“Docket No. 80-0607 SECRETARY OF LABOR,Complainant, v.CLEMENT FOOD COMPANY,Respondent.OSHRC Docket No. 80-0607DECISIONBefore:\u00a0 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 and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).Clement Food Company (\”Clement\”) bottles food products at its plantin Oklahoma City, Oklahoma.\u00a0 The Secretary issued two citations alleging that Clementviolated six occupational safety and health standards.\u00a0 The administrative law judgevacated two items of one citation and affirmed the remaining items.\u00a0 Clement obtainedreview of the five items affirmed by the judge.\u00a0 We affirm the judge’s decision inpart and reverse it in part.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 limited in height so thatthey are stable and secure against sliding or collapse.\”\u00a0 Item 1 of citation 1alleges that the boxes in a fifteen-foot high, tiered stack were not interlocked andblocked.\u00a0 The compliance officer who inspected Clement’s plant testified that he sawa tiered stack of boxes fifteen feet high that was not interlocked and blocked.\u00a0 Healso stated, and a photograph shows, that the top tier of the boxes was leaning. \u00a0There were pallets at lower points in the stack.\u00a0 The compliance officer, who hadreceived a bachelor’s degree in physics and had worked as a failure analyst, physicist,safety engineer, and accident investigator, testified that the center of mass of the stackhad been so displaced that any shock or vibrations from forklift trucks and machinery inthe area could cause the top tier to fall.\u00a0 Each of the boxes weighed 25pounds.\u00a0 Employees walked in the area; one was seen using a walkway eight feet away.The judge relied on the compliance officer’s testimony and the photographicexhibit and found that the boxes were not stacked so as to be stable and secure. \u00a0Clement maintains that the judge erred, chiefly on the ground that the stack was notinherently unstable because an outside force would need to be applied to it to cause acollapse. [[1]]We do not agree with Clement that the item should be vacated.\u00a0 The stackof boxes was not interlocked or blocked, its top tier was leaning, and the administrativelaw judge credited the compliance officer’s testimony that the shock of being struck by aforklift truck or vibrations from nearby machinery could cause the top tier to fall.\u00a0 The standard is not limited by its words to stacks so unstable that they mightcollapse of their own weight.\u00a0 The judge correctly found that the boxes were notstable and secure against sliding and collapse within the meaning of the standard. \u00a0This 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 allegedly operatedat too high a speed to be brought to a safe stop.\u00a0 The cited standard is section1910.178(n)(8), which appears in section 1910.178(n) with several other provisions thatdeal with driving powered industrial trucks.\u00a0 Some of these are:? 1910.178 Powered industrial trucks.(n) Traveling.(1) All traffic regulations shall be observed, including authorized plant speed limits.\u00a0 A safe distance shall be maintained approximately three truck lengths from thetruck ahead, and the truck shall be kept under control at all times.(4) The driver shall be required to slow down and sound the horn at crossaisles and other locations where vision is obstructed….(8) Under all travel conditions the truck shall be operated at a speed thatwill 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 hour inside Clement’splant.\u00a0 Clement had forklift pathways painted on the plant floor.\u00a0 Thecompliance officer measured a distance of \”about 30 feet\” between two marks onthe floor.\u00a0 Using a stopwatch, he then timed a forklift traveling between those twomarks and calculated the speed to be \”within 15 miles an hour.\”[[3]]\u00a0 Thecompliance officer stated that he had been told by the quality control operating managerthat the plant had a 10 mile per hour speed limit.\u00a0 The driver of the forklift toldthe compliance officer that he was unaware of such a limit.\u00a0 The compliance officeralso testified that the driver stated that he had not been instructed to sound his horn atan intersection.The compliance officer was concerned that the speed of the forklift was toohigh for the truck to be stopped before it hit a pedestrian at an employee walkway thatintersected the forklift path.