“Docket No. 86-0247 SECRETARY OF LABOR,Complainant,v.ARMOUR FOOD COMPANY,Respondent.OSHRC Docket No. 86-0247DECISION 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 Department of Labor,(\”Secretary\”) conducted an inspection of Armour Food Company’s(\”Armour’s\”) meat processing facility in Eau Claire, Wisconsin. Following theinspection, the Secretary issued two multi-itemed citations, alleging that Armour violatedthe Occupational Safety and Health Act of 1970, 29 U.S.C. ? 651-678 (\”the Act\”)by failing to comply with various occupational safety and health standards published in 29C.F.R. Part 1910. One citation alleged serious violations of the Act, while the secondalleged other-than-serious violations. Armour contested both citations. On October 28,1986, following a hearing, Administrative Law Judge William R. Mullins issued a decisionin which he affirmed 5 of the 10 serious items and 6 of the 10 other-than-serious items,and modified one serious item from serious to other-than-serious. Former Chairman Buckleydirected review of all the issues raised in Armour’s petition for discretionary review,which involved 9 of the 20 items decided by the judge. We affirm the judge’s dispositionin part and reverse in part.[[1\/]]Citation Number 1, Item 1At issue in this item is whether Armour violated 29 C.F.R. ?1910.132(a)[[2\/]] by failing to require its employees to wear mesh gloves when sharpeningblades on White Castle Slicers. The judge affirmed the item. He found that sharpening theblades exposed Armour’s employees to a hazard and that Armour knew of the hazard. We findthat the Secretary failed to establish the existence of a hazard requiring the use ofpersonal protective equipment and vacate the item.Each of the four slicers has a circular blade from 14 to 16inches in diameter and is used to slice bricks of frozen ground meat. The slicer bladesare sharpened by Armour employees four times per shift, one and sometimes two shifts aday, five to six days a week. To sharpen the blade, a flat stone two inches by eightinches by one inch is held against the blade as the blade is rotated by a hand crank.The compliance officer testified that he observed an employeesharpening a blade on a White Castle Slicer without wearing personal protective equipmenton his hands. The compliance officer recommended that Armour’s employees wear metal meshsafety gloves to protect their hands when sharpening the blades. He testified that it wascustomary in the industry to wear mesh gloves for sharpening. He based this view on aprevious visit to Armour’s facility during which he observed that employees using knivesto debone meat wore mesh gloves, but only on the hand that did not hold the knife.[[3\/]]Gordon C. Jaenke, Armour’s plant engineer, supervises theemployees who sharpen the blades. He testified that he was not aware of any employeereceiving an injury while sharpening the slicers during his 23 years at the Eau Clairefacility. Jaenke testified that he would have known of any injuries that did occur becausehe was on the Safety Committee. Fifteen to twenty years earlier, Jaenke had tried to use asteel mesh glove when he sharpened the blades but found that the mesh glove did not workbecause:It doesn’t fit tight because it doesn’t stretch. And when yougo sharpen with the steel-mesh glove on, the ends get caught on the blade and it jerksyour hand….you lose the feel of the stone and the blade when you have a glove on.Jaenke also testified that the boners who once worked at thisfacility never wore gloves when they sharpened their knives with a stone because\”[t]hey lo[st] the feel of the knife, the blade; and that’s important when you aresharpening a knife.\”The judge found that Armour had actual knowledge of a hazardrequiring the wearing of personal protective equipment because Jaenke was concerned enoughabout a hazard to wear the mesh gloves on occasion. He also found that under GeneralMotors Corporation, GM Parts Division, 11 BNA OSHC 2062, 1984-85 CCH OSHD ?26,961, (Nos. 78-1443 & 79-4478, 1984) (\”General Motors\”), aff’d, 764F.2d 32 (1st Cir. 1985), there was sufficient evidence to establish that Armour couldreasonably foresee a hazard involved in sharpening the blades.In order to establish the existence of a hazard requiring theuse of personal protective equipment, the Secretary must either show that the employer hadactual knowledge that such a hazard existed or that a reasonable person familiar with thecircumstances surrounding the hazardous condition, including any facts unique to theparticular industry, would recognize a hazard warranting the use of personal protectiveequipment. Evidence of industry custom and practice will aid such a determination, but itis not necessarily determinative. General Motors, 11 BNA OSHC at 2065, 1984-85 CCHOSHD at p. 34,611.Armour argues that it established that (1) it did not haveactual knowledge that wire mesh gloves were required when the blades were sharpened, andthat (2) a reasonable person, familiar with respondent’s industry, would recognize thatmesh gloves were not necessary when sharpening these blades. We conclude that the evidencefails to establish that Armour had actual knowledge of a hazard requiring the wearing ofmesh gloves or that a reasonable person familiar with the circumstances of the industrywould have recognized a hazard requiring personal protective equipment.The judge found that Armour had actual knowledge because Jaenkewore mesh gloves on occasion. However, we cannot attach such significance to Jaenke’sbrief experience sharpening blades with mesh gloves. Jaenke had tried mesh gloves 15 to 20years before the inspection, but found them unsuitable and stopped wearing them. Anyapprehension that may have caused him to try to wear the gloves when sharpening bladesappears to have been laid to rest by the lack of any injuries either before or after hetried the gloves.The evidence that no employee had been injured while sharpeningthe blades in over 20 years strongly suggests that no hazard was present. In GeneralMotors, the Commission rejected the Secretary’s claim that actual knowledge was shownby the number of injuries to employees because it found the injury rate to be very low. InGeneral Motors, 5 foot injuries were received by 150 employees moving 1.5 millionparts during the 2.5 years prior to the inspection. Here, none of Armour’s employees hadbeen injured while sharpening the 4 slicer blades 4 times a day during the 23 years priorto the inspection. Under these facts we conclude that the Secretary failed to prove actualknowledge of a need for mesh gloves.We next turn to the \”reasonable person\” test. In GeneralMotors, the Commission found that the most revealing evidence of whether a reasonableperson familiar with the industry would have recognized a hazard requiring personalprotective equipment was \”the practice of those persons most clearly familiar withthe industry — the employees.\” 11 BNA OSHC at 2066, 1984-65 CCH OSHD at p. 34,612.Here, the evidence establishes that the employees who sharpened the slicer blades did notwear mesh gloves. Jaenke, their supervisor, had tried using mesh gloves \”off andon\” 15 to 20 years earlier, but he had stopped because they interfered with thesharpening of the blades and caused a hazard by catching on the blades. Evidence thatArmour employees wore mesh gloves when they deboned meat does not establish that it is thepractice in Armour’s industry to wear mesh gloves when sharpening blades. See Grand UnionCo., 3 BNA OSHC 1596, 1596-97, 1975-76 CCH OSHD ? 20,107, pp. 23,927-28 (Nos. 7031 &7533, 1975) (industry practice of meat cutters in meat packing plants does not establishindustry practice of meat cutters in retail stores). It may be industry practice to wearmesh gloves when performing certain tasks, such as deboning meat, but the Secretaryintroduced no evidence that it was the practice in Armour’s industry for employees to wearmesh gloves when sharpening slicer blades. Under the circumstances, we find that theSecretary has failed to establish that a reasonable person familiar with the circumstancesalleged in serious item 1, including any facts unique to that industry, would recognizethat sharpening slicer blades presented a hazard requiring the use of personal protectiveequipment.[[4\/]]Accordingly, we reverse the judge’s decision and vacate item 1of citation 1.Citation Number 1, Item 2(b)Item 2(b) alleges that Armour failed to comply with 29 C.F.R. ?1910.212(a)(1)[[5\/]] bynot providing machine guarding on a spice mixer on the formulation platform in the fryingarea of its plant. We find, however, that the Secretary failed to establish the existenceof a hazard requiring guarding of the machine, and we therefore vacate this citationsubitem.The mixer is contained in a mixing unit underneath a steelformulating tub. Armour’s employees stand on the platform in front of the mixing unit andformulating tub and dump spices, water, and other materials into the tub. The contents ofthe tub are then dumped into the mixer below. There is an opening between the top of themixing unit and the formulating tub above it which varies between \”[a] few inches to8 or 10 inches.\” Employees also introduce materials into the mixer through thisopening. The mixer blades, which move at 10 to 30 r.p.m. and are shaped like paddles, arelocated approximately 12 to 14 inches down from the top of the mixing unit. The blades areat waist level, or approximately three and one half feet above the platform.According to the compliance officer, employees who add spicesor other material into the mixing unit or who occasionally check on the progress of themixing process could reach into the mixer while the blades are moving. He suggested thatthe mixer blades be guarded by placing a funnel over them or by installing an interlock sothat the employee working on the platform could not reach into the mixer while it wasrunning. The compliance officer admitted that the narrowness of the space between the tuband the mixer blades would prevent an employee from falling into the blades and also wouldmake it difficult for anyone to reach the blades with their hand.Plant engineer Jaenke was not aware of any injuries involvingthe mixer blades. He testified that, although it was possible to reach into the tub andtouch the mixer blades, it would be very difficult because \”you would have to crawlin under the [top] tub and reach down in to the mixer.