“SECRETARY OF LABOR,Complainant,v.ARMOUR FOOD COMPANY,Respondent.OSHRC Docket No. 86-0247_DECISION _Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:On February 14th and 18th, 1986, a compliance officer from theOccupational Safety and Health Administration, United States Departmentof Labor, (\”Secretary\”) conducted an inspection of Armour Food Company’s(\”Armour’s\”) meat processing facility in Eau Claire, Wisconsin.Following the inspection, the Secretary issued two multi-itemedcitations, alleging that Armour violated the Occupational Safety andHealth Act of 1970, 29 U.S.C. ? 651-678 (\”the Act\”) by failing to complywith various occupational safety and health standards published in 29C.F.R. Part 1910. One citation alleged serious violations of the Act,while the second alleged other-than-serious violations. Armour contestedboth citations. On October 28, 1986, following a hearing, AdministrativeLaw Judge William R. Mullins issued a decision in which he affirmed 5 ofthe 10 serious items and 6 of the 10 other-than-serious items, andmodified one serious item from serious to other-than-serious. FormerChairman Buckley directed review of all the issues raised in Armour’spetition for discretionary review, which involved 9 of the 20 itemsdecided by the judge. We affirm the judge’s disposition in part andreverse in part.[[1\/]]_Citation Number 1, Item 1_At issue in this item is whether Armour violated 29 C.F.R. ?1910.132(a)[[2\/]] by failing to require its employees to wear meshgloves when sharpening blades on White Castle Slicers. The judgeaffirmed the item. He found that sharpening the blades exposed Armour’semployees to a hazard and that Armour knew of the hazard. We find thatthe Secretary failed to establish the existence of a hazard requiringthe use of personal protective equipment and vacate the item.Each of the four slicers has a circular blade from 14 to 16 inches indiameter and is used to slice bricks of frozen ground meat. The slicerblades are sharpened by Armour employees four times per shift, one andsometimes two shifts a day, five to six days a week. To sharpen theblade, a flat stone two inches by eight inches by one inch is heldagainst the blade as the blade is rotated by a hand crank.The compliance officer testified that he observed an employee sharpeninga blade on a White Castle Slicer without wearing personal protectiveequipment on his hands. The compliance officer recommended that Armour’semployees wear metal mesh safety gloves to protect their hands whensharpening the blades. He testified that it was customary in theindustry to wear mesh gloves for sharpening. He based this view on aprevious visit to Armour’s facility during which he observed thatemployees using knives to debone meat wore mesh gloves, but only on thehand that did not hold the knife.[[3\/]]Gordon C. Jaenke, Armour’s plant engineer, supervises the employees whosharpen the blades. He testified that he was not aware of any employeereceiving an injury while sharpening the slicers during his 23 years atthe Eau Claire facility. Jaenke testified that he would have known ofany injuries that did occur because he was on the Safety Committee.Fifteen to twenty years earlier, Jaenke had tried to use a steel meshglove when he sharpened the blades but found that the mesh glove did notwork because:It doesn’t fit tight because it doesn’t stretch. And when you go sharpenwith the steel-mesh glove on, the ends get caught on the blade and itjerks your hand….you lose the feel of the stone and the blade when youhave a glove on.Jaenke also testified that the boners who once worked at this facilitynever wore gloves when they sharpened their knives with a stone because\”[t]hey lo[st] the feel of the knife, the blade; and that’s importantwhen you are sharpening a knife.\”The judge found that Armour had actual knowledge of a hazard requiringthe wearing of personal protective equipment because Jaenke wasconcerned enough about a hazard to wear the mesh gloves on occasion. Healso found that under _General Motors Corporation,_ _GM Parts Division_,11 BNA OSHC 2062, 1984-85 CCH OSHD ? 26,961, (Nos. 78-1443 & 79-4478,1984) (_\”General Motors\”_), aff’d, 764 F.2d 32 (1st Cir. 1985), therewas sufficient evidence to establish that Armour could reasonablyforesee a hazard involved in sharpening the blades.In order to establish the existence of a hazard requiring the use ofpersonal protective equipment, the Secretary must either show that theemployer had actual knowledge that such a hazard existed or that areasonable person familiar with the circumstances surrounding thehazardous condition, including any facts unique to the particularindustry, would recognize a hazard warranting the use of personalprotective equipment. Evidence of industry custom and practice will aidsuch a determination, but it is not necessarily determinative. _GeneralMotors_, 11 BNA OSHC at 2065, 1984-85 CCH OSHD at p. 34,611.Armour argues that it established that (1) it did not have actualknowledge that wire mesh gloves were required when the blades weresharpened, and that (2) a reasonable person, familiar with respondent’sindustry, would recognize that mesh gloves were not necessary whensharpening these blades. We conclude that the evidence fails toestablish that Armour had actual knowledge of a hazard requiring thewearing of mesh gloves or that a reasonable person familiar with thecircumstances of the industry would have recognized a hazard requiringpersonal protective equipment.The judge found that Armour had actual knowledge because Jaenke woremesh gloves on occasion. However, we cannot attach such significance toJaenke’s brief experience sharpening blades with mesh gloves. Jaenke hadtried mesh gloves 15 to 20 years before the inspection, but found themunsuitable and stopped wearing them. Any apprehension that may havecaused him to try to wear the gloves when sharpening blades appears tohave been laid to rest by the lack of any injuries either before orafter he tried the gloves.The evidence that no employee had been injured while sharpening theblades in over 20 years strongly suggests that no hazard was present. In_General Motors,_ the Commission rejected the Secretary’s claim thatactual knowledge was shown by the number of injuries to employeesbecause it found the injury rate to be very low. In _General Motors,_ 5foot injuries were received by 150 employees moving 1.5 million partsduring the 2.5 years prior to the inspection. Here, none of Armour’semployees had been injured while sharpening the 4 slicer blades 4 timesa day during the 23 years prior to the inspection. Under these facts weconclude that the Secretary failed to prove actual knowledge of a needfor mesh gloves.We next turn to the \”reasonable person\” test. In _General Motors,_ theCommission found that the most revealing evidence of whether areasonable person familiar with the industry would have recognized ahazard requiring personal protective equipment was \”the practice ofthose persons most clearly familiar with the industry — the employees.\”11 BNA OSHC at 2066, 1984-65 CCH OSHD at p. 34,612. Here, the evidenceestablishes that the employees who sharpened the slicer blades did notwear mesh gloves. Jaenke, their supervisor, had tried using mesh gloves\”off and on\” 15 to 20 years earlier, but he had stopped because theyinterfered with the sharpening of the blades and caused a hazard bycatching on the blades. Evidence that Armour employees wore mesh gloveswhen they deboned meat does not establish that it is the practice inArmour’s industry to wear mesh gloves when sharpening blades. See GrandUnion Co., 3 BNA OSHC 1596, 1596-97, 1975-76 CCH OSHD ? 20,107, pp.23,927-28 (Nos. 7031 & 7533, 1975) (industry practice of meat cutters inmeat packing plants does not establish industry practice of meat cuttersin retail stores). It may be industry practice to wear mesh gloves whenperforming certain tasks, such as deboning meat, but the Secretaryintroduced no evidence that it was the practice in Armour’s industry foremployees to wear mesh gloves when sharpening slicer blades. Under thecircumstances, we find that the Secretary has failed to establish that areasonable person familiar with the circumstances alleged in seriousitem 1, including any facts unique to that industry, would recognizethat sharpening slicer blades presented a hazard requiring the use ofpersonal protective equipment.[[4\/]]Accordingly, we reverse the judge’s decision and vacate item 1 ofcitation 1._Citation Number 1, Item 2(b)_Item 2(b) alleges that Armour failed to comply with 29 C.F.R.?1910.212(a)(1)[[5\/]] by not providing machine guarding on a spice mixeron the formulation platform in the frying area of its plant. We find,however, that the Secretary failed to establish the existence of ahazard requiring guarding of the machine, and we therefore vacate thiscitation subitem.The mixer is contained in a mixing unit underneath a steel formulatingtub. Armour’s employees stand on the platform in front of the mixingunit and formulating tub and dump spices, water, and other materialsinto the tub. The contents of the tub are then dumped into the mixerbelow. There is an opening between the top of the mixing unit and theformulating tub above it which varies between \”[a] few inches to 8 or 10inches.