\u00a0 Factory walls obstructed the driver’s vision of thewalkway so that he would have had only eight feet in which to stop once he saw apedestrian. \u00a0 Because he calculated the stopping distance of the forklift to be about15 feet, the compliance officer concluded that the vehicle was being driven too fast tostop 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.\u00a0 Clement argues,however, that \”[t]here was no evidence that the forklift trucks here could not bebrought to a stop in a safe manner.\”\u00a0 It notes in its petition for discretionaryreview that section 1910.178(n)(8) requires that trucks be operated at speeds that permitthem to be brought to a stop in a safe manner, \”not, within a ‘safe distance’ as thecompliance officer seems to suggest.\” Before the judge, Clement noted that thecompliance officer could not recall whether the driver had been instructed to slow down atblind intersections.\u00a0 On review, the Secretary repeats the compliance officer’sconcern with the driver’s inability to stop in time if a pedestrian stepped into theforklift’s path at an obstructed crosswalk.\u00a0 The Secretary also notes a lack of speedlimit signs and the asserted failure to instruct the driver to sound the horn atintersections.It is well-settled that to prove a violation of a standard, the Secretarymust show that the cited standard applies to the cited condition. E.g., Howard BarthelmassPainting Co., 81 OSAHRC 84\/El, 9 BNA OSHC 2160, 1981 CCH OSHD ? 25,636 (No. 78-5450,1981).\u00a0 The Secretary has not done so here.\u00a0 The standard does not direct that adriver be able to stop within a particular distance. Instead, the sense conveyed by thestandard is that forklift trucks should not be operated at speeds so high that theoperator could lose control of the vehicle during braking, injuring himself and others ifthe forklift turns over, shifts or loses its load, or swerves out of control.\u00a0 Thisis a particular problem with forklift trucks because they have unusual handlingcharacteristics and stability problems, which are exacerbated when they are loaded. \u00a0See National Safety Council, Accident Prevention Manual for Industrial Operations: \u00a0Engineering & Technology, 229, 236-7, 238 (8th ed. 1980).\u00a0 There is no evidencethat the forklift here was operated at a speed so high that these problems would ariseduring braking.That section 1910.178(n)(8) does not apply to the cited conditions is alsosupported by the fact that another provision, section 1910.178(n)(4), was apparentlyintended to deal with the Secretary’s primary concern, the problem of excessive speed atcross aisles with obstructed views, as well as his secondary concern, the lack of aninstruction to sound the horn at intersections with obstructed views.\u00a0 That standardstates that \”[t]he driver shall be required to slow down and sound the horn at crossaisles and other locations where vision is obstructed.\”\u00a0 We see no reason toconstrue section 1910.178(n)(8) so as to be redundant with section 1910.178(n)(4).\u00a0Much the same can be said for the Secretary’s concern with the lack of speed limitsigns.\u00a0 Section 1910.178(n)(1) covers this point; it states that \”[a]ll trafficregulations shall be observed, including authorized plant speed limits.\” \u00a0Clement was not cited for violations of these provisions.\u00a0 The evidence does notsupport a finding that Clement violated the cited standard and we therefore reverse thejudge 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), whichrequires that pulleys seven feet or less from the floor be guarded.\u00a0 The primarydispute between the parties is whether the record adequately shows that employees had\”access\” to the violative condition, i.e., whether in the course of their dutiesit is reasonably predictable that they will be, are, or have been in a zone of danger.\u00a0 See Carpenter Contracting Corp., OSHRC Docket No. 81-0338 (June 26, 1984); Gilles& Cotting, Inc., 76 OSAHRC 30\/D9, 3 BNA OSHC 2002, 2003, 1975-76 CCH 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 lineon a conveyor so that they can be filled.\u00a0 The machine has two belts, one of whichcontacts four pulley wheels while the other contacts three pulley wheels.\u00a0 All of thepulley wheels are less than seven feet off the ground and are unguarded.