“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13067 B. F. GOODRICH TEXTILE PRODUCTS A DIVISION OF THE B.F. GOODRICH CO., ? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0May10, 1977DECISIONBefore BARNAKO, Chairman; CLEARY, Commissioner.BARNAKO, Chairman:??????????? Inthis case, Judge James D. Burroughs partially affirmed four items of anonserious citation. The issues before us are whether the Judge erred infailing to vacate the citation on the basis that it lacked the particularityrequired by section 9(a) of the Occupational Safety and Health Act of 1970 (29U.S.C. 651 et seq.), and whether the Secretary sustained his burden of proof inestablishing the violations. For the reasons below, we affirm Judge Burroughs?decision.??????????? Respondentwas cited, among other things, for (1) failing to guard drive pulleys on allthe card machines in its plant, contrary to 29 C.F.R. 1910.219(d)(1);[1] (2) failing to guardsprocket wheels and chains on all the looms in the plant, contrary to 1910.219(f)(3); and (3) failing to mount all the fire extinguishers weighing lessthan forty pounds so that the tops of the extinguishers were less than five feetabove the floor level, contrary to 1910.157(a)(6).[2] The citation did notspecify particular locations where the violations allegedly occurred nor did itidentify individual machines said to be in violation by their serial numbers.The Secretary did not present evidence establishing the locations of theviolative machines and extinguishers.??????????? Thetestimony of the Respondent?s safety supervisor, on the other hand, establishedthat some of Respondent?s card machines, looms, and fire extinguishers were inviolation of the cited standards, but that others were in compliance.??????????? Onthis record, Judge Burroughs affirmed the citation only as to those cardmachines, looms, and fire extinguishers which Respondent?s safety supervisortestified were in violation.[3]??????????? Onreview, Respondent argues that the citation lacked particularity since it didnot specify which machines and extinguishers were alleged to be in violation.It contends further that the Secretary failed to sustain his burden of proofinasmuch as he did not establish the location of the card machines, looms, andfire extinguishers which were in violation.[4]??????????? Wereject Respondent?s contentions. The purpose of the particularity requirementin section 9(a) is to place the cited employer on notice as to the nature of thealleged violation. Factors other than a citation?s language, including anemployer?s knowledge of its own facilities, may serve to fulfill this function.Gannett Corp., No. 6352, 4 OSHC 1383, 1976 77 OSHD para. 20,915 (1976).In this case, Respondent?s own safety supervisor testified that he knew whichmachines and extinguishers did not comply with the standards, thus establishingthat Respondent had notice of the nature of the violations. Moreover, theJudge?s affirmance was directed towards only those machines and extinguisherswhich Respondent?s safety supervisor testified were in violation. We conclude,therefore, that the citation was sufficiently particular to satisfy section9(a) and that the Secretary sustained his burden of proof as to those machinesand extinguishers which Judge Burroughs found in violation.?Accordingly, the Judge?s decision is affirmed. It isso ORDERED.?FORTHE COMMISSION:?WilliamS. McLaughlinExecutiveSecretaryDATE:MAY 10, 1977\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13067 B. F. GOODRICH TEXTILE PRODUCTS A DIVISION OF THE B.F. GOODRICH CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0DECISION AND ORDERAPPEARANCES:Ken S. Welsch, Esquire, and W. T. Truett,Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia,on behalf of complainant.\u00a0Gregory L. Rutman,Esquire, Akron, Ohio, on behalf of respondent.\u00a0STATEMENT OF CASEBURROUGHS, Judge:??????????? Thisis a proceeding under section 10(c) of the Occupational Safety and Health Actof 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter ?Act?). Respondentseeks review of a non-serious citation issued to it, pursuant to section 9(a)of the Act, on March 24, 1975. Review is also sought of the penalties proposedfor two of the alleged violations.??????????? The citationand notification of proposed penalty emanated from an inspection conducted onMarch 17, 1975, at respondent?s manufacturing plant located in Thomaston,Georgia. Respondent manufactures tire cord and related products at theThomaston plant.??????????? Thecitation issued to respondent on March 24, 1975, alleged that respondentviolated section 5(a)(2) of the Act by failing to comply with five separatestandards promulgated under section 6 of the Act. The respondent, by letterdated April 15, 1975, and received by complainant on April 17, 1975, timelyadvised complainant that it desired to contest all five items of the March 24,1975, citation.??????????? TheMarch 24, 1975, citation alleged a violation of the following standards anddescribed the alleged violations as follows:Item One?29 C.F.R. 1910.219(d)(1)Failure to provide guarding of all drivepulleys operated (7) seven feet or less above floor or working platform,including drive pulleys on cards, looms, forming twisters and spinning frames.?Item Two?29 C.F.R. 1910.219(f)(3)Failure to provide guarding of all drivesprockets and chains operated (7) feet or less above floor or working platform,such as on looms.?Item Three?29 C.F.R. 1910.23(c)(1)(i)Failure to provide standard railings withfour (4) inch high toeboards on open