“Docket No. 78-0275a SECRETARY OF LABOR,Complainant,v.EMERSON ELECTRIC COMPANY, EMERSON ELECTRIC MOTOR DIVISION, Respondent.OSHRC Docket No. 78- 0275DECISION Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:Emerson Electric Company, Emerson Electric Motor Division, manufactures electric motors ata plant in Oxford, Mississippi. In December 1 a compliance officer with the U.S.Department of Labor, Occupational Safety and Health Administration, conducted aninspection of the plant and thereafter the Secretary of Labor issued two citationsalleging serious and nonserious violations of the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”). Emerson Electric contested thecitations and a hearing was held before Administrative Law Judge John S. Patton. In hisdecision, Judge Patton vacated one citation item concerning an operation for transferringmolten aluminum to die casting machines in the die casting area of the plant. He alsoaffirmed two citation items concerning obstructions in a passageway and eye protectionequipment for employees working in the stator core fabrication area. Commissioner Cottineand former Commissioner Barnako directed review of the case pursuant to section 12(j) ofthe Act, 29 U.S.C. ? 661(i), on issues relating to the three citation items. For thefollowing reasons, we affirm in part and reverse in part.Serious Citation Item 1 – The Molten Aluminum TransferIIn the die casting area of Emerson Electric’s plant, the compliance officer observed theoperation of a \”monorail system\” or \”monorail crane,\” which was usedto transfer molten aluminum from the pit to individual die casting machines. The monorailsystem consisted of a hook, ropes, and motor suspended by a trolley from a rail near theceiling. The monorail system could lift objects up and down as well as back and forth. Themovements were controlled by an operator with an electrical pendant control.For use in transferring the molten aluminum, there was suspended from the monorail systema large, cylindrical container called a \”pot,\” which the operator, who walkedalong the path of the monorail system, generally guided and steadied during operation byholding a handle or \”tiltwheel\” on one end.[[1]] About ten times each shift, theoperator filled the pot at the molten aluminum pit, moved and guided the pot along the rowof die casting machines, and poured molten aluminum into the machines. During theinspection, the compliance office\” saw the operator raise the pot to a level abovehis head so as to clear an electrical conduit which was part of one of the adjacentmachines and which projected into the passageway. At one time, the operator raised the potso high that he was unable to hold onto the tiltwheel to steady it. The compliance officerfeared that the aluminum could spill out of the pot and endanger the operator. He positedthat a part of the monorail system might fail because of hitting the obstruction in thepassageway and cause the pot to tip or fall, spilling molten aluminum onto the operator.The aluminum was as hot as 1350 degrees Fahrenheit. While the operator did not standdirectly under the pot, he was generally within arm’s reach of it. Also, because thecompliance officer saw water on the floor in the passageway, he posited that a moltenaluminum spill could cause an explosion by entrapping steam.[[2]]The compliance officer suggested that any hazard to the operator could be eliminated byeither elevating the operator on a platform along the passageway and correcting theproblem of water in the passageway or implementing a remote control system for moving andguiding the monorail system. Emerson Electric’s general maintenance foreman testified thatthe operators were instructed to keep the pot at or below waist, level except wherenecessary to raise the pot to a higher level in order to clear an obstruction. When themolten aluminum was poured into the die casting machines, the pot was higher than waistlevel but the operator stood on a platform, bringing him up next to the pot. The operatorswere also instructed not to stand under the pot. When operators were trained at the plant,they observed experienced operators perform the operation, they were instructed in thesafety requirements, and their own performance of the operation was closely observed for atime. Employees who committed infractions of the safety requirements or rules weredisciplined, with suspension if necessary.IIThe citation item concerning the monorail system for transferring molten aluminum allegedthat Emerson Electric violated section 5(a)(1) of the Act.