\u00a0 At leastone of the pulleys contacts the glass bottles and causes them to move into alignment forfilling.\u00a0 Occasionally, a bottle falls over and the machine operator must reach inand set the bottle upright.\u00a0 The dispute is whether the employees were shown to havecome within the zone of danger of the nip points of the pulleys.The compliance officer testified that he interviewed the machine operator andwatched him work.\u00a0 According to the compliance officer’s account of the interview,employees \”will walk within [reaching distance of] the actual operating nippoint\” when \”they reach in to straighten [the bottles] out.\”\u00a0 Themachine operator had also pointed to a location within a foot or so of the nip points orbelts where he would be.\u00a0 Clement’s plant manager also testified that, although aplastic shield had been installed over the pulleys, belts and bottles after theinspection, employees have to \”reach in there\” under the shield and in the areaof the pulleys, belts and bottles to set a bottle upright.\u00a0 The photographs submittedby both parties show that the area enclosed by the pulleys and in which the bottles aremoved 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 [a photograph]required her to go to the area of the exposed pulleys under certain conditions.\”\u00a0 Clement Food argues that the judge’s finding should be overturned.\u00a0 Itemphasizes that the compliance officer did not see any employee come closer than six feetto the pulleys and that it could not have fairly rebutted the compliance officer’stestimony as to what a machine operator had told him.\u00a0 Clement notes that it does notknow the name of the employee to whom the compliance officer spoke and that the complianceofficer did not take notes of the conversation, which occurred 16 months before thehearing.We agree with the judge that the evidence is sufficient to find that aviolation occurred.\u00a0 This would be so even if we were to disregard the complianceofficer’s account of what the machine operator told him.\u00a0 Clement’s own plant managertestified that when bottles fell over, the employee would have to reach in to the area ofthe pulleys, belts and bottles.\u00a0 Moreover, the photographs introduced by both partiesshow that the area enclosed by the pulleys and in which the bottles are moved by the beltsis small.\u00a0 In view of this, the judge’s finding cannot be overturned.[[4]]Clement also claimed before the administrative law judge and maintained inits petition for discretionary review that the standard cannot be complied with. \u00a0After the inspection, Clement installed a transparent plastic shield over the entire areain which there were pulleys and belts.\u00a0 Clement’s plant manager testified that if abottle fell over, however, the employee would still have to reach inside the guard to setthe bottle upright.\u00a0 In its petition for discretionary review, Clement argues alsothat if the pulleys are guarded, they will not do what they are required to do–push thebottles along.\u00a0 The judge rejected Clement’s argument because it was not supported bythe evidence.We are not convinced that Clement cannot comply with the standard. \u00a0Section 1910.219(d)(1) requires guards for pulleys, not belts.\u00a0 That Clement’semployees cannot be protected by the plastic shield can be attributed to the fact that theshield covers both the pulleys and belts.\u00a0 Clement did not show, however, that guardscannot be installed only over the pulleys or that the machine cannot be turned off whenthe operator reaches in to set a bottle upright.\u00a0 And, contrary to Clement’sargument, the record does not show that the pulleys need to be unguarded to push thebottles along.\u00a0 At most, the record shows that the belts need to be unguarded. \u00a0As we have said, however, the standard does not require that the belts be guarded.The judge also affirmed the citation’s characterization of the violation as\”serious.\”\u00a0 The judge relied on the compliance officer’s testimony thatamputation could result if an employee’s hand or finger were caught in the nip point ofthe pulleys, and on the testimony of both the compliance officer and Clement’s plantmanager that the belts were tight.\u00a0 The compliance officer stated that the beltslooked tight because they did not oscillate at their midpoints.