“SECRETARY OF LABOR,Complainant,v.CLEMENT FOOD COMPANY,Respondent.OSHRC Docket No. 80-0607_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).Clement Food Company (\”Clement\”) bottles food products at its plant inOklahoma City, Oklahoma. The Secretary issued two citations allegingthat Clement violated six occupational safety and health standards. Theadministrative law judge vacated two items of one citation and affirmedthe remaining items. Clement obtained review of the five items affirmedby the judge. We affirm the judge’s decision in part and reverse it inpart._Citation 1, Item 1: 29 C.F.R. ? 1910.176(b), Stacking of Boxes_.Section 1910.176(b) states in part that \”[b]ags, containers, bundles,etc., stored in tiers shall be stacked, blocked, interlocked and limitedin height so that they are stable and secure against sliding orcollapse.\” Item 1 of citation 1 alleges that the boxes in afifteen-foot high, tiered stack were not interlocked and blocked. Thecompliance officer who inspected Clement’s plant testified that he saw atiered stack of boxes fifteen feet high that was not interlocked andblocked. He also stated, and a photograph shows, that the top tier ofthe boxes was leaning. There were pallets at lower points in thestack. The compliance officer, who had received a bachelor’s degree inphysics and had worked as a failure analyst, physicist, safety engineer,and accident investigator, testified that the center of mass of thestack had been so displaced that any shock or vibrations from forklifttrucks and machinery in the area could cause the top tier to fall. Eachof the boxes weighed 25 pounds. Employees walked in the area; one wasseen using a walkway eight feet away.The judge relied on the compliance officer’s testimony and thephotographic exhibit and found that the boxes were not stacked so as tobe stable and secure. Clement maintains that the judge erred, chieflyon the ground that the stack was not inherently unstable because anoutside force would need to be applied to it to cause a collapse. [[1]]We do not agree with Clement that the item should be vacated. The stackof boxes was not interlocked or blocked, its top tier was leaning, andthe administrative law judge credited the compliance officer’s testimonythat the shock of being struck by a forklift truck or vibrations fromnearby machinery could cause the top tier to fall. The standard is notlimited by its words to stacks so unstable that they might collapse oftheir own weight. The judge correctly found that the boxes were notstable and secure against sliding and collapse within the meaning of thestandard. This item is therefore affirmed.[[2]]_Citation 1, Item 2: 29 C.F.R. ? 1910.178(n)(8), Forklift Truck_.Item 2(a) of citation 1 concerns a forklift truck that was allegedlyoperated at too high a speed to be brought to a safe stop. The citedstandard is section 1910.178(n)(8), which appears in section 1910.178(n)with several other provisions that deal with driving powered industrialtrucks. Some of these are:? 1910.178 Powered industrial trucks.(n) Traveling.(1) All traffic regulations shall be observed, including authorizedplant speed limits. A safe distance shall be maintained approximatelythree truck lengths from the truck ahead, and the truck shall be keptunder control at all times.(4) The driver shall be required to slow down and sound the horn atcross aisles and other locations where vision is obstructed….(8) Under all travel conditions the truck shall be operated at a speedthat will permit it to be brought to a stop in a safe manner.The compliance officer testified that, according to his measurements andcalculations, a forklift truck was traveling at about 15 miles per hourinside Clement’s plant. Clement had forklift pathways painted on theplant floor. The compliance officer measured a distance of \”about 30feet\” between two marks on the floor. Using a stopwatch, he then timeda forklift traveling between those two marks and calculated the speed tobe \”within 15 miles an hour.