom; and there was no overflow pipe . . . Vol. VI, pp. 171–174, 190, 191. The Varsol tank, without the overflow pipe, is a fire hazard. Varsol, an industrial solvent, is a Class 2 combustible liquid with a flash point of 100 to 110 degrees Fahrenheit. If there were a fire and if the sprinkler system discharged, it might cause the tank to overflow and spread flammable substances over the wooden block floor . . . Vol. VI, pp. 172, 173.

The Respondent’s representative, Kershaw, testified that the tank has a capacity of less than 150 gallons, the inside dimensions being nine square feet or 140 gallons of liquid . . . Vol. VI, pp. 171–174.

William H. Doyle, an expert called by the Complainant, testified that he is a private consultant in the field of fire and explosion of flammable liquids and chemicals, has a Bachelor of Science Degree in chemistry, and for 20 years was Chief of Chemical Engineering for the Factory Insurance Association and has been on various committees of professional associations and has written for periodicals in the field. Varsol is a combustible hydro-carbon with a flash point from 130 to 150 degrees Fahrenheit . . . Vol. XI, pp. 14. The National Fire Protective Association guide, which is authorative, says several types of Varsol have flash points of 105 to 107 degrees . .. Vol. XI, pp. 27. The lids of the tanks here are held open by a fusible wire which melts in 165 degree heat, the lid closes, and the fire gets extinguished . . . Vol. XI, pp. 16. Bottom drains and overflow pipes would not add any protection . . . Vol. XI, pp. 44. The Varsol is not a hazard. Wooden blocks are not a fire hazard if Varsol spilled on water or blocks. A film with no water might be a hazard but not a thin film . . . Vol. XI, pp. 20–34.

Exhibits C–145, R–5A and R–5B are photographs of the tanks.

As concerns Item 21–A, in view of the Respondent’s direct evidence of the tank’s capacity and the Complainant’s evidence that the compliance officer did not measure inside the tank but only its outside, I find that the Complainant has not established that the tank was over 150 gallons in capacity or ten square feet in liquid surface. If find that the Complainant has not sustained the burden of proving the Respondent violated .108(c)(2)(i).

Concerning Items 21–B and 22, compliance officer Terroux testified that Varsol tanks in Department 2979/2154 had no overflow pipes.

Exhibits R–5A and R–5B are photographs of the tanks.

In the Respondent’s Answer No. 39 to the Complainant’s Request for Admissions, the Respondent admitted that the tanks in Department 2979/2154 were over 150 gallons in capacity and over ten square feet in liquid surface area and were not equipped with overflow pipes. In the Respondent’s Answer No. 40 to the Complainant’s Request for Admissions, the Respondent admitted that in Department 2979/2154 the two Varsol tanks were over 500 gallons in capacity and were not equipped with bottom drains.

As concerns Item 21–B, by Admission No. 39 the Respondent has admitted the allegation. I find that the Respondent violated .108(c)(2)(i).

As concerns Item 22, by Admission No. 40 the Respondent has admitted the allegation. I find that the Respondent violated .108(c)(3)(i). Alternative Finding:

As concerns Items 21–B and 22, I am also making an alternative finding because (as with Item 1–I, above) there seems to be a conflict of opinion on the question of whether the Complainant must prove a ‘hazard’ or needs only to establish a violation of the exact words of the standard. If upon review it be determined that the establishment of a hazard is an essential element of the alleged violation, then I find as a fact that the Varsol had a flash point between 100 to 110 degrees Fahrenheit, that the tanks were protected by the fusible wire that would close the lid and extinguish the fire, and that there was no hazard. The alternative finding (if hazard must be established) is that the Complainant has not sustained the burden of proving a violation of .108(c)(2)(i) (Item 21–B) and .108(c)(3)(i) (Item 22).

Standard .132(a)

Concerning Items 23–A and B, compliance officer Cavalieri testified that in Department 2562, a working, walking area, the asbestos around a hot steam pipe had fallen away, the hazard being that anyone who contacted it would be burned. He ‘kind of touched it very quickly.’

In Department 2435, a steam pipe on the degreasing machine hot enough to burn had no protective guarding. He did not touch it but ‘there was a great deal of heat.’ He did not test the temperature of either pipe. The foreman told him it was a hot steam pipe. Maintenance employees were exposed to these hazards . . . Vol. V, pp. 42–50.

Exhibit C–110 is a photograph of the pipe in Department 2562 and Exhibit C–111 is a photograph of the pipe in Department 2435.

As concerns Items 23–A and B, although the compliance officer did not test the temperature of either pipe, his testimony clearly indicated that the pipes in question were not enough to burn anyone who accidentally touch either. I find the Respondent did not provide, use, and maintain adequate protective shields or barriers for pipes that were hazardous to employees. I find the Respondent violated both Items 23–A and 23–B and the Complainant has sustained the burden of proving a violation of .132(a).

Items 23–C, D, and E all have to do with employees not wearing personal protective equipment (safety shoes).

As concerns Item 23–C, compliance officer Cavalieri testified that in Department 2555 women employees at a four foot high bench were working with sharp-edged parts that weighed about 13 pounds. One was wearing canvas shoes and none was wearing safety shoes; the foreman admitted they were not wearing safety shoes but said employees did not follow his instructions to wear them. Equipment was being moved in the area by a buggy. The hazard was injury from a part falling on the foot . . . Vol. V, pp. 52–59, 63.

In its Answers No. 43 and 44 to the Complainant’s Request for Admissions, the Respondent admitted that one employee in Department 2555 was wearing canvas shoes and that employee regularly handles parts weighing over 12 pounds.

As concerns Item 23–D, compliance officer Cavalieri testified that in Department 2551 there were materials on skids or pallets that would have to be lifted by a truck. A machine operator wearing moccasins that he said were not safety-toed was handling a piece of metal weighing 20 to 25 pounds . . . Vol. V, pp. 69–74.

In its Answer No. 45 to the Complainant’s Request for Admissions, the Respondent admitted the machine operator’s shoes could be described as moccasins.

As concerns Item 23–E, compliance officer Cavalieri testified that in Department 2045, a storage area, material was packed on skids. The hazard is the possibility of injury when material is moved with forklift trucks. There is only one employee there at a time and, if he were running the truck, it would not fall on him . . . Vol V, pp. 75–78.

As concerns Items 23–C and D, the uncontroverted evidence is that there were employees without protective equipment (safety shoes) who were exposed to the hazard of metal parts weighing from 12 to 25 pounds falling on their feet. I find a violation of .132(a) for both Items 23–C and 23–D.

As concerns Item 23–E, the evidence indicates that there would be no hazard unless material were moved by truck; and if moved by truck, there is no hazard to the operator of the truck. Since there was only one employee there at a time, the evidence falls short of establishing a hazard. I find the Complainant has not sustained the burden of proving a violation of .132(a) for Item 23–E.

As concerns Item 23–F, compliance officers Cavalieri, Stanton, Hatcher, and Terroux testified in detail about seeing employees without safety shoes or protective equipment on their feet . . . Vol. III, pp. 67–83; Vol. V, pp. 80; Vol. VI, pp. 17; Vol. VII, pp. 104, 109. Representatives of the Respondent said that some employees do not wear safety shoes . . . Vol. V, pp. 67, 81; Vol. VI, pp. 19. Sharp-edged pieces of material weighing 13 pounds had to be moved from one place to another . . . Vol. V, pp. 53, 59. Machine operators had to lift parts weighing 20 to 25 pounds from pallets to machines . . . Vol. V. pp. 17, 82. Employees had to move grindstones weighing 12 to 15 pounds from bins . . . Vol. V, pp. 82. Parts of all sizes and weights were handled by employees . . . Vol, VII, pp. 23–28. Parts were oily and slippery and could fall . . . Vol. III, pp. 67–69; Vol. V, pp. 8, 9; Vol. VII, pp. 24. Materials weighing 20 to 25 pounds were stacked in such a way that they might fall . . . Vol. III, pp. 60–78; Vol. VI, pp. 7, 10. Tote pans or trays with gauges, fixtures, and parts weighing 10 to 40 pounds had to be moved by employees . . . Vol. 7, pp. 23. Some parts were handled almost daily . . . Vol. V, pp. 93.

The compliance officers testified that, in moving parts or materials, employees used forklift trucks, dollies, pallets, hoists, trucks, carts, buggy carts, movable racks, and other equipment . . . Vol. III, pp. 60–65 and pp. 82, 83; Vol. V, pp. 82; Vol. VI, pp. 10, 17; Vol. VII, pp. 23, 164–169.

The areas of the plant where these conditions existed included the receiving area . . . Vol. III, pp. 60–65, the fixture store area . . . Vol. III, pp. 63, the Arace Building storage area . . . Vol. III, pp. 71, the emergency generator room . . . Vol. III, pp. 73, tool cribs in Department 2033 . . . Vol. III, pp. 77, the storage area in Department 2045 . . . Vol. V, pp. 75, the engine parts repair area in Department 2034 . . . Vol. III, pp. 79, 80, the experimental area in Department 2963 . . . Vol. VI, pp. 7, the Inspection Department . . . Vol. VII, pp. 29, 30, various lathe areas . . . Vol. VII, pp. 23–28, various shaft areas . . . Vol. VII, pp. 23–28, and all sections of the manufacturing area . . . Vol. VII, pp. 32.

The Respondent’s employees who were subjected to the hazards created by these conditions included maintenance employees . . . Vol. III, pp. 74–76; Vol. V, pp. 82–89; Vol. VII, pp. 29, 30 . . . material handlers . . . Vol. III, pp. 60–78; Vol. V, pp. 81; Vol. VII, pp. 29, 30 . . . machine operators . . . Vol. V, pp. 82; Vol. VI, pp. 17; Vol. VII, pp. 29, 30 . . . assemblers and inspectors . . . Vol. V, pp. 82–89; Vol. VI, pp. 10, 13; Vol. VII, pp. 29, 30.