[[3]] During the hearing,Emerson Electric moved to dismiss the citation item on the basis that specific standardsin 29 C.F.R. ? 1910.179 pertaining to overhead and gantry cranes applied to the monorailsystem in this case. Judge Patton reserved ruling at the hearing but in his decision hedetermined that Emerson Electric’s monorail system was a crane within the meaning ofdefinitional standards in section 1910.179.[[4]] Reasoning that citation to section5(a)(1) is inappropriate where specific standards apply, Judge Patton dismissed thecitation item. He declined to amend the citation item to allege a violation of anystandard in section 1910.179 because the Secretary had not made a motion to amend.The Secretary filed a petition for review in which he argued that the judge should haveamended the citation to allege a violation of section 1910.179 (n)(3)(vi).[[5]] TheSecretary argued that the hazard involved in this case was transferring molten aluminumover the heads of employees.Commissioner Cottine granted the Secretary’s petition. The following issues were specifiedin the direction for review:1. Whether the administrative law judge erred in vacating Citation 1, item No. 1, alleginga violation of ? 5(a)(1) of the Act, on the ground that a specific standard, 29 C.F.R. ?1910.179, was applicable to the cited hazardous condition. 2. If 29 C.F.R. ? 1910.179 is applicable, whether the administrative law judge erred infailing to amend the pleadings under Fed. R. Civ. P. 15(b) to allege noncompliance with 29C.F.R. ? 1910.179.The Secretary did not file a brief in response to the direction for review. EmersonElectric filed a brief in which the company argues that the monorail system was a cranewithin the meaning of the definitional standards in section 1910.179 on which Judge Pattonrelied, and that section 1910.179(n)(3)(vi) applies to the facts of this case because itpertains to the hazard of lifting loads over people. Emerson Electric maintains that itdid not violate section 1910.179(n)(3)(vi).The parties thus agree that section 1910.179(n)(3)(vi) applies to the facts of thiscase.[[6]] Therefore citation to section 5(a)(1) is inappropriate, e.g., Ted Wilkerson,Inc., 81 OSAHRC 70\/D8, 9 BNA OSHC 2012, 1981 CCH OSHD ? 25,551 (No. 13390, 1980), and weturn to whether the citation item should be amended under Rule 15(b) of the Federal Rulesof Civil Procedure[[7]] to allege a violation of section 1910.179(n)(3)(vi).III Under Federal Rule 15(b), amendment will be granted where, as in this case, the amendmentdoes not add any new questions of fact, only a new legal theory; the party opposing theamendment has introduced or failed to object to evidence relevant to the unpleaded issue;and that party would not be prejudiced by the amendment. Farmers Cooperative Grain andSupply Co., 82 OSAHRC, 10 BNA OSHC 2086, 1982 CCH OSHD ? 26,301 (No. 79-1177, 1982), andcases cited therein; see also Morgan & Culpepper, Inc. v. OSHRC, 676 F.2d 1065 (5thCir. 1982). In this case, the factual issues relevant both to the alleged section 5(a)(1)violation and a section 1910.179(n)(3)(vi) violation concern the conditions presented byEmerson Electric’s operation using the monorail system to transfer molten aluminum, andthe company’s measures or practices against carrying the aluminum over the operator’shead. Thus, the factual issues relevant to the amended charge were presented in theoriginal charge and were fully tried. Moreover, Emerson Electric raised the matter of theapplicability of standards in section 1910.179 and did not object to evidence showing thatthese standards were applicable. The company argues in its brief that it could haveintroduced different evidence to the amended charge than was introduced to the originalcharge, but the contention misconceives the nature of the amended charge. Emerson Electricargues that section 1910.179(n)(3)(vi) applies because the standard pertains to carryingloads, but the company interprets the standard to prohibit only carrying loads directlyover employees. The company argues that, if the violation in this case had originally beentried under the standard rather than section 5(a)(1), the company could have defendedshowing that loads were not moved directly over the operator. However, properlyinterpreted, section 1910.179(n)(3)(vi) proscribes carrying loads over employees ingeneral, not just carrying loads directly over employees. See note 6 supra. Under thisinterpretation, a charge under the standard and the section 5(a)(1) charge in this caseare substantially the same and Emerson Electric’s defenses to the Secretary’s case shouldbe substantially unaltered by the amendment. Also, as discussed in the following sectionof this opinion, we give Emerson Electric the opportunity to argue defenses to the amendedcharge. Accordingly, we reject the company’s claim of prejudice and grant the Secretary’smotion to amend.