“\ufeff\t\tDocument\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Times New Roman; color:WindowText; font-size:10pt; font-size:10pt; } p { font-family:Times New Roman; font-size:12pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:0px;margin-top:0px;margin-bottom:0px;margin-right:0px;} div.basic { width:21.59cm;height:27.94cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 8274\t\t\t\t\t\t\t\t\t\tALLIS-CHALMERS CORPORATION, a\t\t\t\t\t\t\t\t\t\tcorporation,\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBefore Barnako, Chairman; MORAN and CLEARY, Commissioners.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBARNAKO, Chairman:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA decision of Administrative Law Judge Vernon Riehl is before us for review pursuant to\t\t\t\t\t\t\t\t\t\tsection 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.,\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\thereinafter \u2018the Act\u2019). Judge Riehl affirmed two items of a nonserious citation as amended ,\t\t\t\t\t\t\t\t\t\twhich alleged violations of 29 C.F.R. 1910.133 and 1910.212(a)(1) respectively. The Judge\t\t\t\t\t\t\t\t\t\tassessed a $60 penalty for the first item and did not assess a penalty for the second. For the\t\t\t\t\t\t\t\t\t\treasons below, we affirm the Judge\u2019s disposition as to the first item, but reverse as to the second.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tALLEGED VIOLATION OF 29 C.F.R. 1910.133\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tRespondent contends that the Judge erred in permitting the items to be amended by the\t\t\t\t\t\t\t\t\t\tcomplaint and that the citation is void because of its failure to describe the alleged violations\t\t\t\t\t\t\t\t\t\twith particularity as required by section 9(a) of the Act. We reject both arguments. We find that\t\t\t\t\t\t\t\t\t\tthe amendments were properly granted inasmuch as they did not alter the factual allegations of\t\t\t\t\t\t\t\t\t\tthe citation but rather provided additional details so as to better enable Respondent to prepare its\t\t\t\t\t\t\t\t\t\tcase. As to Respondent\u2019s particularity argument, we find that the citation fairly apprised\t\t\t\t\t\t\t\t\t\tRespondent of the facts surrounding the alleged violations. See B. W. Harrison Lumber Co., Inc.,\t\t\t\t\t\t\t\t\t\tNo. 2200, BNA 4 OSHC 1001, CCH OSHD para. 20,623 (April 14, 1976).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2The standard at 1910.133 reads in pertinent part that: \u2018Protective eye and face equipment shall\t\t\t\t\t\t\t\t\t\tbe required where there is a reasonable probability of injury that can be prevented by such\t\t\t\t\t\t\t\t\t\tequipment. In such cases, employers shall make conveniently available a type of protector\t\t\t\t\t\t\t\t\t\tsuitable for the work to be performed, and employees shall use such protectors. No unprotected\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe Secretary alleged that Respondent violated 1910.133 in that its employees were not\t\t\t\t\t\t\t\t\t\trequired to wear side shields on their safety glasses. The evidence shows that employees working\t\t\t\t\t\t\t\t\t\tin four Agricultural Tractor Division buildings were operating lathes, grinders, bores, drills, and\t\t\t\t\t\t\t\t\t\tmills, and were using pressurized air for cleaning machines. It was undisputed that these\t\t\t\t\t\t\t\t\t\temployees were provided with and used frontal eye protection, but were not required to use side\t\t\t\t\t\t\t\t\t\tprotection. The CO and several employees testified that they observed chips and particles being\t\t\t\t\t\t\t\t\t\tthrown from machines. Compressed air used for cleaning machines and parts also blew particles\t\t\t\t\t\t\t\t\t\tfrom machines. Two employees testified that they had incurred eye injuries while wearing their\t\t\t\t\t\t\t\t\t\tsafety glasses.\t\t\t\t\t\t\t\t\t\tJudge Riehl affirmed the violation and assessed the $60 proposed penalty. On review,\t\t\t\t\t\t\t\t\t\tRespondent urges that the Judge erred in affirming since the Secretary did not establish by the\t\t\t\t\t\t\t\t\t\tpreponderant evidence that there existed in the workplace a hazard from flying particles. We\t\t\t\t\t\t\t\t\t\treject this argument. Judge Riehl, after considering and weighing the evidence fairly, concluded\t\t\t\t\t\t\t\t\t\tspecifically that a hazard existed. In such circumstances where a Judge\u2019s finding is supported by\t\t\t\t\t\t\t\t\t\tthe evidence, we will not normally reweigh the evidence on review. Okland Construction Co.,\t\t\t\t\t\t\t\t\t\tNo. 3395, BNA 3 OSHC 2023, CCH OHSD para. 20,441 (Feb. 20, 1976). Accordingly, a\t\t\t\t\t\t\t\t\t\tviolation was established and we affirm the Judge\u2019s disposition of the item.\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tALLEGED VIOLATION OF 29 C.F.R. 1910.212(a)(1)\t\t\t\t\t\t\t\t\t\tThe Secretary alleged that Respondent violated 1910.212(a)(1) in that employees were\t\t\t\t\t\t\t\t\t\texposed to unguarded rotating parts, nip points, and points of operation created by the rotating\t\t\t\t\t\t\t\t\t\trear wheels of assembled tractors which were being tested. The evidence showed that, after fully\t\t\t\t\t\t\t\t\t\tassembled tractors came off the assembly line, they were driven onto rollers for testing. During\t\t\t\t\t\t\t\t\t\tthe testing, the rear wheels of the tractors rotated at a speed of approximately 15 miles per hour.\t\t\t\t\t\t\t\t\t\tEmployees worked in near proximity to the rotating wheels. The sides of the roller were guarded\t\t\t\t\t\t\t\t\t\tby rails 44 inches and 30 inches high respectively. However, the rear portion of the rollers was\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tperson shall knowingly be subjected to a hazardous environmental condition. Suitable eye\t\t\t\t\t\t\t\t\t\tprotectors shall be provided where machines or operations present the hazard of flying objects,\t\t\t\t\t\t\t\t\t\tglare, liquids, injurious radiation, or a combination of these hazards.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\tThe standard at 1910.212(a)(1) requires that \u201cOne or more methods of machine guarding shall\t\t\t\t\t\t\t\t\t\tbe provided to protect the operator and other employees in the machine area from hazards such\t\t\t\t\t\t\t\t\t\tas those created by point of operation, ingoing nip points, rotating parts, flying chips, and sparks.\t\t\t\t\t\t\t\t\t\tExamples of guarding methods are\u2014barrier guards, two-hand tripping devices, electronic safety\t\t\t\t\t\t\t\t\t\tdevices, etc.\u201d\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tnot guarded.\t\t\t\t\t\t\t\t\t\tJudge Riehl affirmed the item. He determined that the tractors were machines within the\t\t\t\t\t\t\t\t\t\tmeaning of the standard by referring to the dictionary definition of machine. He found that the\t\t\t\t\t\t\t\t\t\toperation of the machines exposed employees to a hazard from the unguarded rotating parts and\t\t\t\t\t\t\t\t\t\tnip points.\t\t\t\t\t\t\t\t\t\tOn review, Respondent takes the position that the cited standard does not apply to the\t\t\t\t\t\t\t\t\t\ttractors that are being tested. It argues that although \u2018machine\u2019 is not defined in subpart O, the\t\t\t\t\t\t\t\t\t\tsubpart does not deal with any type of moving vehicle. Respondent also points to\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\t1910.212(a)(3)(iv) which, in listing examples of machines on which the point of operation must\t\t\t\t\t\t\t\t\t\tbe guarded, does not include tractors.\t\t\t\t\t\t\t\t\t\tHaving considered the Judge\u2019s reasoning and Respondent\u2019s arguments, we conclude that\t\t\t\t\t\t\t\t\t\tthe Judge erred in finding that the cited standard was applicable to the tractors in question. The\t\t\t\t\t\t\t\t\t\tstandard at 1910.212(a)(1) is clearly directed towards machines which are or can be used in the\t\t\t\t\t\t\t\t\t\tproduction or manufacturing process. The examples of machines listed in 1910.212(a)(3)(iv),\t\t\t\t\t\t\t\t\t\talthough specifically directed toward point of operation guarding, are illustrative of the type of\t\t\t\t\t\t\t\t\t\tmachines for which other types of guarding are required. Moreover, each of the other sections of\t\t\t\t\t\t\t\t\t\tsubpart O specify safety requirements for machines used in manufacturing processes but none\t\t\t\t\t\t\t\t\t\tspecify such requirement products produced as a result of the processes. The tractors in on are\t\t\t\t\t\t\t\t\t\tnot machines which are used in the manufacturing process her are the products of the process.\t\t\t\t\t\t\t\t\t\tFor these reasons we conclude that 1910.212(a)(1) is inapplicable to the cited condition and\t\t\t\t\t\t\t\t\t\tvacate the item.\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tAccordingly, we find Respondent in violation of 1910.133 and affirm the Judge\u2019s\t\t\t\t\t\t\t\t\t\tassessment of a penalty of $60 therefor; we vacate the alleged violation of 1910.212(a)(1). It is\t\t\t\t\t\t\t\t\t\tso ORDERED.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\tSection 1910.212(a)(3)(iv) states that \u2018The following are some of the machines which usually\t\t\t\t\t\t\t\t\t\trequire point of operation guarding: (a) Guillotine cutters. (b) Shears. (c) Alligator shears. (d)\t\t\t\t\t\t\t\t\t\tPower presses. (e) Milling machines. (f) Power saws. (g) Jointers. (h) Portable power tools. (i)\t\t\t\t\t\t\t\t\t\tForming rolls and calenders.\u2019\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tWilliam S. McLaughlin\t\t\t\t\t\t\t\t\t\tExecutive Secretary\t\t\t\t\t\t\t\t\t\tDATE: DEC 1, 1976\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMORAN, Commissioner, Concurring in Part, Dissenting in Part:\t\t\t\t\t\t\t\t\t\tI agree with the vacation of the charge alleging noncompliance with 29 C.F.R. \u00a7\t\t\t\t\t\t\t\t\t\t1910.212(a)(1). The majority err, however, in affirming the remaining contested charge because\t\t\t\t\t\t\t\t\t\tthe portion of the citation pertaining thereto is fatally defective. Not only does it fail to \u2018describe\t\t\t\t\t\t\t\t\t\twith particularity the nature of the violation\u2019 as required by 29 U.S.C. \u00a7 658(a), but it also fails to\t\t\t\t\t\t\t\t\t\tstate any violation at all.\t\t\t\t\t\t\t\t\t\tThe citation alleges that respondent violated 29 C.F.R. \u00a7 1910.133(a) at four locations in\t\t\t\t\t\t\t\t\t\tthat its \u2018employees machining . . . in assembly processes using air for cleaning and blowing parts\t\t\t\t\t\t\t\t\t\t[were] wearing frontal eye protection.\u2019 Apparently recognizing that this did not state a practice\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\t\t\t\t\tthat was contrary to section 1910.133(a), complainant attempted to correct this deficiency by an\t\t\t\t\t\t\t\t\t\tamendment to the citation which was set out in the complaint. This amendment avers that\t\t\t\t\t\t\t\t\t\t6\t\t\t\t\t\t\t\t\t\trespondent violated section 1910.133 at the same four locations in that its employees who \u201cwere\t\t\t\t\t\t\t\t\t\tmachining . . . in assembly processes and using air for cleaning and blowing parts did not wear\t\t\t\t\t\t\t\t\t\tsafety spectacles equipped with side shields.