Exhibits C–112, 113, and 114 are photographs of various materials and parts.

Neal, the union representative who is an expediter to supply raw material for the whole plant, testified that thousands of parts a month move through the plant; and there is great movement from place to place of forklifts, skids, movable racks, and other equipment. There is a production schedule to keep . . . Vol. VII, pp. 164–174. Many parts are oily and slippery and can be dropped easily; he has seen materials dropped from hoists, pallets, broken boxes, and so forth . . . Vol. VII, pp. 174–189.

The union representative, Gilbert, testified that in his department (2315 and 2317) some 50 to 500 blades and 100 to 200 shuttles would be handled daily. The blades weigh up to three pounds, the shuttles up to 38, and both his hands and some of the parts are oily. He has seen materials dropped many times and cannot recall a day when a tray or tool or part did not fall in his vicinity. The floors are made of wooden blocks so the parts won’t be damaged when they drop. Hammers, grinding wheels, wrenches, shuttles, and other parts are moved on heavy-duty trucks, racks, and little carts. Everyone in his department does not wear safety shoes. In the last year and a half, he has not heard of any toe injury in the two departments where he works . . . Vol. VIII, pp. 97–106.

DeRoy, the union representative, testified that there are frequent drops of metal parts of various sizes; there are dents in the floor blocks from dropped articles. He has dropped items on his toes several times . . . Vol. VIII, pp. 42–45.

The Respondent’s representative, DuPre, testified that a 30 to 35 pound pallet, as seen in Exhibit C–67, might not be the safest way to store but it was not hazard. The Respondent’s nurse, Ann Moore, testified about the procedure of reporting injuries and read into the record excerpts from the medical reports of some 14 employees who had foot or toe injuries . . . Vol. X, pp. 85–108.

James Martin testified he is the Respondent’s manager of safety engineering for the United Technology Corporation, which includes Pratt & Whitney. He has held that position nine years and before that was a superintendent of safety engineering for 15 years; and is familiar with safety shoes. He testified that shoes that meet the ANSI standard for men are not suitable for women because the foot structures are different. Various companies advertise shoes with safety caps for women but none carry ANSI markings. The North Haven plant does sell shoes with steel caps for women . . . Vol. X, pp. 111–124.

Walter Fells testified he is employed by United Technology Corporation as Executive Director of the Division of Subsidiary Promotions. He testified about the hourly job descriptions of employees and defined the factor ‘unavoidable hazard’ in rating the jobs; and that Exhibit C–166 is an accurate description. He testified that it does not consider the probability of an accident but merely that, if there should be an injury, it would probably be of a certain magnitude. The figure ‘3’ would indicate a possibility of a lost-time injury. He prepared Exhibit C–2 . . . Vol. X, pp. 131–138.

Exhibit C–166 is the Respondent’s Hourly Job Rating Plan. On Page 34, Topic 11 is headed ‘Unavoidable Hazards.’ The material words are:

‘This factor appraises the unavoidable hazards to which the employee is subjected in the performance of his work. These hazards are evaluated in terms of the probable extent of injury resulting from accidents or from health hazards associated with the work or work area, taking into account the nature of the work, the work position, the equipment and material used, the hazards arising from the work being performed by other employees in the adjacent area, the extent to which the employee is protected, the frequency of exposure to the hazards, and the probability of injury. Consideration is given to the type of accident which may occur and to the health hazards which remain even though all safety precautions are observed by the employee and all safety devices are fully operative . . .’

Another heading under Topic 11 is ‘Third Degree.’ It reads as follows:

‘This degree covers work involving exposure to lost-time accidents and/or health hazards which may result in injury or temporary disability sufficient to prevent an employee from performing any regularly established job on his next regular shift. The degree includes work in which such injuries may occur as crushed hand or foot, loss of fingers, or burns or occupational diseases likely to result in lost time.’

The Respondent’s employee, Patton, testified from records that from January 1, 1974 to April 16, 1975, there were three reported cases of toe injury at the Respondent’s North Haven plant. They were in Departments 2032, 2242, and 2559. According to Exhibit R–15, a summary of reportable toe injuries at the Respondent’s North Haven plant, the injuries from January 1, 1974 to April 16, 1975, amounted to a total of .0005 per man year.

Exhibits C–9 through 28 constitute the Respondent’s record of 20 reported injuries involving toe or foot of employees.

The hazard was injury to the toe or foot because of parts or materials dropping on an employee’s foot; or equipment, such as forklifts or carts, running over the toe or foot of an employee . .. Vol. III, pp. 77–83; Vol. V, pp. 42–50, 83, 92; Vol. VI, pp. 13. Exhibit C–166 also concerns the hazard.

Availability of Protective Equipment:

Compliance officer Cavalieri testified that safety-toed shoes are available for both men and women in various places, including the Respondent’s North Haven plant. Women’s safety-toed shoes meet ANSI standards even though the standard just uses the term ‘men’ . . . Vol. V, pp. 54–58, 68.

Compliance officer Stanton testified that shoes with steel caps or various guards are available . . . Vol. III, pp. 88, 93, 94. Both labor and management told him there had been a safety shoe sale program at the Respondent’s plant . . . Vol. III, pp. 100, 101.

In its Answer No. 124 to the Complainant’s Request for Admissions, the Respondent admitted that shoes that meet the requirements of 29 CFR 1910.136 are sold to employees at cost on the Respondent’s premises.

In its Answer No. 47 to the Complainant’s Request for Admissions, the Respondent admitted that ‘protective footwear specified in 29 CFR 1910.136, Occupational Foot Protection, was not required to be worn by employees . . .’

In its Answer No. 121 to the Complainant’s Request for Admissions, the Respondent admitted that no employees are required to wear safety shoes.

As concerns Item 23–F, the evidence is overwhelming that the Respondent’s North Haven plant is an extremely busy worksite involving hundreds of employees working on countless jobs that include the moving, machining, inspecting, or handling in various ways of literally thousands of tools, gauges, machines, parts, materials, and equipment of every conceivable size and weight. The moving is done manually and by forklifts, hoists, carts, movable racks, and other equipment. Many of the materials and tools are oily and slippery, which increases the likelihood of items being dropped; in any event, droppings for one reason or another are frequent. The hazard of injury from materials dropping or equipment moving on the toes or feet of employees is a real one, whether the reportable toe injuries total three or 20 in the 18 months before the date of inspection. The evidence shows that employees exposed to such hazards are in every area of the Respondent’s plant (except the office) and specifically includes employees who are classified by the Respondent as maintenance workers, material handlers, machine operators, and assemblers and inspectors (or so identified in Item 23). There was virtually no controversy about the fact that such a hazard exists in any plant with the type of production the Respondent has; and, in fact, common experience indicates it would be highly unreasonable to expect a contrary conclusion. In addition, the Respondent’s own hourly job rating plan (Exhibit C–166) clearly corroborates the hazards described by the witnesses. The Respondent’s employee Fells testified that Exhibit C–166 is accurate in its job ratings. The photographic exhibits also corroborate the witness’ testimony about the conditions described. It is also clear that some type of protective equipment is available, whether called steel caps or safety shoes or something else. In fact, I find that such equipment is even available at the Respondent’s North Haven plant. I also find that the Respondent has no real program of enforcing a policy of protective equipment for those employees who are exposed to the hazard of toe injury. I find that, as concerns Item 23–F, protective equipment for the extremities was not provided, used and maintained where it was necessary because of the described hazard; and the Complainant has sustained the burden of proving the Respondent violated .132(a).

Standard 1910.157(d)(4)(VIII)

As far as Item 30 is concerned, in its Answer, Paragraph 3, Subsection 30, the Respondent admitted this allegation. I find that the Respondent violated .157(d)(4)(VIII).

Standard .176(b)

Items 32–A and B are considered together.

Concerning Item 32–A, compliance officer Stanton testified that boxes stored on a rafter and shelf 10 to 15 feet high were protruding so that they could fall and injure one of the two employees normally there . . . Vol. III, pp. 101–104, 114–117.

Exhibits C–75 and 76 are photographs of the boxes.

The Respondent’s representative, DuPre, testified that the boxes should be restacked but it was unlikely they would fall . . . Vol. IX, pp. 68.

As concerns Item 32–A, the testimony of the witnesses and the photographic exhibits establish the violation alleged. I find that the stored materials created the hazard alleged and was a violation of .176(b).

Concerning Item 32–B, compliance officer Stanton testified that, where containers of acid were stacked three pallets high, some containers had been removed from the lower pallet. Material-handling equipment used in the area might hit the pallet and cause containers to fall and injure an employee.

Exhibit C–77 is a photograph of the pallet and the containers... Vol. III, pp. 104–112.

The Respondent’s representative, DuPre, testified that while it would be better if there were even rows of cans without voids, the rows were not unstable . . . Vol. IX, pp. 73.

As concerns Item 32–B, the testimony of the witnesses and the photographic exhibit establish the violation alleged. I find that the stored materials created the hazard alleged and was in violation of .176(b).

Standard .176(c)

Concerning Item 33, compliance officer Stanton testified that palletized material and electrical motors constituted a tripping hazard in the Generator Room used by ten employees . . . Vol. III, pp. 121–125.

Exhibits C–78 and C–79 are photographs of the pallets and motors.

The Respondent’s representative, DuPre, testified that motors from 35 to 1,000 pounds are stored there and no employees are regularly there . . . Vol. IX, pp. 75, 76.

As concerns Item 33, the testimony and the photographs fall far short of establishing any tripping hazard. I find that the Complainant has not sustained the burden of proving a violation of .176(c).

Standard .178(m)(12)(i)

Concerning Item 35, compliance officer Terroux testified that a forklift had raised a maintenance platform to a height of ten feet. The railing, which was about 28 inches above the platform, came just below the buttocks of an employee working on the platform. The hazard was that the railing would tip the employee over rather than prevent his fall . . . Vol. VII, pp. 38–46.