\” Employees also introduce materials into the mixer through thisopening. The mixer blades, which move at 10 to 30 r.p.m. and are shapedlike paddles, are located approximately 12 to 14 inches down from thetop of the mixing unit. The blades are at waist level, or approximatelythree and one half feet above the platform.According to the compliance officer, employees who add spices or othermaterial into the mixing unit or who occasionally check on the progressof the mixing process could reach into the mixer while the blades aremoving. He suggested that the mixer blades be guarded by placing afunnel over them or by installing an interlock so that the employeeworking on the platform could not reach into the mixer while it wasrunning. The compliance officer admitted that the narrowness of thespace between the tub and the mixer blades would prevent an employeefrom falling into the blades and also would make it difficult for anyoneto reach the blades with their hand.Plant engineer Jaenke was not aware of any injuries involving the mixerblades. He testified that, although it was possible to reach into thetub and touch the mixer blades, it would be very difficult because \”youwould have to crawl in under the [top] tub and reach down in to themixer.\” Disagreeing with the compliance officer’s suggested guardingmethods, Jaenke explained that the top tub is now positioned soemployees can see the contents of both the tub and the mixer and candetermine whether the contents are mixing properly. Jaenke stated thatit would be \”very difficult\” to place a funnel or chute over the mixerbecause the formulating tub would have to be raised. This would requireeither the building of another platform or the raising of the existingplatform so employees could reach the raised tub.The judge affirmed the citation subitem. He found that \”[t]he evidenceestablishes that the standard has been violated, that the employees arethereby exposed to a hazard, and that the probability of serious injuryis present.\” He noted that although Armour contended it would bedifficult to use the funnel, Armour did not attempt to prove that aninterlocking device would be infeasible. On review, however, Armourargues that the judge erred in failing to address the preliminary issueof whether there was a hazard that made it necessary to install any typeof guarding on the machine.In order to establish a violation of section 1910.212(a)(1). theSecretary must first prove the existence of a hazard. _Papertronics,Division of Hammermill Paper Co.,_ 6 BNA OSHC 1818, 1819, 1978 CCH OSHD? 22,898, pp. 27,694-95 (No. 76-3517, 1978). While it was physicallypossible for Armour’s employees to reach into the mixer and touch theblades, the mere fact that it was not impossible for an employee to gethis hands into the mixer blades does not demonstrate that the employeewas exposed to a hazard. _See Rockwell International Corp.,_ 9 BNA OSHC1092, 1097, 1980 CCH OSHD ? 24,979, p. 30,846 (No. 12470, 1980). Whethera machine exposes an employee to a hazard must be determined based onthe manner in which the machine functions and how it is operated by theemployees. 9 BNA OSHC at 1097-98, 1980 CCH OSHD at p. 30,846. Here, theSecretary presented no evidence that the operation of the machinerequires Armour’s employees to insert their hands into the areasurrounding the mixer blades, and although it is not impossible for anemployee to insert his hands into the mixer and to touch the blades,even the Secretary’s witness admitted that employees have no reason toput their hands in the mixer and that it would be difficult for them todo so.The Secretary also presented no evidence that injuries were caused bythe mixer blades. While occurrence of an injury is not a necessarypredicate for establishing a violation, the absence of any injuriessupports a finding that there was no hazard._See Rockwell,_ 9 BNA OSHCat 1098, 1980 CCH OSHD at p. 30,846. Under these circumstances, we findthat the Secretary has failed to show a hazard requiring guarding undersection 1910.212(a)(1). Accordingly, item 2 (b) of citation 1 is vacated._Citation Number 1, Item 2 (c)_The Secretary also alleged that Armour failed to comply with section1910. 212(a)(1), _supra_ at n. 5, by not providing guarding for theconveyor nip point on the outfeed of the White Castle Slicers on lines1, 2, 3 and 4. We find that the Secretary has proved this allegation,and we therefore affirm this citation subitem.The evidence establishes that Armour employees stand by the conveyors,which move at speeds of up to 60 feet a minute, and sort hamburgerpatties. The conveyor belts are loose enough that they absorb the impactof hamburger patties landing on them, so loose that they occasionallylose traction and stop.The compliance officer testified that there are nip points on all fourlines where the rubber conveyor belt goes over an end roller, and thatArmour’s employees who sort the patties on the belt are exposed to thesenip points. The compliance officer testified that the \”medium slow\”speed of the belt made it more likely that employees would be injuredbecause the slackness of the belt enlarges the nip point. He did notbelieve that it would be easy for an employee to pull his hand out fromthe nip point. He testified that if an accident occurred, a fracture ofa finger or a severe abrasion would likely result. The complianceofficer testified that such a nip point is usually guarded by \”a pieceof metal, . . . or in some case[s] another solid material that isaffixed to the frame of the equipment and then closely approaches thebelt\” in the vicinity of the nip point without quite touching it. Thisarrangement minimizes the possibility that a body part or piece ofclothing could be caught in the nip point and pulled into the roller.Plant engineer Jaenke stated that he has never known anyone to getcaught in the nip point. He testified that if someone’s finger or handwas caught, they could stop the belt with their other hand. He alsotestified that a finger could go around the pulley without injurybecause of the slackness of the belt.The judge affirmed this subitem but found that the likelihood of seriousinjury was not established and that any injury would be minor. Hemodified the citation from \”serious\” to \”other-than-serious\” and did notassess a penalty. Armour contends that the nip point is not a hazard.In _Papertronics,_ the Commission vacated a citation alleging a failureto guard similar nip and pinch points, largely because the conveyor wasequipped with a microswitch that cut power off if an object even smallerthan a hand were inserted into the nip point. Here, although the beltsmoved slowly, there was no microswitch to cut off power. Employees whoroutinely placed their hands in the immediate vicinity of the nip pointscould inadvertently put their hands into the nip point. This evidenceestablishes that Armour’s employees were exposed to a hazard undersection 1910.212(a)(1). Since Armour failed to guard the nip point asrequired by section 1910.212(a)(1) item 2(c) of citation 1 is affirmed._Citation Number 1, Item 4(a)_Item 4(a) alleges that Armour violated 29 C.F.R. ? 1910.219 (f)(3)[[6\/]]by failing to enclose a sprocket wheel and chain \”near [the] end ofretail line in the basement.\” We find that the Secretary failed to provethe factual allegations of the citation and the complaint, and wetherefore vacate this citation subitem.At issue is the identity of the cited machine. The Secretary introducedinto evidence and relies heavily on what she asserts is a photograph ofthe cited sprocket wheel and chain. Armour claims that the photograph isof different machines, a Pittman fryer and a breader in the fryerdepartment on the ground floor.The compliance officer testified that in the lower right corner of thephotograph \”is a sprocket wheel and chain,[[7\/]] which is near the endof the retail line in the basement; and _as you can see in thephotograph,_ the equipment is immediately adjacent to a walkway or anaisle . . . .\” (Emphasis added.) When asked to further describe thephotograph, he testified: \”This is the basement, and the sprocket wheeland chain is right here on the edge of the aisle, _as you can see isevident in the photograph._ And you can see there is no guard therewhatsoever.