\u201d (Emphasis added.)\t\t\t\t\t\t\t\t\t\tSection 1910.133 makes no mention of safety spectacles equipped with side shields. At\t\t\t\t\t\t\t\t\t\tthe hearing, however, complainant indicated that side shields were required to be furnished when\t\t\t\t\t\t\t\t\t\tside as well as frontal protection was necessary because of the following reference in 29 C.F.R. \u00a7\t\t\t\t\t\t\t\t\t\t1910.133(a)(6):\t\t\t\t\t\t\t\t\t\t\u2018Design, construction, testing, and use of devices for eye and face protection\t\t\t\t\t\t\t\t\t\tshall be in accordance with American National Standard for Occupational and\t\t\t\t\t\t\t\t\t\tEducational Eye and Face Protection, Z87.1\u20131968.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAs I have previously indicated, a citation is not a civil pleading. Rather, it is a unique\t\t\t\t\t\t\t\t\t\tdocument, created by statute, which cannot be substantively amended pursuant to the Federal\t\t\t\t\t\t\t\t\t\tRules of Civil Procedure. Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\t\t\t\t\tCompare the above-quoted wording of the citation with 29 C.F.R. \u00a7 1910.133(a)(1), the\t\t\t\t\t\t\t\t\t\tcomplete text of which is contained in footnote 2.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t6\t\t\t\t\t\t\t\t\t\tIn this respect, the complaint is less particular than the citation as the citation did specify\t\t\t\t\t\t\t\t\t\tsubparagraph (1) of section 1910.133 which contains six subparagraphs.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t31, 1976 (dissenting opinion). The Act states in clear and certain terms that each citation (not\t\t\t\t\t\t\t\t\t\tcomplaint) shall describe:\t\t\t\t\t\t\t\t\t\t\u2018. . . with particularity the nature of the violation, including a reference to the\t\t\t\t\t\t\t\t\t\tprovisions of the chapter, standard, rule, regulation, or order alleged to have been\t\t\t\t\t\t\t\t\t\tviolated.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 U.S.C. \u00a7 658(a).\t\t\t\t\t\t\t\t\t\tThe citation in the instant case fails to describe the nature of the violation with\t\t\t\t\t\t\t\t\t\tparticularity. In fact, it alleges no violation at all, but instead asserts that the respondent complied\t\t\t\t\t\t\t\t\t\twith 29 C.F.R. \u00a7 1910.133(a). This in itself requires that the citation by vacated. As stated in\t\t\t\t\t\t\t\t\t\tNational Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257, 1264 n. 31 (D.C.\t\t\t\t\t\t\t\t\t\tCir. 1973):\t\t\t\t\t\t\t\t\t\t\u2018[A]n employer cannot be penalized for failing to correct a condition which the\t\t\t\t\t\t\t\t\t\tcitation did not fairly characterize.\u2019 (Emphasis added.)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFurthermore, even if the amendment in this case were permissible, the charge as set out\t\t\t\t\t\t\t\t\t\tin the complaint is inadequate because it does not specify what particular standard in section\t\t\t\t\t\t\t\t\t\t1910.133 was allegedly violated. At the hearing, complainant clarified that he was proceeding\t\t\t\t\t\t\t\t\t\tunder subparagraphs (1) and (6) of section 1910.133(a). However, neither of those\t\t\t\t\t\t\t\t\t\tsubparagraphs nor any other part of section 1910.133 makes any mention of side shields for\t\t\t\t\t\t\t\t\t\tsafety spectacles. To find out that side shields are required, an employer must refer to American\t\t\t\t\t\t\t\t\t\tNational Standards Institute (ANSI) standard Z87.1\u20131968.\t\t\t\t\t\t\t\t\t\tThus, the respondent did not know the exact nature of the charge against it even after\t\t\t\t\t\t\t\t\t\thaving the citation, the complaint, and 29 C.F.R. \u00a7 1910.133 in hand. Before knowing that,\t\t\t\t\t\t\t\t\t\treference to ANSI standard Z87.1\u20131968 was still necessary. This is ridiculous. More\t\t\t\t\t\t\t\t\t\timportantly, however, as I have previously indicated in several opinions, any standard that\t\t\t\t\t\t\t\t\t\trequires employers to ascertain its substantive requirements from sources other than the Federal\t\t\t\t\t\t\t\t\t\tRegister is not reasonably available within the context of the Act and is, therefore,\t\t\t\t\t\t\t\t\t\tunenforceable. Secretary v. Leader Evaporator, Inc., OSAHRC Docket No. 5225, June 10, 1976\t\t\t\t\t\t\t\t\t\t(dissenting opinion), and the cases cited therein.\t\t\t\t\t\t\t\t\t\tIn view of the lead opinion\u2019s reliance on Judge Riehl\u2019s decision, his decision is attached\t\t\t\t\t\t\t\t\t\thereto as Appendix A.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tCLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:\t\t\t\t\t\t\t\t\t\tI concur in the affirmance of the violation and penalty assessment for the failure to\t\t\t\t\t\t\t\t\t\tcomply with the standards at 29 CFR \u00a7 1910.133 for the reasons stated in the lead opinion.\t\t\t\t\t\t\t\t\t\tI dissent from the vacating of the alleged violation with respect to the standard at 29 CFR\t\t\t\t\t\t\t\t\t\t\u00a7 1910.212(a)(1). I agree with and would adopt the reasoning of Judge Riehl on the matter of the\t\t\t\t\t\t\t\t\t\tapplicability of the standard to the conditions cited.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe reasoning of the majority is based on an apparent misreading of Judge Riehl\u2019s\t\t\t\t\t\t\t\t\t\tholding. The lead opinion states that Judge Riehl \u2018. . . determined that the tractors were machines\t\t\t\t\t\t\t\t\t\t7\t\t\t\t\t\t\t\t\t\twithin the meaning of the standard . . .\u2019 The majority then concludes that the cited standard is\t\t\t\t\t\t\t\t\t\tinapplicable to the circumstances here because (1) the standards in Subpart O of Part 1910 are\t\t\t\t\t\t\t\t\t\tdirected only toward machines which are being or can be used in the production or\t\t\t\t\t\t\t\t\t\tmanufacturing process; and (2) the tractors in this case are machines that are products rather than\t\t\t\t\t\t\t\t\t\ta part of the production process.\t\t\t\t\t\t\t\t\t\tThe majority focuses its reasoning too narrowly on the tractor. The citation in this case\t\t\t\t\t\t\t\t\t\twas directed at unsafe conditions resulting from the operation of testing the tractors on a\t\t\t\t\t\t\t\t\t\t8\t\t\t\t\t\t\t\t\t\tdynamometer. The hazards to respondent\u2019s employees exist only during the roller-testing\t\t\t\t\t\t\t\t\t\t9\t\t\t\t\t\t\t\t\t\tprocedure. It is simply inadequate to view either a tractor or the testing device by itself as the\t\t\t\t\t\t\t\t\t\t10\t\t\t\t\t\t\t\t\t\tmajority does. Judge Riehl\u2019s decision recognized this.\t\t\t\t\t\t\t\t\t\tOn the other hand, the result obtained by the majority seems based only on the\t\t\t\t\t\t\t\t\t\timplication that the roller-testing is not a part of respondent\u2019s production procedure. The\t\t\t\t\t\t\t\t\t\timplication, however, is contrary to a specific finding by Judge Riehl that is neither explicitly\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t7\t\t\t\t\t\t\t\t\t\tMore precisely, the Judge found that \u2018. . . the tractor in the process of being tested on the rollers\t\t\t\t\t\t\t\t\t\tis a \u2018machine\u2019 . . ..\u2019 (Emphasis added.).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t8\t\t\t\t\t\t\t\t\t\t8The citation reads, in part, as follows:\t\t\t\t\t\t\t\t\t\tFailure to provide one or more methods of machine guarding to protect the\t\t\t\t\t\t\t\t\t\toperator and other employees in the machine area from hazards such as those\t\t\t\t\t\t\t\t\t\tcreated by point of operations, ingoing nip points, rotating parts; e.g., tractor\t\t\t\t\t\t\t\t\t\toperation testing station in tractor #4. (Emphasis added).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t9\t\t\t\t\t\t\t\t\t\tThe Judge found that employees were exposed to hazards of ingoing nip points and rotating\t\t\t\t\t\t\t\t\t\tparts were created by an unguarded portion of the rear wheels of tractors in the testing operation.\t\t\t\t\t\t\t\t\t\tJudge\u2019s findings of fact Nos. 11, 12, and 13.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t10\t\t\t\t\t\t\t\t\t\tSee, n. 7, supra.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t11\t\t\t\t\t\t\t\t\t\tdisputed nor refuted by the Commission.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t11\t\t\t\t\t\t\t\t\t\tThe Judge found that the testing process was \u2018. . . all part of the process of manufacturing\t\t\t\t\t\t\t\t\t\ttractors and just one more step in the final completion of the product.\u2019 Judge\u2019s decision at 22.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 8274\t\t\t\t\t\t\t\t\t\tALLIS-CHALMERS CORPORATION, a\t\t\t\t\t\t\t\t\t\tcorporation,\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAPPEARANCES:\t\t\t\t\t\t\t\t\t\tROBERT H. BROWN, Esquire, U.S. Department of Labor,\t\t\t\t\t\t\t\t\t\tOffice of the Solicitor, Chicago, Illinois,\t\t\t\t\t\t\t\t\t\tfor the Complainant\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNICHOLAS T. JORDAN, Esquire, Attorney Corporate Employee Relations,\t\t\t\t\t\t\t\t\t\tAllis-Chalmers Corporation, Milwaukee, Wisconsin,\t\t\t\t\t\t\t\t\t\tfor the Respondent\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tLEONARD S. ZUBRENSKY, Esquire, firm of Zubrensky, Padden, Graf and Bratt,\t\t\t\t\t\t\t\t\t\tMilwaukee, Wisconsin\t\t\t\t\t\t\t\t\t\tfor the United Automobile, Aerospace & Agricultural Implement Workers of America,\t\t\t\t\t\t\t\t\t\tLocal 248\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSTATEMENT OF CASE\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tVernon Riehl, Judge, OSAHRC\t\t\t\t\t\t\t\t\t\tThis is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of\t\t\t\t\t\t\t\t\t\t1970, (29 U.S.C. 651 et seq., hereinafter called the Act) contesting a citation issued by the\t\t\t\t\t\t\t\t\t\tcomplainant against the respondent under the authority vested in the complainant by section 9(a)\t\t\t\t\t\t\t\t\t\tof that Act. The citation alleged that an inspection of a workplace under the ownership,\t\t\t\t\t\t\t\t\t\toperation, and control of the respondent revealed the existence of workplace conditions that\t\t\t\t\t\t\t\t\t\tviolate section 5(a)(2) of the Act for the reason that these conditions failed to comply with\t\t\t\t\t\t\t\t\t\tcertain occupational safety and health standards promulgated by the Secretary of Labor pursuant\t\t\t\t\t\t\t\t\t\tto section 6 thereof.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tA citation and a notification of proposed penalty were issued to the respondent by mail\t\t\t\t\t\t\t\t\t\ton May 6, 1974. On May 26, 1974, amendments were issued which were further clarified by a\t\t\t\t\t\t\t\t\t\tletter of May 29, 1974. The respondent was charged with violation of the Act in regard to 65\t\t\t\t\t\t\t\t\t\titems (complaint, answer). On May 24, 1974, respondent filed by mail a notification of intent to\t\t\t\t\t\t\t\t\t\tcontest. On May 29, 1974, respondent hand delivered to complainant an amendment thereto\t\t\t\t\t\t\t\t\t\tstating an intent to contest items 34 (with respect to subitem b), 35 and 47 (complaint and\t\t\t\t\t\t\t\t\t\tanswer). The parties stipulated that the sole issue in this proceeding is violation of the aforesaid\t\t\t\t\t\t\t\t\t\titems. Penalties are not in issue.