\”[[3]] The compliance officer stated thathe had been told by the quality control operating manager that the planthad a 10 mile per hour speed limit. The driver of the forklift told thecompliance officer that he was unaware of such a limit. The complianceofficer also testified that the driver stated that he had not beeninstructed to sound his horn at an intersection.The compliance officer was concerned that the speed of the forklift wastoo high for the truck to be stopped before it hit a pedestrian at anemployee walkway that intersected the forklift path. Factory wallsobstructed the driver’s vision of the walkway so that he would have hadonly eight feet in which to stop once he saw a pedestrian. Because hecalculated the stopping distance of the forklift to be about 15 feet,the compliance officer concluded that the vehicle was being driven toofast to stop without hitting a pedestrian.The administrative law judge found a violation on the theory that theforklift could not be stopped in time to avoid hitting a pedestrian. Clement argues, however, that \”[t]here was no evidence that the forklifttrucks here could not be brought to a stop in a safe manner.\” It notesin its petition for discretionary review that section 1910.178(n)(8)requires that trucks be operated at speeds that permit them to bebrought to a stop in a safe manner, \”not, within a ‘safe distance’ asthe compliance officer seems to suggest.\” Before the judge, Clementnoted that the compliance officer could not recall whether the driverhad been instructed to slow down at blind intersections. On review, theSecretary repeats the compliance officer’s concern with the driver’sinability to stop in time if a pedestrian stepped into the forklift’spath at an obstructed crosswalk. The Secretary also notes a lack ofspeed limit signs and the asserted failure to instruct the driver tosound the horn at intersections.It is well-settled that to prove a violation of a standard, theSecretary must show that the cited standard applies to the citedcondition. E.g., Howard Barthelmass Painting Co., 81 OSAHRC 84\/El, 9 BNAOSHC 2160, 1981 CCH OSHD ? 25,636 (No. 78-5450, 1981). The Secretaryhas not done so here. The standard does not direct that a driver beable to stop within a particular distance. Instead, the sense conveyedby the standard is that forklift trucks should not be operated at speedsso high that the operator could lose control of the vehicle duringbraking, injuring himself and others if the forklift turns over, shiftsor loses its load, or swerves out of control. This is a particularproblem with forklift trucks because they have unusual handlingcharacteristics and stability problems, which are exacerbated when theyare loaded. See National Safety Council, Accident Prevention Manualfor Industrial Operations: Engineering & Technology, 229, 236-7, 238(8th ed. 1980). There is no evidence that the forklift here wasoperated at a speed so high that these problems would arise during braking.That section 1910.178(n)(8) does not apply to the cited conditions isalso supported by the fact that another provision, section1910.178(n)(4), was apparently intended to deal with the Secretary’sprimary concern, the problem of excessive speed at cross aisles withobstructed views, as well as his secondary concern, the lack of aninstruction to sound the horn at intersections with obstructed views. That standard states that \”[t]he driver shall be required to slow downand sound the horn at cross aisles and other locations where vision isobstructed.\” We see no reason to construe section 1910.178(n)(8) so asto be redundant with section 1910.178(n)(4). Much the same can be saidfor the Secretary’s concern with the lack of speed limit signs. Section1910.178(n)(1) covers this point; it states that \”[a]ll trafficregulations shall be observed, including authorized plant speed limits.\” Clement was not cited for violations of these provisions. Theevidence does not support a finding that Clement violated the citedstandard and we therefore reverse the judge and vacate this citation item._Citation 1, Item 3A: 29 C.F.R. ? 1910.219(d)(1), Unguarded Pulleys_.Item 3A(c) of citation 1 alleged a violation of section 1910.219(d)(1),which requires that pulleys seven feet or less from the floor beguarded. The primary dispute between the parties is whether the recordadequately shows that employees had \”access\” to the violative condition,i.e., whether in the course of their duties it is reasonably predictablethat they will be, are, or have been in a zone of danger. SeeCarpenter Contracting Corp., OSHRC Docket No. 81-0338 (June 26, 1984);Gilles & Cotting, Inc., 76 OSAHRC 30\/D9, 3 BNA OSHC 2002, 2003, 1975-76CCH OSHD ? 