Exhibit C–152 is a photograph of the platform.

In its Answer No. 65 to the Complainant’s Request for Admissions, the Respondent admitted that the top rail of the platform was no more than 28 inches high.

As concerns Item 35, the Respondent did not controvert the evidence. I find that the Respondent did not take proper safety precautions and the Complainant has sustained the burden of proving the Respondent violated .178(m)(12)(i).

Standard .179(b)(5)

As concerns Item 37, in its Answer, Paragraph 3, Subsection 37, the Respondent admitted the allegation. I find the Respondent violated .179(b)(5).

Standard .179(g)(1)(V)

As concerns Item 38, in its Answer, Paragraph 3, Subsection 38, the Respondent admitted the allegation. I find the Respondent violated .179(g)(1)(V).

Standard .179(g)(5)(i)

As concerns Item 39, in its Answer, Paragraph 3, Subsection 39, the Respondent admitted the allegation. I find the Respondent violated .179(g)(5)(i).

Standard .212(a)(1)

The testimony for most of the items concerned here was identical.

As concerns Items 40–A, B, and C, compliance officer Terroux testified that in Department 2550 several lathes had unguarded rotating chucks with protrusions that could hurt an employee. The lathes operate at variable speeds; there is a hazard even if they go slowly. In that department, some lathes of the same type were guarded while others were not . . . Vol. VII, pp. 49–51, 60.

As concerns Items 40–P, Q, T, U, W, X, and Z, compliance officer Stanton testified that these items concern the lathes with unguarded chucks. Some of the chucks were smooth (without notches or dog) while others had protrusions and indentations. The hazard from chucks with protrusions and indentations was that the employee’s hands or clothing or hair might be caught. The hazard from smooth chucks was that the employee’s hair might be caught or the employee might sustain friction burns from the chucks. The chucks with protrusions or indentations were: Item 40–P in Department 2036; Item 40–Q, Lathe 175939; Item 40–T in Department 2034; Item 40–U in Department 2033; Item 40–X in Department 2034; Item 40–Z in Department 2038. The smooth chucks were on 14 lathes in Department 2034 (Item 40–W).

General enclosure guards for chucks with grooves is standard in the industry. Smooth chucks generally are not guarded in the industry and there is opinion both ways as to whether smooth chucks should be guarded . . . Vol. IV, pp. 19–37.

Exhibits C–85–92 are photographs of the machines.

The Respondent’s representative, Patton, testified that he knows of no injury from rotating chucks. Clothing and hair do not get caught on chucks. Barrier guards will not completely enclose the chucks; if they do, the work cannot be done . . . Vol. IX, pp. 125, 131, 136, 137.

As concerns Items A, B, C, P, Q, T, U, X, Z, it seems reasonable to conclude that the protrusions or indentations of a rotating chuck could easily catch clothing or the hair or hand of an employee. The testimony and the photographs support this conclusion. I find that the chucks of those lathes are rotating parts that were not properly guarded and were a hazard to the employees. I find that the Complainant has sustained the burden of proving a violation of .212(a)(1).

As concerns Item 40–W, the chucks of the 14 lathes are smooth. The testimony most favorable to the Complainant was that authorities differ as to whether they should be guarded. The testimony most favorable to the Respondent was that smooth chucks are generally not guarded in industry. In addition, the Respondent’s representative, Patton, testified that he knows of no injury from rotating chucks; and the Complainant introduced no evidence of any injury at any time from rotating chucks. In that state of the evidence, I find that the Complainant has not sustained the burden of proving a violation of .212(a)(1).

Concerning Items 40–F–0 (except L), compliance officer Cavalieri testified that these items concern machines in Department 2559 that had unguarded parts revolving at very high speed. In most cases, the revolving parts were adjacent to walkways; some were in back of machines and not near walkways. Operators and maintenance men would be exposed to the hazard of sustaining injury through having clothing or had caught in the revolving part. The hazard could be avoided by having a metal barrier-type guard fixed to the machine. Some of the machines in the department had this and they were not cited. Often, parts are guarded by being reasonably inaccessible and there is no employee exposure in such a situation. As concerns the machine shown in Exhibit C–115 (Item 40–G), it would be very unlikely for an employee to come in contact with that revolving part. In the normal course of working, the employee probably would not . . . Vol. V, pp. 99–112.

As concerns Items 40–F-K, M, N, and O, the evidence was uncontradicted that these machines had unguarded parts revolving at high speed. With the exception of the machine in Item G, the evidence was uncontradicted that employees were exposed to the hazard of sustaining injury by having clothing or a hand caught by the revolving part. As far as the Item G machine is concerned, the compliance officer’s testimony—that it was very unlikely that an employee would come in contact with it—leads me to find that the evidence falls short of establishing a violation of .212(a)(1).

As concerns Items F, H, I, J, K, M, N, and O, I find that rotating parts were not properly guarded, employees were exposed to the hazard of injury from such condition, and the Complainant has sustained the burden of proving a violation of .212(a)(1).

As concerns Item 40–L, compliance officer Cavalieri testified that a grinder in Department 2550 has a ram with a metal end three to four inches in diameter which, when extended to its fullest, goes one and a half to two feet beyond the machine. It comes out at a ‘fair rate of speed’ on a horizontal plane, moving about two and a half feet in three to four seconds or less. The Respondent’s representative, Engle, agreed it was a hazard to anyone walking by, including maintenance employees or others in the area. It is not a hazard to the operator of the machine. There are 25 to 50 employees in that department . . . Vol. V, pp. 118–123.

The union representative, Joseph, testified that there are some objects like boxes or barrels at the end of the ram’s stroke that a person could be pushed against. If walking in the aisle, employees would not come in contact with the ram but employees cut through the machines. The ram moves a little faster than a clock pendulum. Other machines with similar rams had metal guards . . . Vol. VII, pp. 148–157.

As concerns Item 40–L, the uncontradicted testimony establishes that the ram was not properly guarded and employees were exposed to the hazard of injury from it. I find that the Complainant has sustained the burden of proving a violation of .212(a)(1).

As concerns Item 40–R, compliance officer Stanton testified that in Department 2033 there was no barrier guard on a belt machine that was hand-fed into rollers. He talked to the operator. The hazard was the possibility of crushed fingers from the rollers. General area barrier guards were easily available . . . Vol. III, pp. 143–148.

Exhibit C–82 is a photograph of the machine.

As concerns Item 40–R, the evidence of a violation is uncontradicted. I find that a hazard to the operator existed because the belt machine was not provided with a proper guard. I find the Complainant has sustained the burden of proving a violation of .212(a)(1).

As concerns Item 40–V, compliance officer Stanton testified that there was no guard on the Pneumatic Press 175834 in Department 2968. A metal part is placed by hand in an opening of more than one-fourth inch and, activated by a foot pedal, the press punches a number on the metal part. The hazard is that the employee’s hand or finger could be put in and crushed by the machine. Barrier-type guards or hand controls that would prevent the hazard are available. . . Vol. III, pp. 150–154.

Exhibit C–83 is a photograph of the press.

As concerns Item 40–V, the evidence was not contradicted and I find that there was a hazard to the operator because a proper guard was not provided. I find the Complainant has sustained the burden of proving a violation of .212(a)(1).

As concerns Item 40–AA, compliance officer Stanton testified that the abrasive stone rotating wheel of the hand-operated cutter grinder in Department 2036 should be guarded but it is impractical to do so. The hazard is that, when sharpening the wheel, the operator had to hold it in his hand and the operator may cut his hand. He has done so frequently. Neither the compliance officer nor the Respondent’s representative could come up with a solution. He does not know how the machine could be guarded; it may be impractical. The cutter grinder has a guard which covers approximately 180 degrees of the wheel and Standard 1910.215 indicates 180 degree guarding meets the requirements but he cited it under the Standard .212 . . . Vol. III, pp. 155–162 and Vol. IV, pp. 13–18.

Exhibit C–84 is a photograph of the cutter grinder.

As concerns Item 40–AA, the evidence indicates that, if there be a hazard, it is not from the operation of the machine but rather from sharpening the wheel before operating the grinder. In addition, the compliance officer does not know of any feasible or practical way of correcting the condition. The state of the evidence is such that I find that the Complainant has not sustained the burden of proving a violation of .212(a)(1).

As concerns Items 40–BB and CC, compliance officer Stanton testified that in Department 2038, a hand-fed vertical band saw and a hand-fed horizontal band saw had no guard over the unused part. The blade had an exposed cutting edge. In both vertical and horizontal band saws, where the material itself acts as a guard, there is no hazard. The hazard is the possibility of the operator cutting a finger or hand on the unused portion that is not guarded. An adjustable angled-type guard is available to cover the cutting point of both the horizontal and vertical band saws.

Exhibit C–80 is a photograph of the hand-fed vertical band saw and Exhibit C–81 is a photograph of the horizontal band saw . . . Vol. III, pp. 129–142.

As concerns Items 40–BB and CC, the uncontradicted evidence establishes that the operator of both saws would be exposed to the hazard of a cut finger or hand because a proper guard was not provided. I find that, as concerns both Items 40–BB and 40–CC (amended to such from Items 44–A and 44–B), the Respondent violated.212(a)(1).

Standard .215(a)(2)

As concerns Item 46, in its Answer, Paragraph 3, Subsection 46, the Respondent admitted the allegation. I find the Respondent violated .215(a)(2).

Standard .219(d)(1)

Concerning Item 48, in its Answer, Paragraph 3, Subsection 48, the Respondent admitted this allegation. I find the Respondent violated .219(d)(1).

Standard .219(e)(1)(i)

Concerning Item 49, in its Answer, Paragraph 3, Subsection 49, the Respondent admitted this allegation. I find the Respondent violated .219(e)(1)(i).