\t\t\t\t\t\t\t\t\t\tAt the hearing, complainant withdrew item 35(T. 5). A description of the contested items\t\t\t\t\t\t\t\t\t\tas contained in the citation states:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tItem\t\t\t\t\t\tStandard, regulation\t\t\t\t\t\tDescription of alleged violation\t\t\t\t\t\tDate by which\t\t\t\t\t\t\t\t\t\tnumber\t\t\t\t\t\tor section of the\t\t\t\t\t\talleged violation\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tallegedly violated\t\t\t\t\t\tmust be corrected\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t34(b)\t\t\t\t\t\tRef. 29 CFR\t\t\t\t\t\tTractor #2, tractor #3, tractor #1 and\t\t\t\t\t\tJune 20, 1974\t\t\t\t\t\t\t\t\t\t1910.133(a)(1)\t\t\t\t\t\ttractor\t\t\t\t\t\t#4\t\t\t\t\t\temployees\t\t\t\t\t\tmachining\t\t\t\t\t\t\t\t\t\t(mills\t\t\t\t\t\tand\t\t\t\t\t\tboring)\t\t\t\t\t\tin\t\t\t\t\t\tassembly\t\t\t\t\t\t\t\t\t\tprocesses using air for cleaning and\t\t\t\t\t\t\t\t\t\tblowing parts wearing frontal eye\t\t\t\t\t\t\t\t\t\tprotection.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t47\t\t\t\t\t\tRef. 29 CFR\t\t\t\t\t\tFailure\t\t\t\t\t\tto\t\t\t\t\t\tprovide\t\t\t\t\t\tone\t\t\t\t\t\tor\t\t\t\t\t\tmore\t\t\t\t\t\tJune 20, 1974\t\t\t\t\t\t\t\t\t\t1910.212(a)(1)\t\t\t\t\t\tmethods\t\t\t\t\t\tof\t\t\t\t\t\tmachine\t\t\t\t\t\tguarding\t\t\t\t\t\tto\t\t\t\t\t\t\t\t\t\tprotect\t\t\t\t\t\tthe\t\t\t\t\t\toperator\t\t\t\t\t\tand\t\t\t\t\t\tother\t\t\t\t\t\t\t\t\t\temployees in the machine area from\t\t\t\t\t\t\t\t\t\thazards such as those created by\t\t\t\t\t\t\t\t\t\tpoint\t\t\t\t\t\tof\t\t\t\t\t\toperations,\t\t\t\t\t\tingoing\t\t\t\t\t\tnip\t\t\t\t\t\t\t\t\t\tpoints, rotating parts; e.g., tractor\t\t\t\t\t\t\t\t\t\toperation testing station in tractor #4.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe hearing was held on October 23, 1974. On December 23, 1974, respondent filed a\t\t\t\t\t\t\t\t\t\tpetition for modification of abatement with the Office of the Solicitor, Milwaukee, Wisconsin.\t\t\t\t\t\t\t\t\t\tThis petition requested an additional 60 day extension to March 1, 1975, from December 31,\t\t\t\t\t\t\t\t\t\t1974, on items 48C and 48G.\t\t\t\t\t\t\t\t\t\tOn January 3, 1975, the Secretary sent a letter to the Commission stating he had no\t\t\t\t\t\t\t\t\t\tobjection to the Commission entering an order granting an extension of time to the new\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tabatement date requested in the petition.\t\t\t\t\t\t\t\t\t\tOn February 5, 1975, Mr. Zubrensky, on behalf of the United Automobile, Aerospace\t\t\t\t\t\t\t\t\t\tand Agricultural Implement Workers of America, Local 248, by letter stated: \u2018Please be advised\t\t\t\t\t\t\t\t\t\tthat United Auto Workers Local 248 has no objection to the extension of time requested by the\t\t\t\t\t\t\t\t\t\tAllis Chalmers Corporation . . .\u2019.\t\t\t\t\t\t\t\t\t\tAccordingly, the issue is moot and we order the extension of time for abatement on items\t\t\t\t\t\t\t\t\t\t48C and 48G to extend to March 1, 1975.\t\t\t\t\t\t\t\t\t\tDISCUSSION\t\t\t\t\t\t\t\t\t\tThe total, credible, probative, substantial evidence establishes that the respondent has\t\t\t\t\t\t\t\t\t\tviolated 29 CFR 1910.133 in that it failed to require employees to use suitable eye protection in\t\t\t\t\t\t\t\t\t\tAgricultural Tractor Division (ATD) building 1, 2, 3 and 4 where respondent\u2019s machines or\t\t\t\t\t\t\t\t\t\toperations presented a hazard to employees from flying objects.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 CFR 1910.133 states in pertinent part:\t\t\t\t\t\t\t\t\t\t(a) General.\t\t\t\t\t\t\t\t\t\t(1) Protective eye and face equipment shall be required where there is a\t\t\t\t\t\t\t\t\t\treasonable probability of injury that can be prevented by such equipment. In such\t\t\t\t\t\t\t\t\t\tcases, employers shall make conveniently available a type of protector suitable for\t\t\t\t\t\t\t\t\t\tthe work to be performed, and employees shall use such protectors. No\t\t\t\t\t\t\t\t\t\tunprotected person shall knowingly be subjected to a hazardous environmental\t\t\t\t\t\t\t\t\t\tcondition. Suitable eye protectors shall be provided where machines or operations\t\t\t\t\t\t\t\t\t\tpresent the hazard of flying objects, glare, liquids, injurious radiation, or a\t\t\t\t\t\t\t\t\t\tcombination of these hazards.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(6) Design, construction, testing, and use of devices for eye and face\t\t\t\t\t\t\t\t\t\tprotection shall be in accordance with American National Standard for\t\t\t\t\t\t\t\t\t\tOccupational and Educational Eye and Face Protection, Z87.1\u20131968.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe ANSI standard which is referred to in 1910.133 sets forth detailed criteria for construction,\t\t\t\t\t\t\t\t\t\ttesting and use of eye protection devices. The ANSI criteria includes a statement at page 15:\t\t\t\t\t\t\t\t\t\t\u2018Where side as well as frontal protection is required, the spectacles shall be provided with\t\t\t\t\t\t\t\t\t\tsideshields.\u2019 A sideshield is a device fitted on safety glasses that prevents objects from entering\t\t\t\t\t\t\t\t\t\tthe eye from the side (Exhibit C\u20134, p. 15, 16, 19, figure 8). Specific applications for use are\t\t\t\t\t\t\t\t\t\tfound in figure 8. Figure 8 lists operations for which at least sideshield protection must be\t\t\t\t\t\t\t\t\t\tafforded. These operations include shipping, grinding and machining. Non-sideshield protection\t\t\t\t\t\t\t\t\t\tis allowed for limited hazard use requiring only frontal protection (Exhibit C\u20134).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe citation, as amended, alleges that respondent failed to require use of approved eye\t\t\t\t\t\t\t\t\t\tprotection where machinery or operations presented hazards of flying objects, etc. The citation\t\t\t\t\t\t\t\t\t\tspecifically stated that safety spectacles equipped with sideshields should have been worn by\t\t\t\t\t\t\t\t\t\temployees in Tractor 1 through 4 who were machining (including milling and boring) in\t\t\t\t\t\t\t\t\t\tassembly processes and using air for cleaning and blowing parts (complaint). There is admission\t\t\t\t\t\t\t\t\t\tin the record by respondent that the conditions require safety glasses providing frontal protection\t\t\t\t\t\t\t\t\t\tfor all employees. However, respondent denied conditions are so hazardous as to require more\t\t\t\t\t\t\t\t\t\tprotection; such as, sideshields for most employees. According to the respondent, the employees\t\t\t\t\t\t\t\t\t\twearing frontal protection only include those operating lathes, stationary pedestal grinders,\t\t\t\t\t\t\t\t\t\tbores, drills, all types of mills, and also include employees blowing parts with pressurized air\t\t\t\t\t\t\t\t\t\t(stipulation, Exhibit R\u20131, T. 192, 210).\t\t\t\t\t\t\t\t\t\tThe issue presented to us for consideration boils down to whether or not eye hazards exist\t\t\t\t\t\t\t\t\t\tat respondent\u2019s workplace where the standard requires at least side as well as frontal protection,\t\t\t\t\t\t\t\t\t\tand if so, in what specific areas do the hazards exist. Respondent also raised additional issues\t\t\t\t\t\t\t\t\t\tduring the hearing in regard to alleged vagueness of the citation and standard.\t\t\t\t\t\t\t\t\t\tThe parties were presented with this same problem in a prior case. In that case, the Judge\t\t\t\t\t\t\t\t\t\theld that in order to establish a violation of 29 CFR 1910.133(a), it must be shown: 1) that there\t\t\t\t\t\t\t\t\t\twas a reasonable probability of injury, or 2) that there is a known existing hazardous\t\t\t\t\t\t\t\t\t\tenvironmental condition, or 3) that machines or operations present the hazard of flying objects,\t\t\t\t\t\t\t\t\t\tglare, liquids, ?? radiation, or a combination of these hazards. Secretary of Labor v. Allis-\t\t\t\t\t\t\t\t\t\tChalmers, OSAHRC Docket No. 5599, review ordered August 26, 1974. This case covered a\t\t\t\t\t\t\t\t\t\tcitation issued following a 1973 inspection of a division of respondent\u2019s plant other than ATD.\t\t\t\t\t\t\t\t\t\tThe credible, substantial evidence of record establishes to our satisfaction that the\t\t\t\t\t\t\t\t\t\tcomplainant has fulfilled the foresaid burden of proof in the instant case; that there is a hazard of\t\t\t\t\t\t\t\t\t\tflying objects at respondent\u2019s workplace and that iron particles are thrown in great quantity\t\t\t\t\t\t\t\t\t\tthroughout ATD. The iron particles are by-products of numerous machine operations including\t\t\t\t\t\t\t\t\t\tgrinding, milling, cutting, drilling, boring, reaming and turning (T. 31, 32\u201335, 37, 39, 40, 85,\t\t\t\t\t\t\t\t\t\t111\u2013124, 154, 156, 157, 160, 161). The hazardous particles break off iron parts and tools in fine\t\t\t\t\t\t\t\t\t\tpieces. One thirty-second of an inch diameter is considered a large particle (T. 30, 54). We have\t\t\t\t\t\t\t\t\t\texamined a sample of such particles (Exhibit C\u20131). The fine particles such as the ones examined\t\t\t\t\t\t\t\t\t\tby us tend to remain airborne (T. 53).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tHundreds of machines at respondent\u2019s workplace throw these particles in the air in\t\t\t\t\t\t\t\t\t\tvarious ways during the actual metal working process. Some of them are as follows: In the\t\t\t\t\t\t\t\t\t\tTractor 2 machine shop, row after row of respondent\u2019s machines with about 200 employees\t\t\t\t\t\t\t\t\t\toperating them were observed by the compliance officer. He actually observed metal chips flying\t\t\t\t\t\t\t\t\t\tfrom many mills (T. 29, 32). These mills included a horizontal lathe which threw chips 8 and 10\t\t\t\t\t\t\t\t\t\tfeet (T. 33), a Kearney and Trecker Mill which threw chips 5 feet and a multiple head milling\t\t\t\t\t\t\t\t\t\tmachine which threw particles up to 20 feet (T. 34).\t\t\t\t\t\t\t\t\t\tAnother witness, the union safety representative, testified he had observed iron particles\t\t\t\t\t\t\t\t\t\tbeing thrown 3 to 12 feet by many of the aforesaid machines (T. 157). A lathe operator testified\t\t\t\t\t\t\t\t\t\tin detail as to how his lathe, and other machines that he observed in his work area, threw iron\t\t\t\t\t\t\t\t\t\tparticles up to 10 feet (T. 114, 116, 129). The maintenance, grinding and shipping machines\t\t\t\t\t\t\t\t\t\twere not in operation at Tractor 2 during the inspection. However, evidence establishes that slag\t\t\t\t\t\t\t\t\t\tand grindings are normally thrown when they are used according to the union safety\t\t\t\t\t\t\t\t\t\trepresentative (T. 161). Deposits of materials found on the floor confirmed this conclusion.