“SECRETARY OF LABOR,Complainant,v.BLOCKSOM AND COMPANY,Respondent.OSHRC Docket No. 76-1897_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:Respondent, Blocksom and Company (\”Blocksom\”), produces stuffingmaterial for mattresses and furniture at a plant in Michigan City,Indiana. Following an inspection of the plant by an OSHA complianceofficer, the Secretary of Labor (\”Secretary\”) issued citations toBlocksom alleging numerous violations of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-78 (\”the Act\”). A number of thealleged violations were settled, and a hearing on the items remaining indispute was held before Administrative Law Judge Sidney J. Goldstein. The judge affirmed some items, vacated others, and concluded thatcertain of the affirmed violations should be classified as de minimis. Commissioner Cleary granted Blocksom’s petition for review of certainaspects of the judge’s decision pursuant to section 12(j) of the Act, 29U.S.C. ? 661(i). The alleged violations on review involve emergencyrespirator training, grounding of electrical equipment, splices inflexible electrical cords, machine guarding, and lockout procedures formachinery during cleaning and maintenance. We affirm in part andreverse in part._Citation 1, [[1\/]] item 12(2) – Respirator Training_. This item alleged that Blocksom violated 29 C.F.R. ? 1910.134(b)(3)[[2\/]] by failing to train its employees in the proper use of UniversalGas Masks, which Blocksom kept in its maintenance department. Therespirators had been obtained by Blocksom a considerable length of timebefore the inspection for use by employees in fire emergencies. It isundisputed that employees were not trained in the proper manner of usingthe masks. During the inspection, the compliance officer learned of anincident that occurred a year earlier in which an employee had attemptedto use one of the masks to enter a building during a fire but was unableto do so because the employee did not know how to get air through themask. The compliance officer was concerned that an employee attemptingto use the respirator during a fire could be overcome by smoke if theemployee did not know how to use the respirator properly.Blocksom’s plant manager, McDonald, testified that the respirators hadnot been used in the year prior to the inspection. He stated that itwas now Blocksom’s policy to evacuate employees in the event of any firethat was beyond immediate control and that this policy was communicatedto Blocksom’s employees. He further testified that all work areas nowcontained automatic sprinklers and that the company relied on two nearbyfire departments to fight fires.We vacate this item. [[3\/]] The cited standard requires that the userof a respirator be properly trained in its use and limitations. Themere presence of respirators on a jobsite does not trigger the trainingrequirement. In this case, it appears that Blocksom at one time didintend that the respirators would be used by employees in fightingfires. However, at the time of the alleged violation, Blocksom nolonger intended that the respirators be used but had a policy toevacuate the plant in the event of any fire beyond immediate control andto rely on its automatic sprinkler system and the nearby firedepartments to control all other fires. Thus under the circumstances ofthis case, training in the use of respirators was not required. [[4\/]]_Citation 1, items 50(2), (3), and (4) – Ungrounded Electrical Equipment_During the inspection, the compliance officer observed that the groundprongs of the plugs supplying electrical power to a pedestal light, twopedestal fans, and an extension light were broken off. The Secretaryalleged that Blocksom’s failure to ground these pieces of equipmentviolated Article 250-45 of the 1971 National Electrical Code (\”NEC\”) asadopted by 29 C.F.R. ? 1910.309(a). [[5\/]] We vacate these items. In order to prove that an employer violated astandard, the Secretary must establish by a preponderance of theevidence that the standard applies to the facts, that there was afailure to comply with the standard, that employees had access to theviolative condition, and that the employer either knew or could haveknown of the condition with the exercise of reasonable diligence. AstraPharmaceutical Products, 81 OSAHRC 79\/D9, 9 BNA OSHC 2126, 2129, 1981CCH OSHD ? 25,578 at pp. 31,899-900 (No. 78-6247, 1981), aff’d, 681 F.2d69 (1st Cir. 1982). The pertinent part of Article 250-45 requiresgrounding of equipment only when that equipment is used in damp or wetlocations, or by persons standing on the ground or on metal floors orworking inside of metal tanks or boilers. The Secretary presented noevidence that the cited equipment was used under such conditions. Moreover, various photographic exhibits of Blocksom’s workplace do notindicate the presence of metal floors or of any of the other conditionsmentioned in the standard. Accordingly, the Secretary has not proventhat the cited standard applies to the facts. [[6\/]]_Citation 1, item 52 – Spliced Electrical Cords_The compliance officer observed two electrical cords containing splicesin Blocksom’s plant. One of the cords supplied power to a portableelectrical spotlight; the other was a motor lead cable to the No. 2 WetPicker Machine. Bare wire was visible at the splice in the motor leadcable. The compliance officer testified that he observed employeesworking in areas where they could contact the cords and he was concernedthat employees could suffer electric shock or electrocution. Blocksom’sexpert witness, James F. Van Namee, testified that the splices were ininaccessible locations where they could not be contacted by employees.