\” Disagreeing with thecompliance officer’s suggested guarding methods, Jaenke explained that the top tub is nowpositioned so employees can see the contents of both the tub and the mixer and candetermine whether the contents are mixing properly. Jaenke stated that it would be\”very difficult\” to place a funnel or chute over the mixer because theformulating tub would have to be raised. This would require either the building of anotherplatform or the raising of the existing platform so employees could reach the raised tub.The judge affirmed the citation subitem. He found that\”[t]he evidence establishes that the standard has been violated, that the employeesare thereby exposed to a hazard, and that the probability of serious injury ispresent.\” He noted that although Armour contended it would be difficult to use thefunnel, Armour did not attempt to prove that an interlocking device would be infeasible.On review, however, Armour argues that the judge erred in failing to address thepreliminary issue of 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).the Secretary must first prove the existence of a hazard. Papertronics, Division ofHammermill Paper Co., 6 BNA OSHC 1818, 1819, 1978 CCH OSHD ? 22,898, pp. 27,694-95(No. 76-3517, 1978). While it was physically possible for Armour’s employees to reach intothe mixer and touch the blades, the mere fact that it was not impossible for an employeeto get his hands into the mixer blades does not demonstrate that the employee was exposedto a hazard. See Rockwell International Corp., 9 BNA OSHC 1092, 1097, 1980 CCH OSHD? 24,979, p. 30,846 (No. 12470, 1980). Whether a machine exposes an employee to a hazardmust be determined based on the manner in which the machine functions and how it isoperated by the employees. 9 BNA OSHC at 1097-98, 1980 CCH OSHD at p. 30,846. Here, theSecretary presented no evidence that the operation of the machine requires Armour’semployees to insert their hands into the area surrounding the mixer blades, and althoughit is not impossible for an employee to insert his hands into the mixer and to touch theblades, even the Secretary’s witness admitted that employees have no reason to put theirhands in the mixer and that it would be difficult for them to do so.The Secretary also presented no evidence that injuries werecaused by the mixer blades. While occurrence of an injury is not a necessary predicate forestablishing a violation, the absence of any injuries supports a finding that there was nohazard. See Rockwell, 9 BNA OSHC at 1098, 1980 CCH OSHD at p. 30,846. Under thesecircumstances, we find that the Secretary has failed to show a hazard requiring guardingunder section 1910.212(a)(1). Accordingly, item 2 (b) of citation 1 is vacated.Citation Number 1, Item 2 (c)The Secretary also alleged that Armour failed to comply withsection 1910. 212(a)(1), supra at n. 5, by not providing guarding for the conveyornip point on the outfeed of the White Castle Slicers on lines 1, 2, 3 and 4. We find thatthe Secretary has proved this allegation, and we therefore affirm this citation subitem.The evidence establishes that Armour employees stand by theconveyors, which move at speeds of up to 60 feet a minute, and sort hamburger patties. Theconveyor belts are loose enough that they absorb the impact of hamburger patties landingon them, so loose that they occasionally lose traction and stop.The compliance officer testified that there are nip points onall four lines where the rubber conveyor belt goes over an end roller, and that Armour’semployees who sort the patties on the belt are exposed to these nip points. The complianceofficer testified that the \”medium slow\” speed of the belt made it more likelythat employees would be injured because the slackness of the belt enlarges the nip point.He did not believe that it would be easy for an employee to pull his hand out from the nippoint. He testified that if an accident occurred, a fracture of a finger or a severeabrasion would likely result. The compliance officer testified that such a nip point isusually guarded by \”a piece of metal, . . . or in some case[s] another solid materialthat is affixed to the frame of the equipment and then closely approaches the belt\”in the vicinity of the nip point without quite touching it. This arrangement minimizes thepossibility that a body part or piece of clothing could be caught in the nip point andpulled into the roller.Plant engineer