\t\t\t\t\t\t\t\t\t\tThe same is true in Tractor 4, where both portable and stationary grinders and drills were\t\t\t\t\t\t\t\t\t\tobserved throughout the area. The machines were not in use during the inspection. Normally\t\t\t\t\t\t\t\t\t\tthese machines are used for working on or sharpening tools or deburring pieces and they throw\t\t\t\t\t\t\t\t\t\toff metal grindings and abrasive dust (T. 27, 154, 155).\t\t\t\t\t\t\t\t\t\tTractor 3 also had similar types of machines in its machine areas as does Tractor 2 (T. 39,\t\t\t\t\t\t\t\t\t\t40, 159). The evidence establishes that 40 or 50 machines were in operation which threw iron\t\t\t\t\t\t\t\t\t\tparticles (T. 39\u201341). It was also observed that a grinder was throwing particles 4 to 5 feet at the\t\t\t\t\t\t\t\t\t\ttime of inspection (T. 39, 40). The heavy machining divisions (e.g., Torque Tube) was not in\t\t\t\t\t\t\t\t\t\toperation during the inspection. It was noted however that there were heavy accumulations of\t\t\t\t\t\t\t\t\t\tgrindings observed throughout the Torque Tube work area (T. 39). The union safety\t\t\t\t\t\t\t\t\t\trepresentative and another employee from Torque Tube testified in detail as to operations and\t\t\t\t\t\t\t\t\t\tiron grindings given off machines in Torque Tube (T. 131, 134, 135, 159, 160).\t\t\t\t\t\t\t\t\t\tIn Tractor 1, employees in the basic machining process are machining cast iron. There\t\t\t\t\t\t\t\t\t\twere three machines observed in operation but they were not throwing grindings. However,\t\t\t\t\t\t\t\t\t\tgrindings were on the floor around the machines (T. 43). These accumulations would indicate\t\t\t\t\t\t\t\t\t\tthat at least some particles were thrown during the processes. Also in Tractor 1, machining was\t\t\t\t\t\t\t\t\t\tbeing done on a number of tools in the 4th floor tool room. This floor was littered with cast iron\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tand steel particles from machining (T. 44, 161). These accumulations would indicate that some\t\t\t\t\t\t\t\t\t\tparticles are thrown.\t\t\t\t\t\t\t\t\t\tIn addition to the particles being thrown into the air by machines, great quantities are\t\t\t\t\t\t\t\t\t\tthrown by the widespread use of high pressure air to clean the particles off parts of machines and\t\t\t\t\t\t\t\t\t\tto provide power to tools. The use of air is widespread and indicated as follows: Almost all of\t\t\t\t\t\t\t\t\t\tthe machining tools in Tractor 1, 2, 3, and 4 referred to above were equipped with air hoses to be\t\t\t\t\t\t\t\t\t\tused for cleaning (T. 29, 37, 38, 41, 43, 44, 129, 157). The cleaning of these tools consisted of\t\t\t\t\t\t\t\t\t\tblowing metal particles off the machine bits, blowing accumulations of particles off the\t\t\t\t\t\t\t\t\t\tmachines themselves, and blowing particles off the part that was being worked upon (T. 29,\t\t\t\t\t\t\t\t\t\t157). A good many of these air hoses were reduced by diffusers to 30 p.s.i. However, many other\t\t\t\t\t\t\t\t\t\thoses were not reduced and carried pressure up to 90 p.s.i. (T. 29, 36). Item 55 (which was not\t\t\t\t\t\t\t\t\t\tcontested by respondent) indicates respondent was cited for violation of 1910.242(b) for 40\t\t\t\t\t\t\t\t\t\tinstances of failure to reduce air hoses used for cleaning to 30 p.s.i.\t\t\t\t\t\t\t\t\t\tEvidence establishes that many employees used the hoses for cleaning throughout the\t\t\t\t\t\t\t\t\t\tfour buildings (T. 29, 38, 41). In almost all of these cases, the use of air hoses caused particles to\t\t\t\t\t\t\t\t\t\tscatter 10 to 12 feet from the spot where the blowing occurred (T. 35, 37, 39, 43, 157). A lathe\t\t\t\t\t\t\t\t\t\toperator testified in detail as to the purposes for which he and his fellow employees use air for\t\t\t\t\t\t\t\t\t\tcleaning and the manner in which they use the air. This operator stated that use of air to clean off\t\t\t\t\t\t\t\t\t\ta machine causes particles to fly 6 or 7 feet (T. 122).\t\t\t\t\t\t\t\t\t\tAir from these hoses was also used to blow off parts on assembly lines. At Tractor 4,\t\t\t\t\t\t\t\t\t\tchips of metal were blown off of chassis coming out of the washer prior to painting and out of\t\t\t\t\t\t\t\t\t\tthe degreaser. Dust and grindings were blown out of holes in each chassis (T. 27). These\t\t\t\t\t\t\t\t\t\tparticles would be blown 5 or 6 feet (T. 28). Also, chips were blown out of parts in the valve\t\t\t\t\t\t\t\t\t\twasher (T. 153). In Tractor 2, a similar operation was performed as parts came out of the\t\t\t\t\t\t\t\t\t\ttransmission housing washer. These grindings were blown up to 12 feet in distance (T. 35). A\t\t\t\t\t\t\t\t\t\tlathe operator in this location testified that parts he sends to the parts washer are often full of iron\t\t\t\t\t\t\t\t\t\tparticles and chips (T. 116, 117).\t\t\t\t\t\t\t\t\t\tThe use of air to power tools also causes particles to fly, e.g., in Torque Tube in Tractor\t\t\t\t\t\t\t\t\t\t3, while wearing safety glasses without sideshields, an employee testified how iron particles flew\t\t\t\t\t\t\t\t\t\tinto his eye on different occasions because air used to power portable tools caused particles to\t\t\t\t\t\t\t\t\t\tricochet off a machine (T. 132\u2013133).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThus it is established by direct observation that metal particles fly through the air at\t\t\t\t\t\t\t\t\t\trespondent\u2019s plant. It is also to be noted that the evidence establishes that iron particles were\t\t\t\t\t\t\t\t\t\tobserved throughout respondent\u2019s workplace on floors, machines, worktables, on platforms and\t\t\t\t\t\t\t\t\t\tin skid boxes (T. 27, 39, 40, 41, 43, 44, 46, 47, 114, 134). From this, we may most reasonably\t\t\t\t\t\t\t\t\t\tconclude that the particles were thrown to their location on the floor, etc., by machines or by use\t\t\t\t\t\t\t\t\t\tof air for cleaning.\t\t\t\t\t\t\t\t\t\tWe find that the flying particles, described above, are a definite hazard to employees.\t\t\t\t\t\t\t\t\t\tThere is a hazard in the operation of metal cutting machines, and the attendant use of air for\t\t\t\t\t\t\t\t\t\tcleaning. Charles Ustine, a lathe operator, testified as to how operators are endangered by flying\t\t\t\t\t\t\t\t\t\tparticles. His testimony would indicate that employees, including himself, would turn their heads\t\t\t\t\t\t\t\t\t\tmany times per hour to place a piece on their worktable or skid box or to remove a piece. He also\t\t\t\t\t\t\t\t\t\tglances at a gauge on his machine. This type of movement exposes the unprotected side of the\t\t\t\t\t\t\t\t\t\tsafety glass and allows particles to get in (T. 114). Ricocheting particles are also possible from\t\t\t\t\t\t\t\t\t\tthese activities (T. 179, 181). Many employees also work in close proximity to machines other\t\t\t\t\t\t\t\t\t\tthan their own, e.g., the Terney and Trucker Mill had several work stations within 5 or 6 feet of\t\t\t\t\t\t\t\t\t\tit (T. 34). Several employees were working within a few feet of a working grinder in Tractor 3\t\t\t\t\t\t\t\t\t\t(T. 40). The machines are only 8 to 12 feet apart in Tractor 2 basement machine shop (T. 43). In\t\t\t\t\t\t\t\t\t\tTractor 1 machine shop the employees work on machines within 5 to 10 feet of each other (T.\t\t\t\t\t\t\t\t\t\t161). These crowded conditions, when considered in the light of the distance particles often fly,\t\t\t\t\t\t\t\t\t\tpresent a hazard of an employee being hit by a particle from an adjacent machine in operation (T.\t\t\t\t\t\t\t\t\t\t119, 121, 122). A particle is just as likely to hit a bystanding employee on an adjacent machine\t\t\t\t\t\t\t\t\t\tas anywhere else because they are flying particles over which he has no control nor the ability to\t\t\t\t\t\t\t\t\t\tanticipate. This is a hazard also to employees walking down the aisles. It is noted that as the\t\t\t\t\t\t\t\t\t\tcompliance officer walked down an aisle he was hit by particles from a lathe 8 to 10 feet from\t\t\t\t\t\t\t\t\t\tthe position of impact (T. 33).\t\t\t\t\t\t\t\t\t\tSome of respondent\u2019s employees are parts runners, foremen, inspectors, analysts, or even\t\t\t\t\t\t\t\t\t\toperators moving to another machine. It was the testimony of Mr. Ustine that ten employees\t\t\t\t\t\t\t\t\t\tbesides the lathe operators move in the aisles of his department each day and that he occasionally\t\t\t\t\t\t\t\t\t\tmoves between machines. Often employees, such as a foreman, will move close to him while his\t\t\t\t\t\t\t\t\t\tmachine is operating (T. 122\u2013215). Hazards also exist in assembly areas where parts are cleaned\t\t\t\t\t\t\t\t\t\tby air, e.g., the aforesaid parts washing. The air hoses, especially where over 30 p.s.i., blow\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tparticles off parts with considerable velocity. The particles can be concentrated when they are\t\t\t\t\t\t\t\t\t\tblown out of holes. This being especially dangerous since employees near the degreaser work in\t\t\t\t\t\t\t\t\t\tgroups (T. 28).\t\t\t\t\t\t\t\t\t\tSix or seven employees work within an 8 to 12 foot area in the valve area (T. 153).\t\t\t\t\t\t\t\t\t\tAccordingly, it can be seen that bystanding employees could be easily hit in the side of their eye\t\t\t\t\t\t\t\t\t\twith airborne particles.\t\t\t\t\t\t\t\t\t\tThe respondent\u2019s OSHA-100 injury record establishes to our satisfaction that there is a\t\t\t\t\t\t\t\t\t\tvery definite hazard from conditions prevailing in the area in question (stipulation, Exhibit D).\t\t\t\t\t\t\t\t\t\tThese records made from July 1, 1971, to September 26, 1974, establish that medical treatment\t\t\t\t\t\t\t\t\t\tfor recordable occupational injuries or illnesses was administered on 485 occasions. On these\t\t\t\t\t\t\t\t\t\toccasions, 87 or about 18 percent involved eye injuries to employees as follows:\t\t\t\t\t\t\t\t\t\tE. Occupation\t\t\t\t\t\tForeign Body\t\t\t\t\t\tDenuded Eye\t\t\t\t\t\tOther\t\t\t\t\t\tTotal\t\t\t\t\t\t\t\t\t\tAssembly\t\t\t\t\t\t11\t\t\t\t\t\t3\t\t\t\t\t\t2\t\t\t\t\t\t16\t\t\t\t\t\t\t\t\t\tMachining Operations\t\t\t\t\t\t30\t\t\t\t\t\t3\t\t\t\t\t\t2\t\t\t\t\t\t35\t\t\t\t\t\t\t\t\t\tGrinding\t\t\t\t\t\t1\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tRepair\t\t\t\t\t\t4\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\tForemen\t\t\t\t\t\t4\t\t\t\t\t\t1\t\t\t\t\t\t5\t\t\t\t\t\t\t\t\t\tWashers\t\t\t\t\t\t3\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tOthers\t\t\t\t\t\t16\t\t\t\t\t\t2\t\t\t\t\t\t4\t\t\t\t\t\t22\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t69\t\t\t\t\t\t9\t\t\t\t\t\t8\t\t\t\t\t\t86\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tTwo employees, Ustine and Baaske, who appeared on the aforesaid records several times\t\t\t\t\t\t\t\t\t\tfor eye injuries, testified concerning their injuries to illustrate the circumstances behind the\t\t\t\t\t\t\t\t\t\trecord. Ustine, a lather operator, stated that each time he was injured he was machining cast iron\t\t\t\t\t\t\t\t\t\twhile wearing safety glasses without sideshields. At these times, a particle or particles of iron\t\t\t\t\t\t\t\t\t\tentered his eye when he turned his head to the side to adjust the machine (T. 112, 113, 117,\t\t\t\t\t\t\t\t\t\tstipulation, Exhibit D). After the last such incident, Ustine asked for and received from\t\t\t\t\t\t\t\t\t\trespondent safety glasses equipped with sideshields (T. 118).