sides of floors, platforms or runways highenough for persons to pass beneath the open sides.?Item Four?29 C.F.R. 1910.157(a)(6)Failure to install all fire extinguishershaving a gross weight not exceeding 40 pounds so that the tops of theextinguishers are not more than (5) five feet above floor level. ? Item Five?29 C.F.R. 1910.179(j)Failure to perform monthly inspections ofoverhead cranes, and to maintain signed inspection reports on same.???????????? Thenotification of proposed penalty issued on March 24, 1975, proposed a penaltyof $50 and $30 for the alleged violations of items one and two. No penaltieswere proposed for the remaining items.??????????? OnApril 16, 1975, complainant issued an amended citation to respondent. Theamended citation deleted item three and described the remaining violations asfollows: Item No. Description 1 Failure to provide guarding of each drive pulley operated seven (7) feet or less above floor or working platform on the following machines in the areas indicated, as follows: ? (a) Spinning Frames?Unit A, Third Floor, Spinning Department and Unit B, Third Floor, Spinning Department. ? (b) Twisting Frames?Unit A, First Floor, Twist Department. ? (c) Cards?Unit A, Second Floor, Card Department. \u00a0 2 Failure to provide guarding of each sprocket wheel and chain by enclosure, unless they are more than seven (7) feet above floor or working platform, on the following machines, in the areas indicated, as follows: ? Looms?Unit B, First Floor, Weave Room; Unit C, First Floor, Weave Room; and South Mill Weave Room. \u00a0 4 Failure to install all portable fire extinguishers having a gross weight not exceeding 40 pounds so that the tops of the extinguishers are not more than five (5) feet above floor level, throughout the plant. \u00a0 5 Failure to perform monthly inspections of overhead cranes, or others having the same fundamental characteristics, and to maintain signed inspection reports on same. \u00a0 \u00a0??????????? Thestandards allegedly violated and the proposed penalties remained the same.??????????? Thenotice of contest was mailed one day prior to the amended citation beingissued. The amended citation was received by respondent on April 18, 1975.Respondent, by letter dated April 22, 1975, and received by complainant onApril 25, 1975, contested the four alleged violations set forth in the amendedcitation, but requested that the amended citation be stricken.??????????? Respondentmoved at the beginning of the hearing to vacate the amended citation. Thenotice of contest dated April 15, 1975, was directed to the original citationissued on March 24, 1975. The complaint was directed toward the March 24, 1975,citation, as amended. Item three of the March 24, 1975, citation was deleted inthe complaint in accordance with the amended citation. The alleged violationswere described in the complaint with the same specificity as set forth in theamended citation.??????????? Thereis no dispute over the fact that the notice of contest dated April 15, 1975,was sent by registered mail on April 15, 1975.[5] Section 10(a) of the Actgives an employer fifteen working days within which to notify the complainantthat he intends to contest the citation. The Act does not state whether themailing or receipt date is to be used in computing the fifteen working days.Rule 7(c) of the Commission?s Rules of Procedure provides that service isdeemed effected at the time of mailing. While this rule is not specificallydirected to notices of contest, it is deemed applicable for invoking the jurisdictionof the Commission.[6]??????????? Oncejurisdiction of the Commission is invoked by the mailing of the notice ofcontest, the Area Director can not thereafter alterthe import of the notice of contest by amending the citation. In the presentcase, respondent?s notice of contest was mailed on April 15, 1975. The AreaDirector could not thereafter change the issues by amending the citation. Theamended citation of April 16, 1975, was therefore a nullity.??????????? Oncethe notice of contest is mailed, the complaint is the proper vehicle foramending the citation. Rule 15(a) of the Federal Rules of Civil Procedure,incorporated by Rule 2(b) of the Commission?s Rules of Procedure, affords thecomplainant a right to amend once as a matter of course at any time before aresponsive pleading is served.[7] The complaint filed bycomplainant was directed to the March 24, 1975, citation, as amended. Thus,only items one, two, four and five of the March 24, 1975, citation were pleadedand placed in issue. The complaint in effect conceded item three of the March24, 1975, citation. The practical result was that the complaint amended thecitation issued March 24, 1975, even though the amended citation of April 16,1975, was a nullity. A motion to amend by complainant was granted to formallyrule that the citation of March 24, 1975, was amended by the complaint in thesame manner as though the amended citation had been properly issued (Tr.11?12).??????????? Amotion was granted at the hearing to amend paragraph VI of the complaint tocorrect a typographical error with respect to the abatement dates for items oneand two.??????????? Theamendment changed the abatement date from March 24, 1975, to March 24, 1976, toconform with the citation (Tr. 4).??????????? Theparties filed a stipulation at the commencement of the hearing. The stipulationhas been incorporated as part of the record.JURISDICTION AND ISSUES??????????? Respondentconcedes that, at all times material to this proceeding, it was engaged in abusiness affecting commerce within the meaning Commission has jurisdiction theamendment changed the of the parties and of the subject matter herein (Pars. I,II, Complaint and Answer; Stip., Pars. 1, 2).??????????? Thefollowing issues are pertinent to a disposition of this case:??????????? 