\u00a0 The plant managerstated that the belts were as tight as they could be made by hand.\u00a0 Clement arguesthat the compliance officer’s testimony that amputation could result was unsupportedspeculation, particularly since the compliance officer had never tested the tightness ofthe belts.A violation is \”serious\” within the meaning of section 17(k) of theAct, 29 U.S.C. ? 661(i), if the record shows that there is a substantial probability thatdeath or serious physical harm could result from the violative condition.\u00a0 We are notconvinced that the judge’s finding on this point was erroneous.\u00a0 The complianceofficer’s testimony was uncontradicted and plausible, and was apparently based on hisconsiderable experience in the investigation of accidents.\u00a0 We are not convinced,however, that the violation was of high \”gravity\” within the meaning of section17(j) of the Act, 29 U.S.C. ? 666(i).\u00a0 One of the factors considered in determiningthe gravity of a violation is the probability of injury.\u00a0 National Realty &Construction Co., 72 OSAHRC 9\/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).\u00a0 Therecord does establish that the probability of an accident was low.\u00a0 The operator’shand is within the area of the pulleys only momentarily, and the record does not show thatan accident had ever occurred.\u00a0 Because the record does not show the number ofemployees exposed to the violative condition, we must assume that it was only one.\u00a0 Finally, we find that Clement proceeded in good faith.\u00a0 As the complianceofficer stated, Clement was very interested in learning about the hazards in its plant,and it quickly moved to abate the violations.\u00a0 In view of the low gravity of theviolation and Clement’s good faith, we assess a penalty of $70 instead of the $140assessed by the judge.Citation 1, Item 4: 29 C.F.R. ? 1910.309(a), N.E.C. ? 250-51, UngroundedFans.Items 4(a) and (b) of citation 1 allege that two fans were not grounded andthat this was a violation of the standard at 29 C.F.R. ? 1910.309(a) (1979). At the timethe alleged violation occurred the 1971 edition of National Electrical Code, NFPA No.70-HC, ANSI C1-1971, had been incorporated by reference as an occupational safety andhealth standard by former section 1910.309(a).N.E.C. section 250-51 provides:250-51.\u00a0 Effective Grounding.\u00a0 The path of ground from circuits,equipment, and conductor enclosures shall (1) be permanent and continuous and (2) shallhave ample carrying capacity to conduct safely any currents liable to be imposed on it,and (3) shall have impedance sufficiently low to limit the potential above ground and tofacilitate the operation of the overcurrent devices in the circuit.Section 250-45 of the N.E.C. limits the scope of section 250-51.\u00a0 Itprovides: 250-45.\u00a0 Equipment Connected by Cord and Plug.\u00a0 Under any of thefollowing conditions, exposed noncurrent-carrying metal parts of cord- and plug- connectedequipment, 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 special insulating or groundingprotection 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 and dish-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-andplug-connected appliances used in damp or wet locations, or by persons standing on theground or on metal floors or working inside of metal tanks or boilers, and (5) portabletools which are likely to be used in wet and conductive locations.The Secretary must establish the applicability of the standards he cites.\u00a0 He has not done so here because there is no evidence that the fans were used underany conditions mentioned in section 205-45.\u00a0 It has not been shown that the fans werein \”hazardous locations\” within the meaning of section 250-45(a), were\”operated at more than 150 volts to ground\” within the meaning of section250-45(b),[[5]] or were in a residential occupancy within the meaning of section250-45(c).\u00a0 Moreover, although a photographic exhibit indicates that one of the fanswas on a concrete factory floor or similar surface, we do not interpret the term \”theground\” in section 250-45(d) to include such factory floors.\u00a0 We concludeinstead that in this provision the term \”the ground\” was used in the ordinarysense of \”earth.\”\u00a0 See Blocksom & Co., 83 OSAHRC 10\/A2, 11 BNA OSHC1255, 1258, 1983 CCH OSHD ? 