\” (Emphasis added.) The cross-examination of the complianceofficer proceeded as follows:Q: Mr. Gawin, showing you [the] photograph which is [exhibit] 2F andshows a picture of Item 4a, you say that’s in the basement. Are you sureof that?A: That’s what the notes reflect that I have based on my conversationwith the employer representative.Q: Okay, showing you or pointing to what’s in the photograph, this itemright there. Isn’t that a fryer machine? Do you know a fryer machine?A: I can’t identify in the photograph what that is.Q: This portion of it, is that a — would you say that was a heatcontroller?A: Well, I can’t identify that for sure.Q: You don’t know what that is?A: I couldn’t tell you what that is, no.Q: And you don’t know whether the equipment that is attached to [it] isa fryer? Do you know what a fryer is, don’t you?A: Yes.Q: Is that a fryer?A: If the question you’re asking is if it’s possible to identify it, tocorrectly identify it as a fryer, I’m just not certainly able to tellyou that. It’s possible that it could be a fryer.Q: You don’t know whether it is a fryer?A: Right.Q: And you say this piece of equipment and this belt and sprocket is inthe basement?A: I believe it’s in the basement.Plant engineer Jaenke later testified that the photograph is of aPittman fryer and a breader found on the ground floor in the fryerdepartment. He testified that he was sure that the picture was not ofthe retail line and was not taken in the basement.The judge found that \”[t]he compliance officer _cited this machine_ andprovided a photograph which was submitted as complainant’s exhibit2(f).\” (Emphasis added.) The judge treated Armour’s argument as a claimthat there was no evidence of the violation cited in the complaintbecause the machine referred to in the complaint was actually located onthe ground floor rather than in the basement. The judge amended thecomplaint under Fed. R. Civ. P. 15(b)[[8\/]] apparently to change thelocation of the cited sprocket wheel and chain from the basement to theground floor, but not to change the description of the machine toconform to the machine depicted in the photograph. The judge found thatArmour had consented to the amendment because it received the photographfrom the Secretary one week before the hearing, but did not object toits admission into evidence. The judge also found that Armour’s \”witnessand counsel obviously knew which machine was pictured and thereforethere was no prejudice to respondent.\”Amendment under the first half of Rule 15 (b) is proper only if twofindings can be made — that the parties tried an unpleaded issue andthat they consented to do so. _McWilliams Forge Co., _11 BNA OSHC 2128,2129-30, 1984-85 CCH OSHD ? 26,979, p. 34,669 (No. 80-5868, 1984).Consent can be found only when the parties knew, that is, \”squarelyrecognized,\” that they were trying an unpleaded issue. _Id._ Here, thejudge amended the citation to change the location of the cited machinefrom the retail line in the basement to the retail line on the groundfloor. He found that the compliance officer’s testimony established thatthe sprocket wheel was accessible to employees, and he also found thatit was not disputed that employees worked in the area. However, theevidence suggests that the machine in the photograph, which theSecretary claims was the machine cited here, is not on the retail linein either the basement or on the ground floor. Since the Secretary’sevidence concerns a machine on the retail line and Armour’s onlyargument was that the machine in the photograph was not on the retailline, it cannot be said that the parties tried the unpleaded issue whenthey never agreed which machine was being tried. Under thesecircumstances, we find that the judge improperly amended the citation.We now turn to the originally cited charge. Because there was noevidence that the machine \”near the end of the retail line\” mentioned inthe original citation had an unguarded chain and sprocket, we find thatthe Secretary failed to establish noncompliance with the cited standard.In addition, because the compliance officer’s testimony on employeeexposure was apparently based solely on the photograph and his notes andbecause it is not clear whether either relate to the cited machine, wefurther find that the Secretary failed to establish employee exposure tothe cited conditions. Accordingly, item 4(a) is vacated._Citation Number 1, Item 4(b)_Item 4(b) alleges that Armour violated section 1910.219(f)(3), supra atn.6, because the sprocket wheel and chain on the auger drive in theWhite Castle formulation area was not equipped with full enclosureguarding. We find that the Secretary failed to establish employeeexposure to the cited conditions and therefore vacate this citation subitem.The nip point created when the incoming chain contacts the side of thesprocket wheel is about eight to ten inches above ground. Above thewheel is a motor in a transfer case that extends approximately teninches out over the sprocket. The sprocket wheel turns intermittently atabout 1\/8 of a turn each time at about five to six RPM. The complianceofficer testified that the sprocket wheel was not fully enclosed andthat it was located next to an aisle where employees occasionallywalked. No Armour employee worked in the area of the sprocket wheel, butthe compliance officer testified that employees could get their long,white coats caught in the sprocket wheel and chain.Plant engineer Jaenke testified that \”it would be difficult to get yourfoot in the sprocket because the transfer case is out over it\” and that\”if somebody slipped and fell or got down on the floor and stuck theirfoot up in there, then they would have to wait because\” of the slowspeed of the sprocket wheel and chain. To get one’s foot in the nippoint, Jaenke testified that someone would have to \”probably get down onthe floor and hold your leg up in there.\” He further testified that thecoats the employees wear are knee length, and could not get caught inthe sprocket. Jaenke also stated that in his 23 years at the Eau Clairefacility, the cited sprocket wheel and chain had not caused any injuries.The judge affirmed the item. He found that employees who worked in thearea were exposed to the sprocket wheel and chain and that theprobability of serious injury was present.In order to show exposure to a violative condition, the Secretary must\”show that employees either while in the course of their assignedworking duties, their personal comfort activities while on the job, ortheir normal means of ingress-egress to their assigned workplaces, willbe, are, or have been in a zone of danger.\”_Gilles & Cotting. Inc.,_ 3BNA OSHC 2002, 2003, 1975-76 CCH OSHD ? 20,448 at p. 24,425 (No. 504,1976). The Secretary has not shown that the employees are in the zone ofdanger of the nip point. It might be possible to get a long coat, pantsleg or some other article of clothing caught by the nip point, but itappears unlikely. The photographic exhibits demonstrate that employeeshave sufficient space to walk by the nip points without having to getnear them. In addition, Armour has no history of injuries wasattributable to the nip point. We conclude that the Secretary has failedto establish that Armour’s employees were exposed to the unenclosed nippoints on the auger drive’s sprocket wheel and chain. Accordingly, item4(b) of citation 1 is vacated._Citation Number 1, Item 4(d)_Item 4(d) alleges that Armour failed to comply with section1910.219(f)(3), _supra_ at n.6, because the sprocket wheels and chainson the infeed and the outfeed of the corn dog fryer lacked fullenclosure guarding. In addition to the issue of whether there wasemployee exposure to the violative condition, the direction for reviewposed the questions of whether the violation was serious and whethercompliance with the standard was infeasible. We find that Armour has notshown that compliance is infeasible and affirm a serous violation.Jaenke testified that the two partial enclosures protect the employeesfrom getting caught in the sprockets if they fall or lean up against themachine. He testified that the partial enclosures protect the employeesfrom injury and that even if an employee \”worked his hand in there,\” theinjury would not be severe. In Jaenke’s opinion, the sprocket wheel andchain drive could not operate with a full enclosure on the sprockets.The judge found that Armour’s employees were exposed to the sprocketwheel and chain drive and that the drive could be more fully guarded toprevent employee exposure. He affirmed a violation of section1910.219(f)(3).[[9\/]]A threshold question here is the meaning to be given the word \”enclosed\”as used in section 1910.219(f)(3). The Commission has yet to interpretthe term. When faced with such a broad term in a standard, theCommission has often looked to other standards or codes to give thatterm meaning. _See Gold Kist, Inc.,_ 7 BNA OSHC 1855, 1859-60, 1980 CCHOSHD ? 