Standard .219(e)(3)(i)

Concerning Item 50, in its Answer, Paragraph 3, Subsection 50, the Respondent admitted this allegation. I find the Respondent violated .219(e)(3)(i).

Standard .242(b)

Concerning Item 52, in its Answer, Paragraph 3, Subsection 52, the Respondent admitted this allegation. I find the Respondent violated .242(b).

Standard .252(a)(2)(IV)(c) (Item 54)

Concerning Item 54–A, compliance officer Stanton testified that tanks of oxygen and acetylene were stored together in a roadway just outside the storage area; and acetylene is a flammable gas . .. Vol. IV, pp. 38.

The Respondent’s representative, DuPre, testified that the tanks were not ‘stored’ but had just been delivered. The delivery truck-driver’s custom is to leave the cylinder there, notify the Respondent’s officer just down the roadway a little, and the Respondent then sends an employee to pick up the cylinders and store them properly . . . Vol. IX, pp. 80–83.

As concerns Item 54–A, the Respondent’s explanation is reasonable and credible, and I find that the cylinders were not ‘in storage.’ I find that the Complainant has not sustained the burden of proving a violation of .252(a)(2)(IV)(c).

Concerning item 54–B, compliance officer Stanton testified that tanks of oxygen, acetylene, and propane, a flammable gas, were together outside the closed storage area. Regulators and hose were attached to the tanks and there was dust on the regulators. The department head of the Respondent said they had been used ‘quite a while ago’ . . . Vol. IV, pp. 40, 41.

Exhibit C–94 is a photograph showing the tanks were not separated.

The Respondent’s representative, DuPre, testified that dust has no bearing on when the cylinders were last used. There would be a hazard from cylinders being together . . . Vol. IX, pp. 85–87.

Concerning Item 54–B, there was no explanation here comparable to that for Item 54–A. In addition, the presence of the dust plus the department head’s statement that the cylinders had been used ‘quite a while ago’ tend to substantiate the allegation. I find that the oxygen cylinder was ‘in storage’ and was not separated at least 20 feet from a fuel gas cylinder. I find that the Complainant has sustained the burden of proving a violation of .252(a)(2)(IV)(c).

Standard .309(a)

(Article 110–17 of the National Electrical Code)

Standard 1910.309(a): The requirements contained in the following articles and sections of the National Electrical Code, NFPA 70–1971; ANSI CI–1971 (Rev. of C–1–1968) shall apply to all electrical installations and utilization equipment:

National Electrical Code—Article 110–17(a), (b), and (c) Guarding of Live Parts (not more than 600 volts):

(a) Except as elsewhere required or permitted by this code, live parts of electrical equipment operating at 50 volts or more shall be guarded against accidental contact by approved cabinets or other forms of approved enclosures, or any of the following means:

(b) In locations where electrical equipment would be exposed to physical damage, enclosures or guards shall be so arranged and of such strength as to prevent such damage.

(c) Entrances to rooms and other guarded locations containing exposed live parts shall be marked with conspicuous warning signs forbidding unqualified persons to enter.

Neither the Complainant nor the Respondent contended that any of the electrical enclosures had not been ‘approved’ at some time under Article 110–17. Most of the evidence presented by both parties concerned maintenance or repair or good condition or the safety of such equipment; and there was also evidence on the question of access by unqualified personnel. Some of the items are virtually identical and, wherever it seems reasonable to do so, they have been considered together.

NOTE: In some of the items, the compliance officer used a biomedical probe to test voltage. The Respondent’s safety supervisor, Kershaw, testified that the biomedical probe alone might not be reliable because it could give off a ‘beep’ sound from either static voltage or regular voltage. It has two settings: an ‘S’ for static and ‘L’ for adequacy of grounding of equipment. When on ‘S’ (which is where the compliance officer put it), it indicates the presence of more than 100 static volts. One volt of electricity is the equivalent of 295 static volts . . . Vol. X, pp. 23, 24. Kershaw did not say anything to compliance officer Terroux about the probe . . . Vol. X, pp. 22, 35.

Items 61–A, C, D, and E all concern missing ‘knockouts.’ Compliance officer Stanton testified that the ‘knockout’ is the circular portion or the plug that is missing. Exhibit C–97 shows it as the circular part. It is used for the insertion of other wires or cords to be put through the box. The knockout was missing from two electric boxes on the wall in the Precipitron Crib. Both management and labor told him the voltage was over 50 volts. He tested it with a biomedical probe which would not disclose if a wire was insulated or bare. He cannot say if the wires and whatever was inside the box here were or were not fully insulated; if fully insulated, there is no hazard. If not insulated, and if a finger came in contact with live electric parts, there could be a shock causing severe injury or death . . . Vol. IV, pp. 49–57.

Exhibit C–96 is a photograph showing the knockout missing on the junction box. The two wires showing are fully insulated. If a person put his finger in the box one or one and a half inches, he could reach an exposed live part and get a shock. The voltage is probably in excess of 50 or 100 volts. His observations for this item would be the same as for Item 61–C . . . Vol. IV, pp. 59–62.

As concerns Item 61–E, compliance officer Stanton testified that Exhibit C–97 shows a hoist with a metal box switch-type pendant, the knockout missing, and exposed live parts within the box. He determined this with a biomedical probe and also visually. The voltage was in excess of 50 volts. A finger would have to go in about two inches to hit exposed live wires. The box is about four by two inches in size. With this type of box, it would be easy to have the finger go up it two inches . . . Vol. IV, pp. 63–65.

Testifying about Item 61–A, the union representatives DeRoy and Gilbert described the operation of a pendant switch: a person operating this hoist has to hold the hoist in one hand, the pendant box in the other, and operate the buttons or switch on the pendant box by feel. while his eyes are focused on material he is attaching to the hoist. He must grasp the swinging pendant box in his land operate the buttons by feel . . . Vol. VIII, pp. 53, 54, 111–115.

The Respondent’s representative, DuPre, testified that this is a two-button type switch and a finger would have to be inserted about an inch before touching the terminals inside the box . . . Vol. IX, pp. 91.

As concerns Item 61–A, the facts presented by compliance officer Terroux are very similar to Item 61–E, except that the voltage in 61–A was over 100.

Exhibit C–155 and C–156 show the hoist pendant switch . . . Vol. VII, pp. 67, 71. The wires are not bare; the terminal is. A finger would have to go in one inch or less. Gilbert, the union representative, testified that three knockouts were out and the exposed wire was about one inch inside the box . . . Vol. VIII, pp. 111–115.

As concerns Items 61–C and 61–D, it is clear that the knockouts were missing but, even on the compliance officer’s own statement, it is not clear whether whatever is inside the box is or is not fully insulated. If there is no insulation, the hazard of a shock exists; if fully insulated, there is no hazard. In this state of the evidence, I find that the Complainant has not sustained the burden of proving a violation of .309(a).

As concerns Items 61–A and 61–E, there was no contradiction of the compliance officer’s testimony that the knockout was missing, there were exposed live parts, and the voltage of the box was over 50. It is important to note that this was a pendant box, as distinguished from a ‘fixed’ one. It had to be held in one hand and its buttons or switch operated by feel while the employee’s eyes are focused on the hand which is affixing the material to the hoist. Under those circumstances, it would not be difficult to accidentally press a finger inside the box and sustain a shock.

As concerns Items 61–A and 61–E, I find that each box had live parts in excess of 50 volts; was not properly guarded against accidental contact; and was hazardous to employees. I find that the Complainant has sustained the burden of proving a violation of .309(a) for each item.

As concerns Item 61–G, compliance officer Stanton testified there was a light socket with a bulb missing. There was in excess of 50 live volts in the socket. The hazard was the possibility of an employee putting a finger in the socket and sustaining a shock. If there were a bulb in the socket, there is no hazard . . . Vol. IV, pp. 68, 69.

In its Respondent No. 93 to the Complainant’s Request for Admissions, the Respondent admitted there was no bulb in the socket.

As concerns Item 61–G, I find that there was in excess of 50 volts in the socket that had no bulb; and an employee who put his finger in that socket would sustain a shock. However, it seems highly unlikely that a finger would be put in the socket accidentally; it would almost certainly have to be intentional. It seems to me that any employer is entitled to a minimum of reasonable conduct on the part of the employees; and intentionally putting a finger in the socket would not constitute minimum reasonable conduct, in my opinion.

Section 3, Paragraph 8 of the Act refers to conditions ‘reasonably necessary or appropriate to provide safe or healthful employment . . .’ Article 110–17 of the National Electrical Code uses the word ‘accidentally.’ As I interpret Section 3, Paragraph 8 and Article 110–17, an employer is not to be penalized for intentional conduct of the employee (regardless of how stupid or ill advised or without knowledge of what the consequences of such conduct may be) if the circumstances are such that an employee of even minimal intelligence would not commit the act intentionally. In the circumstances here, I find that the Complainant has not sustained the burden of proving that the Respondent failed to guard against ‘accidental’ contact, and I find that the Respondent has not violated .309(a).

As concerns Item 61–J, compliance officer Hatcher testified that in Department 2320, Machine No. 282349 has a broken raceway with uninsulated exposed terminal ends carrying 110 volts. There is a better-than-even chance that an employee would come in contact with a live part, the hazard being a shock . . . Vol. VI, pp. 26–30.

Exhibit C–125 is a photograph of the raceway.

The Respondent’s representative, Cote, testified there were no exposed live wires and an employee could not come in contact with the exposed terminal unless he tried to. Employees work with metallic tools right up against the table . . . Vol. IX, pp. 14–18.

As concerns Item 61–J, the Respondent’s representative did no contradict the compliance officer’s testimony that the exposed terminal ends carried 110 volts. He also testified that employees with metallic tools worked right up against the table. Those circumstances make the likelihood of an accidental contact probable. I find that the broken raceway had live parts in excess of 50 volts; was not properly guarded against accidental contact; and was hazardous to employees. I find that the Complainant has sustained the burden of proving a violation of .309(a).