26,452, p. 33,596-33,597 (No. 76-1897, 1983).\u00a0 Wetherefore conclude that the fans were not used by persons standing on\u00a0 \”theground\” within the meaning of section 250-45(d).\u00a0 Therefore, we reverse thedecision of the administrative 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), which requires thatopen-sided \”platforms\” four feet or more above adjacent ground or floor level beguarded by a railing.\u00a0 Section 1910.21(a)(4) defines \”platform\” as\”[a] working space for persons, elevated above the surrounding floor or ground; suchas a balcony or platform for the operation of machinery or equipment.\”\u00a0 AClement employee was working at the edge of an unguarded surface that was 4.8 feet abovethe adjacent floor.\u00a0 The surface is called the mustard or starch deck because mustardand starch are made in two large mixing tanks next to the deck.\u00a0 The employeestanding on the deck adds ingredients into and performs other tasks with the tanks.\u00a0The compliance officer, who watched the employee work, testified that the employeeis working there \”constantly.\”\u00a0 The plant manager also testified that\”lots of material [is] being put on that deck during the day.\”The compliance officer testified that if the employee slipped down into thetriangular space between the tanks and the deck he would strike his face or head on thelips of the five-foot high tanks, causing a concussion or lacerations.\u00a0 A photographintroduced by the Secretary shows an employee standing at the edge of the platform andnext to the triangular space between the tanks and the deck.The judge affirmed the citation.\u00a0 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’s processes.\u00a0 Healso held that the violation was not de minimis because an employee who fell off the deckwas substantially likely to strike the upper surface of one of the tanks and suffer aconcussion or lacerations.\u00a0 The judge assessed no penalty.On review, Clement argues that the violation was de minimis because the 0.8foot deviation from the standard is too small to be significant.\u00a0 In its petition fordiscretionary review, the company also claimed that the standard was inapplicable.We agree with the judge that the standard applies and that the violation wasnot de minimis.\u00a0 The judge’s decision that the standard is applicable is consistentwith the definition of \”platform\” in section 1910.21(a)(4) and with Commissioncase law applying the definition.\u00a0 See Globe Industries, Inc., 82 OSAHRC 24\/D4, 10BNA OSHC 1596, 1982 CCH OSHD ? 26,048 (No. 77-4313, 1982).[[6]]\u00a0 As to Clement’sargument that the violation was de minimis, it is true that the difference betweencompliance and non-compliance here was small–only eight tenths of a foot.\u00a0 While theextent of deviation from a standard is relevant, it is not necessarily controlling.\u00a0The test under Commission precedent is whether the hazard bears such a negligiblerelationship to employee safety as to render the imposition of a penalty and the entry ofan abatement order inappropriate.\u00a0 Bethlehem Steel Corp.., 81 OSAHRC 86\/A2, 9 BNAOSHC 2177, 1981 CCH OSHD ? 25,645 (No. 77-617, 1981).\u00a0 The judge looked to all thecircumstances and found a substantial likelihood that concussion or laceration would occurif the employee were to slip off the deck. We agree with this finding.\u00a0 We thereforeaffirm citation 2 but assess no penalty.Accordingly, the judge’s decision is affirmed in part and reversed in part.\u00a0 Item 1and 3A(c) of citation 1 are affirmed; penalties of $210 and $70 are assessed.\u00a0 Items2(a), 4(a) and 4(b) of citation 1 are vacated.\u00a0 Citation 2 is affirmed; no penalty isassessed.FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary DATED:\u00a0 JUL 17 1984 CLEARY, 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 \”be operated at a speedthat will permit it to be brought to a stop in a safe manner.\”\u00a0 Accordingly, Idissent.The gravamen of this allegation is that an industrial truck was travelling atan excessive rate of speed.\u00a0 The truck was travelling at approximately 15 miles perhour, whereas the speed limit within Clement’s installation was 10 miles per hour.\u00a0The driver was unaware of the speed limit.\u00a0 This is what was cited and what wascontained in the complaint.