20,448, p. 24,425 (No. 504, 1976).Clement Food operates a bottlemoving machine called an \”unscrambler,\”which assembles jars emptied from a case into a single file line on aconveyor so that they can be filled. The machine has two belts, one ofwhich contacts four pulley wheels while the other contacts three pulleywheels. All of the pulley wheels are less than seven feet off theground and are unguarded. At least one of the pulleys contacts theglass bottles and causes them to move into alignment for filling. Occasionally, a bottle falls over and the machine operator must reach inand set the bottle upright. The dispute is whether the employees wereshown to have come within the zone of danger of the nip points of thepulleys.The compliance officer testified that he interviewed the machineoperator and watched him work. According to the compliance officer’saccount of the interview, employees \”will walk within [reaching distanceof] the actual operating nip point\” when \”they reach in to straighten[the bottles] out.\” The machine operator had also pointed to a locationwithin a foot or so of the nip points or belts where he would be. Clement’s plant manager also testified that, although a plastic shieldhad been installed over the pulleys, belts and bottles after theinspection, employees have to \”reach in there\” under the shield and inthe area of the pulleys, belts and bottles to set a bottle upright. Thephotographs submitted by both parties show that the area enclosed by thepulleys and in which the bottles are moved is small.The judge relied on the compliance officer’s testimony and found that\”the duties of the machine operator of the machine depicted in [aphotograph] required her to go to the area of the exposed pulleys undercertain conditions.\” Clement Food argues that the judge’s findingshould be overturned. It emphasizes that the compliance officer did notsee any employee come closer than six feet to the pulleys and that itcould not have fairly rebutted the compliance officer’s testimony as towhat a machine operator had told him. Clement notes that it does notknow the name of the employee to whom the compliance officer spoke andthat the compliance officer did not take notes of the conversation,which occurred 16 months before the hearing.We agree with the judge that the evidence is sufficient to find that aviolation occurred. This would be so even if we were to disregard thecompliance officer’s account of what the machine operator told him. Clement’s own plant manager testified that when bottles fell over, theemployee would have to reach in to the area of the pulleys, belts andbottles. Moreover, the photographs introduced by both parties show thatthe area enclosed by the pulleys and in which the bottles are moved bythe belts is small. In view of this, the judge’s finding cannot beoverturned.[[4]]Clement also claimed before the administrative law judge and maintainedin its petition for discretionary review that the standard cannot becomplied with. After the inspection, Clement installed a transparentplastic shield over the entire area in which there were pulleys andbelts. Clement’s plant manager testified that if a bottle fell over,however, the employee would still have to reach inside the guard to setthe bottle upright. In its petition for discretionary review, Clementargues also that if the pulleys are guarded, they will not do what theyare required to do–push the bottles along. The judge rejectedClement’s argument because it was not supported by the evidence.We are not convinced that Clement cannot comply with the standard. Section 1910.219(d)(1) requires guards for pulleys, not belts. ThatClement’s employees cannot be protected by the plastic shield can beattributed to the fact that the shield covers both the pulleys andbelts. Clement did not show, however, that guards cannot be installedonly over the pulleys or that the machine cannot be turned off when theoperator reaches in to set a bottle upright. And, contrary to Clement’sargument, the record does not show that the pulleys need to be unguardedto push the bottles along. At most, the record shows that the beltsneed to be unguarded. As we have said, however, the standard does notrequire that the belts be guarded.The judge also affirmed the citation’s characterization of the violationas \”serious.\” The judge relied on the compliance officer’s testimonythat amputation could result if an employee’s hand or finger were caughtin the nip point of the pulleys, and on the testimony of both thecompliance officer and Clement’s plant manager that the belts weretight. The compliance officer stated that the belts looked tightbecause they did not oscillate at their midpoints. The plant managerstated that the belts were as tight as they could be made by hand. Clement argues that the compliance officer’s testimony that amputationcould result was unsupported speculation, particularly since thecompliance officer had never tested the tightness of the belts.A violation is \”serious\” within the meaning of section 17(k) of the Act,29 U.S.C. ? 