Jaenke stated that he has never known anyone toget caught in the nip point. He testified that if someone’s finger or hand was caught,they could stop the belt with their other hand. He also testified that a finger could goaround the pulley without injury because of the slackness of the belt.The judge affirmed this subitem but found that the likelihoodof serious injury was not established and that any injury would be minor. He modified thecitation from \”serious\” to \”other-than-serious\” and did not assess apenalty. Armour contends that the nip point is not a hazard.In Papertronics, the Commission vacated a citationalleging a failure to guard similar nip and pinch points, largely because the conveyor wasequipped with a microswitch that cut power off if an object even smaller than a hand wereinserted into the nip point. Here, although the belts moved slowly, there was nomicroswitch to cut off power. Employees who routinely placed their hands in the immediatevicinity of the nip points could inadvertently put their hands into the nip point. Thisevidence establishes that Armour’s employees were exposed to a hazard under section1910.212(a)(1). Since Armour failed to guard the nip point as required by section1910.212(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 prove the factualallegations of the citation and the complaint, and we therefore vacate this citationsubitem.At issue is the identity of the cited machine. The Secretaryintroduced into evidence and relies heavily on what she asserts is a photograph of thecited sprocket wheel and chain. Armour claims that the photograph is of differentmachines, a Pittman fryer and a breader in the fryer department on the ground floor.The compliance officer testified that in the lower right cornerof the photograph \”is a sprocket wheel and chain,[[7\/]] which is near the end of theretail line in the basement; and as you can see in the photograph, the equipment isimmediately adjacent to a walkway or an aisle . . . .\” (Emphasis added.) When askedto further describe the photograph, he testified: \”This is the basement, and thesprocket wheel and 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 there whatsoever.\”(Emphasis added.) The cross-examination of the compliance officer proceeded as follows:Q: Mr. Gawin, showing you [the] photograph which is [exhibit]2F and shows a picture of Item 4a, you say that’s in the basement. Are you sure of that?A: That’s what the notes reflect that I have based on myconversation with the employer representative.Q: Okay, showing you or pointing to what’s in the photograph,this item right there. Isn’t that a fryer machine? Do you know a fryer machine?A: I can’t identify in the photograph what that is.Q: This portion of it, is that a — would you say that was aheat controller?A: Well, I can’t identify that for sure.Q: You don’t know what that is?A: I couldn’t tell you what that is, no.Q: And you don’t know whether the equipment that is attached to[it] is a fryer? Do you know what a fryer is, don’t you?A: Yes.Q: Is that a fryer?A: If the question you’re asking is if it’s possible toidentify it, to correctly identify it as a fryer, I’m just not certainly able to tell youthat. 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 andsprocket is in the basement?A: I believe it’s in the basement.Plant engineer Jaenke later testified that the photograph is ofa Pittman fryer and a breader found on the ground floor in the fryer department. Hetestified that he was sure that the picture was not of the retail line and was not takenin the basement.The judge found that \”[t]he compliance officer citedthis machine and provided a photograph which was submitted as complainant’s exhibit2(f).\” (Emphasis added.) The judge treated Armour’s argument as a claim that therewas no evidence of the violation cited in the complaint because the machine referred to inthe complaint was actually located on the ground floor rather than in the basement. Thejudge amended the complaint under Fed. R. Civ. P. 15(b)[[8\/]] apparently to change thelocation of the cited sprocket wheel and chain from the basement to the ground floor, butnot to change the description of the machine to conform to the machine depicted in thephotograph. The judge found that Armour had consented to the amendment because it receivedthe photograph from the Secretary one week before the hearing, but did not object to itsadmission into evidence. The judge also found that Armour’s \”witness and counselobviously knew which machine was pictured and therefore there was no prejudice torespondent.\”Amendment under the first half of Rule 15 (b) is proper only iftwo findings can be made — that the parties tried an unpleaded issue and that theyconsented to do so. McWilliams Forge Co., 11 BNA OSHC 2128, 2129-30, 1984-85 CCHOSHD ? 