As concerns Item 61–K, compliance officer Hatcher testified that in Department 2963, the insulation was pulled away from the terminal at the junction box for a Delta drill press, leaving exposed wires with approximate voltage of 220 volts. Bare copper wire was visible, and he pointed it out to the Respondent’s representative, Cote. In his ‘original notes’ he merely put down that the insulation was pulled off at the terminal. It was stipulated that the term ‘transcribed notes’ (the more formal report to OSHA made from the ‘original notes’ written during the inspection) said ‘exposing live wires.’ The hazard was the possibility of a shock from contact with the exposed live parts . .. Vol. VI, pp. 31–44.

Exhibit C–126 is a photograph of the junction box.

In its Response No. 95 to the Complainant’s Request for Admissions, the Respondent admitted that the outer cover of the cable had been pulled away.

The Respondent’s representative, Cote, testified that the outer jacket on a tube of wires was pulled loose but no live parts were exposed. The wires exposed were insulated and there was no hazard . . . Vol. IX, pp. 16–21.

As concerns Item 61–K, the evidence is conflicting, the two witnesses are equally cerdible, and neither one is better qualified than the other in electrical matters (as far as the testimony discloses the background of each). The photographic exhibit does not help me in determining whether the wires were insulated. In these circumstances, I find that the Complainant has not sustained the burden of proving a violation of .309(a).

As concerns Item 61–M, compliance officer Hatcher testified that in Department 2963, at Machine No. 501051, about seven feet above the floor, there was an open junction box with live wires with approximately 220 voltage. His biomedical probe test indicated the wires were live but it would not disclose whether they were insulated. He could see in the box and there were two exposed live wires; the ends of the wires were not taped completely. The hazard was that an employee might touch the wires and sustain a shock . . . Vol. VI, pp. 49–54.

Exhibit C–127 is a photograph of the machine showing the junction box.

In its Response No. 97 to the Complainant’s Request for Admissions, the Respondent admitted that two electric boxes on Machine No. 501051 were not fitted with covers.

The Respondent’s representative, Cote, testified that there were no exposed live parts inside the junction box; a person could not get a shock from putting his hand inside . . . Vol. IX, pp. 21, 22.

As concerns Item 61–M, the testimony of the two witnesses is conflicting except that there was no specific and direct contradiction of the compliance officer’s testimony that the ends of the wires were not taped completely. That is at least some corroboration of the compliance officer. I find that the junction box had live parts in excess of 50 volts; was not properly guarded against accidental contact; and was hazardous to employees. I find the Respondent violated .309(a).

As concerns Item 61–P, compliance officer Hatcher testified that in Department 2963, Machine No. 2391 had a broken live wire with a switch attached. He was told its voltage was 200 volts. It showed bare wire. He checked it out and found it was live . . . Vol. VI, pp. 54–57.

Exhibits C–128 and C–129 are photographs of the wire. On the back of Exhibit C–128, one of the notes the compliance officer had written was: ‘. . . broken 22 power-plug attachment . . .’

The Respondent’s representative, Cote, testified the outer jacket had been pulled from the power cord to Machine No. 2391 exposing insulated wires but there was no danger of a shock . . . Vol. IX, pp. 26.

As concerns Item 61–P, the testimony and the exhibits establish that the wire was broken and was exposed. They corroborate the compliance officer’s conclusions. I find that there was a broken live wire with voltage in excess of 50 volts; it was not properly guarded against accidental contact; and was hazardous to employees. I find that the Respondent violated .309(a).

As concerns Items 61–R and 61–S, compliance officer Cavalieri testified that the electrical panel box of Machine No. 506866 had a broken interlock handle. The hazard was that the broken handle would prevent anyone from turning the power off. He believed the voltage was over 400 . . . Vol. V, pp. 126.

The union representative, Joseph, testified that the interlock handle that turns the power off was broken off. It had been the practice of employees to go into the electrical panel boxes. After the fatality of April 11, everyone was told not to go in the boxes . . . Vol. VII, pp. 158–162.

The union representative, Gilbert, also testified that this had been the practice of employees . . . Vol. VIII, pp. 125. Compliance officer Cavalieri said the electrical panel handle on Machine No. 101182 was missing, so the power could not be shut off . . . Vol. V, pp. 127.

In its Answer No. 101 to the Complainant’s Request for Admissions, the Respondent admitted the handles were broken or missing from the electrical panels of Machines No. 506866 and 101182.

As concerns Items 61–R and 61–S, I find that each panel box had a broken or missing part, that each had live parts in excess of 50 volts, that each was not properly guarded against accidental contact, and each was hazardous to employees. I find that the Respondent violated .309(a).

As concerns Item 61–V, compliance officer Hatcher testified that an electrical panel box which was neither locked nor bolted carried 440 volts. He did not know if there was an interlocking system . . . Vol. VI, pp. 70.

Exhibits C–130 and R–10 were introduced as photographs of the electrical panel box.

The Respondent’s representative, Cote, testified that the box (in Department 2963) cannot be opened if the switch is at the ‘on’ position. The switch must be turned to the ‘off’ position, a screwdriver inserted in a slot and turned, and the handle then turned. There are no exposed live parts once the box is opened. If the disconnect switch is not working properly, the electrical parts could be live when the box is open . . . Vol. IX, pp. 32–42.

The Respondent’s representative, Kershaw, who has an electrical engineering background, corroborated Cote’s testimony . . . Vol. X, pp. 20–22.

As concerns Item 61–V, the compliance officer did not know if there was an interlock system. The Respondent’s representatives described in detail the steps that would have to be taken to open the box. There was considerable testimony presented to establish the Respondent’s representative, Kershaw, as a qualified electrical expert but there was no testimony as to compliance officer Hatcher’s experience in that field. The Respondent presented two witnesses (at least one being an expert) to sustain its position whereas the Complainant had only one witness (with no evidence at all as to his expertise) to prove the allegation. In those circumstances, I must conclude that the panel had an interlocking system with various steps that had to be taken before the panel box could be opened.

Exhibit R–10 seems to corroborate the Respondent’s position. In my opinion, those steps constitute reasonable guarding against accidental contact and I find that the Complainant has not sustained the burden of proving a violation of .309(a).

As concerns Item 61–W, compliance officer Terroux testified that the electrical control panel door was open and the power was not disconnected. He tested the electrical parts and they were live. The voltage was 440. The junction box had a voltage of over 100. Its cover had been removed and there were employees in the area . .. Vol. VII, pp. 71–78.

Exhibit C–156 is a photograph of the panel and Exhibit C–157 is a photograph of the junction box.

The union representative, Gilbert, testified that the electrical panel was open and the machine was running. It was energized. He operates such machines and they cannot be on unless the panel is energized. It was common to see panel switches with their covers off. Employees who are not electricians go to panel boxes to reset the buttons; they do not know the right one so they experiment. No maintenance was being done on the machine; if an electrician were working, there would be a tag on it or a cart there, and there was neither. They also store such items as clothing, lunch, and tools in the panels. Beginning on March 4, he had many talks with the Respondent’s representatives, including the safety director, about the dangers of these panels. He listed the dates of talks as March 4, 5, 10, 14, 18, 25, April 4, and 11. He also told the Respondent’s representatives that it was common practice for employees to go into the electrical panels. The employee Costa was electrocuted on April 11 . . . Vol. VIII, pp. 119–124.

The Respondent’s representative, Kershaw, testified that the electrical cabinet shown in Exhibit C–156 has an interlock; the handle operates as described in Item 61–V. The door to the electrical cabinet shown in Exhibit C–156 was ajar and the panel cover was off the junction box shown in Exhibit C–157. Maintenance was being done on the machine . . . Vol. X, pp. 20–24.

As concerns Item 61–W, the Respondent does not dispute the Complainant’s testimony that the electrical panel was open and the cover off the junction box. Its apparent explanation for such conditions is that maintenance was being done; but no witness was called who was performing maintenance. Although either side could have called the electrician as a witness, it would seem that (in the circumstances here) the burden of doing so would be more on the Respondent than the Complainant since the Respondent was the party that claimed such work was being performed. I had alerted both sides to my belief that the electrician’s testimony might be an important consideration . . . Vol. X, pp. 58. The machine was running and the panel was energized. I find that the panel and junction box each had live parts in excess of 50 volts; each was not properly guarded against accidental contact; and each was hazardous to employees. I find the Respondent violated .309(a).

As concerns Item 61–X, compliance officer Terroux testified that in Department 2243 there was no interlock handle on the door to the panel shown in Exhibit C–158. There were live connections of over 100 volts inside . . . Vol. VII, pp. 78.

The Respondent’s representative, Kershaw, testified that this is not a typical panel and it does not have a disconnect switch on the panel but has one adjacent to the panel. There are no overload relays (reset buttons) in this panel. There are several exposed live parts. The panel opens simply by turning the handle . . . Vol. X, pp. 73–76, 81–83.

As concerns Item 61–x, the Respondent’s representative does not really controvert the compliance officer’s testimony and I find that the panel had live parts in excess of 50 volts; was not properly guarded against accidental contact; and was hazardous to employees. I find the Respondent violated .309(a).

As concerns Items 61–Y and Z, compliance officer Hatcher testified that in Department 2963 the two panel boxes were not locked or bolted. They had interlock systems but the interlock was not working on one box. The boxes carried 440 volts. Although it was the only box he recalls where the interlock was not working, he did not particularly note it because it had become repetitious . . . Vol. VI, pp. 74–76.

Exhibits C–131 and C–132 are photographs of the panel boxes.

The union representative, DeRoy, testified that in Department 2963 the panel boxes were opened just by turning the handle. Although there was a separate handle to turn the power off, the power was still on after the door was open . . . Vol. VIII, pp. 56, 57.