661(i), if the record shows that there is a substantialprobability that death or serious physical harm could result from theviolative condition. We are not convinced that the judge’s finding onthis point was erroneous. The compliance officer’s testimony wasuncontradicted and plausible, and was apparently based on hisconsiderable experience in the investigation of accidents. We are notconvinced, however, that the violation was of high \”gravity\” within themeaning of section 17(j) of the Act, 29 U.S.C. ? 666(i). One of thefactors considered in determining the gravity of a violation is theprobability of injury. National Realty & Construction Co., 72 OSAHRC9\/A2, 1 BNA OSHC 1049, 1051, 1971-73 CCH OSHD ? 15,188, p. 20,266 (No.85, 1972), rev’d on another ground, 489 F.2d 1257 (D.C. Cir. 1973). Therecord does establish that the probability of an accident was low. Theoperator’s hand is within the area of the pulleys only momentarily, andthe record does not show that an accident had ever occurred. Becausethe record does not show the number of employees exposed to theviolative condition, we must assume that it was only one. Finally, wefind that Clement proceeded in good faith. As the compliance officerstated, Clement was very interested in learning about the hazards in itsplant, and it quickly moved to abate the violations. In view of the lowgravity of the violation and Clement’s good faith, we assess a penaltyof $70 instead of the $140 assessed by the judge._Citation 1, Item 4: 29 C.F.R. ? 1910.309(a), N.E.C. ? 250-51,Ungrounded Fans._Items 4(a) and (b) of citation 1 allege that two fans were not groundedand that this was a violation of the standard at 29 C.F.R. ? 1910.309(a)(1979). At the time the alleged violation occurred the 1971 edition ofNational Electrical Code, NFPA No. 70-HC, ANSI C1-1971, had beenincorporated by reference as an occupational safety and health standardby former section 1910.309(a).N.E.C. section 250-51 provides:250-51. Effective Grounding. The path of ground from circuits,equipment, and conductor enclosures shall (1) be permanent andcontinuous and (2) shall have ample carrying capacity to conduct safelyany currents liable to be imposed on it, and (3) shall have impedancesufficiently low to limit the potential above ground and to facilitatethe operation of the overcurrent devices in the circuit.Section 250-45 of the N.E.C. limits the scope of section 250-51. Itprovides:250-45. Equipment Connected by Cord and Plug. Under any of thefollowing conditions, exposed noncurrent-carrying metal parts of cord-and plug- connected equipment, which are liable to become energized,shall be grounded:(a) In hazardous locations (see Articles 500 through 517);(b) When operated at more than 150 volts to ground . . . .(c) In residential occupancies,….[COMMENT:] Portable tools or appliances not provided with specialinsulating or grounding protection are not intended to be used in damp,wet or conductive locations.(d) In other than residential occupancies, (1) refrigerators, freezers,air conditioners, and (2) clothes-washing, clothes-drying anddish-washing machines, sump pumps and (3) portable, hand-held,motor-operated tools and appliances of the following types: drills,hedge clippers, lawn mowers, wet scrubbers, sanders and saws, and (4)cord-and plug-connected appliances used in damp or wet locations, or bypersons standing on the ground or on metal floors or working inside ofmetal tanks or boilers, and (5) portable tools which are likely to beused in wet and conductive locations.The Secretary must establish the applicability of the standards hecites. He has not done so here because there is no evidence that thefans were used under any conditions mentioned in section 205-45. It hasnot been shown that the fans were in \”hazardous locations\” within themeaning of section 250-45(a), were \”operated at more than 150 volts toground\” within the meaning of section 250-45(b),[[5]] or were in aresidential occupancy within the meaning of section 250-45(c). Moreover, although a photographic exhibit indicates that one of the fanswas on a concrete factory floor or similar surface, we do not interpretthe term \”the ground\” in section 250-45(d) to include such factoryfloors. We conclude instead that in this provision the term \”theground\” was used in the ordinary sense of \”earth.