[[8]]IV There remains for consideration whether Emerson Electric committed a violation of section1910.179(n)(3)(vi). The record reveals that loads of molten aluminum were carried over themonorail system operator’s head and that, as a consequence, the operator was exposed toburn and explosion hazards. The record also reveals that Emerson Electric knew this, forthe company knew that the pot had to be raised above head height to clear obstructions andinstructed its operators simply to maintain the pot at the lowest level possible and neverto stand under the pot.Emerson Electric contends that, by giving these instructions, it complied with thestandard. The company argues that, because the standard requires the employer to\”avoid carrying loads over people,\” the standard simply advises the employer tocomply where possible, it does not absolutely require compliance. However, the dictionarymeaning of \”avoid\” is \”to prevent the occurrence of,\”[[9]] and thusthe standard is mandatory, not advisory. Moreover, while the employer’s duty to complywith a mandatory requirement is not absolute,[[10]] an employer in Emerson Electric’sposition, knowing of the noncompliance, must establish an affirmative defense such asimpossibility of compliance or unpreventable employee misconduct in order to escapeliability for the violation. See eg., General Electric Co., 82 OSAHRC 31\/C2, 10 BNA OSHC1687, 1982 CCH OSHD ? 26,071 (No. 77-4476, 1982) (impossibility of compliance); George C.Christopher & Sons, 82 OSAHRC 9\/A2, 10 BNA OSHC 1436, 1982 CCH OSHD ? 25,956 (No.76-647, 1982), and cases cited therein (impossibility of compliance); Daniel ConstructionCo., 82 OSAHRC 23\/A2, 10 BNA OSHC 1549, 1982 CCH OSHD ? 26,027 (No. 16265, 1982) andcases cited therein (unpreventable employee misconduct).We interpret Emerson Electric’s argument regarding its instructions and their enforcementas raising the defense of unpreventable employee misconduct. To establish this defense,the employer must demonstrate that the noncomplying conduct by an employee was a departurefrom an enforced workrule designed to prevent the conduct. See Daniel Construction Co.,supra; Bethlehem Steel Corp., 81 OSAHRC 86\/A2, 9 BNA OSHC 2177, 1981 CCH OSHD ? 25,645(No. 77-617, 1981), pet. denied, No. 81-2802 (3rd Cir. June 17, 1982); Daniel ConstructionCo. of Alabama, 81 OSAHRC 71\/A2, 9 BNA OSHC 2002, 1981 CCH OSHD ? 25,553 (No. 13874,1981); Frank Swidzinski Co., 81 OSAHRC 4\/EI4, 9 BNA OSHC 1230, 1981 CCH OSHD ? 25,127,(No. 76-4627, 1981). Emerson Electric’s instruction about keeping the pot as low aspossible was designed, the company’s general maintenance foreman freely admitted, topermit the employee to raise the pot above head height to clear obstructions, and thecompany’s other instruction about not standing under the pot apparently permitted theemployee to stand near enough to hold the elevated pot by the tiltwheel while guiding itoverhead. Thus, Emerson Electric’s instructions were not designed to prevent hazardousexposure due to raising the pot over the employee. Accordingly, an unpreventable employeemisconduct defense has not been established on this record. This is not to say thatEmerson Electric should have absolutely prohibited raising the pot despite obstructions inthe passageway which required the pot to be raised. But there is evidence in this casethat Emerson Electric could have eliminated the hazardous exposure of the monorail systemoperators by installing a remote control system, for example, and Emerson Electric doesnot argue that it was impossible to prevent the carrying of loads over the operator’s headby this means.Emerson Electric’s argument and evidence imply only that physically removing theobstruction may have been impossible. Therefore, we conclude that Emerson Electricviolated section 1910.179(n)(3)(vi). However, because Emerson Electric was not confrontedwhen the case was tried under section 5(a)(1) with the burden of establishing theaffirmative defenses we have mentioned in this opinion, our affirmance of the citationitem for violation of section 1910.179(n)(3)(vi) will be conditional. Emerson Electric mayrequest the opportunity to present argument on defenses to the amended charge. See Morgan& Culpepper, Inc. v. OSHRC, supra.A violation is serious if an accident could have occurred and if death or serious physicalharm was substantially probable as a result. Kaiser Aluminum & Chemical Co., 82 OSAHRC41\/B1, 10 BNA OSHC 1893, 1982 CCH OSHD ? 