[[7\/]]The Secretary alleges that Blocksom violated Article 400-5 of the 1971NEC. That article provides: \”Flexible cord shall be used only incontinuous length without splice or tap.\”We conclude that Blocksom violated the standard as alleged. Thestandard absolutely prohibits splices in flexible cords, and it isundisputed that the two cords in Blocksom’s plant were spliced. Thus,there was noncompliance with the standard. Blocksom contends, however,that the violative condition was not accessible to employees, relying onVan Namee’s testimony.We conclude that access was proven. One of the splices was on aportable spotlight. Even if that splice was inaccessible at one time,the fact that it was on a portable piece of equipment, which could beused in different locations, shows that the splice was accessible toemployees. Concerning the motor lead cable, the compliance officertestified that the splice was visible, there were operators in front ofthe machine and other employees working at the discharge end of themachine. He also testified that the improper splicing could mean themachine was not properly grounded. Van Namee concluded that \”[t]here isno possibility of the employees, operators coming in contact with\” thespliced cord because it was under the table on which the machinerested. However, he did not explain why employees working at themachine could not contact the visible splice and bare wire under themachine table. We conclude that the Secretary established by apreponderance of the evidence that employees had access to the hazardsof electrical shock and electrocution, and we affirm this item [[8\/]]See Otis Elevator Co., 78 OSAHRC 88\/E5, 6 BNA OSHC 2048, 1978 CCH OSHD ?23,135 (No. 16057, 1978)._Citation 2 – Lockout Procedures_The citation alleged that Blocksom violated section 5(a)(1) of the Act[[9\/]] by failing to \”establish a procedure for securing or deenergizingelectricity on machinery to prevent employees from being exposed todangerous equipment during machine adjustment, cleaning and maintenanceoperations.\” At the hearing, the compliance officer testified that thealleged violation concerned Blocksom’s failure to institute a lockoutprocedure during machine maintenance and cleaning operations.\” Hedescribed such a procedure as a positive means of deenergizing equipmentsuch that it could not be accidentally turned on. One way this could beaccomplished is by placing a lock on the main power switch to themachine, with the key to the lock kept in the possession of the employeeworking on the machine. The Secretary presented a witness, Eugene L.Permenter, whom Blocksom stipulated was an expert on safety in thetextile industry. Permenter testified that the major cause of seriousinjuries in the textile industry is machine accidents and that theindustry recognized the need to implement lockout procedures to preventsuch accidents.Blocksom did not attempt to rebut any of the factual or opiniontestimony offered by the Secretary but contends that it did not violatesection 5(a)(1) in the precise manner alleged in the citation. Blocksompoints out that the citation alleged a violation for not \”securing ordeenergizing\” equipment. The company interprets the citation to permitcompliance by either of two means: locking out (securing) machinery ordeenergizing the machinery. Because all machinery was turned off duringthe instances of alleged violation observed by the compliance officer,Blocksom contends it was in compliance with the deenergizationalternative it asserts is permitted by the citation.We reject Blocksom’s argument and affirm the citation. Although thecitation is not worded as specifically as it might have been, thetestimony at the hearing made it clear that the violation alleged by theSecretary consisted of Blocksom’s failure to implement a lockoutprocedure. All of the testimony of the compliance officer andPermenter, the two witnesses who testified with respect to thiscitation, was directed at the absence of a lockout procedure atBlocksom’s plant. \”So long as fair notice is afforded, an issuelitigated at an administrative hearing may be decided by the hearingagency even though the formal pleadings did not squarely raise theissue.\” Baroid Division of NL Industries v. OSHRC, 660 F.2d 439, 449(10th Cir. 1981), quoting National Realty and Construction Co. v. OSHRC,489 F.2d 1257, 1264 (D.C. Cir. 1973). See also Babcock & Wilcox Co. v.OSHRC, 622 F.2d 1160, 1164 (3rd Cir. 1980). We conclude that theevidence presented at the hearing gave Blocksom fair notice that thecitation charged a violation for failure to implement a lockoutprocedure [[10\/]] and we affirm the judge’s finding of a violation.