\u00a0 The majority, however, then reads the standard to meanif the Secretary alleges an employee of Clement was operating a machine at an excessiverate of speed, the Secretary must distinguish between a rate of speed that represents adanger to the truck and the driver if the machine goes out of control, and a rate of speedthat represents the danger of striking a pedestrian.\u00a0 Depending on his analysis ofthe type of accident which might result, he must then select the proper standard betweenone of two, or else he’s out of court.I see no basis in the language of the standard for the construction arrivedat by the majority.\u00a0 The standard is plain:\u00a0 A forklift must \”be operatedat a speed that will permit it to be brought to a stop in a safe manner.\”\u00a0 Yetthe majority concludes that the standard \”does not direct that a driver be able tostop within a particular distance.\”\u00a0 Instead, the majority claims that \”thesense conveyed by the standard is that forklift trucks should not be operated at speeds sohigh that the operator could lose control or the vehicle during braking, injuring himselfand others if the forklift turns over, shifts or loses its load, or swerves out ofcontrol.\”\u00a0 However, the majority does not reveal, and I am unable to discover,the source this construction.\u00a0 In any event, the distinction escapes me.\u00a0 I candiscern no meaningful difference for purposes of section 1910.178(n)(8) between driving aforklift so fast that it cannot be stopped in time to avoid a collision and driving aforklift so fast that it will go out of control during braking.\u00a0 In both cases, theforklift is not being \”operated at a speed that will permit it to be brought to astop in a safe manner.\”The majority view that section 1910.178(n)(4) rather than section 1910.178(n)(8) \”was apparently intended to deal with . . . the problem of excessive speed atcross aisles with obstructed views\” is erroneous.\u00a0 Holding that subsection(n)(8) applies in this case would not render subsection (n)(4) redundant as the majorityclaims because one can comply with subsection (n)(4) and still violate subsection (n)(8).\u00a0 For example, a forklift travelling 40 miles per hour in Clement’s plant that sloweddown to 30 miles per hour and sounded the horn at a cross aisle would be in literalcompliance with subsection (n)(4) but could not be said to be operating \”at a speedthat will permit it to be brought to a stop in a safe manner.\”I also disagree with the majority’s parsing of the various provisions of thestandard.\u00a0 The source standard for section 1910.178(n) is ANSI B56.1-1969, anadvisory standard.\u00a0 See 29 C.F.R. ? 1910.189.\u00a0 ANSI standards were not draftedwith mathematical precision, but were voluntary standards drafted by practical men foraudiences familiar with the subjects.\u00a0 See Keystone Consolidated Industries, 84OSAHRC ___, 11 BNA OSHC 1847, 1851, 1984 CCH OSHD ? 26,807, p. 34,289-90 (No. 80-5236,1984).\u00a0 The OSHA standard should therefore not be read as if each provision werenarrowly drawn and mutually exclusive.\u00a0 This much is clear from the words of thestandard.\u00a0 For example, section 1910.178(n)(1) requires in part that \”[a] safedistance shall be maintained . . . from the truck ahead, and the truck shall be kept undercontrol at all times.\”\u00a0 Obviously, this requirement overlaps considerably withsection 1910.178(n)(8)’s requirement that the truck \”be operated at a speed that willpermit it to brought to a stop in a safe manner.\”\u00a0 Both standards require theoperator to maintain constant control of the truck and enough room in which to stopsafely.\u00a0 Section 1910.178 (n)(10) similarly requires that the operator \”berequired to slow down for wet and slippery floors.\”\u00a0 These standards reflectthat an industrial truck operator is likely to encounter a myriad of conditions andsituations that warrant caution and increased attention to vehicle control.\u00a0 Suchstandards cannot be written to anticipate every conceivable driving hazard, andaccordingly must be drafted with broad strokes.\u00a0 It makes no sense to read the ?1910.178(n) as though it contains a narrowly-drawn list of discrete requirements.\u00a0Accordingly, I dissent.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 their stability.