24,205, p. 29,443 (No. 76-2049, 1979).According to section 1910.221, section 1910.219 is derived from theSafety Code for Mechanical Power Transmission Apparatus (ANSIB15.1-1953). Section 1910.219(f)(3) essentially follows the language ofRule 231 of that code which directs that \”[a]ll sprocket wheels andchains shall be enclosed unless more than seven (7) feet above the flooror platform.\” Rule 401(b) of the code, which sets design standards forguards, states that \”[g]uards should be designed so as not to interferewith the usual machine operations, but give the maximum protection tothe operator.\”In a revised version of the code, ANSI B15.1-1972, Section 7.1.1describes the function of an enclosure as \”prevent[ing] access orphysical contact by parts of the body to moving parts at all times byenclosing or shielding the hazard . . . includ[ing] but . . . notlimited to, completely enclosed guards. . . .\” Section 8.1 of therevised code requires an enclosure guard to \”prevent indirect placing ofany part of the body in, on or over edges of the guard where it mightcontact a moving part.\”The _Accident Prevention Manual for Industrial Operations _(6th ed.1973), which cites ANSI B15.1 in its list of references, states that\”[s]procket wheels or chains . . . should be guarded in the same manneras belts and pulleys.\” (p.681) The section on belts and pulleys statesthat ”[s]heaves, regardless of speed, should be enclosed at least tothe in-running nip point.\” (p.679)These definitions indicate that a sprocket wheel and chain enclosureneed not be a complete enclosure but that at least the in-running nippoint should be fully enclosed. Armour contends that the sprocket wheelsand chains are partially enclosed, but the photographs and testimonydemonstrate that the partial enclosure does not include a barrierbetween the employee’s work station and the in-running nip point. Hence,the sprocket wheels and chains are not enclosed within the meaning ofthe standard.We also find that Armour failed to prove the affirmative defense ofinfeasibility. Armour did not specifically argue that it was infeasibleto enclose the sprocket wheels and chains, but its claim that it couldnot guard the nip points as the compliance officer suggested raises thedefense. In order to establish the affirmative defense of infeasibility,an employer must make an initial showing that compliance with thestandard’s requirements is infeasible._Dun-Par Engineered Form Co., _12BNA OSHC 1949, 1956, 1986-87 CCH OSHD ? 27,650, p.36,024 (No. 79-2553,1986),_rev’d on other grounds,_ 843 F.2d 1135 (8th Cir. 1988). Thecompliance officer testified that it would be possible to enclose thesprocket wheels and chains to prevent access to the hazard and stillallow the machine to operate. However, he conceded that it would be moredifficult to install an enclosure on this machine than on simplersprocket wheels and chains. Plant engineer Jaenke testified that a fullenclosure on the infeed of the corn dog fryer would prevent it fromoperating because the enclosure would interfere with the removal of corndog sticks that could jam and break the machine.Armour apparently interpreted the compliance officer’s testimony asrequiring a cover for the entire front of the machine, which wouldinhibit access to the corn dogs. However, the compliance officertestified that the sprocket wheels and chains could be enclosed withoutenclosing the entire front of the machine, and this testimony was notdisputed. _See Clement Food Co.,_ 11 BNA OSHC 2120, 2124, 1984-85 CCHOSHD ? 26,972, p. 34,634 (No. 80-607, 1984) (infeasibility defense failswhere employer fails to consider other methods of abatement). BecauseArmour has not shown that it cannot enclose the area around the sprocketwheels and chains, it has failed to prove the first element of theaffirmative defense of infeasibility.The compliance officer testified that despite the slow speed of thesprocket mechanism there was a high probability that if an accidentoccurred either a crushing injury or an amputation would likely result.Plant engineer Jaenke stated that the existing partial enclosuresprotect the employee from injury from the sprockets and that noemployees had been injured by the infeed’s sprocket wheels and chains in23 years. He testified that any injuries would not be severe, but he wasdescribing injuries that could be received from the belt rather than thesprocket wheels and chains. The judge found that the probability ofserious injury was established by a photograph of the sprocket wheel andchain drive introduced by Armour. He found that employees could beexposed and that the sprocket wheel and chain drive could be more fullyguarded to prevent employee exposure. We affirm the judge’s finding thatthe violation was serious. The compliance officer gave uncontradictedtestimony that contact with the chain and sprocket wheel could causecrushing injury or amputation.Accordingly, we affirm item 4 (d) of citation 1 as to the infeedmechanism. Applying the penalty assessment criteria of section 17(j) ofthe Act, we find that a penalty of $100 is appropriate._Citation Number 2, Item 6_Item 6 alleges that Armour failed to comply with 29 C.F.R. ?1910.212(a)(4) [[10\/]] because it did not equip the cover of acentrifuge with an interlock. The cited standard requires that\”[r]evolving drums, barrels, and containers shall be guarded by anenclosure which is interlocked with the drive mechanism, so that thebarrel, drum, or container cannot revolve unless the guard enclosure isin place.\” We find that the standard does not apply to the centrifugeand vacate the item.The centrifuge is housed in a drum shaped container which does notrotate. The top of the container is covered with a hinged lid. Insidethe container is what is variously described as a \”table\”, \”plate\” or\”wheel\” that is flat and circular in shape, with rings or \”holders\”around its edge that are designed to hold such items as test tubes.According to the compliance officer, this table rotates, and it ispossible to open the drum shaped container while the table is stillrotating. Plant engineer Jaenke considered the table or plate inside thecentrifuge to be a \”holder\” rather than a container. He compared it to ahand: \”Your hand is not a container, it’s a holder; and that basicallyis what this does.\”The judge affirmed the citation. He found that section 1910.212(a)(4)seeks to prevent someone reaching in the centrifuge when it is stillspinning. He found that the guarded enclosure or lid needed to beinterlocked with the drive mechanism to avoid this potential danger.Armour contends that section 1910.212(a)(4) does not apply to thecentrifuge because the centrifuge itself does not revolve and that itdoes not apply to the table because the table is not a container. Weagree. The exterior of the centrifuge, which contains the rotating tableinside, does not itself revolve. Since the standard applies to\”revolving drums, barrels, and containers\” it would not apply to thedrum shaped container. Nor would the standard apply to the table insidethe centrifuge since, although it revolves, it is neither a drum,barrel, or container. Accordingly, item 6 of citation 2 is vacated._Citation Number 2, Item 9_Item 9 alleged that Armour failed to comply with 29 C.F.R. ?1910.252(a)(2)(ii)(b) [[11\/]] because it did not secure compressed gascylinders in the mechanical area.[[12\/]] There was no dispute that thecylinders were used for \”cutting torches and welding\” and were in themechanical room \”[f]or the purpose of being on the machine or in a cartto continue . . . work . . . [w]ithin a 15-minute period probably.\” Whatis at issue is whether the cylinders were in storage within the meaningof the standard. We find that the cylinders were not in storage andvacate the item.The judge found that \”[t]he danger sought to be avoided by this standarddictates a finding of a violation under these facts.\” The judge rejectedArmour’s reliance on _Grossman Steel & Aluminum_ _Corp._, 6 BNA OSHC2020, 1978 CCH OSHD ? 23,097 (No. 76-2834, 1978), a case in which theCommission found that a different subsection of section 1910.252 thataddressed the storage of oxygen cylinders did not apply where thecylinders were not in storage but were available for use. The judgedistinguished _Grossman,_ reasoning that the cylinders were in usein_Grossman_ while plant engineer Jaenke testified that the cylinders inthis case would not be in use until they were on a cart or hooked to amachine.We disagree. The facts here are not distinguishable from _Grossman_.Armour’s cylinders were at the location where they were soon to be putin use. They were not shown to be \”in storage\” within the meaning of thestandard. Therefore, the standard does not apply. _Grossman;_ _see__also_ _MCC of Florida, Inc.,_ 9 BNA OSHC 1895, 1897, 1981 CCH OSHD ?25,420, p. 31,681 (No. 15757, 1981) (cylinders are not \”in storage\”where they are \”available for immediate use in the area where they werelocated\”), _Pratt & Whitney Aircraft,_ 9 BNA OSHC 1653, 1672, 1981 CCHOSHD ? 