1.Did the citation fall to describe the alleged violations with particularity asrequired by section 9(a) of the Act???????????? 2.Did respondent violate section 5(a)(2) of the Act by failing to comply with thestandards published at 29 C.F.R. 1910.219(d)(1), 29 C.F.R. 1910.219(f)(3), 29C.F.R. 1910.157(a)(6) and 29 C.F.R. 1910.179(j)???????????? 3.What penalties, if any, should be assessed for any violations of the Act?FINDINGS OF FACT??????????? Theevidence of record has been carefully considered and evaluated in its entirety.The facts hereinafter set forth are specifically determined in resolving theissues in this case:??????????? 1.Respondent, B. F. Goodrich Textile Products, Division of The B. F. GoodrichCompany, is a corporation having a place of business and doing business at 325Goodrich Avenue, Thomaston, Georgia, where it is engaged in the manufacture oftire cord and related products (Par. II, Complaint and Answer; Stip., Par. 2).??????????? 2. OnMarch 17, 1975, complainant, through a duly authorized compliance officer,conducted an inspection of respondent?s Thomaston, Georgia, plant (Tr. 14). Theplant contains 1,186,954 square feet of space (Tr. 47).??????????? 3.The compliance officer arrived at the plant at approximately 8:30 a.m. Hecommenced a walk-around inspection at approximately 9:00 a.m. A break ofapproximately forty five minutes was taken for lunch. The inspection was completedat 1:00 p.m. (Tr. 16, 45?46).??????????? 4. OnMarch 18, 1975, the compliance officer returned to the plant for approximatelythirty to forty-five minutes for the purpose of taking some photographs (Tr.16, 36).??????????? 5.The compliance officer was accompanied on the walkaround by Larry Watts, safetysupervisor for respondent, and John McGanghey, plantengineer for respondent (Tr. 14, 15, 45).??????????? 6. OnMarch 17, 1975, respondent had 500 spinning frames in Units A and B of theSpinning Department located on the third floor. None of the spinning frameswere guarded[8](Tr. 16?17, 34?35).??????????? 7.The spinning frames contain one drive belt (Tr. 18, 37).??????????? 8.Respondent?s spinning frames are approximately fourteen feet long andapproximately two and a half to four feet wide (Tr. 31).??????????? 9.Unit A, third floor Spinning Department, is divided into three sections.Spinning frames are located on the west end and east end. The complianceofficer entered the west end of the spinning room on the walkaround inspection.He observed the belt drives on two or three spinning frames in the west end. Hedid not see any of the spinning frames in the east end of the SpinningDepartment (Tr. 32, 33, 49).??????????? 10.Unit B, third floor, Spinning Department is located in a different building butis connected to Unit A. On March 17, 1975, spinning frames in Unit B were notoperating and had not operated since November 1974 (Tr. 33).??????????? 11.Unit A, third floor, Spinning Department is 1,071 feet long and 134 feet wide.Unit B of the Spinning Department is 335 feet long and 134 feet wide (Tr. 47).??????????? 12.During the walk-around the compliance officer did not point out which of thespinning frames needed guarding (Tr. 17). Respondent?s safety supervisor wasaware of the guarding requirements as set forth in the promulgated standards(Tr. 18).??????????? 13.On March 17, 1975, respondent had approximately 384 twisting frames in Unit A,first floor, Twisting Department (Tr. 18?19). Approximately 180 of the twistingframes were guarded (Tr. 19, 35).??????????? 14.The twisting frames have one drive belt which turns the sheave that turns thedrum of the twisting frame (Tr. 19, 37).??????????? 15.Respondent has two types of twisting frames. The two types involve differentmodels and range in year of manufacture from 1918 up to 1952 (Tr. 34).??????????? 16.Unit A of the Twisting Department covers areas in the basement and first floor(Tr. 33?34). The compliance officer did not observe every individual machine inthe department. The compliance officer observed some of the guards on thetwisting frames but made no comment (Tr. 35).??????????? 17.Unit A of the Twisting Department is 1,071 feet long and 134 feet wide on thefirst floor level. The basement portion of the Twisting Department contains10,720 square feet (Tr. 47).??????????? 18.On March 17, 1975, respondent had 364 card machines in Unit A second floor,Card Department (Tr. 19?20).? Approximatelyhalf of the cards were guarded by side guards or safety bar guards (Tr. 20, 21,35, 36).??????????? 19.The card machines contain drive pulleys that are primarily below seven feet(Tr. 21).??????????? 20. Acard machine is approximately eight to nine feet long and five to six feet wide(Tr. 35).??????????? 21.Unit A of the Card Department located on the second floor is 1,071 feet longand 134 feet wide (Tr. 48).??????????? 22.On March 17, 1975, respondent had 68 looms in Unit B, first floor weave room;183 looms in Unit C, first floor weave room; and 66 looms in the South MillWeave Room (Tr. 21, 38).??????????? 23.The looms contain a sprocket wheel and chain that is located less than sevenfeet above the floor (Tr. 21).??????????? 24.Respondent has two different types of looms and a range of year models. Thesize of a loom varies between the year model and manufacturer (Tr. 37, 38).??????????? 