[[11\/]]_Citation 3 – Machine Guarding_This citation alleged that Blocksom violated 29 C.F.R. ?? 1910.219(f)(1)and (f)(3) [[12\/]] by failing to guard certain chain and sprocket drivesand gears. The citation involves two types of machine: a 72-inchGarnett machine and a rope-spinning machine._Garnett Machine (Item 1A, Example 3, and Item 1C, Example 1):_The 72-inch Garnett machine processes synthetic fibers into a sheet-typematerial. Along the side of the machine where the operator stands arevarious chain and sprocket drives and gears, which are in motion whenthe machine is operating. An expanded metal screen is located betweenthe moving parts and the operator. The screen is supported by steelposts and can be slid upward along the posts to give access to the machine.The machine operates automatically, with the operator observing themachine through the metal screen. It is sometimes necessary for theoperator to have access to the machine to remove excess material so thatthe machine will not clog. The operator uses a five-foot-long pole toremove the excess material. This is done with the machine running andthe screen raised. The operator also occasionally blows excess materialoff the machine with an air hose while the screen is raised and themachine is running.We conclude that the Garnett machine was adequately guarded. When thescreen was in its lowered position it would prevent any possibility ofcontact with the chains, sprockets, and gears. The screen was onlyraised for brief periods when it was necessary to have access to themachine for cleaning purposes. The cleaning operation was performedusing either an air hose or a five- foot-long pole, which would keep theoperator a safe distance from the moving parts. We therefore concludethat Blocksom’s method of guarding eliminated any hazard to employeesand vacate these items. [[13\/]] See Rockwell International Corp. 80OSAHRC 118\/A2, 9 BNA OSHC 1092, 1097-98, 1980 CCH OSHD ? 24,979 at p.30,846 (No. 12470, 1980)._Rope-Spinning Machines (Item 1A, Example 2):_Blocksom’s rope-spinning machines manufacture rope from fiber. Like theGarnett machine discussed above, expanded metal screens are positionedaround a machine during normal operation. However, in order to\”thread-up\” a machine, an employee must lower a hinged section of thescreen and feed fibers by hand between certain rollers. Immediatelyadjacent to the rollers are chain and sprocket mechanisms. TheSecretary alleges that Blocksom violated 29 C.F.R. ? 1910.219(f)(3) byfailing to guard these mechanisms.In arguing for vacation of this item, Blocksom contends that the screensadequately guarded the machines. Blocksom relies on the testimony ofits expert witness, Van Namee, who offered the opinion that the machineswere adequately guarded. However, testimony, including that ofBlocksom’s plant manager, establishes that the machines were not guardedand running while they were being threaded up. In view of the closeproximity of employees’ hands to the rollers and the chain and sprocketmechanisms while the machines were in operation we conclude the machineswere inadequately guarded and affirm this item._Citation 4 – Machine Guarding_At issue under this citation are items alleging that Blocksom violated29 C.F.R. ? 1910.212(a)(1)[[14\/]] by failing to guard two machines: aDuoform slitter and a vertical reciprocating lapper. [[15\/]]_Duoform Slitter (Item 1, Example 1C):_This machine contains a number of circular rotating knives, each abouteight inches in diameter, that slice sheets of fibrous padding intostrips. Employees feed the material by hand into the knives. An employeetestified that, on one occasion, he had been wearing gloves when a knifehad caught the glove and pulled it off his hand. He was not injured.Blocksom’s plant manager, McDonald, stated that the knives were too dullto injure a person who contacted a rotating blade. He testified that theknives cut the padding material by pressure rather than by the sharpnessof their blades.In order to prove a violation of section 1910.212(a)(1), the Secretarymust prove that the operation of a machine presents a hazard toemployees. Papertronics, Division of Hammermill Paper Co., 78 OSAHRC54\/C6, 6 BNA OSHC 1818, 1978 CCH OSHD ? 22,898 (No. 76-3517, 1978). Weconclude that the Secretary has met that burden. Although we creditMcDonald’s testimony that the knife blades were too dull to cut on merecontact, the fact that the blades cut the padding material by pressureestablishes that the knives exerted sufficient force to injure the handsor fingers of employees should they be caught under a blade. Moreover,the record shows that there was a danger that employees could get theirfingers or hands under the blades. The employees fed the paddingmaterial by hand directly into the blades, and the incident in which oneemployee had a glove removed by a blade demonstrates that employees’hands could be endangered by the blades. Accordingly, we affirm this item.We conclude that the violation was not proved to be serious in nature asalleged. In order to prove that a violation is serious, the Secretarymust show a substantial probability that the result of an accident wouldbe death or serious physical harm. 29 U.S.C. ? 