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBaaske testified that he had gotton cast iron dust in his eyes many times when wearing\t\t\t\t\t\t\t\t\t\tsafety glasses without sideshields, he used tools powered by air. The air in the tools blew the iron\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tdust into his eyes (T. 133, 134). He also testified that several other employees he works with,\t\t\t\t\t\t\t\t\t\twho wear safety glasses without sideshields, have had iron particles get into their eyes (T. 135,\t\t\t\t\t\t\t\t\t\t136).\t\t\t\t\t\t\t\t\t\tAn iron particle in the eye is certainly not to be taken lightly. When projected into the\t\t\t\t\t\t\t\t\t\teye, the iron particles are irritating and abrasive (T. 53, 93). These particles may scratch the eye\t\t\t\t\t\t\t\t\t\tor denude (scrape off) part of it (T. 112, stipulation, Exhibit D). It should be noted that on a\t\t\t\t\t\t\t\t\t\tnumber of occasions it was necessary for an outside specialist to remove the particles. Both\t\t\t\t\t\t\t\t\t\tBaaske and Ustine testified as to the several occasions they were sent to a doctor for removal of\t\t\t\t\t\t\t\t\t\tparticles entering their eyes notwithstanding the use of frontal safety glasses. Baaske testified he\t\t\t\t\t\t\t\t\t\twas sent to the doctor three or four times in 1974. On these occasions, the doctor had\t\t\t\t\t\t\t\t\t\tanesthetized the eye and used special equipment to remove the particle (T. 132).\t\t\t\t\t\t\t\t\t\tFrom all the foregoing, it is readily apparent that severe hazard to employees\u2019 eyes exist\t\t\t\t\t\t\t\t\t\tin many portions of ATD. It is our opinion that these hazards are of such magnitude that the\t\t\t\t\t\t\t\t\t\temployees\u2019 eyes must be protected by at least side protection as well as frontal protection. All of\t\t\t\t\t\t\t\t\t\tthe facts indicate that employees are not only exposed to hazards from the front but are\t\t\t\t\t\t\t\t\t\tconstantly exposed to hazards from the side from adjacent machines and processes, from\t\t\t\t\t\t\t\t\t\tparticles ricocheting, and from employees own machines and processes whenever they turn their\t\t\t\t\t\t\t\t\t\thead for any one of many common reasons.\t\t\t\t\t\t\t\t\t\tThe standard in question requires the use of a type of protection suitable for the work\t\t\t\t\t\t\t\t\t\tbeing performed (29 CFR 1910.133(a)(1)). All of the evidence of record establishes to our\t\t\t\t\t\t\t\t\t\tsatisfaction that use of safety glasses without side protectors is hazardous to the employees.\t\t\t\t\t\t\t\t\t\tThe standard in subsection 6 guides employers further by requiring them to provide\t\t\t\t\t\t\t\t\t\tprotection in accordance with ANSI Standard Z87.1\u20131968 (Exhibit C\u20134) which standard\t\t\t\t\t\t\t\t\t\tspecifically states sideshields shall be used where employees are exposed to side hazards (page\t\t\t\t\t\t\t\t\t\t15).\t\t\t\t\t\t\t\t\t\tThe ANSI Standard goes even further by setting forth, in figure 8, lists of operations and\t\t\t\t\t\t\t\t\t\thazards where side protection is recommended. This list includes the hazards of flying particles,\t\t\t\t\t\t\t\t\t\tas contained in the testimony of record, which exists during machining and grinding operations.\t\t\t\t\t\t\t\t\t\tThe fact that the eye protection is listed as \u2018recommended\u2019 and not \u2018required\u2019 is immaterial to\t\t\t\t\t\t\t\t\t\tfinding of a violation herein. Page 15 of the ANSI Standard requires side protection where\t\t\t\t\t\t\t\t\t\thazards exist from the side. Figure 8 gives the employer alternate types of protection such as cup\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tgoggles or full face masks to be used by employees for even more protection than afforded by\t\t\t\t\t\t\t\t\t\tsideshields. There very definitely is guidance for employers of such a nature as to compel the\t\t\t\t\t\t\t\t\t\trespondent to furnish sideshields for the hazards involved.\t\t\t\t\t\t\t\t\t\tWe do not find from the total evidence that the Standard 1910.133 is vague but find to the\t\t\t\t\t\t\t\t\t\tcontrary that it is specific.\t\t\t\t\t\t\t\t\t\tAll of the evidence of record certainly gives the respondent reasonable notice of a hazard\t\t\t\t\t\t\t\t\t\tfrom particles entering from the side with unprotected glasses. U.S. Court of Appeals, Fifth\t\t\t\t\t\t\t\t\t\tCircuit, Ryder Truck Lines, Inc., v. Secretary of Labor, 497 F.2d, 230 (1974) regarding personal\t\t\t\t\t\t\t\t\t\tprotective equipment, including foot protection states:\t\t\t\t\t\t\t\t\t\t\u2018In considering the claimed vagueness of the regulation, we are mindful of two\t\t\t\t\t\t\t\t\t\tcritical factors: first, this regulation involves remedial civil legislation in\t\t\t\t\t\t\t\t\t\tcontradistinction to criminal legislation; secondly, the rights guaranteed by the\t\t\t\t\t\t\t\t\t\tFirst Amendment are not remotely related to this case. Hence, we must consider\t\t\t\t\t\t\t\t\t\tthe statute \u2018not only in terms of the statute \u2018on its face\u2019 but also in light of the\t\t\t\t\t\t\t\t\t\tconduct to which it is applied.\u2019 United States v. National Dairy Corp., 372 U.S.\t\t\t\t\t\t\t\t\t\t29, 36, 83 S.Ct 594, 600, 9 L.Ed.2d 561 (1963). The regulation appears to have\t\t\t\t\t\t\t\t\t\tbeen drafted with as much exactitude as possible in light of the myriad\t\t\t\t\t\t\t\t\t\tconceivable situations which could arise and which would be capable of causing\t\t\t\t\t\t\t\t\t\tinjury. Moreover, we think inherent in that standard is an external and objective\t\t\t\t\t\t\t\t\t\ttest, namely, whether or not a reasonable person would recognize a hazard . . .. So\t\t\t\t\t\t\t\t\t\tlong as the mandate affords a reasonable warning of the proscribed conduct in\t\t\t\t\t\t\t\t\t\tlight of common understanding and practices, it will pass constitutional muster.\t\t\t\t\t\t\t\t\t\tUnited States v. Petrillo, 332 U.S. 1, 4, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947).\u2019\t\t\t\t\t\t\t\t\t\t(emphasis added) See also McLean Trucking Company v. OSAHRC and the\t\t\t\t\t\t\t\t\t\tSecretary of Labor, U.S. Court of Appeals, Fourth Circuit, (1974)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn Secretary of Labor v. Union Camp Corp., OSAHRC Docket 3905, the Judge states:\t\t\t\t\t\t\t\t\t\t\u2018Thus the standard must necessarily be expressed in general terms and depend for\t\t\t\t\t\t\t\t\t\tits application upon the circumstances of each case. The employer is required to\t\t\t\t\t\t\t\t\t\tthink and use his expertise gained in the operation of his business in order to\t\t\t\t\t\t\t\t\t\tcomply with the standard. This is not grounds for declaring a standard vague and\t\t\t\t\t\t\t\t\t\tunenforceable. Due process does not require that an employer be informed of\t\t\t\t\t\t\t\t\t\tevery course of action he is to take.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWhere an employer takes a course of action pursuant to a standard which is\t\t\t\t\t\t\t\t\t\tgeneral in nature, he will be judged on the basis of whether his action was\t\t\t\t\t\t\t\t\t\treasonable under the facts.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe credible, substantial evidence of record establishes that the respondent has not\t\t\t\t\t\t\t\t\t\tprovided the proper eyeglasses with sideshields in numerous places in violation of the standard.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe record shows that respondent was in violation of the standard in virtually all of the areas\t\t\t\t\t\t\t\t\t\tdescribed. With few exceptions, all employees in the machining process wore frontal protection\t\t\t\t\t\t\t\t\t\tbut no side protection (T. 28, 38, 40, 41, 45, 47, 85, 92, 118, 125, 128, 134, 153, 155, 158\u2013161).\t\t\t\t\t\t\t\t\t\tRespondent required side protection only in grinding operations (R\u20131, T. 192, 209, 210) Frontal\t\t\t\t\t\t\t\t\t\tprotection only was required in all others. It is to be noted also that in practice respondent\u2019s\t\t\t\t\t\t\t\t\t\temployees in grinding operations did not wear side protection as required in respondent\u2019s\t\t\t\t\t\t\t\t\t\tprogram (T. 39, 40, 49, 85, 155). This would indicate a lack of continuing diligence on the part\t\t\t\t\t\t\t\t\t\tof the respondent in providing safety equipment for its employees as indicated by the standard.\t\t\t\t\t\t\t\t\t\tThe Union Bargaining Agent, Ustine, testified that he visited the work areas of 40 lathe\t\t\t\t\t\t\t\t\t\tand internal and external grinder operations. Ustine specified that besides himself and one other\t\t\t\t\t\t\t\t\t\tman, all the other employees wore frontal protection only (T. 128). This testimony, if credible\t\t\t\t\t\t\t\t\t\tand we believe it is, establishes that respondent was in violation of the standard in all of the areas\t\t\t\t\t\t\t\t\t\tpreviously described in this decision. There were violations of the standard requiring sideshields\t\t\t\t\t\t\t\t\t\tin Tractor 1\u2014basement machine shop, 4th floor tool room; Tractor 2\u2014in its entirety with the\t\t\t\t\t\t\t\t\t\texception of the small tire assembly area on the south end and a welding area on the northwest\t\t\t\t\t\t\t\t\t\tend (T. 156); Tractor 3 in its entirety, and Tractor 4\u2014parts washer area and areas immediately\t\t\t\t\t\t\t\t\t\tsurrounding grinders scattered throughout the building.\t\t\t\t\t\t\t\t\t\tRespondent by way of rebuttal seemingly relied on a defense that their injury record\t\t\t\t\t\t\t\t\t\tshowed no hazards and second, that sideshields were undesirable because of reduced side vision.\t\t\t\t\t\t\t\t\t\tWe feel that respondent has been quite sincere in its efforts to establish a program to\t\t\t\t\t\t\t\t\t\treduce eye injuries. We feel however that they are in error in feeling that they have gone far\t\t\t\t\t\t\t\t\t\tenough to comply with the Act.\t\t\t\t\t\t\t\t\t\tRespondent\u2019s chief witness, John A. Churchill, testified that an 81 percent drop in eye\t\t\t\t\t\t\t\t\t\tinjuries occurred when they instituted their eye protection program in 1953 (R\u20131, T. 192, 193).\t\t\t\t\t\t\t\t\t\tThis we feel is correct.\t\t\t\t\t\t\t\t\t\tHowever, we disagree with respondent\u2019s feeling that the foreign body injuries set forth in\t\t\t\t\t\t\t\t\t\tExhibit D are insignificant and consisting only of parking lot dust, a $20 doctor bill to the\t\t\t\t\t\t\t\t\t\tcompany, and at worst a bit of fine iron dust easily removable (T. 195, 198, 206). Respondent\u2019s\t\t\t\t\t\t\t\t\t\twitness, Churchill, admitted that he had only been present at a shop hospital when a foreign body\t\t\t\t\t\t\t\t\t\twas removed from an ATD employee\u2019s eye half a dozen times since 1969 (T. 202); that he is not\t\t\t\t\t\t\t\t\t\tresponsible for ATD; and that he only visits ATD several times a year (T. 200, 201). We feel that\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\twitness Churchill has not brought to bear sufficient concern with regard to eye injuries in the\t\t\t\t\t\t\t\t\t\tlight of the total evidence.