25.The compliance officer did not observe each of the looms or the sprocket wheeland chain on each of the looms (Tr. 38).??????????? 26.Respondent has approximately 60 looms that, according to its interpretation ofthe guarding standards, do not need guarding. Each of the other looms requiremore than one guard. One loom could possibly have 15 to 20 guards (Tr. 21).??????????? 27.Unit B of the weave room located on the first floor contains 46,230 square feetof space; Unit C, first floor weave room contains 29,078 square feet of space;South Mill Weave Room contains 100,000 square feet of space (Tr. 48).??????????? 28.On March 17, 1975, respondent had approximately 550 to 600 fire extinguishersat its plant. Approximately 35-percent of the total were positioned at heightsranging from two inches to twelve inches above the five-foot level from thefloor (Tr. 22).??????????? 29.The majority of the fire extinguishers in respondent?s plant weigh between fiveand ten pounds. None of them weigh in excess of forty pounds (Tr. 23).??????????? 30.Respondent is aware of all locations where it his fire extinguishers (Tr. 30).??????????? 31.At the time of inspection respondent had already commenced a program ofguarding, testing and lowering all fire extinguishers to the proper height (Tr.39).??????????? 32.Respondent had sixty-five overhead cranes at the time of inspection (Tr. 40,65). It did not maintain signed inspection reports for the overhead cranes (Tr.26).??????????? 33.Respondent has conducted inspections of the overhead cranes (Tr. 52).??????????? 34.The compliance officer held a closing conference with representatives ofrespondent after the inspection was conducted. The alleged violations set forthin the non-serious citation issued to respondent were discussed at the closingconference (Tr. 27).??????????? 35.Individual machines were not discussed at the closing conference (Tr. 28).OPINION??????????? Respondentsubmits that the alleged violations and proposed penalties should be vacatedfor the following reasons:??????????? (1)The citation and complaint failed to describe with particularity andspecificity the nature of the alleged violations.??????????? (2)The compliance officer failed to observe the conditions which did not complywith the requirements of the standards.??????????? (3)The complainant failed to sustain his burden of proof.??????????? Thefirst two arguments are in a sense related and are discussed separately fromthe merits of the alleged violations.I. Particularity??????????? Basically,problems surrounding the degree of particularity required can arise in twodifferent and somewhat distinct ways. These are: (1) cases where the citationis contested before the Commission, and (2) cases where the citation wasuncontested but the employer is later charged with failure to abate or with arepeat violation and the lack of particularity is alleged to have caused orcontributed to the repeat violation or failure to abate. In the first instance,which is the situation presented by this case, particularity should be such asto apprise an employer of sufficient detail to protecthim against surprise and to give notice of the real issues tendered. The issuemust be viewed from the standpoint of whether the lack of specificityprejudiced the employer in his preparation and trial of the issues.[9]??????????? Respondent?sargument as to particularity is primarily based on the descriptions of thealleged violations set forth in the citation of March 24, 1975. Thedescriptions are far from being a model of perfection. However, the fact thatadditional detail could have been furnished in the citation does notautomatically imply a failure to meet the requirements of section 9(a). Theremust be a showing that the particularity furnished is insufficient to apprisethe employer as to the issues in dispute. The burden to make such a showingrests upon the employer. Secretary v. Union Camp Corporation, 8 OSAHRC31, 44 (1974).??????????? Respondent?splant contains 1,186,954 square feet of space. The departments containing thespinning and twisting frames, looms and the card machines occupy a large partof this space. The more fact that the plant is large does not per se requirethat specific locations of the machines be set forth in detail.??????????? Thecitation issued March 24, 1975, alleged a failure to guard all drive pulleysand sprocket wheels and chains on the spinning and twisting frames, looms andcards. The cited standards, 29 C.F.R. 1910.219(d)(1) and (f)(3), are specificand unambiguous in their requirements. The standards inform an employer as towhat must be guarded. The descriptions advised the respondent as to themachines allegedly in violation of the standards.??????????? Respondent?ssafety supervisor and plant engineer testified that they were familiar with themachinery allegedly in violation of the standards. It is a simple matter toobserve the machines and formulate an opinion as to whether the drive pulleysand sprocket wheels and chains are in compliance with the standards. Where somelooms, spinning and twisting frames and card machines are observed to haveunguarded drive pulleys and sprocket wheels and chains, it is not necessary forthe complainant to visually observe all of the machines and supply therespondent with their serial numbers and exact locations. An employer need notbe treated as though he is totally ignorant of his own workplace. The fact thathe has knowledge of actual or potential guarding problems within his plant canbe taken into consideration. Secretary v. Union Camp Corporation, 8OSAHRC 31, 44 (1974).??????????? Thecomplaint furnished additional detail to the respondent as to the locations ofthe spinning and twisting frames, looms and card machines. The record was clearas to the issues in dispute. Respondent makes no contention that the furnishedinformation was insufficient for it to properly prepare its defense to theallegations. The argument that it did not know what needed to be abated isunpersuasive.