25,359, p. 31,519 (No. 13401, 1981) (cylinders tied together in acorner covered with dust and not used for \”quite awhile\” were notavailable for immediate use.) We therefore vacate item 9 of citation 2._ORDER _Accordingly, items 2(c) and 4(d) of citation 1 are affirmed. Items 1,2(b), 4(a) and 4(b) of citation 1, and items 6 and 9 of citation 2 arevacated. A penalty of $100 is assessed for item 4(d).Edwin G. Foulke,Jr. ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: September 24, 1990————————————————————————SECRETARY OF LABOR,Complainant,v.ARMOUR FOOD COMPANY,a Corporation,Respondent.OSHRC DOCKET NO. 86-0247APPEARANCES:For the Complainant:Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department ofLabor, Chicago, IllinoisFor the Respondent:Dean G. Kratz, Esq., McGrath, North, O’Malley & Kratz, P.C., Omaha, Nebraska_DECISION AND ORDER_Mullins, Judge:On February 14, 1986, a two-day inspection was commenced of respondent’splant in Eau Claire, Wisconsin. The Occupational Safety and HealthAdministration (OSHA) compliance officer was William M. Gawin. Oncompletion of that inspection Mr. Gawin issued one serious citationcontaining four items. Three of the items had more than one instancecited and he recommended the assessment of a fine totaling $1,260.00.Mr. Gawin also issued an other-than-serious citation with ten items listed.The hearing in this matter was conducted July 15 and 16 in Eau Claire,Wisconsin. Notice of the trial date had been given affected employees,but there was no appearance made by the employees or by anyone on theirbehalf.OSHA, hereinafter referred to as complainant, called one witness, Mr.Gawin. He testified that he was an OSHA compliance officer andspecifically a safety specialist. He further testified that he had beenemployed by OSHA for seven years.Armour Food Company, (hereinafter referred to as respondent) called twowitnesses. Mr. Wayne R. Bellinger who is the Corporate Safety Officerwith Con Agra, the parent company for Armour Food Company, was calledfor the purpose of identifying certain photos that he had taken at theinspection site. Mr. Gordon G. Jaenke was called as respondent’s primarywitness. Mr. Jaenke testified that he was the plant engineer at theinspected plant. He testified that he had been employed with ArmourFoods for 23 years and further testified that he had worked those 23years as a welder, a mechanic, and for the past three years as plantengineer. All of his employment with the respondent had been in themaintenance area.Prior to the commencement of the hearing, both counsel for complainantand for respondent stipulated that jurisdiction to hear this case wasvested with the Occupational Safety and Health Review Commission._Serious Citation 1, item 1_29 CFR 1910.132(a): Protective equipment was not used when necessarywhenever hazards capable of causing injury and impairment were encountered:(a) mesh gloves were not used while sharpening blades on White Castleslicers. (2\/18\/86)The compliance officer testified that he observed an employee sharpeningthe blades of this slicer without the use of protective equipment. Herecommended the use of mesh gloves. The slicer was described as having a16 to 20 inch blade and was used to slice large blocks of frozen meat.The slicer was sharpened four times per eight-hour shift and there werefour of these machines located in the plant. (T-258)The respondent’s primary witness, Mr. Jaenke, testified that hesharpened these machines himself for three years while he was a mechanicand that he was never injured nor had he heard of anyone being injuredduring his 23 years of employment with the respondent. The blades weresharpened with a flat stone approximately two inches wide, one inchthick and about eight inches long. (T-259) While sharpening the blade,the stone was held by hand. He also testified that the blade was turnedby hand, not power, while being sharpened. (T-259) He stated thatfifteen to twenty years ago he had used gloves while sharpening thesemachines because he had a fear of being cut and had used the gloves atdifferent times. (T-261) He also testified that the mesh gloves wouldcatch on the blade and that the person wearing the glove lost the feelfor the sharpening process. He further testified that the manufacturersof the gloves warned of using them on machines with moving parts. (T-266)The evidence establishes that this activity is a hazard and that theemployees were exposed to the hazard. The respondent argues that sincethere has not been an injury in the past 23 years, that there was noknowledge on the part of the employer of the hazard. Throughout therespondent’s case in chief, Mr. Jaenke testified that he had never heardof, or known of, an accident on the machines he was testifying aboutduring his 23 years of employment with respondent. In his brief, counselfor the respondent, continually argues in each instance that there hasnever been an accident in the past 23 years and therefore the employerhad no knowledge. There was no testimony presented from the plant safetyofficer nor were safety records of the plant introduced. The onlytestimony received was from Mr. Jaenke who had worked in maintenance for23 years and was never involved in production. Counsel for therespondent suggests that since Mr. Jaenke wasn’t aware of any accidentsin those 23 years then the conclusion should be made that there weren’tany accidents. That conclusion simply cannot be made under the evidence.In this first citation there was obvious employer knowledge because Mr.Jaenke was concerned enough about the hazard to wear the mesh gloves onoccasion. And even if not, then under the case cited by respondent,_General Motors Corporation, GM Parts Division,_ 11 BNA OSHC 2062,OSAHRC Docket Nos. 78-1443 and 79-4478, there is sufficient evidencehere to find that the employer could reasonably foresee the hazardinvolved in sharpening these blades. Counsel for respondent argues thatthe use of mesh gloves would be dangerous because the manufacturer ofthose gloves discourages their use on machines with moving parts. But inthis instance, Mr. Jaenke testified that power was not used and that theblades were turned by hand while sharpening. This would negate thedanger involved if the glove was caught in the machine while sharpening.For these reasons, item 1 of Serious Citation 1 will be AFFIRMED and apenalty of $180.00 will be ASSESSED._Serious Citation No. 1, item 2_29 CFR 1910.212(a)(1): Machine guarding was not provided to protectoperators and other employees from hazards created by exposed nip pointsand moving parts of equipment:(a) enclosure guard needed for auger in No. 2 formulation area, (2\/14\/86)(b) a guard, chute or interlocked cover needed to protect employees frommixer blades on the spice formulating platform in the fryer area, (2\/14\/86)(c) guard needed for conveyor nip point on outfeed of White Castleslicers on lines 1, 2, 3 and 4. (2\/18\/86)Instance (a)The compliance officer cited an auger in the formulation area ofrespondent’s plant and indicated an enclosure guard was required.Complainant introduced a picture of this auger which is markedcomplainant’s exhibit 2(a). A side rail or barrier is shown in thisphoto which the compliance officer estimated to be 30 to 36 inches high.He testified that he did not know the frequency of employees in this area.Mr. Jaenke testified for the respondent that there was an aisle thatpassed near this auger but there was not a work station there. Hefurther testified that the side barrier was 45 inches high. (T-245)Although the respondent argues that there was no employee exposure to ahazard, the issue here involves the type of guarding required. Thecompliance officer suggests enclosure guarding, but the standardrequires simply guarding. Because of the lack of a work area at thislocation and only occasional passage by employees, the 45 inch barrierguard satisfies the standard and instance (a) of item 2 Serious CitationNo. 