666(j); ConsolidatedRail Corp., 82 OSAHRC 24\/F7, 10 BNA OSHC 1564, 1568, 1982 CCH OSHD ?26,046 at p. 32,715 (No. 78-1504, 1982), appeal dismissed, No. 82-3301(3d Cir. Nov. 16, 1982). Although the record shows that employees couldsuffer injury to their fingers or hands should they get caught under aknife blade, there is no evidence showing a substantial probability thatthe injury would be serious. We therefore affirm this item as anonserious violation._Vertical Reciprocating Lapper (Item 1, Example 8):_This machine contains an inclined reciprocating mechanism several feetin length that comes as close as eight inches to an aisleway in the rearof the machine. Employees sometimes use the aisleway when the machineis operating. The Secretary alleged that Blocksom violated section1910.212(a)(1) in that the lapper operator and other employees weresubjected to the potential hazard of being struck by the unguarded lapper.We conclude that the Secretary failed to prove that the lapper washazardous to employees. Assuming that the lapper could strike anemployee using the aisleway, the mere fact that moving parts of amachine could contact an employee does not prove that such contact wouldcause injury. Edison Lamp Works, 79 OSAHRC 81\/C7, 7 BNA OSHC 1818, 1979CCH OSHD ? 23,913 (No. 76-484, 1979); Papertronics, Division ofHammermill Paper Co., supra. The record in this case does not establishthat the moving mechanism moved with sufficient force to cause injury. We also note that the lapper’s function is to distribute material, notto perform any type of cutting or processing function that requiresgreat force. Finally, Blocksom’s expert, Van Namee, testified that hehad seen many lappers and had never seen one guarded. The fact that itis not common practice to guard lappers suggests that their operationdoes not present a hazard. This item is vacated [[16\/]]_Citation 5 – Machine Guarding_At issue under this citation are items alleging that Blocksom violated29 C.F.R. ? 1910.217(c)(1)(i).[[17\/]] by failing to guard the point ofoperation of two machines: a mechanical full-revolution die press anda Sheridan embossing machine._Mechanical Full-Revolution Die Press (Item 1(A), Example 1):_This machine, which Blocksom admits is a mechanical power press subjectto the cited standard, is used to punch pieces out of sheet metal. Theoperator holds the sheet metal stock with one hand and trips the presswith the other. The compliance officer testified that there was nomethod of machine safeguarding at the point of operation and that theoperator’s hands and fingers were exposed to the potential hazard ofbeing caught between the dies. Blocksom contends that there was nohazard because both of the operator’s hands were occupied away from thepoint of operation during the operating cycle, one holding the stock andthe other tripping the press.We affirm this item. The compliance officer’s testimony that the pointof operation was not safeguarded was unrebutted. We reject Blocksom’sargument that the operator was protected by having both his handsoccupied during the operating cycle. Although two-hand trippingdevices are a permissible type of point of operation device, such adevice must require \”application of both of the operator’s hands tomachine operating controls. . . .\” 29 C.F.R. ? 1910.217(c)(3)(i)(e).(Emphasis added.) Compliance with this section cannot be achieved ifone of the operator’s hands is holding the material being processed, aswas the case in Blocksom’s operation. Indeed, as the Secretary pointsout, the primary purpose of the standard is to protect an operator’shand used to hold stock from inadvertently entering the point ofoperation. [[18\/]] See Amforge Division, Rockwell International, 80OSAHRC 46\/A2, 8 BNA OSHC 1405, 1980 CCH OSHD ? 24,439 (No. 76-3488,1980).[[19\/]]_Sheridan Embossing Machine (item 2):_This machine was used to stamp patterns out of a fibrous paddingmaterial. The compliance officer testified that the point of operationwas unguarded and that employees could have gotten part of their bodiescaught between the dies. Blocksom’s expert witness, Van Namee, was ofthe opinion that the machine was not a mechanical power press subject tothe cited standard. He stated that a mechanical power press includes aslide, to which a die is attached, that slides within guides, and thatthe Sheridan embossing press did not have such a mechanism.We agree with Blocksom’s argument that section 1910.217(c)(1)(i) doesnot apply to this machine. Van Namee’s testimony that a mechanicalpower press must contain a slide that slides within guides is consistentwith the Commission’s decision concerning the applicability of themechanical power press standards in Western Steel Manufacturing Co., 76OSAHRC 112\/E2, 4 BNA OSHC 1640, 1976-77 CCH OSHD ? 