[10]??????????? Theargument as to the lack of particularity for the fire extinguishers andoverhead cranes is even less persuasive than that as to the spinning andtwisting frames, looms and card machines. The standard pertaining to theoverhead cranes, 29 C.F.R. 1910.179(j), is specific in its requirements. Anemployer should know whether it conducts inspections of its cranes andmaintains signed reports of the inspections. Respondent is aware of thelocation of all of its fire extinguishers. It is a relatively easy procedure tomeasure their height with a ruler. Respondent was fully aware that some of thefire extinguishers did not comply with 29 C.F.R. 1910.157(a)(6). At the time ofinspection it had already commenced a program of lowering all fire extinguishersto the proper height. An employer can not be judgedas though he is totally ignorant of his own workplace.??????????? Complainantrelies on the test for particularity set out by Judge Duvall in Secretary v.York Metal Finishing Company, 7 OSAHRC 845, 876?877, wherein he states:. . . Under the Section 9(a) requirementthat each violation be described with ?particularity? in the citation, thedegree of particularity reasonably necessary to satisfy this requirement mayvary depending on the circumstances of each case. The test is whether theviolation as cited in the citation is sufficiently particular or specific toreasonably inform a prudent employer of the condition or equipment which is tobe corrected, taking into consideration all the relevant circumstances, includingthe statements made to the employer by the inspector at the opening and closingconferences and during the walk-around inspection, the nature and extent ofthe cited or similar conditions and equipment existing in the workplace, andthe corrective action actually taken by the employer subsequent to thecitation. (Emphasis added).?The emphasized language of Judge Duvall?s decision, inthe opinion of this Judge, diminishes that part of section 9(a) which states:Each citation shall be in writing andshall describe with particularity the nature of the violation, including areference to the provision of the Act, standard, rule, regulation, or orderalleged to have been violated.\u00a0??????????? Section9(a) clearly requires the complainant to describe with particularity the natureof the violation in writing in the citation issued to an employer. Oralcommunications by the compliance officer at the opening and closing conferencesor the walk-around inspection do not obviate the congressional mandate that theviolation be described in writing with particularity. The abandonment ofwritten particularity for oral communications, in addition to being clearlyagainst the congressional mandate, is fraught with other difficulties.Misunderstandings can occur as to what was intended by the compliance officerin his oral communications. See Secretary v. HersmanConstruction Company, 4 OSAHRC 1356 (1973). In such situations, theCommission would be placed in the position of having to determine what wasintended by the compliance officer. A written description of the allegedviolation, as specified by section 9(a), avoids any such misunderstandings andremoves the Commission from having to assist in delineating the nature of theviolation. The proper writing of citations is an essential part of theenforcement process. It is not part of the adjudicatory functions of theCommission.??????????? TheField Operations Manual published and adhered to by the Occupational Safety andHealth Administration makes it clear that the inspecting compliance officer?shall make no statement which could be construed as committing the Departmentto issuing or not issuing a citation with respect to an apparent violation.?[11] The plain truth of thematter is that the inspecting compliance officer has no authority to commitOSHA to issuing a citation. The citations are authorized and signed by the AreaDirector or, in expedited situations,[12] are authorized by theArea Director and signed by the inspecting compliance officer. It is the viewof the Area Director, as stated in the citation, which is paramount to theemployer.II. Alleged ViolationsA. 29 C.F.R. 1910.219(d)(1)??????????? Section1910.219(d)(1) of 29 C.F.R. provides as follows:Pulleys, any parts of which are seven (7)feet or less from the floor or working platform, shall be guarded in accordancewith the standards specified in paragraphs (m) and (o) of this section. Pulleysserving as balance wheels (e.g., punch presses) on which the point of contactbetween belt and pulley is more than six feet six inches (6 ft. 6 in.) from thefloor or platform may be guarded with a disk covering the spokes.???????????? Thecitation issued on March 24, 1975, alleged that respondent failed to provide guardingof all drive pulleys operated seven feet or less above the floor, ?includingdrive pulleys on cards, looms, forming twisters and spinning frames.? Thecomplaint amended the citation by dropping the reference to looms and bystating the location of