The Respondent’s representative, Cote, (testifying on Item 61–Z) said the panel boxes shown in Exhibit C–131 and C–132 are operated (as described in Item 61–V, above). The interlock handle’s switch shuts off the power from the switch on down but not above; but it is insulated above the switch. Once the door is opened, it is easy to throw the switch and make the entire box live . . . Vol. IX, pp. 36–42.

As concerns Item 61–Y and Z, I find that the interlock on each box was either not working or the box opened simply by turning the handle; each panel had live parts in excess of 50 volts; each was not properly guarded against accidental contact; and each panel was hazardous to employees. I find that Standard .309(a) was violated by the Respondent for both Items 61–Y and Z.

As concerns Items 61–AA, BB, CC, and DD, compliance officer Cavalieri testified that the panel box door (shown in Exhibit C–118) was not locked and the voltage inside was about 400. The power would go off if the door were open but could be reset by maneuvering the turn-off bar inside. A sign says, ‘Danger, Keep Out.’ The electrician has been instructed by his superior to put locks on all such boxes and was in the process of doing it . . . Vol. V, pp. 128–134.

The situation was similar for Item 61–BB . . . Vol. V, pp. 136.

It was the same situation for Item 61–CC . . . Vol. V, pp. 139, 140.

Item 61–DD was similar . . . Vol. V, pp. 140.

As concerns Items 61–AA, BB, CC, and DD, the testimony of the compliance officer was not controverted in any way. I find that each panel box had live parts in excess of 50 volts; each was not properly guarded against accidental contact; and each was hazardous to employees. I find the Respondent violated .309(a) for each Item 61–AA, BB, CC, and DD.

As concerns Items 61–EE and GG, compliance officer Stanton testified that the electrical panel box shown in Exhibit C–99 was not locked or interlocked. There were exposed live parts in the panel that would carry up to 400 volts. The current is supposed to cut off when the door is open but this one had a defect and did not. The input side of the 440 voltage was not insulated and it exposed the 400 volt’s parts. When the door is open a person could get a shock . . . Vol. IV, pp. 72–76.

The union representative, Neal, testified the panel box in Item 61–EE was open, the input wires were metallic and were not covered. Part of the inside interlock handle was missing on the box in Item 61–GG . . . Vol. VIII, pp. 4, 5, 11.

Compliance officer Stanton also testified that the box in Item 61–GG was similar to that in 61–EE. In addition, he testified that electricians said 400 volts were coming in. The interlock was not operational; the electrician was called and began working on it . .. Vol. IV, pp. 82, 83.

The Respondent’s representative, DuPre, testified the panel in Item 61–EE has an interlock. When in the ‘off’ position, there are no exposed live parts below the switch but it is hard to tell about the incoming side. Anything above the switch would be live. There is a cutoff switch of some kind for boxes of this type; it cuts off all electricity . . . Vol. IX, pp. 92–97.

As concerns Items 61–EE and 61–GG, the Complainant’s testimony was not really contradicted by the Respondent. I find that the box in each item had live parts in excess of 50 volts; each was not properly guarded against accidental contact; and each was hazardous to employees. I find that the Respondent violated .309(a) for both Items 61–EE and GG.

As concerns Item 61–II, compliance officer Stanton (who was in electronics maintenance for six years and worked on interlocks) testified that Exhibit C–101 is an electrical panel box that was not locked. It has voltage of over 400. The interlock removes the high voltage but retains voltage in excess of 50 or 100 volts through the system. After the door was opened, in excess of 50 volts would still be there . . . Vol. IV, pp. 89–91.

The Respondent’s representative, DuPre, testified that the interlock here functions when the door is opened but the box can still be reenergized. Only qualified electricians should go into these boxes. Other employees were instructed not to since the beginning; instructions were not reissued until after the fatality of April 11. The biomedical probe would ‘beep’ even if all the wires were insulated. There was a lock on this box but it was not locked . . . Vol. IX, pp. 97–107.

As concerns Item 61–II, the Complainant’s testimony was really not contradicted by the Respondent; in fact, the Respondent’s representative even agreed that the box can be reenergized. He also said there was a lock on the box but it was not locked. In addition, compliance officer Stanton had spent several years in electronics maintenance and had worked on interlocks. That background strengthens his testimony. I find that the panel box had live parts in excess of 50 volts; was not properly guarded against accidental contact; and was hazardous to employees. I find that the Respondent violated .309(a).

As concerns Item 61–JJ, compliance officer Stanton testified the distribution panel was similar to the other panels; was not locked; there were live parts around the reset button; and opening the door would not delete the voltage on this one . . . Vol. IV, pp. 91, 92.

As concerns Item 61–JJ, the Complainant’s testimony was not contradicted. While the compliance officer did not specify the voltage, it would appear that by using the phrase ‘similar to the other control panels’ (Vol. IV, pp. 91), the parties understood that to include voltage of over 50 volts. I find that by the words ‘similar to the other control panels,’ the witness included voltage in excess of 50. With that interpretation, I find that the panel had live parts in excess of 50 volts; was not properly guarded against accidental contact; and was hazardous to employees. I find that the Respondent violated .309(a).

As concerns Item 61–KK, the union representative, Neal, testified that in Department 2431 the panel box was a maze of wires and connections. The box was open simply by turning the handle. He saw no interlock on the box. Electricians there said there was live voltage in the box . . . Vol. VIII, pp. 14.

As concerns Item 61–KK, the only evidence of voltage here is that the unidentified electricians said there was live voltage in the box. Even if the hearsay were not disreguarded, the evidence still falls short of establishing that there were live parts of ‘50 volts or more.’ I find that the Complainant has not sustained the burden of proving a violation of .309(a).

Standard .309(a)

As concerns Item 62, in its Answer, Paragraph 3, Subsection 62, the Respondent admitted this allegation. I find that the Respondent violated .309(a) (Article 110–22 of the National Electrical Code).

Standard .309(a) (250–45(d) of the National Electrical Code)

Concerning Items 63–A, B, and D, compliance officer Terroux testified that in a mill area, on a wooden bookcase there was a fan connected for use but not grounded. The hazard was the possibility of an electric shock if there was an internal short in the fan. Where it was located was not ‘office environment’ . . . Vol. VII, pp. 88–95.

Concerning Item 63–B, compliance officer Stanton testified that three lamps of the two-wire, nongrounded type were plugged into sockets. Because the lamp frame and the table on which it stood were metal, there was a possibility of an electric shock. On cross-examination, he testified that office desks are frequently metal and lamps are put on them . . . Vol. IV, pp. 96–98.

Concerning Item 63–D, compliance officer Stanton testified that an IBM typewriter operated at 110 volts was ungrounded on a metal desk. It is office-type equipment but he cited it because the conditions here included such items as a metal desk and metal chair. The hazard in all three cases was the possibility of a shock sustained by an employee . . . Vol. IV, pp. 100, 101.

The Respondent introduced Exhibit R–2, OSHA Directive 100–9, to the effect that office-type equipment need not be grounded (with certain exceptions).

Exhibits C–102, 103, and 159 are photographs of the fan, lamps, and typewriter.

By its Answer No. 104 to the Complainant’s Request for Admissions, the Respondent admitted that the fan, lamps, and typewriter (the subjects of Items 63–A, B, and D) were not grounded.

As concerns Items 63–A, B, and D, the equipment referred to appears to be ‘office-type equipment.’ As far as these items are concerned, the Complainant has not sustained the burden of proving a violation of .309(a).

Standard .309(a) (250–51 of the National Electrical Code)

As concerns Item 64, in its Answer, Paragraph 3, Subsection 64, the Respondent admitted this allegation. I find that the Respondent violated .309(a).

Prior Citations

The Respondent has had citations in the past. They are covered in Exhibits C–161–164 . . . Vol. VII, pp. 97, 98.

Penalty for Violations of .309(a)

I find that, as concerns the violations of .309(a), the Respondent should receive the maximum civil penalty allowable even if the Respondent had had no prior violations of any kind. The hazards here could result in the most serious kind of injury or death. The Respondent knew, or should have known, of the practice (apparently permissible in the sense that it was tolerated) of unqualified employees going into the electrical panel boxes to start machines or reset controls or store articles or for other unauthorized purposes. The union’s safety representative had protested the conditions on several occasions beginning on March 4, 1975, and continuing right up to the fatality of April 11. The Respondent should have taken immediate action. I can find no excuse for the Respondent’s failure to correct the situation before the fatality described in Exhibit C–65. It showed such utter disregard of the possible consequences to its employees that, had the Secretary issued a citation for willful violation, it might well have been sustained.

The Respondent apparently had no real safety program intended to protect the Respondent’s employees from the dangers inherent in the electrical equipment. If there were only one electrical panel improperly guarded, I would still find that the Respondent should receive the maximum civil penalty allowable. It is my belief that the Respondent should be penalized for every such panel; when several are included in one item, even the maximum penalty is inadequate.

In Exhibit C–65, which is the Respondent’s investigation into the fatality of April 11, the paragraph headed ‘Conclusion’ makes it clear that the primary cause of the accident was unauthorized entrance into an electrical panel, with secondary causes including no markings to keep out unauthorized personnel. Under ‘Corrective Action,’ the investigation’s summary says in part: ‘. . . A written company policy on access to electrical control panels as well as an electrical preventive maintenance program on electrical equipment will be established . . .’ The word ‘will’ is significant; it indicates that the Respondent did not have any serious safety program of that kind in effect until after the fatality.

Penalty for Item 61 Violations

Section 17(c) of the Act says: ‘Any employer who has received a citation for a violation of the requirements of Section 5 of this Act, of any standard, rule, or order promulgated pursuant to Section 6 of this Act, or of regulations prescribed pursuant to this Act, and such violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $1,000 for each such violation.’

If there be several violations or hazardous conditions specified under one item, may there be a penalty for each hazardous condition or is the penalty limited to just one penalty for the item? The question arises because there are several separate violations listed under Item 61.