\” See Blocksom & Co.,83 OSAHRC 10\/A2, 11 BNA OSHC 1255, 1258, 1983 CCH OSHD ? 26,452, p.33,596-33,597 (No. 76-1897, 1983). We therefore conclude that the fanswere not used by persons standing on \”the ground\” within the meaning ofsection 250-45(d). Therefore, we reverse the decision of theadministrative law judge and vacate these sub-items._Citation 2, Item 1: 29 C.F.R. ? 1910.23(c)(1), Unguarded Platform_.Citation 2 alleges that Clement violated section 1910.23(c)(1), whichrequires that open-sided \”platforms\” four feet or more above adjacentground or floor level be guarded by a railing. Section 1910.21(a)(4)defines \”platform\” as \”[a] working space for persons, elevated above thesurrounding floor or ground; such as a balcony or platform for theoperation of machinery or equipment.\” A Clement employee was working atthe edge of an unguarded surface that was 4.8 feet above the adjacentfloor. The surface is called the mustard or starch deck because mustardand starch are made in two large mixing tanks next to the deck. Theemployee standing on the deck adds ingredients into and performs othertasks with the tanks. The compliance officer, who watched the employeework, testified that the employee is working there \”constantly.\” Theplant manager also testified that \”lots of material [is] being put onthat deck during the day.\”The compliance officer testified that if the employee slipped down intothe triangular space between the tanks and the deck he would strike hisface or head on the lips of the five-foot high tanks, causing aconcussion or lacerations. A photograph introduced by the Secretaryshows an employee standing at the edge of the platform and next to thetriangular space between the tanks and the deck.The judge affirmed the citation. He found that the deck is a \”platform\”within the meaning of section 1910.21(a)(4) because workers regularlywere assigned to work on it to perform tasks central to the employer’sprocesses. He also held that the violation was not de minimis becausean employee who fell off the deck was substantially likely to strike theupper surface of one of the tanks and suffer a concussion orlacerations. The judge assessed no penalty.On review, Clement argues that the violation was de minimis because the0.8 foot deviation from the standard is too small to be significant. Inits petition for discretionary review, the company also claimed that thestandard was inapplicable.We agree with the judge that the standard applies and that the violationwas not de minimis. The judge’s decision that the standard isapplicable is consistent with the definition of \”platform\” in section1910.21(a)(4) and with Commission case law applying the definition. SeeGlobe Industries, Inc., 82 OSAHRC 24\/D4, 10 BNA OSHC 1596, 1982 CCH OSHD? 26,048 (No. 77-4313, 1982).[[6]] As to Clement’s argument that theviolation was de minimis, it is true that the difference betweencompliance and non-compliance here was small–only eight tenths of afoot. While the extent of deviation from a standard is relevant, it isnot necessarily controlling. The test under Commission precedent iswhether the hazard bears such a negligible relationship to employeesafety as to render the imposition of a penalty and the entry of anabatement order inappropriate. Bethlehem Steel Corp.., 81 OSAHRC 86\/A2,9 BNA OSHC 2177, 1981 CCH OSHD ? 25,645 (No. 77-617, 1981). The judgelooked to all the circumstances and found a substantial likelihood thatconcussion or laceration would occur if the employee were to slip offthe deck. We agree with this finding. We therefore affirm citation 2but assess no penalty.Accordingly, the judge’s decision is affirmed in part and reversed inpart. Item 1 and 3A(c) of citation 1 are affirmed; penalties of $210and $70 are assessed. Items 2(a), 4(a) and 4(b) of citation 1 arevacated. Citation 2 is affirmed; no penalty is assessed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: JUL 17 1984CLEARY, Commissioner, dissenting in part:I disagree with the majority’s conclusion that there was no violation ofsection 1910.178(n)(8)’s requirement that an industrial truck \”beoperated at a speed that will permit it to be brought to a stop in asafe manner.