the spinning frames, twisting frames and card machines.Spinning Frames??????????? OnMarch 17, 1975, respondent had 500 spinning frames in Units A and B located onthe third floor. The evidence reflects that the spinning frames have one drivebelt. There is no evidence as to the location of the drive belt on the spinningframes. Respondent?s safety supervisor, Larry Watts, testified that none of thespinning frames were guarded at the time of the inspection (Tr. 17).Respondent?s plant engineer, John C. McGaughey, testifiedthat 29 of the spinning frames in unit A were guarded (Tr. 49).??????????? Thestandard requires that pulleys which are seven feet or less from the floorshall be guarded. There is no evidence to show that the location of the drivebelt was less than seven feet above the floor. Complainant states that ?it isclear from the record that the respondent is not contending that the violationscited by the compliance officer did not exist at the respondent?s plant.? Thisis an erroneous interpretation of the record in this case. One of respondent?sspecific arguments is that complainant failed to sustain his burden.??????????? Theburden of proving the violation is upon complainant. It is true that respondentdid not specifically challenge the statement by Watts that spinning frames wereunguarded. However, that statement in itself does not establish a violation.There is no concession by respondent or evidence to show the frames should beguarded. Complainant must establish the elements of the standard by facts inorder to sustain the allegation.??????????? Wattstestified that he was aware of the guarding requirements of the safetystandards and that none of the spinning frames were guarded (Tr. 17?18). Hefurther testified that he was aware of the belt drive on the spinning wheel (Tr.18). This is insufficient to establish a violation of the standard. Guarding isnot required unless the pulleys are seven feet or less above the floor. Thisfact is not established by the evidence of record. Complainant has failed tomeet his burden.??????????? TwistingFrames??????????? OnMarch 17, 1975, respondent had approximately 384 twisting frames in Unit A,first floor. Respondent?s safety supervisor testified that 180 of the twistingframes were guarded[13] (Tr. 19, 35). As in thecase of the spinning frames, the evidence fails to establish that the twistingframes contained unguarded pulleys which are seven feet or less above thefloor. Complainant has failed to meet his burden on the issue.??????????? CardMachines??????????? OnMarch 17, 1975, respondent had 364 card machines in Unit A, second floor, CardDepartment. Respondent?s safety director conceded that the card machines had drive pulleys which were seven feet or less above the floor(Tr. 21). He further testified that only half of the card machines wereguarded. The violation has been established with respect to those card machineswhich have pulleys located seven feet or less above the floor. The standardrequires that they be guarded. Respondent stipulated that employees work aroundthe machines (Stip., Par. 3).??????????? Whilethe evidence does not specifically give the serial numbers or locations of theunguarded card machines, such is not deemed necessary to fully appriserespondent of which machines need guarding. Respondent?s safety supervisor,plant engineer and, undoubtedly other employees, are familiar with themachines. It is an easy task of determining which machines are in need ofguarding.B. 29 C.F.R. 1910.219(f)(3)??????????? Section1910.219(f)(3) of 29 C.F.R. provides:All sprocket wheels and chains shall beenclosed unless they are more than seven (7) feet above the floor or platform.Where the drive extends over other machine or working areas, protection againstfalling shall be provided. This subparagraph does not apply to manuallyoperated sprockets.???????????? Complaintantalleges that respondent violated the standard by failing to guard sprocketwheels located seven feet or less above the floor on looms located in Units Band C, first floor, weave room, and in the South Mill Weave Room. Respondentstipulated that employees work around the looms at various times.??????????? OnMarch 17, 1975, respondent had 68 looms in Unit B, first floor; 183 looms inUnit C, first floor; and 66 looms in the South Mill Weave Room. Respondent?ssafety supervisor testified that he could identify the sprocket wheels andchains on the looms and that they were located less than seven feet above thefloor (Tr. 21). He further conceded that while some of the looms need noguarding, according to his interpretation of the standard, the remaining loomsrequire more than one guard.??????????? Thestandard requires that all sprocket wheels and chains less than seven feetabove the floor must be enclosed. Respondent?s safety supervisor concedes thathe can identify the sprocket wheels and chains and that they are located lessthan seven feet above the floor. All sprocket wheels and chains less than sevenfeet above the floor must be enclosed. The violation has been established as toall looms containing sprocket wheels and chains less than seven feet above thefloor.??????????? Ifsome of the looms have no unenclosed sprocket wheels and chains less than sevenfeet above the floor, as suggested by respondent?s safety supervisor, then thestandard has no applicability to those specific looms. While respondent is notbeing informed as to the specific looms which need to be guarded, the facts aresuch that they are discernible with little effort on the part of respondent.C. 29 C.F.R. 1910.157(a)(6)Section 1910.157(a)(6) of 29 C.F.R.provides as follows:Extinguishers having a gross weight notexceeding 40 pounds shall be installed so that the top of the extinguisher isnot more than 5 feet above the floor. Extinguishers having a gross weightgreater than 40 pounds (except wheeled types) shall be so installed that thetop of the extinguisher is not more than 3?1\/2 feet above the floor.