1 is hereby VACATED.Instance (b)Complainant’s exhibit 2(b) and respondent’s exhibits 2 and 3 arepictures of the spice formulating platform and mixer in the frying areaof respondent’s plant which was cited for not having machine guarding.The compliance officer testified that the employee working on theplatform could reach into the mixer while running and could easilysustain a serious injury. The compliance officer suggested a funnel overthe mixer blade or an interlock requiring stoppage of the mixer asappropriate guards to satisfy the standard.Respondent’s witness, Mr. Jaenke, testified that the side of the mixingbowl was 42 inches above the platform where the employees stood and thatthe mixing blades were 12 to 14 inches below the edge. He stated thatthe formulation tub was approximately 8 to 10 inches above the edge ofthe mixing bowl and it would be difficult for an employee to reach downinto the mixer. (T-273)Respondent argues that the abatement of this citation would be difficultand then speaks to the use of the funnel suggested by the complianceofficer, but respondent did not address the issue or the feasibility ofthe interlocking device. The standard suggests machine guarding and theburden of proof is on the respondent to show that compliance isinfeasible under these particular circumstances. _Ace Sheeting andRepair v. Occupational Safety and Health Review Commission,_ 555 F.2d439 (1977). Respondent has failed to meet his burden.The evidence establishes that the standard has been violated, that theemployees are thereby exposed to a hazard, and that the probability ofserious injury is present as a result.Therefore, instance (b) of item 2 Serious Citation 1 is AFFIRMED.Instance (c)The compliance officer identified complainant’s exhibit 3(c) as thephoto of the machine cited in this instance.He testified that there was employee exposure here and that there wasprobability of injury and if so, said injury would be serious.The respondent’s witness, Jaenke, testified that the belts were turningso slowly that the serious injury would not occur and that there waslittle possibility of any injury.The undersigned finds that under the evidence the likelihood of seriousinjury was not established and that if any injury at all, it would beminor. Accordingly, instance (c) of item 2 Serious Citation No. 1 ismodified to \”other-than-serious\” and no fine will be assessed.Based on these findings, the penalty for item 2 Serious Citation No. 1is ASSESSED at $120.00._Serious Citation No.1, item 3_29 CFR 1910.219(d)(1): Pulleys with parts seven feet or less from thefloor or work platform were not guarded in accordance with therequirements specified at 29 CFR 1910.219(m) & (o):(a) full enclosure guarding needed for belt and pulley below No. 1breader machine in fry room, (2\/14\/86)(b) full enclosure guarding needed for the belt and pulley below thinslice conveyor in basement. (2\/14\/86)Instance (a)The compliance officer testified that the belt pulleys cited here wereapproximately one foot above the floor and located by a work platform.He did testify that the pulley was partially guarded by the frame of themachine and the complainant introduced and there was admitted thephotograph marked complainant’s exhibit 2(d).Respondent’s witness, Mr. Jaenke, testified that the pulley (nip point)was located 24 inches beyond the frame of the machine and that the onlyway an employee would be exposed to the nip point was if he deliberatelyreached beyond the machine barrier. He did testify that janitorial ormaintenance personnel might have occasion to reach under and through themachine barrier, but this was only done when the machine was shut off.Since the evidence failed to show employee exposure, instance (a) ofitem 3 Serious Citation No.1 is VACATED.Instance (b)The compliance officer cited a belt pulley located on a thin sliceconveyor located in the basement. (Complainant’s exhibit 2(e))Respondent’s witness testified that no employees worked in the area ofthe machine and that only maintenance personnel worked there and thenonly when the machine was not running.Again, lack of employee exposure under the evidence requires thatinstance (b) of item 3 of Serious Citation No. 1 be vacated.Therefore, item 3 of Serious Citation No. 1 is hereby VACATED._Serious Citation No.1, item 4_29 CFR 1910.219(f)(3): Sprocket wheels and chains which were seven feetor less above floors or platforms were not enclosed:(a) full enclosure guarding needed for sprocket wheel and chain near endof retail line in basement (2\/14\/86)(b) full enclosure guarding needed for sprocket wheel and chain on augerdrive in white Castle formulation area, (2\/18\/86)(c) full enclosure guarding needed for sprocket wheel and chain onfilter for line #2 in fryer area, (2\/14\/86)(d) fall enclosure guarding needed for sprocket wheels and chains oninfeed and outfeed of corn dog fryer. (2\/14\/86)Instance (a)The compliance officer cited this machine and provided a photographwhich was submitted as complainant’s exhibit 2(f). The complianceofficer testified that this sprocket wheel and chain was located at theend of a retail line in the basement. This witness did testify that aMr. Dorn, who works for the respondent and had accompanied thecompliance officer on this inspection, stated that the sprocket wheeland chains referred to in instances (a), (b) and (c) of item 4 ofSerious Citation No. 1 were inadvertently not guarded and that guardswould be installed. (T- 137)The compliance officer testified that the employees were exposed to thissprocket wheel and chain and that any injury sustained therefrom wouldbe serious.Mr. Jaenke testified that the machine cited in instance (a) was not inthe basement but was on the ground. (T-288) The undersigned must assumethat he meant the ground floor which was referred to as ground floor inrespondent’s brief.The respondent argues that since the complaint refers to a machine inthe basement and the machine was actually located on the ground floor,then there is no evidence of the violation cited in the complaint.The counsel for the complainant did not move to amend the pleadings toconform to the evidence at this time or at the close of the trial. Thetestimony of the compliance officer did establish that the machine inthe picture was in violation of the standard. The question then is whatimpact, if any, that the citation described a machine not physicallylocated as stated.A judge may amend pleadings to conform to the evidence when objected toat the time of the trial \”when the presentation of the merits of theaction will be subserved thereby and the objecting party fails tosatisfy the court that the submission of such evidence would prejudicehim in maintaining his action and defense on the merits.\” _Federal Rulesof Civil Procedure _15(b)Here the respondent was furnished, one week before the trial andpursuant to the court’s pre-trial order, the exhibits that were to beoffered by the complainant. Included was the picture of the machinecited here, the admission of which was not objected to by respondent.Respondent’s witness and counsel obviously knew which machine waspictured and therefore there was no prejudice to respondent. Thepleadings will be amended accordingly by the undersigned and theviolation cited in instance (a) of item 4 Serious Citation No. 1 isAFFIRMED.Instance (b)In this instance a sprocket wheel and chain were cited for beingexposed. Respondent’s witness testified that the sprocket and chainmoved intermittently and due to the location was inaccessible to theemployees. (T-289, 290) The fact that the employees worked in this areawas undisputed.The standard required enclosure of sprocket wheels and chains. Employeeswere working in this area and were exposed and the probability ofserious injury is present; therefore, instance (b) of item 4 of SeriousCitation No. 1 is AFFIRMED.Instance (c)The sprocket wheel and chain cited here are depicted in respondent’sphotograph exhibit 5(a). The respondent testified that no employeesworked within 25 to 30 feet of the cited sprocket and wheel. Hetestified the only employees who would have occasion to go near thisarea would be the maintenance or janitorial personnel and then only whenthe machine was turned off.The evidence fails to establish employee exposure to this hazard andinstance (c) of item 4 of Serious Citation No. 1 is VACATED.Instance (d)The sprocket wheel and chain cited here was located in the corn dogfryer area and is depicted in the photographs marked as complainant’sexhibit 2(g) and respondent’s exhibits 6(a) and 6(b). The evidenceestablished that the sprocket wheel and chain were not fully guarded,but respondent argues that the partial guarding eliminates exposure andthat there was no likelihood of serious injury.Respondent’s witness testified at length about how slowly the belt onthis machine moved and how loose it was to the extent that if anemployee caught a finger in the belt, the belt would slip rather thanpull the employee’s finger into it. (T- 295) He further testified thatthere was an enclosure, but not a full enclosure, and that if a fullenclosure was used, the machine would not operate.The danger sought to be avoided here does not involve employee exposureto the belt, but to the sprocket wheel and chain. Respondent’s exhibit6(b) clearly shows that employees could be exposed and that the sprocketwheel and chain could be more fully guarded to prevent employee exposure.The standard cited has been violated, the employees do have exposure tothe danger and the probability of serious injury has been established.Instance (d) of item 4 Serious Citation No. 1 is AFFIRMED.Based on the findings above, the penalty for item 4 of Serious CitationNo. 