\u00a0 Wedisagree; the judge did take this into account but correctly found that no palletincreased the stability of the top tier. Clement also argues that the boxes were turned indifferent directions to increase their stability.\u00a0 There is no evidence in the recordto support this assertion and the photograph of the stack seems to contradict 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).\u00a0 The boxes weighed 25pounds each and were stacked as high as fifteen feet off the ground.\u00a0 Employees usedwalkways within eight feet of the stacked boxes.\u00a0 Clement does not take issue withthe judge’s finding of seriousness, or with his determination that a $210 penalty isappropriate.[[3]] We note that a forklift traveling at 15 m.p.h. would cover 30 feet in less than 1.5seconds, while a forklift traveling 10 m.p.h. would cover the distance in 2 seconds.\u00a0The margin for error in the method used to time the forklift’s speed isobvious.\u00a0 Given our disposition of the cited item, the potential inaccuracy of themeasurement need not be considered.[[4]] Chairman Rowland does not agree that the evidence establishes employeeaccess to the hazard.\u00a0 The compliance officer did not see any employee come closerthan three feet from the nip points.\u00a0 Although the compliance officer did testifythat an unnamed employee pointed to a location \”within say a foot or so\” fromthe pulleys, the compliance officer testified that he was unable to \”clearlyascertain\” how close an employee would come to the nip points.\u00a0 The plantmanager gave testimony that employees reached \”in there,\” but this testimony,which was not relied upon by the judge, does not explain how close to the pulleys theemployees would come.\u00a0 None of the witnesses indicated where employees stood whenthey worked in the area, and how or where precisely they reached.\u00a0 Because suchinformation is lacking and the evidence about how close the employees would come to thenip points is inconclusive, Chairman Rowland does not find that employees came within thezone of danger presented by the machine.\u00a0 Further, Chairman Rowland does not concludethat access to the hazard can be inferred from the photographs submitted by the parties,since the photographs neither indicate exactly where employees would reach in performingthe work nor establish that the area presents a hazard to the employees from the nippoints regardless 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 employee during aconversation in which no Clement representative was present.\u00a0 It is inherently unfairto base a violation upon such testimony because of the obvious difficulty in presentingrebuttal evidence to statements by a declarant whose identity is not known.[[5]] The compliance officer’s testimony implies that the fans were operatedat 120 volts and that errant voltage through the motor casing would be around 12 volts.[[6]] Chairman Rowland agrees that the deck here was a \”platform\”within the meaning of section 1910.21(a)(4).\u00a0 In Globe Industries, Chairman Rowlandstated that he would follow the analysis set forth by former Commissioner Moran in Allis-Chalmers Corp., 76 OSAHRC 50\/F8, 4 BNA OSHC 1227, 1975-76 CCH OSHD ? 20,666(No.5210,1976).\u00a0 Consistent with that reasoning, Chairman Rowland noted that the useof the \”balcony\” and the phrase \”for the operation of machinery andequipment\” in section 1910.21(a)(4) suggests that an elevated surface is not a\”platform\” unless it is erected and designed for use by employees whileoperating \”machinery and equipment.\”\u00a0 10 BNA OSHC at 1599 n.7, 1982 CCHOSHD at p. 32,719 n.7.\u00a0 Chairman Rowland has also observed that the applicability ofthe standard depends on a number of factors, including the nature of the surface and thefrequency and regularity with which employees go onto it, and whether it was designed orintended to function as a working surface.\u00a0 Brown & Root, Power Plant Div., 82OSAHRC 40\/A2, 10 BNA OSHC 1837, 1842 n.11, 1982 CCH OSHD ? 26,159, p. 32,968 n.11 (No.77-2553, 1982) (construction standard counterpart); 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\”).\u00a0 In this case, the Chairmannotes, the work of the employee on the deck is analogous to the operation of machinery andequipment, the employee’s activity on the deck was regular and frequent, and the deckappears to have been intended by the employer to be used as a surface from which to work.\u00a0″