\u00a0??????????? Complainantalleges that respondent failed to install all portable fire extinguishershaving a gross weight of less than 40 pounds so that the top of the fireextinguisher is not more than five feet above the floor.??????????? On March17, 1975, respondent had approximately 550 to 600 fire extinguishers at itsplant which weighed less than 40 pounds. Respondent?s safety supervisortestified that approximately 35 percent of the fire extinguishers werepositioned at heights ranging from two inches to twelve inches in excess offive feet from the floor level.??????????? Respondentargues that the complainant has failed to sustain his burden in demonstratingthat all fire extinguishers were in violation. Respondent seems to concludethat the allegation should not be sustained since the proof failed to show aviolation as to all fire extinguishers. This is illogical reasoning.Respondent?s safety supervisor conceded that approximately 35 percent of thefire extinguishers did not comply with the standard. Violations did exist andthe allegation has been proven with respect to those fire extinguishers notmeeting the standard.??????????? Respondentfurther argues that the violation should not be sustained since the complianceofficer failed to observe or identify all of the fire extinguishers not meetingthe standard. The standard is unambiguous in its requirements. Respondent?ssafety supervisor conceded that he was aware of all the locations of the fireextinguishers, and it is logical to assume that respondent?s employees arecapable of measuring to a height of five feet. There should be no doubt as towhich fire extinguishers comply with the standard. Under such circumstances, itwould be absurd and a waste of time to have the compliance officer measure theheight of 550 to 600 fire extinguishers and specifically identify those thatwere in excess of five feet. After all, the Act places the duty on the employerto comply with the standards.D. 29 C.F.R. 1910.179(j)??????????? Section1910.179(j)(2)(iv) and (v) of 29 C.F.R. provide:(iv) Hoist or load attachment chains,including end connections, for excessive wear, twist, distorted linksinterfering with proper function, or stretch beyond manufacturer?srecommendations. Visual inspection daily; monthly inspection with signedreport.?(v) Rope slings, including endconnections, for excessive wear, broken wires, stretch, kinking, or twisting.Visual inspection daily; monthly inspection with signed report.???????????? Complainantalleges that respondent failed to perform monthly inspections of overheadcranes and failed to maintain signed inspection reports.??????????? OnMarch 17, 1975, respondent had 65 overhead cranes in its plant. Respondentconceded that it failed to maintain signed inspection reports for the cranes(Tr. 26). Respondent?s plant engineer testified that inspections of the craneshad been made by respondent (Tr. 52). The frequency or extent of thoseinspections is not disclosed by the record. This lack of disclosure must beconstrued against complainant since he has the burden of establishing thatmonthly inspections were not made. The violation has been established withrespect to the lack of signed monthly inspection reports.III. Penalty Determination??????????? Complainantproposed a penalty of $50 for the violation of 29 C.F.R. 1910.219(d)(1) and apenalty of $30 for the violation of 29 C.F.R. 1910.219(f)(3). No penalties wereproposed for the remaining two violations. The parties stipulated that thepenalties were reasonable.??????????? Severalfactors must be considered in determining penalties under section 17(j) of theAct. These include the size of the employer?s business, the gravity of theviolation, the good faith of the employer, and the history of previousviolations. The principal factor to be considered is the gravity of theoffense. Secretary v. Nacirema Operating Company, Inc., 1 OSAHRC 33(1972). In determining the gravity of a violation, several elements must beconsidered, including, but not necessarily limited to, the following: (1) thenumber of employees exposed to the risk of injury; (2) the duration ofexposure; (3) the precautions taken against injury, if any; and (4) the degreeof probability of occurrence of an injury. Secretary v. National Realty andConstruction Company, Inc., 1 OSAHRC 731 (1972), reversed on another issue,489 F.2d 1257 (D.C. Cir. 1973).??????????? Thepenalty of $50 was proposed for lack of guarding on the spinning and twistingframes and the card machines. The alleged violation as to the spinning andtwisting frames was not sustained. Respondent had 364 card machines in itsplant at the time of inspection. Approximately half of those machines wereunguarded. A penalty of $50 is fair and appropriate for the violation.??????????? Theexact number of looms in need of guarding is not fully established by the evidence.A penalty of $30 is deemed fair and appropriate for the violation of 29 C.F.R.1910.219(f)(3).CONCLUSIONS OF LAW??????????? 1.The respondent was, at all times material hereto, engaged in a businessaffecting commerce within the meaning of section 3 (5) of the Act. Act.??????????? 2.The respondent was, at all times material hereto, subject to the requirementsof the Act and the standards promulgated thereunder. The Commission hasjurisdiction of the parties and of the subject matter herein.??????????? 