26,979, p. 34,669 (No. 80-5868, 1984). Consent can be found only when the partiesknew, that is, \”squarely recognized,\” that they were trying an unpleaded issue. Id.Here, the judge amended the citation to change the location of the cited machine from theretail line in the basement to the retail line on the ground floor. He found that thecompliance officer’s testimony established that the sprocket wheel was accessible toemployees, and he also found that it was not disputed that employees worked in the area.However, the evidence suggests that the machine in the photograph, which the Secretaryclaims was the machine cited here, is not on the retail line in either the basement or onthe ground floor. Since the Secretary’s evidence concerns a machine on the retail line andArmour’s only argument was that the machine in the photograph was not on the retail line,it cannot be said that the parties tried the unpleaded issue when they never agreed whichmachine was being tried. Under these circumstances, we find that the judge improperlyamended the citation.We now turn to the originally cited charge. Because there wasno evidence that the machine \”near the end of the retail line\” mentioned in theoriginal citation had an unguarded chain and sprocket, we find that the Secretary failedto establish noncompliance with the cited standard. In addition, because the complianceofficer’s testimony on employee exposure was apparently based solely on the photograph andhis notes and because it is not clear whether either relate to the cited machine, wefurther find that the Secretary failed to establish employee exposure to the citedconditions. Accordingly, item 4(a) is vacated.Citation Number 1, Item 4(b)Item 4(b) alleges that Armour violated section 1910.219(f)(3),supra at n.6, because the sprocket wheel and chain on the auger drive in the White Castleformulation area was not equipped with full enclosure guarding. We find that the Secretaryfailed to establish employee exposure to the cited conditions and therefore vacate thiscitation subitem.The nip point created when the incoming chain contacts the sideof the sprocket wheel is about eight to ten inches above ground. Above the wheel is amotor in a transfer case that extends approximately ten inches out over the sprocket. Thesprocket wheel turns intermittently at about 1\/8 of a turn each time at about five to sixRPM. The compliance officer testified that the sprocket wheel was not fully enclosed andthat it was located next to an aisle where employees occasionally walked. No Armouremployee worked in the area of the sprocket wheel, but the compliance officer testifiedthat employees could get their long, white coats caught in the sprocket wheel and chain.Plant engineer Jaenke testified that \”it would bedifficult to get your foot in the sprocket because the transfer case is out over it\”and that \”if somebody slipped and fell or got down on the floor and stuck their footup in there, then they would have to wait because\” of the slow speed of the sprocketwheel and chain. To get one’s foot in the nip point, Jaenke testified that someone wouldhave to \”probably get down on the floor and hold your leg up in there.\” Hefurther testified that the coats the employees wear are knee length, and could not getcaught in the 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 workedin the area were exposed to the sprocket wheel and chain and that the probability ofserious injury was present.In order to show exposure to a violative condition, theSecretary must \”show that employees either while in the course of their assignedworking duties, their personal comfort activities while on the job, or their normal meansof ingress-egress to their assigned workplaces, will be, are, or have been in a zone ofdanger.\” Gilles & Cotting. Inc., 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD? 20,448 at p. 24,425 (No. 504, 1976). The Secretary has not shown that the employees arein the zone of danger of the nip point. It might be possible to get a long coat, pants legor some other article of clothing caught by the nip point, but it appears unlikely. Thephotographic exhibits demonstrate that employees have sufficient space to walk by the nippoints without having to get near them. In addition, Armour has no history of injuries wasattributable to the nip point. We conclude that the Secretary has failed to establish thatArmour’s employees were exposed to the unenclosed nip points on the auger drive’s sprocketwheel and chain. Accordingly, item 4(b) of citation 1 is vacated.Citation Number 1, Item 4(d)Item 4(d) alleges that Armour failed to comply with section1910.219(f)(3), supra at n.6, because the sprocket wheels and chains on the infeedand the outfeed of the corn dog fryer lacked full enclosure guarding. In addition to theissue of whether there was employee exposure to the violative condition, the direction forreview posed the questions of whether the violation was serious and whether compliancewith the standard was infeasible. We find that Armour has not shown that compliance isinfeasible and affirm a serous violation.”