21,054 (No. 3528,1976). Moreover, his testimony that the Sheridan embossing machine didnot contain such a mechanism was unrebutted. Because the cited standardis inapplicable, the item is vacated. [[20\/]]_Penalties_With respect to the items on review, the judge assessed the followingpenalties:Citation 1, item 12 \t$ 0 item 50 \t$ 35 item 52 \t$ 0Citation 2 \t$700Citation 3 \t$400Citation 4 \t$100Citation 5 \t$350For citation 1, item 50 and citations 3, 4, and 5, the penaltiesassessed by the judge encompass subitems that are not before us forreview as well as those subitems discussed in this decision. Accordingly, we will adjust those penalties to reflect the subitems thatare vacated by this decision. We assess the following adjusted penalties:Citation 1, item 12 \t$ 0 item 50 \t$ 10 item 52 \t$ 0Citation 2 \t$700Citation 3 \t$300Citation 4 \t$ 50Citation 5 \t$225Blocksom also asks us to vacate the penalties of $35 assessed by thejudge for items 46 and 51 of the nonserious citation. [[21\/]] Blocksomadmitted the violations alleged in these items but contested thepenalties. Blocksom offers no specific reasons why the penaltiesassessed by the judge are inappropriate, and we affirm the judge’sassessments._Order_The following items are vacated: Citation 1, items 12(2), 50(2), 50(3),and 50(4); Citation 3, item 1A, example 3 and item 1C, example 1;Citation 4, item 1, example 8; Citation 5, item 2. The penalty forcitation 1, item 50 is reduced to $10. The penalties for citations 3,4, and 5 are reduced to $300, $50, and $225 respectively. In all otherrespects the judge’s decision is affirmed. SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: FEB 28 1983————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request onefrom our Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1\/]] The items contained in citation 1 are alleged to be nonserious. The violations alleged in the remaining citations are designated by theSecretary as serious in nature.[[2\/]] This standard provides:? 1910.134 Respiratory protection.(b) Requirements for a minimal acceptable program.(3) The user shall be instructed and trained in the proper use ofrespirators and their limitations.[[3\/]] Blocksom’s petition for review did not directly challenge themerits of this item but contended that the citation was barred by theAct’s six-month statute of limitations. 29 U.S.C. ? 659(c). However,in this case the statute of limitations issue is intertwined with themerits of the citation. The Secretary alleges that Blocksom violatedthe standard on the date of the inspection and that the citation, whichwas issued within six months of the inspection, is therefore not barred. Blocksom’s argument based on the statute of limitations reduces to thecontention that the company did not violate the standard within sixmonths of the date the citation was issued. In order to resolve thisdispute, it is necessary to determine whether, as the Secretarycontends, a violation of the standard occurred at the time of theinspection. Moreover, both parties understood that the merits of thecase are before the Commission for resolution, as they argued that issuein their briefs on review.[[4\/]] Commissioner Cottine dissents from the decision to vacate thisitem. First, the only issue raised by Blocksom in its petition forreview and directed for review concerning this item was whether thecitation was precluded under the 6-month time limitation in section 9(c)of the Act. The appropriateness of consideration of other issues is indoubt in light of the recent decision in J.L. Manta Plant Services Co.,10 BNA OSHC 2162, 1982 CCH OSHD ? 26,303 (No. 78-4923, 1982). There,the majority expressly left open the question whether a party may raiseissues on review different from those raised in its petition forreview. 10 BNA OSHC at 2164 n. 6, 1982 CCH OSHD p. 33,267 n.6. However, here the majority rules in favor of Blocksom based on issuesdifferent from those raised in its petition. Regarding the merits ofBlocksom’s section 9(c) claim, Commissioner Cottine notes that theconditions cited here continued up to the time of the citation. Therespirators never were removed from the worksite and no instructions ontheir use ever were given. The Secretary may cite a violation whichfirst occurred more than 6 months before the citation if the violationis continuing in nature. See Central of Ga.R.Co., 77 OSAHRC 42\/A2, 5BNA OSHC 1209, 1977-78 CCH OSHD ? 21,688 (No. 11742, 1977), aff’d onother grounds, 576 F.2d 620 (5th Cir. 1978). Accordingly, CommissionerCottine rejects Blocksom’s section 9(c) claim.Second, assuming that the other issues raised in Blocksom’s brief arebefore us, Commissioner Cottine concludes that Blocksom violated thecited standard by making respirators available to employees forfire-fighting purposes but not training employees to use therespirators. Cf. Bechtel Power Co., 79 OSAHRC 34\/A2, 7 BNA OSHC 1361,1366, 1979 CCH OSHD ? 