\” Accordingly, I dissent.The gravamen of this allegation is that an industrial truck wastravelling at an excessive rate of speed. The truck was travelling atapproximately 15 miles per hour, whereas the speed limit withinClement’s installation was 10 miles per hour. The driver was unaware ofthe speed limit. This is what was cited and what was contained in thecomplaint. The majority, however, then reads the standard to mean ifthe Secretary alleges an employee of Clement was operating a machine atan excessive rate of speed, the Secretary must distinguish between arate of speed that represents a danger to the truck and the driver ifthe machine goes out of control, and a rate of speed that represents thedanger of striking a pedestrian. Depending on his analysis of the typeof accident which might result, he must then select the proper standardbetween one of two, or else he’s out of court.I see no basis in the language of the standard for the constructionarrived at by the majority. The standard is plain: A forklift must \”beoperated at a speed that will permit it to be brought to a stop in asafe manner.\” Yet the majority concludes that the standard \”does notdirect that a driver be able to stop within a particular distance.\” Instead, the majority claims that \”the sense conveyed by the standard isthat forklift trucks should not be operated at speeds so high that theoperator could lose control or the vehicle during braking, injuringhimself and others if the forklift turns over, shifts or loses its load,or swerves out of control.\” However, the majority does not reveal, andI am unable to discover, the source this construction. In any event,the distinction escapes me. I can discern no meaningful difference forpurposes of section 1910.178(n)(8) between driving a forklift so fastthat it cannot be stopped in time to avoid a collision and driving aforklift so fast that it will go out of control during braking. In bothcases, the forklift is not being \”operated at a speed that will permitit to be brought to a stop in a safe manner.\”The majority view that section 1910.178(n)(4) rather than section1910.178 (n)(8) \”was apparently intended to deal with . . . the problemof excessive speed at cross aisles with obstructed views\” is erroneous. Holding that subsection (n)(8) applies in this case would not rendersubsection (n)(4) redundant as the majority claims because one cancomply with subsection (n)(4) and still violate subsection (n)(8). Forexample, a forklift travelling 40 miles per hour in Clement’s plant thatslowed down to 30 miles per hour and sounded the horn at a cross aislewould be in literal compliance with subsection (n)(4) but could not besaid to be operating \”at a speed that will permit it to be brought to astop in a safe manner.\”I also disagree with the majority’s parsing of the various provisions ofthe standard. The source standard for section 1910.178(n) is ANSIB56.1-1969, an advisory standard. See 29 C.F.R. ? 1910.189. ANSIstandards were not drafted with mathematical precision, but werevoluntary standards drafted by practical men for audiences familiar withthe subjects. See Keystone Consolidated Industries, 84 OSAHRC ___, 11BNA OSHC 1847, 1851, 1984 CCH OSHD ? 26,807, p. 34,289-90 (No. 80-5236,1984). The OSHA standard should therefore not be read as if eachprovision were narrowly drawn and mutually exclusive. This much isclear from the words of the standard. For example, section1910.178(n)(1) requires in part that \”[a] safe distance shall bemaintained . . . from the truck ahead, and the truck shall be kept undercontrol at all times.\” Obviously, this requirement overlapsconsiderably with section 1910.178(n)(8)’s requirement that the truck\”be operated at a speed that will permit it to brought to a stop in asafe manner.\” Both standards require the operator to maintain constantcontrol of the truck and enough room in which to stop safely. Section1910.178 (n)(10) similarly requires that the operator \”be required toslow down for wet and slippery floors.\” These standards reflect that anindustrial truck operator is likely to encounter a myriad of conditionsand situations that warrant caution and increased attention to vehiclecontrol. Such standards cannot be written to anticipate everyconceivable driving hazard, and accordingly must be drafted with broadstrokes. It makes no sense to read the ? 1910.178(n) as though itcontains a narrowly-drawn list of discrete requirements. Accordingly, Idissent.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] Clement maintains that the judge did not adequately consider thatpallets inserted into each level of the boxes increased theirstability. We disagree; the judge did take this into account butcorrectly found that no pallet increased the stability of the top tier.Clement also argues that the boxes were turned in different directionsto increase their stability. There is no evidence in the record tosupport this assertion and the photograph of the stack seems tocontradict it.