\t\t\t\t\t\t\t\t\t\tThe U.S. Court of Appeals, Fifth Circuit, in the case of Ryder Truck Lines, Inc., v.\t\t\t\t\t\t\t\t\t\tSecretary of Labor, 497 F.2d, 230 (1974), stated:\t\t\t\t\t\t\t\t\t\t\u2018The legislative history of the statute reveals that its declared purpose is \u2018to assure\t\t\t\t\t\t\t\t\t\tso far as possible every working man and woman in the Nation safe and healthful\t\t\t\t\t\t\t\t\t\tworking conditions.\u2019 29 U.S.C. \u00a7 651(b). It is noteworthy that the Act does not\t\t\t\t\t\t\t\t\t\testablish as a sine qua non any specific number of accidents or any injury rate.\t\t\t\t\t\t\t\t\t\tHence, Ryder\u2019s reliance on \u2018only 10 injuries in five years\u2019 is misplaced. Moreover\t\t\t\t\t\t\t\t\t\tthe Act specifically encompasses non-serious violations, i.e., violations which do\t\t\t\t\t\t\t\t\t\tnot create a substantial probability of serious physical harm. 29 U.S.C. \u00a7\t\t\t\t\t\t\t\t\t\t666(g)(j). Avoidance of minor injuries, as well as of major ones, was intended to\t\t\t\t\t\t\t\t\t\tbe within the purview of this liberal Act.\u2019 (emphasis added)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn our view any consistent pattern of injuries whether minor or otherwise to spondent\u2019s\t\t\t\t\t\t\t\t\t\temployees\u2019 eyes is a matter of serious concern. If the use of sideshields can significantly cut this\t\t\t\t\t\t\t\t\t\tinjury rate, and we believe it will, then the quicker that respondent can furnish its employees\t\t\t\t\t\t\t\t\t\tglasses with sideshields in the various departments wherein there is a danger from flying\t\t\t\t\t\t\t\t\t\tparticles of metal or other material, the better that it should be done.\t\t\t\t\t\t\t\t\t\tWitness, Churchill, on cross-examination stated that respondent\u2019s eye injury record\t\t\t\t\t\t\t\t\t\twould be a cause for concern if something reasonable could be done to reduce it (T. 205).\t\t\t\t\t\t\t\t\t\tFollowing this, he admitted that the use of sideshields could reduce the eye injury rate 10 to 20\t\t\t\t\t\t\t\t\t\tpercent or possibly more (T. 214). ?? testimony by respondent\u2019s own witness establishes that it is\t\t\t\t\t\t\t\t\t\tcertainly reasonable and not arbitrary in any way to require the use of such sideshields in all of\t\t\t\t\t\t\t\t\t\tthe instances illustrated by the testimony whereby there is a hazard to the employees not using\t\t\t\t\t\t\t\t\t\tthem.\t\t\t\t\t\t\t\t\t\tThe total testimony indicates that respondent\u2019s other defense that the side-protection\t\t\t\t\t\t\t\t\t\tshields reduces the side vision causing accidents is not well founded. We feel that this is a\t\t\t\t\t\t\t\t\t\tconclusion unsupported by the total facts of record.\t\t\t\t\t\t\t\t\t\tWe note further that respondent admitted it has never had an accident to date in ATD\t\t\t\t\t\t\t\t\t\tcaused by the use of sideshields (T. 202). This would certainly indicate the necessity of using\t\t\t\t\t\t\t\t\t\tthem in all of the operations where there is danger from flying particles. Further than that clear\t\t\t\t\t\t\t\t\t\tplastic sideshields that afford side vision are available for use by respondent\u2019s employees.\t\t\t\t\t\t\t\t\t\tWe are somewhat puzzled as to why all sides insisted on trying this case (especially\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\trespondent) when testimony from respondent\u2019s own witness established that any employee in a\t\t\t\t\t\t\t\t\t\tplant, except a truck drive or crane operator, would be given sideshields to wear if he wanted\t\t\t\t\t\t\t\t\t\tthem (T. 196).\t\t\t\t\t\t\t\t\t\tTo summarize: The respondent is in violation of item 34(b) of the citation for the reason\t\t\t\t\t\t\t\t\t\tthat he has failed to furnish sideshields on the glasses of his employees who are exposed to iron\t\t\t\t\t\t\t\t\t\tand other particles being thrown into their eyes while in the course of their employment.\t\t\t\t\t\t\t\t\t\tRespondent has violated 29 CFR 1910.212(a)(1) by failing to provide one or more\t\t\t\t\t\t\t\t\t\tmethods of machine guarding to protect employees in the area of the Tractor Test Station from\t\t\t\t\t\t\t\t\t\trotating tractor wheels of tractors being tested.\t\t\t\t\t\t\t\t\t\tSection 1910.212(a)(1) provides in pertinent part:\t\t\t\t\t\t\t\t\t\t(a) Machine Guarding.\t\t\t\t\t\t\t\t\t\t(1) Types of guarding. One or more methods of machine guarding shall be\t\t\t\t\t\t\t\t\t\tprovided to protect the operator and other employees in the machine area from\t\t\t\t\t\t\t\t\t\thazards such as those created by point of operation, ingoing nip points, rotating\t\t\t\t\t\t\t\t\t\tparts, flying chips and sparks, Examples of guarding methods are-barrier guards,\t\t\t\t\t\t\t\t\t\ttwo-hand tripping devices, electronic safety devices, etc.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThis standard was violated in Tractor 4 at respondent\u2019s workplace. The Tractor Roll Test\t\t\t\t\t\t\t\t\t\tStation had no guard to keep employees in adjacent aisleways away from rotating tires of tractors\t\t\t\t\t\t\t\t\t\tbeing roll tested.\t\t\t\t\t\t\t\t\t\tWhen roll testing, respondent\u2019s employees roll tractors onto rollers as the tractors come\t\t\t\t\t\t\t\t\t\toff the assembly line. These tractors range in size from relatively small models such as the\t\t\t\t\t\t\t\t\t\tModel 200 shown in the Stipulation, Exhibit B, to large models such as the 7030, partially shown\t\t\t\t\t\t\t\t\t\tin the stipulation, Exhibit B, which have rear axles up to 120 inches wide (much wider than the\t\t\t\t\t\t\t\t\t\t200) and tires six feet in height (T. 64, 144). 47 tractors are tested on an average day. The\t\t\t\t\t\t\t\t\t\tproportion between small and large tractors varies. At times it could be 50 percent of each; and\t\t\t\t\t\t\t\t\t\tother times 75 percent large tractors (T. 143). The test station itself consists of two pairs of test\t\t\t\t\t\t\t\t\t\trollers, each 4 foot long (T. 164). On the right side of the right pair of rollers is a 44 inch high\t\t\t\t\t\t\t\t\t\tiron rail. On the left side of the left pair is a 30 inch rail (T. 164, Stipulation, Exhibit B). It is\t\t\t\t\t\t\t\t\t\tabout 12 feet from rail to rail (T. 164). The left rail was 44 inches high several years ago but was\t\t\t\t\t\t\t\t\t\tlowered so that the ends of the axels of the larger models being tested would not hit it (T. 64,\t\t\t\t\t\t\t\t\t\t146). Additionally, several years ago a two part gate between the rails guarded the rear of the test\t\t\t\t\t\t\t\t\t\tstation once a tractor was driven on (T. 165). Each pair of rollers is equipped with bumpers on\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tthe outside end to prevent tractors from sliding sideways off the rollers (T. 63). An employee\t\t\t\t\t\t\t\t\t\tdrives the tractor onto the rolls by braking and clutching at the same time (T. 141). Once the\t\t\t\t\t\t\t\t\t\ttractor is placed on the roll, its rear wheels are constantly rotating through all gears. During this\t\t\t\t\t\t\t\t\t\ttesting, various aspects of the operation are checked including steering, clutching, power\t\t\t\t\t\t\t\t\t\tdirection, etc. About half of the inspection is spent in 4th or 5th gear (T. 140, 141). It takes about\t\t\t\t\t\t\t\t\t\t8 to 10 minutes to inspect the large models. Small models take 4 to 5 minutes (T. 141, 220). At\t\t\t\t\t\t\t\t\t\tthe conclusion of the inspection, the tractors are moved from the rolls by applying the brakes and\t\t\t\t\t\t\t\t\t\tclutch to jump the tractor off the rolls (T. 141). As the tractor comes off the rolls, it makes a\t\t\t\t\t\t\t\t\t\tsharp left turn and proceeds southward down the aisle adjacent to the test station. Meanwhile,\t\t\t\t\t\t\t\t\t\tanother tractor will often be placed on the rolls (T. 141, 142).\t\t\t\t\t\t\t\t\t\tDuring this test, the hazardous rotating parts of the tractor, which should be guarded, are\t\t\t\t\t\t\t\t\t\tthe rear wheels. A dynamometer test of the rotating wheels during testing revealed that they\t\t\t\t\t\t\t\t\t\trotate at a speed of 15 miles per hour (slightly more when jumping off the rollers) (T. 221). On\t\t\t\t\t\t\t\t\t\tviewing the rotating wheels at this rate of speed, it appears to the eye that the lugs on the wheels\t\t\t\t\t\t\t\t\t\tand the tread on the tires are not there (T. 56).\t\t\t\t\t\t\t\t\t\tThe respondent is charged with a violation of 1910.212(a)(1). The question that we must\t\t\t\t\t\t\t\t\t\tdecide is whether the operating tractor in the process of being tested at the Roll Test Station shall\t\t\t\t\t\t\t\t\t\tbe considered a \u2018machine\u2019 within the meaning of the Act. A \u2018machine is not defined by the Act.\t\t\t\t\t\t\t\t\t\tThe evidence of record establishes to our satisfaction that the tractor in the process of being\t\t\t\t\t\t\t\t\t\ttested on the rollers is a \u2018machine\u2019 within the meaning of the Act and should be protected by the\t\t\t\t\t\t\t\t\t\tprovisions of Section 1910.212(a)(1).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe Occupational Safety and Health Act is a remedial statute designed \u2018. . . to assure so\t\t\t\t\t\t\t\t\t\tfar as possible every working man and woman in the Nation safe and healthful working\t\t\t\t\t\t\t\t\t\tconditions . . .\u2019 (Section 2(b) of the Act).\t\t\t\t\t\t\t\t\t\tThe definition of \u2018machine\u2019 consistent with the purposes of the Act must be wide enough\t\t\t\t\t\t\t\t\t\tto protect employees while in the course of their work at the employer\u2019s worksite.\t\t\t\t\t\t\t\t\t\tWherever possible words of a statute should be interpreted in their ordinary everyday\t\t\t\t\t\t\t\t\t\tsense. Malet v. Riddel, 383 U.S. 569, 571 (1966). This is also true of an administrative\t\t\t\t\t\t\t\t\t\tregulation.\t\t\t\t\t\t\t\t\t\tThe American College Dictionary, 1970, at pages 729\u2013730 defines \u2018machine\u2019 as:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t1. An apparatus consisting of interrelated parts with separate functions, which is\t\t\t\t\t\t\t\t\t\tused in the performance of some kind of work. . . .\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2. A mechanical apparatus or contrivance; a mechanism.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3. Something operated by a mechanical apparatus, as an automobile, a bicycle, or\t\t\t\t\t\t\t\t\t\tan airplane . . ..