23,575 at p. 28,577 (No. 13832, 1979)(availability for use of noncomplying equipment constitutes aviolation). As the compliance officer testified, employees could besubject to the hazard of being overcome by smoke if they attempt to usethe respirators during a fire emergency but do not know how to use themproperly. Commissioner Cottine concludes that Blocksom’s assertedpolicy of evacuating employees in the event of a fire does not eliminatethe hazard. The policy is equivocal in that Blocksom still permitsemployees to attempt to fight fires that are not \”beyond immediatecontrol.\” Thus, Blocksom’s employees still are permitted to engage infire fighting in some circumstances. Also, Blocksom’s asserted policyis inconsistent with its making respirators available to workers whenthe sole use for respirators is in fighting fires. Employees who knowthat respirators are available for this purpose may well attempt tofight a fire hoping that it can be brought quickly under control. Evenassuming Blocksom no longer intended that employees use the availableemergency respirators at any time, there is no evidence that itspecifically explained that to the employees. Commissioner Cottinewould find a violation.[[5\/]] 29 C.F.R. ? 1910.309(a) provides:? 1910.309 National Electrical Code.(a) The requirements contained in the following articles and sections ofthe National Electrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. ofC1-1968) shall apply to all electrical installations and utilizationequipment.Article 250-45 is among the articles listed. That article provides, inpertinent part:250-45 Equipment Connected by Cord and Plug. Under any of the followingconditions, exposed noncurrent-carrying metal parts of cord- andplug-connected equipment, which are liable to become energized, shall begrounded:***(d) In other than residential occupancies, ……. (4) cord- andplug-connected appliances used in damp or wet locations, or by personsstanding on the ground or on metal floors or working inside of metaltanks or boilers . . . .[[6\/]] Because of our disposition, we need not determine whether thecited pieces of equipment are \”appliances\” within the meaning of Article250-45.[[7\/]] We note that evidence of the accessibility to hazardousconditions need not be addressed through expert testimony. Noparticular expertise is required to offer credible evidence on the issue.[[8\/]] Chairman Rowland would classify the violation as de minimis. Thecompliance officer testified that splices in cords could lead to ahazard of electric shock or electrocution. However, there is noevidence that the splice in the cord to the portable spotlight was notinsulated in manner sufficient to eliminate this hazard. Further, thereis no evidence that the portable spotlight was moved from where it waslocated at the time of the inspection, which was a location that,according to the unrebutted testimony of Van Namee, was inaccessible toemployees. With respect to the splice in the motor lead cable, ChairmanRowland disagrees with the majority that Van Namee’s testimony is notsufficient to establish that employees could not come into contact withthe wire. Therefore, Chairman Rowland concludes that the hazard toemployees was negligible and that the de minimis classification isappropriate. See Daniel Constr. Co., Boise Cascade Project, 81 OSAHRC107\/D2, 10 BNA OSHC 1254, 1260, 1982 CCH OSHD ? 25,840 at p. 32,331 (No.80-1224, 1981), aff’d, 692 F.2d 818 (1st Cir. 1982).[[9\/]] Section 5(a)(1), 29 U.S.C. ? 654(a)(1), provides:Sec. 5(a)(1) Each employer–(a) shall furnish to each of his employees employment and a place ofemployment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to his employees.[[10\/]] Chairman Rowland dissents from the affirmance of the citation. The majority finds Blocksom in violation of ? 5(a)(1) for failing tolock out machinery during maintenance. The citation, however, did notallege that the violation consisted of Blocksom’s failure to lock outmachinery; it charged Blocksom with failing to secure or deenergizemachinery. In the Chairman’s view, the majority’s action amounts to animproper amendment of the citation.An amendment of a citation to find a violation based on Blocksom’sfailure to lock out machinery would only be appropriate if the partiessquarely recognized at the trial that they were trying an unpleadedissue. Farmers Cooperative Grain and Supply Co., 82 OSAHRC ,10 BNAOSHC 2086, 1982 CCH OSHD ? 26,301 (No. 79-1177, 1982) (Rowland,Chairman, dissenting). During the hearing, the compliance officer, whowas the only witness who testified to the operative facts surroundingthe alleged violation, consistently used the words \”deenergize\” and\”secure,\” as well as \”lock out,\” in describing the precautions hebelieved Blocksom should have taken. Moreover, at one point in histestimony, the compliance officer referred to the fact that Blocksom hadbeen given \”an option\” between \”securing and deenergizing\” themachinery. Additionally, Blocksom’s attorney consistently askedquestions that indicated he believed the citation permitted eitherdeenergization or securing of the machinery. Accordingly, ChairmanRowland would conclude that the parties did not squarely recognize theywere trying an unpleaded issue. Therefore, amendment of the citation isinappropriate. Because all the machines involved in this citation weredeenergized during the instances of alleged violation observed by thecompliance officer, Chairman Rowland concludes that Blocksom did notviolate the Act in the manner alleged in the citation and would vacatethe citation.