The Act’s Section 17(a) on willful or repeated violations refers to a penalty for ‘each violation.’

Section 17(b) on serious violations refers to a penalty for ‘each such violation,’ as does 17(c).

All three subsections under Section 17 of the Act use the word ‘each’ in referring to a penalty for a violation.

I interpret the words ‘each such violation’ to mean that a penalty may be imposed for every violation listed in any one item. However, since there is an apparent conflict of opinion on the point, the Order will reflect an alternative penalty in case it be decided on review that the words ‘each such violation’ refer to the item rather than the hazardous condition.

For that reason, I am imposing a civil penalty of $1,000 for each of the following violations under Item 61: R, S, W, X, Y, Z, AA, BB, CC, DD, EE, GG, II, JJ. That amounts to a total penalty of $14,000 for those violations.

In the alternative (if upon review it be decided that the penalty may be imposed only for the item) the penalty assessed for Item 61 would be $1,000.

Findings of Facts

Having heard the testimony, observed the witnesses, and examined the exhibits, the following Findings of Fact are made:

(1) At all times concerned, the Respondent regularly received, handled or worked with goods which had moved across state lines;

(2) The conditions described in the following items exposed the Respondent’s employees to sustaining harm because of the hazard described therein: Items 1–a, C–h; 2–B; 3–A, E; 5; 12; 13; 23–A-D, F; 30; 32–A, B; 35, 37; 38; 39; 40–A, B, C, F, H–R, T, U, V, X, Z, BB, CC; 46; 48; 49; 50; 52; 54–B; 61–A, E, G, J, M, P, R, S, W, X, Y, Z, AA, BB, CC, DD, EE, GG, II, JJ; 62 and 64;

(3) One or more officers or supervisory personnel of the Respondent was aware of said hazardous conditions and knew that employees were exposed to such hazard.

Conclusions of law

(1) At all times concerned, the Respondent was an employer engaged in a business affecting commerce within the meaning of the Act; and the Occupational Safety and Health Review Commission has jurisdiction over the subject matter and the parties.

(2) At all times concerned, the Respondent knew, or with the exercise of due diligence should have known, of the alleged violations.

(3) On the date in question, the Respondent was not in compliance with the following standards at 29 CFR 1910: .22(a)(1);.22(a)(2); .22(b)(1); .23(c)(1); .37(q)(1); .94(d)(9)(V); .108(c)(2)(i); .108(c)(3)(i); .132(a); .157(d)(4)(V); .176(b); .178(m)(12)(i); .179(b)(5); .179(g)(1)(V); .179(g)(5)(i); .212(a)(1); .215(a)(2); .219(d)(1); .219(e)(1)(i); .219(e)(3)(i); .242(b); .252(a)(2)(IV)(c); .309(a) National Electrical Code, Articles 110–17, 22, and 250–45(d); and the Complainant has sustained the burden of proving the Respondent violated Section 5(a)(2) of the Act (§ 654).

NOTE: Possible alternative finding on .108(c)(2)(i) and .108(c)(3)(i).

(4) The Complainant has not sustained the burden of proving the Respondent violated the following standards at 29 CFR 1910: .24(b); and .176(c).

NOTE: Possible alternative finding on .108(c)(2)(i) and .108(c)(3)(i).

Order

The whole record having been considered, and due consideration having been given to 29 USC, Section 666(j), IT IS ORDERED:

(1) Of the contested items: those affirmed, together with the penalty assessed therefor, are as follows:

ITEM	PENALTY
1	$30.00
2	-0-
3	15.00
5	35.00
12	-0-
13	80.00
^*21	25.00
^*22	-0-
23	60.00
30	-0-
32	35.00
35	35.00
37	-0-
38	-0-
39	-0-
40	50.00
46	-0-
48	35.00
49	-0-
50	-0-
52	-0-
54	30.00
61	$14,000

(1,000 each for Items 61-R, S, W, X, Y, Z, AA, BB, CC, DD, EE, GG, II, and JJ.)
62	50.00
64	-0-

^*	Possible alternative finding.

Those vacated, together with the penalty proposed, are: Items 6, 33, 63.

NOTE: Possible alternative finding on Items 21 and 22.

(2) Of the items withdrawn by the Complainant: the following are vacated, together with their proposed penalties: Items 9–B; 11; 13 (insofar as it referred to Respondent’s Department 2729/2153); 14; 16; 17; 20; 24–A and B; 29–B and C; 40–D, E, S; 41; 47–E; 53–A; 55–58; 60; 61–L, O, Q. T; 65–67; 68–B, C, D, and H.

(3) Of the items where the Respondent withdrew the Notification of Intent to Contest: the following are affirmed, together with the penalty assessed:

ITEM	PENALTY
4	$ -0-
6-A	-0-
7	-0-
8	-0-
9-A	15.00
10	115.00
15	-0-
18	-0-
19	-0-
24-C, D	30.00
25	-0-
26	-0-
27	-0-
28	-0-
29-A	-0-
31	-0-
34	35.00
36	-0-
42	35.00
43	-0-
47-A, B, C, D, F	-0-
51	-0-
53-B	15.00
54-C	-0-
59	-0-
61-HH, MM	-0-
63-C	-0-
68-A, E, F, G	-0-

SO ORDERED.

FOSTER FURCOLO

Judge, OSHRC

Dated: June 21, 1976

Boston, Massachusetts

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[1] This case was previously consolidated on review with OSHRC Docket No. 13591, also involving Pratt & Whitney. The cases were severed when the decision in Docket No. 13591 was issued. Pratt & Whitney Aircraft, 80 OSAHRC 38/A2, 8 BNA OSHC 1329, 1330 n. 1, 1980 CCH OSHD ¶24,447 at p. 29,820 n. 1 (No. 13591, 1980), pet. for review filed, No. 80–4102 (2d Cir. June 24, 1980).

[2] Commissioner Cleary granted review of the issues raised by Pratt & Whitney’s petition for discretionary review. Former Commissioner Robert D. Moran directed review of the judge’s decision ‘for error.’

In its petition for discretionary review, Pratt & Whitney took exception to the judge’s affirmance, in whole or in part, of items 1, 2, 3, 13, 21, 22, 23, 32, 35, 40, 54 and 61. Pratt & Whitney has submitted a comprehensive brief seeking reversal of the judge’s decision on these items. The Secretary has not filed a brief on review.

The judge disposed of a number of other contested items. Since neither party has taken exception to these actions and since there is not any compelling interest warranting Commission review of these items, we will not consider them on review. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976–77 CCH OSHD ¶20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975–76 CCH OSHD ¶20,428 (No. 9507, 1976).

[3] The following is a description of the ten withheld document items that were sealed by the judge.

Item 1 contains thirteen pages of the worksheets of compliance officer John Stanton. The worksheets contain information on alleged instances of noncompliance with specified Occupational Safety and Health Administration (‘OSHA’) standards as observed by Stanton. Item 1 was introduced into evidence, with deletions, as exhibit C–104. The general nature of the deletions for this and the other items will be discussed in the text infra.

Item 2 is a single sheet of paper prepared by compliance officer Stanton that lists the names of employees and the numbers of different citations. This was given to P & W at the hearing with the names of six employees deleted from it. It was not introduced into evidence.

Item 3 contains thirteen pages of the worksheets of compliance officer Sindo Cavalieri with his raw notes on the worksheets. Item 3 was introduced into evidence, with deletions, as exhibit C–121.

Item 4 contains nine pages of the worksheets of compliance officer Cavalieri with his notes from item 3 transcribed to the worksheets. Exhibit C–122 is withheld item 4 with deletions.

Item 5 contains seven pages of the worksheets of compliance officer Joseph Hatcher with his raw notes on them. These notes, with certain deletions, are part of exhibit C–133.

Item 6 contains five pages of the worksheets of compliance officer Hatcher with his notes from item 5 transcribed to the worksheets. These notes, with certain deletions, are part of exhibit C–133.

Item 7 is an OSHA-1C form, which includes information of union representation at P & W and the names of employees contacted by compliance officer Hatcher during his inspection. These notes, with certain deletions, are part of exhibit C–133.

Item 8 contains five pages of OSHA forms prepared by compliance officer Gordon Terroux. The forms contain information on the number of P & W employees, the number of lost workdays, the names of certain employees involved with the union, a summary of the closing conference, and Terroux’s comments on the inspection. Item 8, with certain deletions, was introduced into evidence as exhibit C–160.

Item 9 contains seven pages of the worksheets of compliance officer Terroux. These worksheets, with certain deletions, are part of exhibit C–160.

Item 10 is a photograph of one of the cited instances of noncompliance with OSHA standards as observed by compliance officer Hatcher. Hatcher’s notes describing the alleged instance of noncompliance, reflected by citation subitem 61(k), are on the back of the photograph. Item 10, with the compliance officer’s notes deleted, is exhibit C–126.

[4] The numbers are not part of the description of the observed conditions but appear to have some bookkeeping significance.

[5] Pratt & Whitney also argues, as to certain items, that the Secretary failed to prove noncompliance created hazards to its employees. This argument misconceives the Secretary’s burden of proof. A standard that specifies the conditions to which it applies presupposes the existence of a hazard when its terms are not met, and the Secretary need only prove that the standard applies to the cited conditions. Bunge Corp. v. Secretary of Labor, 638 F.2d 831 (5th Cir. 1981); Austin Bridge Co., 79 OSAHRC 81/A2, 7 BNA OSHC 1761, 1979 CCH OSHD ¶23,935 (No. 76–93, 1979); Lee Way Motor Freight, Inc., 74 OSAHRC 22/D12, 1 BNA OSHC 1689, 1973–74 CCH OSHD ¶17,693 (No. 1105, 1974), aff’d, 511 F.2d 864 (10th Cir. 1975).

[6] The standard at § 1910.22(a)(1) provides:

§ 1910.22 General requirements.