\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWebster\u2019s Unabridged Dictionary, 1959, defines \u2018machine\u2019 at page 1474, as:\t\t\t\t\t\t\t\t\t\t4. * * * Popularly and in the wider mechanical sense, a machine is a more or less\t\t\t\t\t\t\t\t\t\tcomplex combination of mechanical parts, as levers, gears, sprocket wheels,\t\t\t\t\t\t\t\t\t\tpulleys, shafts and spindles, ropes, chains and bands, cams and other turning and\t\t\t\t\t\t\t\t\t\tsliding pieces, springs, confined fluids, etc., together with the framework and\t\t\t\t\t\t\t\t\t\tfastenings supporting and connecting them as when it is designed to operate upon\t\t\t\t\t\t\t\t\t\tmaterial to change it to some preconceived and definite manner, to lift or transport\t\t\t\t\t\t\t\t\t\tloads, etc., a sewing machine, a hoisting machine, a printing machine, and a\t\t\t\t\t\t\t\t\t\tflying machine are examples. Machines other than those for hoisting material are\t\t\t\t\t\t\t\t\t\tcommonly designated by special names. as the particular forms of hoisting\t\t\t\t\t\t\t\t\t\tmachines . . . heat and hydraulic engines, hydraulic and pneumatic tools, pumps,\t\t\t\t\t\t\t\t\t\tetc., . . .\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe National Safety Council Accident and Prevention Manual For Industrial Operation,\t\t\t\t\t\t\t\t\t\t1959, at 23\u20133, states that, \u2018although machinery covers a tremendous variety of machines, all\t\t\t\t\t\t\t\t\t\tmachinery movement consists of a few simple mechanical motions. Mechanisms produce either\t\t\t\t\t\t\t\t\t\trotary motion or reciprocating motion or a combination of both.\u2019\t\t\t\t\t\t\t\t\t\tTherefore, when considering the above definitions, it appears that \u2018machine\u2019 or its\t\t\t\t\t\t\t\t\t\tcollective \u2018machinery\u2019, should be defined as almost any mechanical unit with moving parts that\t\t\t\t\t\t\t\t\t\texpends energy. The evidence shows that, in the instant case, the tractor while being tested on\t\t\t\t\t\t\t\t\t\tthe tractor test rollers meets the definition of \u2018machine\u2019. This is all part of the process of\t\t\t\t\t\t\t\t\t\tmanufacturing tractors and just one more step in the final completion of the product. The\t\t\t\t\t\t\t\t\t\toperation itself with unguarded sides presents a hazard of the rotating wheels and points that are\t\t\t\t\t\t\t\t\t\texposed to respondent\u2019s employees in and around the machine for various reasons.\t\t\t\t\t\t\t\t\t\tIt is to be noted that the language of the standard does not modify the word \u2018machine\u2019 in\t\t\t\t\t\t\t\t\t\tanyway or limit it in anyway whatsoever.\t\t\t\t\t\t\t\t\t\tElementary statutory construction dictates that a law or regulation which is clear on its\t\t\t\t\t\t\t\t\t\tface should not be modified by implication. Respondent is in error in its contention that a tractor\t\t\t\t\t\t\t\t\t\ttesting on rollers is not a \u2018machine\u2019 within the meaning of the standard.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tIt is absolutely immaterial that the standard does not specifically identify the machine in\t\t\t\t\t\t\t\t\t\tthe instant case. There are only a few machines mentioned in the standard. Every machine\t\t\t\t\t\t\t\t\t\tknown to technology as a matter of fact has not been listed. It is certainly presumed that the Act\t\t\t\t\t\t\t\t\t\twas meant to cover any dangerous situation that might arise in the operation of any machinery by\t\t\t\t\t\t\t\t\t\tan employee during the course of his employment at an employer\u2019s worksite.\t\t\t\t\t\t\t\t\t\tIt is our holding that standard 1910.212 covers any and all machines wherein there is a\t\t\t\t\t\t\t\t\t\thazard to the operator from such hazards as those created by points of operation, ingoing not\t\t\t\t\t\t\t\t\t\tpoints, rotating parts, flying chips, and sparks. There is no question whatsoever in our mind that\t\t\t\t\t\t\t\t\t\tany and all such machines must be properly guarded with area guards, two hand tripping devices,\t\t\t\t\t\t\t\t\t\telectronic safety devices, etc.\t\t\t\t\t\t\t\t\t\tRespondent is responsible for setting up manufacturing operations, using reasonable\t\t\t\t\t\t\t\t\t\tdiscretion, determining what is meant by \u2018machine\u2019, and for exercising such discretion in\t\t\t\t\t\t\t\t\t\tcreating proper safeguards for his employees.\t\t\t\t\t\t\t\t\t\tThe standard covers any \u2018machine\u2019 which is a hazard to employees in whatever area said\t\t\t\t\t\t\t\t\t\tmachine can be found. The thrust of any standard\u2019s emphasis is towards the abatement of a\t\t\t\t\t\t\t\t\t\thazard that endangers any employee.\t\t\t\t\t\t\t\t\t\tWe feel that the standard 1910.212 is most applicable to be facts observed by the\t\t\t\t\t\t\t\t\t\tcompliance officer.\t\t\t\t\t\t\t\t\t\tThe preponderance of the credible evidence indicates that the tractor is a machine and\t\t\t\t\t\t\t\t\t\tthat there are hazards from rotating parts and ingoing nip points. This hazard arises out of the\t\t\t\t\t\t\t\t\t\tspinning of the two rear tractor tires during the course of inspection. Ingoing nip points are\t\t\t\t\t\t\t\t\t\tcreated by the tire and fender of the tractor or the wheels and rolls when the tractor is in reverse\t\t\t\t\t\t\t\t\t\t(T. 68, 170). Employees were exposed to the hazard of coming into contact with the rapidly\t\t\t\t\t\t\t\t\t\trotating, treaded tires which would cause them to be thrown forward with substantial force if the\t\t\t\t\t\t\t\t\t\ttires were rotating forward (T. 68). While the tractor is in reverse, the employee could be thrown\t\t\t\t\t\t\t\t\t\tbackwards or could be drawn into the nip point created by the tire and fender (T. 68, stipulation,\t\t\t\t\t\t\t\t\t\tExhibit B). The rough surface of the tire can catch an employees clothes (T. 170). The end of the\t\t\t\t\t\t\t\t\t\taxle with its protruding bolt could catch an employee\u2019s clothing (T. 73).\t\t\t\t\t\t\t\t\t\tThe low rails on the ends of the rollers do not guard against the hazard. The left guard is\t\t\t\t\t\t\t\t\t\tonly 30 inches high, not adequate to catch a tripping employee. The ends of the wider axles\t\t\t\t\t\t\t\t\t\tfrequently are located 8 inches above the guard and even with it or over it (T. 145, 164). The 30\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tinch guard does not keep employees away from the left wheel and axle. The rear of the test\t\t\t\t\t\t\t\t\t\tstation is open so that an employee could walk into or trip into a wheel. A swinging gate to\t\t\t\t\t\t\t\t\t\tprotect the rear of the station once was utilized and in service but is now abandoned. It should be\t\t\t\t\t\t\t\t\t\tutilized again.\t\t\t\t\t\t\t\t\t\tThe compliance officer observed respondent\u2019s employees in a position of being exposed\t\t\t\t\t\t\t\t\t\tto these unguarded hazards. Some of the employees were standing near the left rear and right\t\t\t\t\t\t\t\t\t\tfront tires. He also observed pedestrian traffic on both sides of the tractor test (T. 103). There\t\t\t\t\t\t\t\t\t\twas pedestrian traffic in the east aisle (near the left wheel) this included assemblers, supervisors\t\t\t\t\t\t\t\t\t\tand repairmen (T. 147, 163). Also tractors are driven down the aisle and a garden tractor hauls\t\t\t\t\t\t\t\t\t\ttrailer dollies (T. 147, 163). It must be noted that all of this traffic takes place in a space that\t\t\t\t\t\t\t\t\t\tmeasures 15 feet from the left wheel of the tractor Test Station to the east wall of the building (T.\t\t\t\t\t\t\t\t\t\t163). Employees were observed walking down the east aisle while a tractor was being tested and\t\t\t\t\t\t\t\t\t\tanother tractor was moving down the aisle (T. 148). The potential hazard is increased thereby\t\t\t\t\t\t\t\t\t\tsince a tractor with a 120 inch axle will take up 10 of the 15 feet of aisleway and there is no real\t\t\t\t\t\t\t\t\t\tcontrol over whether the driver of the moving tractor will stop (T. 148).\t\t\t\t\t\t\t\t\t\tRespondent\u2019s employee pedestrians could potentially be caught between a moving tractor\t\t\t\t\t\t\t\t\t\tand a tractor being tested at the Tractor Test Station. This is especially dangerous if the tractor\t\t\t\t\t\t\t\t\t\tbeing tested is a large one or if it slips to the left side of the rollers as sometimes occurs. Some of\t\t\t\t\t\t\t\t\t\trespondent\u2019s employees have been observed coming as close as two feet of a tractor being tested\t\t\t\t\t\t\t\t\t\t(T. 148). Oil, anti-freeze, water and loose nuts and bolts in the aisleways in front and behind the\t\t\t\t\t\t\t\t\t\tTractor Test Station add to the hazard since employees could trip or slip on these items and a part\t\t\t\t\t\t\t\t\t\tof their body could come in contact with the moving rear wheels (T. 56, 57, 65, 66, 72, 143, 144,\t\t\t\t\t\t\t\t\t\t165).\t\t\t\t\t\t\t\t\t\tRespondent states that there has been a lack of accidents at this Tractor Test Station and\t\t\t\t\t\t\t\t\t\trelies heavily on this fact by way of defense.\t\t\t\t\t\t\t\t\t\tThis is not the criteria involved in the interpretation of the standard.\t\t\t\t\t\t\t\t\t\tIn the case of Secretary of Labor v. Cornland Dressed Beef, OSAHRC Docket 4985, it\t\t\t\t\t\t\t\t\t\twas held:\t\t\t\t\t\t\t\t\t\t\u2018We cannot rely on this or any employee\u2019s experience of not having an accident in\t\t\t\t\t\t\t\t\t\t12 years as being sufficient evidence to keep Respondent from being in violation\t\t\t\t\t\t\t\t\t\tof Section 17(k).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tIt is entirely foreseeable that one of these years this employee will leave this earth\t\t\t\t\t\t\t\t\t\tfor his reward or maybe even be promoted to a supervisory post. This of course\t\t\t\t\t\t\t\t\t\twould entail the employment of a new person in this post. A new person might\t\t\t\t\t\t\t\t\t\tnot be as experienced or knowledgeable about this safety hazard and might\t\t\t\t\t\t\t\t\t\tinadvertently become entangled in the unguarded screw conveyor.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t*14 This new person may lack the expertise of his predecessor in deftly\t\t\t\t\t\t\t\t\t\tmanipulating the product into the two different conveyors and may slip, trip, or\t\t\t\t\t\t\t\t\t\tfall into the screw conveyor.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThis is why standards such as the one to guard the screw conveyors are adopted.\t\t\t\t\t\t\t\t\t\tExperience has shown that people in the past, in close proximity with screw\t\t\t\t\t\t\t\t\t\tconveyors have become entangled and have lost a leg or their life.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tExperience even in such a man who has spent twelve years on the job could not\t\t\t\t\t\t\t\t\t\tconceivably keep him from having an unavoidable slip, trip, or full into the area\t\t\t\t\t\t\t\t\t\tin an unguarded moment.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 CFR 1910.212(a)(1) is simply a standard adopted because of previous painful\t\t\t\t\t\t\t\t\t\texperience involving employees who became caught in unguarded screw\t\t\t\t\t\t\t\t\t\tconveyors. This standard is a requirement imposed by OSHA that Respondent\t\t\t\t\t\t\t\t\t\tmust comply with if the employee is to be guarded so far as humanly possible\t\t\t\t\t\t\t\t\t\tfrom injury while working near screw conveyors.