[[2]] The judge found that the violation was \”serious\” within themeaning of section 17(k) of the Act, 29 U.S.C. ? 666(j). The boxesweighed 25 pounds each and were stacked as high as fifteen feet off theground. Employees used walkways within eight feet of the stackedboxes. Clement does not take issue with the judge’s finding ofseriousness, or with his determination that a $210 penalty is appropriate.[[3]] We note that a forklift traveling at 15 m.p.h. would cover 30 feetin less than 1.5 seconds, while a forklift traveling 10 m.p.h. wouldcover the distance in 2 seconds. The margin for error in the methodused to time the forklift’s speed is obvious. Given our disposition ofthe cited item, the potential inaccuracy of the measurement need not beconsidered.[[4]] Chairman Rowland does not agree that the evidence establishesemployee access to the hazard. The compliance officer did not see anyemployee come closer than three feet from the nip points. Although thecompliance officer did testify that an unnamed employee pointed to alocation \”within say a foot or so\” from the pulleys, the complianceofficer testified that he was unable to \”clearly ascertain\” how close anemployee would come to the nip points. The plant manager gave testimonythat employees reached \”in there,\” but this testimony, which was notrelied upon by the judge, does not explain how close to the pulleys theemployees would come. None of the witnesses indicated where employeesstood when they worked in the area, and how or where precisely theyreached. Because such information is lacking and the evidence about howclose the employees would come to the nip points is inconclusive,Chairman Rowland does not find that employees came within the zone ofdanger presented by the machine. Further, Chairman Rowland does notconclude that access to the hazard can be inferred from the photographssubmitted by the parties, since the photographs neither indicate exactlywhere employees would reach in performing the work nor establish thatthe area presents a hazard to the employees from the nip pointsregardless of where the employees reach.In addition, Chairman Rowland would not accord dispositive weight to thecompliance officer’s account of statements made by an unnamed employeeduring a conversation in which no Clement representative was present. It is inherently unfair to base a violation upon such testimony becauseof the obvious difficulty in presenting rebuttal evidence to statementsby a declarant whose identity is not known.[[5]] The compliance officer’s testimony implies that the fans wereoperated at 120 volts and that errant voltage through the motor casingwould be around 12 volts.[[6]] Chairman Rowland agrees that the deck here was a \”platform\” withinthe meaning of section 1910.21(a)(4). In Globe Industries, ChairmanRowland stated that he would follow the analysis set forth by formerCommissioner Moran in Allis-Chalmers Corp., 76 OSAHRC 50\/F8, 4 BNA OSHC 1227, 1975-76 CCH OSHD ?20,666 (No.5210,1976). Consistent with that reasoning, Chairman Rowlandnoted that the use of the \”balcony\” and the phrase \”for the operation ofmachinery and equipment\” in section 1910.21(a)(4) suggests that anelevated surface is not a \”platform\” unless it is erected and designedfor use by employees while operating \”machinery and equipment.\” 10 BNAOSHC at 1599 n.7, 1982 CCH OSHD at p. 32,719 n.7. Chairman Rowland hasalso observed that the applicability of the standard depends on a numberof factors, including the nature of the surface and the frequency andregularity with which employees go onto it, and whether it was designedor intended to function as a working surface. Brown & Root, Power PlantDiv., 82 OSAHRC 40\/A2, 10 BNA OSHC 1837, 1842 n.11, 1982 CCH OSHD ?26,159, p. 32,968 n.11 (No. 77-2553, 1982) (construction standardcounterpart); General Electric Co., 81 OSAHRC 97\/D6, 10 BNA OSHC 1144,1146, 1981 CCH OSHD ? 25,736 p. 32,101 (No. 76-2879, 1981) (concurringopinion)(manufactured part not a \”platform\”). In this case, theChairman notes, the work of the employee on the deck is analogous to theoperation of machinery and equipment, the employee’s activity on thedeck was regular and frequent, and the deck appears to have beenintended by the employer to be used as a surface from which to work. “