(a) Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

[7] ANSI Z4.1–1968, Requirements for Sanitation in Places of Employment, served as the source for § 1910.22(a). 29 C.F.R. § 1910.31.

[8] The standard at § 1910.22(a)(2) provides:

§ 1910.22 General requirements.

(a) Housekeeping.

(2) The floor of every workroom shall be maintained in a clean and, so far as possible, a dry condition. Where wet processes are used, drainage shall be maintained, and false floors, platforms, mats, or other dry standing places should be provided where practicable.

[9] The standard at § 1910.22(b)(1) reads:

§ 1910.22 General requirements.

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

[10] Acting Chairman Barnako notes that the Secretary originally adopted the cited standard under the Walsh-Healey Act, 41 U.S.C. § 35–45, and subsequently adopted the standard under the Occupational Safety and Health Act pursuant to the summary procedure established in § 6(a) of the Act, 29 U.S.C. § 655(a). Because the Secretary could not make a substantive change in the standard when adopting it under 29 U.S.C. § 655(a), see Marshall v. Union Oil Co. of Cal., 616 F.2d 1169 (9th Cir. 1980), the occupational safety and health standard must be considered in light of any restrictions placed upon the source standard. See Newport News Shipbuilding & Drydock Co., 80 OSAHRC ___, 9 BNA OSHC 1085, 1089 n. 7, 1980 CCH OSHD ¶25,003 at p. 30,890 n. 7 (No. 76–171, 1980). Acting Chairman Barnako joins his colleagues in affirming this subitem. He notes that the terms of the source standard are not restricted to motorized trucks. He further notes that Inspection Survey Guide § 20.4.4, on which P & W relies, refers to ‘vehicular traffic’ and is similarly, therefore, not restricted to motorized vehicles.

[11] The standard at § 1910.94(d)(9)(v) provides:

§ 1910.94 Ventilation.

(d) Open surface tanks.

(9) Personal protection.

(v) Whenever there is a danger of splashing, for example, when additions are made manually to the tanks, or when acids and chemicals are removed from the tanks, and employees so engaged shall be required to wear either tightfitting chemical goggles or an effective face shield. See § 1910.133.

[12] The cited standards provide:

§ 1910.108 Dip tanks containing flammable or combustible liquids.

(c) Construction of dip tanks—

(2) Overflow pipes. (1) Dip tanks of over 150 gallons in capacity or 10 square feet in liquid surface area shall be equipped with a properly trapped overflow pipe leading to a safe location outside buildings. Smaller dip tanks should also be so equipped, where practical. The discharge of the overflow pipe should be so located and arranged that if the entire combustible contents of the dip tank is overflowed through overflow pipe by the application of water during fire fighting, property will not be endangered. The size of the overflow pipe should be sufficient to conduct the maximum rate of flow of water expected to be applied to the liquid surface of the dip tank from automatic sprinklers or from other sources in the event of fire.

(3) Bottom drains. (i) Dip tanks over 500 gallons in liquid capacity shall be equipped with bottom drains automatically and manually arranged to quickly drain the tank in the event of fire, unless the viscosity of the liquid at normal atmospheric temperature makes this impractical. Manual operation shall be from a safely accessible location. Where gravity flow is not practicable, automatic pumps shall be required.

[13] The Secretary also alleges that a third Varsol tank in the same department did not have an overflow pipe.

[14] The standard at § 1910.108(c)(3)(ii) provides:

§ 1910.108 Dip tanks containing flammable or combustible liquids.

(c) Construction of dip tanks—

(3) Bottom drains.

(ii) Such drain shall be trapped and discharge to a closed properly vented salvage tank or to a safe location outside which will not endanger property.

[15] If the cited standards were not viewed by Acting Chairman Barnako as property protection standards only, he would find that P & W failed to comply with the standards, but would modify the citation to allege that the violations were de minimis. He believes that any hazard created by the absent overflow pipes and bottom drains was eliminated by the presence of P & W’s effective fire protection system and by the fusible wires, which would close the tank covers and prevent the contents of the tank from overflowing.

[16] Section 1910.132(a) is found in Subpart I, entitled ‘Personal Protective Equipment,’ of the Secretary’s general industry standards. 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 wherever it is necessary by reason of hazards 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.

[17] The standard at § 1910.176(b) provides:

§ 1910.176 Handling Materials—general.

(b) Secure storage. Storage of material shall not create a hazard. Bags, containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse.

[18] The standard at § 1910.178(m)(12)(i) provides:

§ 1910.178 Powered industrial trucks.

(m) Truck operations.

(12) Whenever a truck is equipped with vertical only, or vertical and horizontal controls elevatable with the lifting carriage or forks for lifting personnel, the following additional precautions shall be taken for the protection of personnel being elevated.

(i) Use of a safety platform firmly secured to the lifting carriage and/or forks.

[19] The standard at § 1910.23(a)(2) provides:

§ 1910.23 Guarding floor and wall openings and holes.

(a) Protection for floor openings.

(2) Every ladderway floor opening or platform shall be guarded by a standard railing with standard toeboard on all exposed sides (except at entrance to opening), with the passage through the railing either provided with a swinging gate or so offset that a person can not walk directly into the opening.

[20] The standard at § 1910.23(e)(1) provides, in pertinent part:

§ 1910.23 Guarding floor and wall openings and holes.

(e) Railing, toe boards, and cover specifications.

(1) A standard railing shall consist of top rail, intermediate rail, and posts, and shall have a vertical height of 42 inches nominal from upper surface of top rail to floor, platform, runway, or ramp level . . .

[21] The standard at § 1910.23(c)(1) provides:

§ 1910.23 Guarding floor and wall openings and holes.

(c) Protection of open-sided floors, platforms, and runways.

(1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the open sides,

(i) Persons can pass,

(ii) There is moving machinery, or

(iii) There is equipment with which falling materials could create a hazard.

[22] 29 C.F.R. § 1910.23(e)(1), note 20 supra. We reject P & W’s argument that this section does not apply to a platform supported by a powered industrial truck. Section 1910.23(e)(1) simply provides specifications for a standard railing. Nothing in § 1910.178 suggests that a railing on a platform supported by a powered industrial truck should differ from a standard railing on any other type of platform.

[23] The standard at § 1910.212(a)(1) 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.

[24] A chuck is a device that is attached to the rotating shaft of a lathe and is used for centering and clamping work on the lathe.

[25] Shafts are round, coupling-like devices on machines that rotate when the machines are on.

[26] The standard at § 1910.252(a)(2)(iv)(c) provides:

§ 1910.252 Welding, cutting, and brazing.

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

(2) Cylinders and containers—

(iv) Oxygen storage.

(c) Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet or by a noncombustible barrier at least 5 feet high having a fire resistance rating of at least one-half hour.

[27] The standard at § 1910.309(a) provides:

§ 1910.309 National Electrical Code.

(a) The requirements contained in the following articles and sections of the National Electrical Code, NFPA 70–1971; ANSI C1–1971 (Rev. of C1–1968) shall apply to all electrical installations and utilization equipment: (Four separate articles and numerous sections including 110–17(a), (b), and (c) are listed.)

[28] Article 110–17 of the National Electrical Code provides:

110–17. Guarding of Live Parts. (Not more than 600 Volts)

(a) Except as elsewhere required or permitted by this Code, live parts of electrical equipment operating at 50 volts or more shall be guarded against accidental contact by approved cabinets or other forms of approved enclosures, or any of the following means:

(1) By location in a room, vault, or similar enclosure which is accessible only to qualified persons.

(2) By suitable permanent, substantial partitions or screens so arranged that only qualified persons will have access to the space within reach of the live parts. Any openings in such partitions or screens shall be so sized and located that persons are not likely to come into accidental contact with the live parts or to bring conducting objects into contact with them.

(3) By location on a suitable balcony, gallery, or platform so elevated and arranged as to exclude unqualified persons.

(4) By elevation at least 8 feet above the floor or other working surface.

(b) In locations where electrical equipment would be exposed to physical damage, enclosures or guards shall be so arranged and of such strength as to prevent such damage.

(c) Entrances to rooms and other guarded locations containing exposed live parts shall be marked with conspicuous warning signs forbidding unqualified persons to enter.

[29] A raceway is rigid conduit in which electrical wires are placed.

[30] ‘A metalworking machine tool is a power driven machine not portable by hand, used to shape or form metal by cutting, impact, pressure, electrical techniques, or a combination of these processes.’ (Quoted on p. 79–3 of the Electrical Standard for Metalworking Machine Tools, NFPA No. 79–1971; Exhibit R–16.)

[31] See note 28 supra.

[32] Section 17 of the Act, 29 U.S.C. § 666, provides, in pertinent part:

PENALTIES

(b) Any employer who has received a citation for a serious violation of the requirements of section 5 of this Act, of any standard, rule, or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, shall be assessed a civil penalty of up to $1,000 for each such violation.

(c) Any employer who has received a citation for a violation of the requirements of section 5 of this Act, of any standard, rule, or order promulgated pursuant to section 6 of this Act, or of regulations prescribed pursuant to this Act and such violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $1,000 for each such violation.

[33] P & W makes these assertions in its brief on review. They are not supported by evidence of record. Accordingly, we note here only that the argument is made. We cannot, however, base a factual finding on assertions that are not properly in the record.

[34] The Secretary also has not stated whether or not he thinks the penalty assessment procedure employed by the judge is proper.

[35] The Commission has consistently held that it may assess penalties higher than those proposed by the Secretary. Worcester Pressed Steel Co., 75 OSAHRC 89/A2, 3 BNA OSHC 1661, 1975–76 CCH OSHD ¶20,104 (No. 4237, 1975). Since employers are on notice that the Commission has such authority, the assessment of a higher penalty than that proposed for the entire item here does not involve the element of unfairness that the assessment of individual penalties for each subitem does.

[36] Section 17(j) of the Act, 29 U.S.C. § 666(i), provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.