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t* * *The fact that there has been no accident does not mean that they have\t\t\t\t\t\t\t\t\t\tcomplied with the standard. * * * Wherever these tragic accidents have happened,\t\t\t\t\t\t\t\t\t\tperhaps is the only time in the plant\u2019s history that such a thing has occurred. Once\t\t\t\t\t\t\t\t\t\tis enough for any plant and its safety program. The cost is enormous in human\t\t\t\t\t\t\t\t\t\tsuffering, loss of the employee involved and tragedy for the employee\u2019s family.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIt is to be noted that the same section (29 CFR 1910.212(a)(1) is involved in the instant\t\t\t\t\t\t\t\t\t\tcase and the Cornland Dressed Beef case. Both involve unguarded hazardous moving parts of\t\t\t\t\t\t\t\t\t\tmachinery which could produce injury to an employee. In both cases, the respondent relied on\t\t\t\t\t\t\t\t\t\tthe fact there had been no accidents at the exposed hazardous work point. The hazard in both\t\t\t\t\t\t\t\t\t\tcases is a rotating part of machinery.\t\t\t\t\t\t\t\t\t\tRespondent has raised the issue of whether or not it is proper for the complainant in his\t\t\t\t\t\t\t\t\t\tcomplaint to amend the citation. The complainant, in its complaint, amended both items of the\t\t\t\t\t\t\t\t\t\tcitation in issue here.\t\t\t\t\t\t\t\t\t\tItem 34 was amended so that all of 1910.133 was alleged. Accordingly, subsection (6)\u2019s\t\t\t\t\t\t\t\t\t\tstatement as to what would be considered approved proper eye protection equipment was\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tincluded in the charge. The citation was made more specific as to the violation observed and how\t\t\t\t\t\t\t\t\t\tabatement could be achieved, e.g., no safety spectacles with sideshield was substituted for\t\t\t\t\t\t\t\t\t\t\u2018wearing frontal eye protection\u2019. Item 34 was also amended to correct a drafting error by the\t\t\t\t\t\t\t\t\t\tcompliance officer where an \u2018and\u2019 was omitted between \u2018processes\u2019 and \u2018using\u2019. The compliance\t\t\t\t\t\t\t\t\t\tofficer stated that it was his intention to cite for improper eye protection both where air hoses\t\t\t\t\t\t\t\t\t\twere used and where machining without air hoses was occurring (T. 89\u201391). Item 47 was also\t\t\t\t\t\t\t\t\t\tamended to specify the exact exposure to hazards of employees exposed to rotating tractor\t\t\t\t\t\t\t\t\t\twheels. The original citation having specified employee exposure at the test station to hazards of\t\t\t\t\t\t\t\t\t\tpoint of operation, ingoing nip points and rotating party.\t\t\t\t\t\t\t\t\t\tThis, in our opinion, made the complaint more specific and enabled respondent to better\t\t\t\t\t\t\t\t\t\tmeet the allegations of the citation. We see no merit in respondent\u2019s objection to the amendments\t\t\t\t\t\t\t\t\t\tand there is no prejudice to respondent by such amendment.\t\t\t\t\t\t\t\t\t\tThe legal criteria for amendment was fully met in this case since \u2018administrative\t\t\t\t\t\t\t\t\t\tpleadings are very liberally construed and very easily amended\u2019. National Realty and\t\t\t\t\t\t\t\t\t\tConstruction v. OSAHRC, 489 F.2d 1257, 1264, N. 31, (C.A.D.C. 1973), \u2018the (liberal\t\t\t\t\t\t\t\t\t\tamendment) rule has particular pertinence here, for citations of the 1970 Act are drafted by non-\t\t\t\t\t\t\t\t\t\tlegal personnel, acting with necessary dispatch. Enforcement of the Act would be crippled if the\t\t\t\t\t\t\t\t\t\tSecretary were inflexibly held to a narrow construction of citations issued by his inspectors.\u2019\t\t\t\t\t\t\t\t\t\tAccordingly, we feel respondent\u2019s objection to amendment of the citation is without merit. The\t\t\t\t\t\t\t\t\t\ttotal evidence as outlined herein establishes to our satisfaction that items 34(b) and 47 of the\t\t\t\t\t\t\t\t\t\tcitation (the only items at issue herein) must be affirmed.\t\t\t\t\t\t\t\t\t\tFINDINGS OF FACT\t\t\t\t\t\t\t\t\t\tBased upon the testimony of the witnesses, the documentary evidence, the stipulation, the\t\t\t\t\t\t\t\t\t\tentire record and considering the arguments and briefs of the parties, we make the following\t\t\t\t\t\t\t\t\t\tfindings of fact and conclusions of law.\t\t\t\t\t\t\t\t\t\t1. Respondent at all times relevant herein, was a corporation employing employees at its\t\t\t\t\t\t\t\t\t\tprinciple office and its manufacturing facility at West Allis, Wisconsin. A substantial proportion\t\t\t\t\t\t\t\t\t\tof the goods produced at West Allis is produced for interstate commerce and shipped outside of\t\t\t\t\t\t\t\t\t\tWisconsin.\t\t\t\t\t\t\t\t\t\t2. The West Allis facility is divided into four profit centers. The citation and penalties\t\t\t\t\t\t\t\t\t\tproposed concerned an inspection of the profit center designated as Agricultural Tractor Division\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t(ATD).\t\t\t\t\t\t\t\t\t\t3. A compliance officer, accompanied by representatives of respondent and employees,\t\t\t\t\t\t\t\t\t\tmade an inspection of ATD on March 11, 12, 14, 15, 18, 19, 21, 22 and April 2, 3, 1974.\t\t\t\t\t\t\t\t\t\t4. A citation and notification of proposed penalties were issued on May 6, 1974, in regard\t\t\t\t\t\t\t\t\t\tto 65 items. This citation was amended. Respondent contested the citation by mail on May 24,\t\t\t\t\t\t\t\t\t\t1974. Respondent did not contest the penalties. Respondent amended the notice of contest on\t\t\t\t\t\t\t\t\t\tMay 29, 1974, and stated an intent to contest items 34(b), 35 and 47.\t\t\t\t\t\t\t\t\t\t5. At the hearing, the complainant withdrew item 35.\t\t\t\t\t\t\t\t\t\t6. Respondent\u2019s machining operations, including the use of pressurized air to clean parts\t\t\t\t\t\t\t\t\t\tof power tools, presented a hazard to employees\u2019 eyes from flying objects, primarily iron\t\t\t\t\t\t\t\t\t\tparticles.\t\t\t\t\t\t\t\t\t\t7. A number of respondent\u2019s employees working at the ATD location were exposed to\t\t\t\t\t\t\t\t\t\tthe aforesaid hazards to their eyes:\t\t\t\t\t\t\t\t\t\t(a) Tractor 1\u2014Basement Machine Shop and Fourth Floor Tool Room.\t\t\t\t\t\t\t\t\t\t(b) Tractor 2\u2014the entire building except for the tire assembly area on the south end, and\t\t\t\t\t\t\t\t\t\ta welding area on the northwest end.\t\t\t\t\t\t\t\t\t\t(c) Tractor 3\u2014the entire building.\t\t\t\t\t\t\t\t\t\t(d) Tractor 4\u2014the Parts Washer Area and areas immediately surrounding grinders\t\t\t\t\t\t\t\t\t\tscattered throughout the building.\t\t\t\t\t\t\t\t\t\t8. Respondent\u2019s employees at the aforesaid locations were exposed to hazards from the\t\t\t\t\t\t\t\t\t\tside as well as the front. In order to afford respondent\u2019s employees minimum eye protection\t\t\t\t\t\t\t\t\t\tappropriate under the circumstances of their employment, it was necessary that safety glasses be\t\t\t\t\t\t\t\t\t\tequipped with sideshields.\t\t\t\t\t\t\t\t\t\t9. Employees at all of the aforesaid locations were not required by respondent to wear,\t\t\t\t\t\t\t\t\t\tand with rare exception, did not wear sideshields for greater protection with their safety glasses.\t\t\t\t\t\t\t\t\t\t10. Respondent\u2019s tractors which were being operated on the Tractor Roller Test Station at\t\t\t\t\t\t\t\t\t\tTractor 4, as described in item 47, are \u2018machines\u2019.\t\t\t\t\t\t\t\t\t\t11. The rotating wheels of respondent\u2019s tractors being tested at the Tractor Test Station\t\t\t\t\t\t\t\t\t\tare hazardous rotating parts and create hazardous ingoing nip points.\t\t\t\t\t\t\t\t\t\t12. These tractor wheels are not guarded by barriers or other devices to prevent\t\t\t\t\t\t\t\t\t\temployees from coming into accidental contact with the wheels and consequently becoming\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tinjured.\t\t\t\t\t\t\t\t\t\t13. Numerous employees of respondent use the aisleways immediately adjacent to the\t\t\t\t\t\t\t\t\t\trotating tractor wheels at the Test Station and are exposed to the hazards created by the\t\t\t\t\t\t\t\t\t\tunguarded wheels.\t\t\t\t\t\t\t\t\t\tCONCLUSIONS OF LAW\t\t\t\t\t\t\t\t\t\t1. Respondent is and at all times material was an employer within the meaning of section\t\t\t\t\t\t\t\t\t\t5(a) as defined in section 3 (5) of the Act.\t\t\t\t\t\t\t\t\t\t2. Jurisdiction is conferred upon the Commission by section 10(c) of the Act. and the\t\t\t\t\t\t\t\t\t\tcitations issued were in accordance with section 9(a) of the Act.\t\t\t\t\t\t\t\t\t\t3. On May 6, 1974, the complainant pursuant to the provisions of section 9(a) and 10(a)\t\t\t\t\t\t\t\t\t\tof the Act duly issued to respondent a citation and notification of proposed penalty. On May 28\t\t\t\t\t\t\t\t\t\tand 29, 1974, complainant duly and properly issued an amendment thereto.\t\t\t\t\t\t\t\t\t\t4. On May 24, 1974, pursuant to section 10(c) of the Act, respondent timely filed a\t\t\t\t\t\t\t\t\t\tnotification of contest which included a contest of the aforesaid citation. On May 29, 1974,\t\t\t\t\t\t\t\t\t\trespondent duly amended said notification.\t\t\t\t\t\t\t\t\t\t5. Complainant duly transmitted to this Commission said notification pursuant to and in\t\t\t\t\t\t\t\t\t\taccordance with Commission Rule 7, 29 CFR 2200.7 and section 10(c) of the Act.\t\t\t\t\t\t\t\t\t\t6. Complainant\u2019s amendment to the citation in the complaint was proper and did not\t\t\t\t\t\t\t\t\t\tprejudice respondent\u2019s rights.\t\t\t\t\t\t\t\t\t\t7. 34(b) of the citation, as amended, described with sufficient particularity within the\t\t\t\t\t\t\t\t\t\tmeaning of section 9(a) of the Act the nature of the violation and the standard violated.\t\t\t\t\t\t\t\t\t\t8. Respondent violated 29 CFR 1910.133 in that it failed to require employees to wear\t\t\t\t\t\t\t\t\t\tsuitable eye protection, including at least sideshield protection, at its workplace where machines\t\t\t\t\t\t\t\t\t\tor operations exposed employees\u2019 eyes to hazards from flying objects.\t\t\t\t\t\t\t\t\t\t9. The tractors being tested on the Tractor Roll Test Station were \u2018machines\u2019 within the\t\t\t\t\t\t\t\t\t\tmeaning of the Act, and 29 CFR 1910.212(a)(1).\t\t\t\t\t\t\t\t\t\t10. Respondent violated 29 CFR 1910.212(a)(1) in that it failed to provide one or more\t\t\t\t\t\t\t\t\t\tmethods of machine guarding to protect employees in the area of the Tractor Roll Test Station\t\t\t\t\t\t\t\t\t\tfrom rotating tractor wheels of tractors while in the process of being tested.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t1. Item 35 together with its proposed penalty is vacated.\t\t\t\t\t\t\t\t\t\t2. Items 34(b) and 47 of the citation, as amended, and their proposed penalties are\t\t\t\t\t\t\t\t\t\taffirmed.\t\t\t\t\t\t\t\t\t\tVernon Riehl,\t\t\t\t\t\t\t\t\t\tJudge, OSAHRC\t\t\t\t\t\t\t\t\t\tDate: April 1, 1975\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t”