[[11\/]] We also reject Blocksom’s argument that it cannot be found inviolation of ? 5(a)(1) because no specific standard requires lockoutprocedures. It is precisely those situations not covered by anyspecific standard that are appropriately the subject of citation under ?5(a)(1). See American Smelting and Refining Co. v. OSHRC, 501 F.2d 504(8th Cir. 1974); United States Pipe and Foundry Co., 78 OSAHRC 8\/D6, 6BNA OSHC 1332, 1978 CCH OSHD ? 22,514 (No. 11739, 1978).[[12\/]] These standards provide:? 1910.219 Mechanical power-transmission apparatus(f) Gears, sprockets, and chains — (1) Gears. Gears shall be guardedin accordance with one of the following methods:(i) By a complete enclosure; or(ii) By a standard guard as described in paragraph (o)of this section, at least seven (7) feet high extending six (6) inchesabove the mesh point of the gears; or(iii) By a band guard covering the face of gear and having flangesextended inward beyond the root of the teeth on the exposed side orsides. Where any portion of the train of gears guarded by a band guardis less than six (6) feet from the floor a disk guard or a completeenclosure to the height of six (6) feet shall be required.(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 doesnot apply to manually operated sprockets.[[13\/]] Commissioner Cottine dissents from this disposition. Heconcludes that the majority impermissibly questions the wisdom of thecited standards in finding that the manner in which Blocksom has guardedthe 72-inch Garnett machine eliminated any hazard to employees. See CoxEnterprises Inc., OSAHRC , 11 BNA OSHC 1074, 1983 CCH OSHD ? 26,386 (No.12074, 1982) (Cottine, Commissioner, concurring). The standardspresume that unguarded gears, chains, and sprockets are hazardous toemployees. See Austin Bridge Co., 79 OSAHRC 81\/A2, 7 BNA OSHC 1761,1979 CCH OSHD ? 23,935 (No. 76-93, 1979). Moreover, the record clearlyshows that a hazard exists. During the periods when the machine isbeing unclogged or cleaned, the expanded metal screen that is normallybetween the operator and the moving parts is raised so that it no longerprovides any protection. The employee stand directly in front of themachine while performing the operation and sometimes walks around behindthe guard to perform this work. The employee may use an air hose ofunspecified length to remove excess material. Photographic exhibitsshow that the unguarded moving parts are significantly closer to theemployee than the areas of the machine from which material is beingremoved. Thus, the record establishes that the employee has access tothe unguarded parts. See Pass & Seymour, Inc., 79 OSAHRC 101\/C13, 7 BNAOSHC 1961, 1979 CCH OSHD ? 24,074 (No. 76-4520, 1979), appeal dismissed,No. 80-4013 (2d Cir. March 19, 1980).[[14\/]] This standard provides:? 1910.212 General requirements for all machines.(a) Machine guarding–(1) Types of guarding. One or more methods ofmachine guarding shall be provided to protect the operator and otheremployees in the machine area from hazards such as those created bypoint of operation, ingoing nip points, rotating parts, flying chips andsparks. Examples of guarding methods are — barrier guards, two-handtripping devices, electronic safety devices, etc.[[15\/]] Blocksom also takes exception to the judge’s finding of a deminimis violation of ? 1910.212(a)(1) for the absence of guarding on ahot wire slitter machine. A de minimis violation carries no penaltyassessment or abatement requirement and cannot be used in futureproceedings as evidence of a history of previous violations. Therefore, an employer is not aggrieved by, and cannot seek review of, afinding of a de minimis violation. Westburne Drilling, Inc., 77 OSAHRC79\/C11, 5 BNA OSHC 1457, 1977-78 CCH OSHD ? 21,814 (No. 15631, 1977). Accordingly, we will affirm the judge’s disposition of this item withoutreview.[[16\/]] Commissioner Cottine concludes that the Secretary proved theexistence of a hazard and would affirm this item. He notes that anemployee familiar with the lapper testified, without contradiction, thatan employee caught in the lapper would be dragged back and forth acrossthe line until somebody shut it off. The same employee testified thatthe lapper contained sharp edges. Another employee testified that theaisleway employees used at the rear of the machine was between 2 and 3feet wide. In Commissioner Cottine’s view, this testimony establishesthat employees who must work within several inches of the lapper’s pathof motion are exposed to a hazard within the meaning of ?1910.212(a)(1). The evidence of a hazard is not rebutted by contraryindustry custom and practice, which are not dispositive of whetherparticular hazards exist. See, e.g., Beaird-Poulan, Div. of EmersonElectric Co., 79 OSAHRC 21\/D11, 7 BNA OSHC 1225, 1979 CCH OSHD ? 