1 is ASSESSED at $315.00._Other-Than-Serious Violations – Citation No. 2_Item 129 CFR 1910.36(b)(6): Building(s) or structure(s) equipped forartificial illumination were not provided with adequate and reliableillumination for all exit facilities:(a) emergency lights needed in blast freezer, and blast freezer entrancearea and White Castle cooler. (2\/18\/86)The compliance officer in this instance alleged a violation for lack ofemergency lights in a blast freezer, blast freezer entrance area and aWhite Castle cooler. The standard does not speak to the issue ofemergency lighting and it has been held that the standard does not applyto emergency lighting. _Arsyn Lightning Company, Inc._ 9 BNA OSHC 1239,OSAHRC Docket No. 78-1339.The citation is therefore VACATED.Item 229 CFR 1910.37(f)(1): Exit(s) were not so located and exit access(es)arranged that exits were readily accessible at all times:(a) the exit door in the northeast corner of the fryer area was frozenshut. (2\/14\/86)Here the compliance officer testified that an exit door in the freezerarea was frozen shut and therefore a violation. The respondent’s witnesstestified that there were two other exits from this area in addition tothe door frozen shut. (T- 314) The issue is whether, when an exit is notreadily accessible, there is a violation even though there are two otherexits available. The respondent argues that the frozen door was readilyaccessible but there was no egress available and therefore thecompliance officer has cited the wrong standard. This argument is, atbest, absurd. If the door is frozen shut, then it is obviously no longeran exit that is readily accessible.The respondent cites _Westinghouse Broadcasting Company,_ 7 BNA OSHC2159, OSAHRC Docket No. 76-1036. The holding cited here isdistinguishable because it dealt with another standard, 1910.36(d)(1)dealing with \”required exit\” versus \”readily accessible exits\” in theinstant case.The standard cited here requires that each exit be readily accessible.The requirement for at least two readily accessible exits is simply aminimum. One of the three exits being frozen shut would constitute anon-serious violation of the standard.Item 2 of other-than-serious Citation No. 2 is AFFIRMED.Item 329 CFR 1910.134(e)(4): Frequent random inspections were not conducted bya qualified individual to assure that respirators were properlyselected, used, cleaned and maintained:(a) the canister was expired on the MSA ammonia respirator No. 14F-58 inthe basement. (2\/14\/86)The standard cited here involves the requirement for frequent randominspections of respirators. The compliance officer testified that thiscitation was written based on his finding an MSA ammonia respirator withan expired canister during his inspection. The respondent did notdispute that the respirator canister was expired, but argued that thisexpiration was not proof of a failure to make the required inspections.The expired canister is a clear example of circumstantial evidencetending to prove the failure to inspect standard had not been compliedwith. Since the respondent did not present evidence rebutting thiscircumstantial evidence, the violation must be AFFIRMED.Item 429 CFR 1910.151(c): Where employees were exposed to injurious corrosivematerials, suitable facilities for quick drenching or flushing of theeyes and body were not provided within the work area for immediateemergency use:(a) eye wash needed in battery charging areas. (2\/14\/86)The citation here was for failure to have eyewash in an area that thecompliance officer testified was a battery charging area. Although therewas some dispute about whether or not batteries were regularly chargedhere, respondent’s witness did testify that there was a connectedwaterhose within 10 to 12 feet of the area in question. Since thewaterhose was present and compliance officer testified that plasticeyewash bottles were on the wall in this area, then the totality of thisevidence fails to show a violation of the standard cited. _E.I. du Pontde Nemours & Company, Inc.,_ 10 BNA OSHC 1320, OSAHRC Docket No. 76-2400.Item 4 of other-than-serious Citation No. 2 is therefore VACATED.Item 529 CFR 1910.212(a)(3)(ii): Points of operation of machinery were notguarded to prevent employees from having any part of their body in thedanger zones during operating cycles:(a) the outfeed of the Berkel slicers on White Castle lines No. 1, 2, 3and 4 were not guarded so as to prevent the entry of employees’ handsinto the danger area. (2\/18\/86)This citation involves the same slicers that were referred to in SeriousCitation No. 1, item 1. The compliance officer testified that the guardshad been installed but they only partially guarded employees who mightbe attempting to reach into the cutting area to remove debris or forother reasons. He stated that the reason this was written as another-than-serious violation was because the employer had installed apartial guard and probably had no knowledge that there was still somedanger. Respondent’s witness testified that there had been no injuriessince the installation of the partial guard. Since guards had beeninstalled on these machines and there is no showing of injury since thisinstallation, then this citation should be VACATED.Item 629 CFR 1910.212(a)(4): Revolving drums, barrels, or containers were notguarded by enclosures which were interlocked with the drive mechanism sothat the barrels, drums, or containers could not revolve unless theencloses (sic) were in place:(a) no interlock on cover of Garver centrifuge Serial No. 12300 in labarea. (2\/18\/86)The compliance officer testified that the cover of the Garver centrifugewas not interlocked with the drive mechanism as required by thestandard. The respondent’s witness testified that the spinning portionof the centrifuge was like a candlestick holder and was not a revolvingdrum, barrel, or container as specified in the standard. (T-321) Hefurther testified that the outside container or guard did not revolve asspecified in the standard and therefore, argues counsel, the standarddoes not apply. Respondent’s Exhibit #7 depicts this machine.The danger sought to be avoided here is obviously someone reaching in tothe area of the centrifuge while it was still spinning. The guardedenclosure is present, it simply needs to be interlocked with the drivemechanism to avoid this potential danger.Therefore, this citation will be AFFIRMED.Item 729 CFR 1910.215(a)(4): Work rest(s) on grinding machinery were notadjusted closely to the wheel with a maximum opening of one-eighth inch:(a) work rest was improperly adjusted on Wissota grinder Serial No.N167R in the mechanical area. (2\/14\/86)This citation was confessed by counsel for respondent in his brief andit will be AFFIRMED.Item 829 CFR 1910.219(i)(2): Revolving surfaces of shaft coupling(s) were notcovered by a safety sleeve:(a) guard needed for shaft coupling on batter mixer in frying area.(2\/14\/86)In this citation the compliance officer testified that there was noguard on the machine in question. However, the respondent’s witnesstestified that the bolts, nuts, and set screws on the shaft couplingswere counter sunk and used parallel with the shafting. (T-322)This is an exception allowed under the standard and therefore thecitation will be VACATED.Item 929 C.F.R. 1910.252(a)(2)(ii)(b): Assigned storage spaces for compressedgas cylinders were so located as to subject such cylinders to thepossibility of being knocked over or damaged by passing or falling objects:(a) compressed gas cylinders in the mechanical area were not secured.(2\/14\/86)At the outset of this hearing, counsel for the complainant moved toamend the cited standard from 1910.252(a)(2)(iii)(b) to1910.252(a)(2)(ii)(b). This amendment was allowed over the objection ofthe respondent. (T-7 through T-9)The compliance officer testified that there were two compressed gascylinders in the mechanical area of the plant that were not secured.Respondent’s witness testified that they were positioned there for thepurpose of being placed on a machine or cart, and would probably be usedwithin 15 minutes. Respondent cites several cases where the Judge foundno violation where the cylinders were not in storage. _Williams & DavisBoilers, Inc._, 8 BNA OSHC 2148, OSAHRC Docket No. 79-3817; _UnitedEngineers & Constructors, Inc.,_ 3 BNA OSHC 1313, OSAHRC Docket No.2414, _Grossman S_teel _& Aluminum Corporation,_ 6 BNA OSHC 2020, OSAHRCNo.6-2834;_Bergeron Marine, Inc.,_ 8 BNA OSHC 1986, OSAHRC Docket No.79-5493; and _Sea-Land Associations, Inc.,_ 8 BNA OSHC 2194, OSAHRCDocket No. 79-4135. In each of these cases the finding was made that thecylinders were in use. In the instant case the respondent’s witnesstestified that the cylinders would not be in use until they were on acart or hooked to a machine. (T-324) The danger sought to be avoided bythis standard dictates a finding of a violation under these facts.Therefore, the violation cited in item 9, other-than-serious citationNo. 