3. OnMarch 17, 1975, respondent had card machines in operation which did not conformwith the requirements of 29 C.F.R. 1910.219(d)(1).??????????? 4.Complainant failed to sustain his burden that spinning and twisting frames inoperation on March 17, 1975, had drive pulleyslocated less than seven feet above the floor in violation of 29 C.F.R.1910.219(d)(1).??????????? 5. OnMarch 17, 1975, respondent had looms in operation with unguarded sprocketwheels and chains in violation of 29 C.F.R. 1910.219(f)(3).??????????? 6. OnMarch 17, 1975, respondent had fire extinguishers weighing less than 40 poundsinstalled at heights five feet above the floor in violation of 29 C.F.R.1910.157(a)(6).??????????? 7. Asof March 17, 1975, respondent conducted inspections of its overhead cranes butfailed to maintain signed reports as required by 29 C.F.R. 1910.179(j).??????????? 8. Apenalty of $50 is assessed for the violation of 29 C.F.R. 1910.219(d)(1). Apenalty of $30 is assessed for the violation of 29 C.F.R. 1910.219(f)(3).ORDER??????????? Uponthe basis of the foregoing findings of fact and conclusions of law, it is??????????? ORDERED:??????????? (1)That item one of the citation issued respondent on March 24, 1975, as amended,is affirmed as to the card machines and vacated as to the spinning and twistingframes;??????????? (2)That items two and four of the citation issued to respondent on March 24, 1975,as amended, are affirmed;??????????? (3)That item five of the citation issued to respondent on March 24, 1975, asamended, is affirmed as to the lack of signed inspection reports and vacated asto the failure to perform inspections; and (4) That the penalties proposed foritems one and two are affirmed.?Dated this 31st day of December,1975.?JAMES D. BURROUGHSJudge[1] This item wasalso directed to the failure to guard drive pulleys on spinning frames andtwisting frames. The Judge vacated the charge as to the spinning and twistingframes on the basis that the Secretary failed to establish that the pulleyswere within seven feet of the floor level. His ruling as to these machines isnot before us.\u00a0[2] Respondent wasalso cited for failing to perform monthly inspections of its overhead cranesand failing to maintain signed inspection reports of the inspections asrequired by 1910.179(j). The Judge affirmed only the second allegation.Respondent argues on review that the record does not show it failed to make therequired inspections. Since the Judge vacated that portion of the item whichalleged a failure to perform monthly inspections, and the Secretary has nottaken exception to the Judge?s ruling we will not consider the argument.\u00a0[3] The Secretary didnot petition for review of the judges? decision insofar as the judge refused toaffirm the citation.\u00a0[4] Respondent alsocontends that the Judge committed reversible error in allowing the Secretary toamend the citation in his complaint. The citation alleged violations as tocertain classes of machines; the amendment in the complaint specified the roomsin which the cited classes of machines were located. In making the allegationsmore specific, the Secretary complied with the Commission rule at 29 C.F.R.2200.33(a)(2)(ii); the amendment was therefore properly permitted.[5] Exhibit Aintroduced at the hearing is a copy of the April 15, 1975, notice of contestwith receipts showing date of mailing and date received by complainant. Thisnotice of contest was not furnished to the Commission by the complainant.[6] If the receiptdate was deemed controlling, an employer?s rights under the Act would bedependent upon the efficiency of the postal service.\u00a0[7] Commission Rule33(a)(3) anticipates such amendments by providing:Where the Secretary seeks in his complaintto amend his citation or proposed penalty, he shall set forth the reasons foramendment and shall state with particularity the change sought.[8] The plantengineer testified that 29 of the spinning frames in Unit A were guarded (Tr.49). There is no explanation for the discrepancy between the testimony of thesafety supervisor and the plant engineer.[9] Normally, such asituation should not arise. Rule 15(a) of the Federal Rules of Civil Procedure,which is incorporated by Rule 2(b) of the Commission?s Rules of Procedure,would allow the complainant to amend the citation to provide greaterspecificity in the complaint. Rule 12(e) of the Federal Rules of CivilProcedure would permit the employer to file a motion for a more definitestatement if the complaint fails to provide the requisite specificity. Inaddition, Commission Rule 53 allows discovery depositions and interrogatoriesby special order of the Commission or Judge.[10] Where a citationis contested, the argument that the citation does not fully advise as to whatmust be abated loses its impact. An employer does not have to abate in acontested situation until the violations are established by evidence of record.Obviously, the allegations will not be sustained unless specific facts areplaced in evidence to show the condition in violation of the standard.[11] See Chapter V,page 14 of the Field Operations Manual.\u00a0[12] See Chapter V,paragraph K, page 14, Field Operations Manual.[13] The evidence doesnot indicate that the guards were for pulleys seven feet or less above thefloor.”