23,493(No. 12600, 1979) (Section 5(a)(1) of the Act).[[17\/]] This standard provides:1910.217 Mechanical power presses.(c) Safeguarding the point of operation — (1) General requirements. (i) It shall be the responsibility of the employer to provide and insurethe usage of \”point of operation guards\” or properly applied andadjusted point of operation devices on every operation performed on amechanical power press. See Table 0-10.[[18\/]] Contrary to the dissent, the preponderance of the evidenceestablishes that the point of operation opening on the press was morethan one fourth of an inch. The compliance officer testified that theemployee’s hands or fingers could be caught between the dies. Blocksomhas never denied that the opening between the dies was wide enough for ahand or finger to enter, nor argued that the Secretary failed to provethe width of the opening. Van Namee testified that as far as safety isconcerned there was no difference between the cited press and one shownin Blocksom’s photographic exhibit 16-58, and that the two presses wereidentical in operation. The press shown in that exhibit clearly has adie opening in excess of one-fourth inch. We conclude that the evidencepreponderates in favor of the Secretary in this issue.[[19\/]] Chairman Rowland dissents from the affirmance of this item. Henotes that ? 1910.217(c)(1)(ii), which immediately follows the citedstandard, provides: \”The requirement of subdivision (i) of thissubparagraph shall not apply when the point of operation opening isone-fourth inch or less.\” Thus, an employer need not safeguard thepoint of operation of a mechanical power press unless the opening isgreater than one-quarter of an inch. In order to prove a violation, theSecretary would have to show that the opening is larger than thisamount. In this case, however, the Secretary introduced no evidenceestablishing this critical fact. In this regard, Chairman Rowland notesthat the press in exhibit 16-58, on which the majority relies inconcluding the Secretary proved the size of the point of operationopening, is entirely different in appearance from the one in issuehere. Moreover, even if the press in exhibit 16-58 and the press hereare identical in operation and with respect to safety, this does notmean that both machines have the same point of operation openings. Accordingly, Chairman Rowland concludes that the Secretary did notsustain his burden of proving that the cited standard applies to the facts.[[20\/]] Commissioner Cottine agrees that the cited standard does notapply. He notes, however, that if there is no specific standardrequiring point of operation guarding of a particular machine, thegeneral machine guarding standard at 29 C.F.R. ? 1910.212(a)(3)(ii)would apply. See Western Steel Mfg. Co., supra. On the basis of therecord, he concludes that a violation of ? 1910. 212(a)(3)(ii) has beenestablished and he would amend the citation to conform to the evidencepursuant to Rule 15(b) of the Federal Rules of Civil Procedure. Seee.g., Rogers Mfg. Co., 79 OSAHRC 67\/E2, 7 BNA OSHC 1617, 1979 CCH OSHD ?23,800 (No. 76-896, 1979). The unrebutted testimony of the complianceofficer establishes that the point of operation of the Sheridanembossing machine was unguarded and exposed employees to injury. Therefore, Commissioner Cottine would find that Blocksom violated ?1910.212(a)(3)(ii). See Faultless Div., Bliss & Laughlin Indus. v.Secretary of Labor, 674 F.2d 1177 (7th Cir. 1982); Tube-Lok Products, 81OSAHRC 17\/B7, 9 BNA OSHC 1369, 1981 CCH OSHD ? 25,235 (No. 16200, 1981).Amendment pursuant to Fed. R. Civ. P. 15(b) is required even in theabsence of a motion to amend if all issues relevant to the amendedcharge have been tried by the implied consent of the parties. SeeDaniel Constr. Co., 82 OSAHRC 23\/A2, 10 BNA OSHC 1549, 1555 n. 13, 1982CCH OSHD ? 26,027 at p. 32,675-76 n. 13 (No. 16265, 1982); Rogers Mfg.Co., supra; Southwestern Bell Tel. Co., 78 OSAHRC 100\/D8, 6 BNA OSHC2130, 1978 CCH OSHD ? 23,187 (No. 14761, 1978). Where, as here, theamendment changes only the legal theory underlying the citation, consentwill be implied when the party opposing amendment has introduced orfailed to object to evidence relevant to the unpleaded issue and thatparty would not be prejudiced by the amendment. Farmers CooperativeGrain and Supply Co., 82 OSAHRC , 10 BNA OSHC 2086, 2088, 1982 CCHOSHD ? 26,301 at p. 33,262 (No. 79-1177, 1982). Blocksom did not objectto the testimony showing that the point of operation of the Sheridanembossing press was unguarded and presented a hazard to employees. Moreover, Blocksom would not be prejudiced by the amendment as it had afull opportunity to try all issues relevant under ? 1910.212(a)(3)(ii).[[21\/]] Item 46 alleged that Blocksom violated 29 C.F.R. ? 1910.242(b)by using compressed air for cleaning purposes of 80 pounds per squareinch. The standard permits a maximum pressure of 30 pounds per squareinch. Item 51 alleged that Blocksom violated 29 C.F.R. ? 1910.309(a) byfailing to guard live electrical parts at voltages ranging from 110 to440 volts.”