2 is AFFIRMED.Item 1029 CFR 1910.303(f): Each service, feeder and branch circuit, at itsdisconnecting means or overcurrent device, was not legibly marked toindicate its purpose, nor located and arranged so the purpose was evident:(a) electrical switches were not identified as to function in the WhiteCastle formulation area. (2\/18\/86)This citation was confessed by counsel by the respondent in his briefand the citation is therefore AFFIRMED._Findings of Fact and Conclusions of Law_All findings of fact and conclusions of law necessary to a determinationof the contested issues are contained in the opinion above. See Rule52(a) of the Federal Rules of Civil Procedure. Neither complainant norrespondent submitted proposed findings of fact or conclusions of law._Order _Based on the findings of fact and conclusions of law, as set out in theopinion above, and the entire record, it is ordered as follows:1. Serious Citation No. 1, item 1 is hereby AFFIRMED and penalty isassessed at $180.00.2. Serious Citation No. 1, item. 2, instance (a) is VACATED, instance(b) AFFIRMED, instance (c) is modified to other-than-serious and thepenalty assessed for item 2, instance (b) is set at $120.00.3. Serious Citation No. 1, item 3, instance (a) is hereby VACATED andinstance (b) is hereby VACATED.4. Serious Citation No. 1, item 4, instance (a) is AFFIRMED, instance(b) is AFFIRMED, instance (c) is VACATED and instance (d) is AFFIRMED.The penalty assessed for item 4, instances (a), (b) and (d) of SeriousCitation No. 1 is set at $315.00. The total penalty assessed for theserious citation is $615.00.5. Other Citation No. 2, item 1 is VACATED, item 2 is AFFIRMED, item 3is AFFIRMED, item 4 is VACATED, item 5 is VACATED, item 6 is AFFIRMED,item 7 is AFFIRMED, item 8 is VACATED, item 9 is AFFIRMED and item 10 isAFFIRMED and no penalty is assessed for the other-than-serious citation.William R. MullinsJudge, OSHRCDated: October 28, 1986FOOTNOTES:[[1\/]] Under Commission Rule 92(a) and _Hamilton Die Cast, Inc.,_ 12 BNAOSHC 1797, 1986-87 CCH OSHD ? 27,576 (No. 83-308, 1986), the entirejudge’s decision is before the Commission in cases directed for review.However, because the remaining 11 items were not mentioned in thedirection for review and the parties make no argument regarding thoseitems, we will not consider the judge’s disposition of those items.Accordingly, the judge’s decision on those items is a final order of theCommission, with the precedential value of an unreviewed judge’sdecision._Leone Construction Co., _3 BNA OSHC 1979, 1981, 1975-76 CCHOSHD ? 20,387, p. 24, 322 (No. 4090, 1976).[[2\/]] The standard provides:*?1910.132 General Requirements.*(a) _Application. _Protective equipment, including personal protectiveequipment for eyes, face, head, and extremities, protective clothing,respiratory devices, and protective shields and barriers, shall beprovided, used, and maintained in a sanitary and reliable conditionwhenever it is necessary by reason of hazard of processes orenvironment, chemical hazards, radiological hazards, or mechanicalirritants encountered in a manner capable of causing injury orimpairment in the function of any part of the body through absorption,inhalation or physical contact.[[3\/]] The record indicates that Armour closed its boning room aboutseven years prior to the hearing.[[4\/]] In _General Motors,_ the Commission found that it did not need todecide whether the Commission’s reasonable person test or the FifthCircuit’s test was more appropriate. The Fifth Circuit’s test requiresthe Secretary to show that an employer’s conduct did not conform to thatof the industry in order to prove a violation of a broad standard suchas section 1910.132(a). _See S&H Riggers & Erectors. Inc. v. OSHRC,_ 659F.2d 1273 (5th Cir. Unit B 1981). We again need not choose a test here.The Secretary failed to establish a violation under either test.[[5\/]] The standard provides:*? 1910.212 General requirements for all machines. *(a) _Machine guarding–_(1) _Types of guarding. _One or more methods of machine guarding shallbe provided to protect the operator and other employees in the machinearea from hazards such as those created by point of operation, ingoingnip points, rotating parts, flying chips and sparks. Examples ofguarding methods are–barrier, guards, two-hand tripping devices,electronic safety devices, etc.[[6\/]] The standard provides:*?1910.219 Mechanical power-transmission apparatus*(f) _Gears, sprockets, and chains._(3) _Sprockets and chains._ All sprocket wheels and chains shall beenclosed unless they are more than seven (7) feet above the floor orplatform. Where the drive extends over other machine or working areas,protection against falling shall be provided. This subparagraph does notapply to manually operated sprockets.[[7\/]] Throughout the transcript a sprocket wheel and chain wasidentified as a \”sprocket, wheel and chain.\” For clarity, all quotesfrom the transcript omit the extraneous comma.[[8\/]] The rule provides:*Rule 15. Amended and Supplemental Pleadings** * *(b)*Amendments to Conform to the Evidence.*When issues not raised by the pleadings are tried by express or impliedconsent of the parties, they shall be treated in all respects as if theyhad been raised in the pleadings. Such amendment of the pleadings as maybe necessary to cause them to conform to the evidence and to raise theseissues may be made upon motion of any party at any time, even afterjudgment; but failure so to amend does not affect the result of thetrial of these issues. If evidence is objected to at the trial on theground that it is not within the issues made by the pleadings, the courtmay allow the pleadings to be amended and shall do so freely when thepresentation of the merits of the action will be subserved thereby andthe objecting party fails to satisfy the court that the admission ofsuch evidence would prejudice the party in maintaining the party’saction or defense upon the merits. The court may grant a continuance toenable the objecting party to meet such evidence.[[9\/]] By affirming the citation, the judge found violations at both theoutfeed and infeed areas of the corn dog fryer. However, although thecitation alleges that violations existed in both areas and there arephotographic exhibits of both areas, the Secretary did not presentevidence of employee access to the outfeed sprocket wheels and chains.In the absence of any proof of employee exposure, we find that theSecretary failed to meet her burden of proving a violation at theoutfeed sprocket wheels and chains. By itself, the photograph of theoutfeed areas does not establish a failure to comply with the standard.[[10\/]] The standard provides:*? 1910.212 General requirements for all machines.*(a)_Machine guarding_(4) _Barrels, containers,and drums._ Revolving drums, barrels, andcontainers shall be guarded by an enclosure which is interlocked withthe drive mechanism, so that the barrel, drum, or container cannotrevolve unless the guard enclosure is in place.[[11\/]] The standard provides:*?1910.252 Welding, cutting, and brazing.*(a) _Installation and operation of oxygen-fuel gas systems for weldingand cutting_(2) _Cylinders and containers_(ii)_Storage of cylinders–general._(b) Inside of buildings, cylinders shall be stored in a well- protected,well-ventilated, dry location, at least 20 feet from highly combustiblematerials such as oil or excelsior. Cylinders should be stored indefinitely assigned places away from elevators, stairs, or gangways.Assigned storage spaces shall be located where cylinders will not beknocked over or damaged by passing or falling objects, or subject totampering by unauthorized persons. Cylinders shall not be kept inunventilated enclosures such as lockers and cupboards.[[12\/]] At the beginning of the hearing, the Secretary moved to amendthe cited standard from 1910.252(a)(2)(iii)(b) to1910.252(a)(2)(ii)(_b_). Armour objected to the amendment claiming thattheir case would be prejudiced \”[b]ecause we prepared to defend againstthe section cited, and this has changed the section.\” The Secretaryproposed to offer as an exhibit the form prepared by the complianceofficer, already exchanged between the parties, showing the correctstandard. The Secretary asserted it was \”clear a typographical error was[committed] at the time\” the Citation and Notification of Penalty Formwas typed, and the judge overruled Armour’s objection. Armour did notraise the issue in its brief in response to direction for review.Therefore, we will not consider this issue. “