26,162 (No. 77-699, 1982), and cases citedtherein; Wright & Lopez, Inc., 81 OSAHRC 92\/D10, 10 BNA OSHC 1108, 1981 CCH OSHD ?25,728 (No. 76- 256, 1981). Because the record in this case shows that the results of amolten aluminum spill would likely have been severe burns or death, we conclude that theviolation was serious. Having considered Emerson Electric’s size, prior history, and goodfaith, along with the gravity of the violation, we assess a penalty of $300, which is theamount originally proposed by the Secretary in the citation.Nonserious Citation Item 1 – Obstructions in the PassagewayDuring the inspection, the compliance officer saw a pipe on the floor of the passagewaywhere the operator of the monorail system walked when guiding the pot of molten aluminum.The compliance officer believed that the pipe presented a tripping hazard. He also saw thepot bump into the obstruction in the passage-way, a piece of electrical conduit which waspart of one of the adjacent machines. As has been discussed, the pot could be raisedenough to move above the conduit without striking it and Emerson Electric intendedoperators to raise the pot. However, the compliance officer believed that striking theconduit presented a hazard of damage to the monorail system and spills of molten aluminum.Accordingly, OSHA alleged in the nonserious citation that Emerson Electric violated 29C.F.R. ? 1910.22(b)(1). [[11]]Judge Patton affirmed the item and Emerson Electric filed a petition for review. In itEmerson Electric argued that the cited standard is inapplicable to tripping hazards suchas the pipe involved in this case, that standards in section 1910.179 apply specificallyto obstructions in the path of a crane, and that the electrical conduit in this case didnot obstruct passage of the crane. Former Commissioner Barnako directed review of theJudge’s decision on this item.In Pratt & Whitney Aircraft, Division of United Technologies Corp., 81 OSAHRC 39\/A2, 9BNA OSHC 1653, 1981 CCH OSHD ? 25,359 (No. 13401, 1981)., appeal withdrawn, No. 81-4104(2d Cir. Aug. 3, 1981), the Commission held that section 1910.22(b)(1) \”is applicableonly to operators of mechanical handling equipment and not to pedestrians\” or\”employees using the aisle as pedestrians.\” 9 BNA OSHC at 1661, 1981 CCH OSHD atpp. 31,508-31,509. Because the operator of the monorail system in this case used thepassageway only as a pedestrian, we conclude that section 1910.22(b)(1) does not apply tothe facts of this case involving the hazard of the pedestrian operator tripping over thepipe. Accordingly, we vacate the citation item insofar as it relates to this hazard.[[12]]We turn now to Emerson Electric’s arguments relating to the electrical conduit which theSecretary alleged was an obstruction creating a hazard under section 1910.22(b)(1). Thestandards which Emerson Electric contends specifically apply to the facts in this case are29 C.F.R. ? 1910.179(b)(6) and 29 C.F.R. ? 1910.179(n)(2)(iii).[[13]] Emerson Electricsuggests that these standards permit obstructions in passageways alongside cranes so longas the load can be manipulated around obstructions. However, our examination of thestandards indicates otherwise. Section 1910.179(b)(6)(ii) explicitly prohibitsobstructions in passageways if the \”safety of personnel will be jeopardized bymovements of the crane.\” And section 1910.179(n)(2)(iii) requires \”care…tomake certain\” that the load does not bump into obstructions. Reading these standardstogether, we conclude that they require employers to take all reasonable and possiblesteps to eliminate obstructions presenting hazards to employees. Where the employer canalter the operation or use engineering devices to eliminate the hazard presented by anobstruction, under these standards the employer is required to do so. Instructions tocrane operators to be careful to clear the obstructions cannot be substituted for thesepossible physical changes or devices. Cf. American Luggage Works, Inc., 82 OSAHRC 30\/C7,10 BNA OSHC 1678, 1982 CCH OSHD ? 26,072 (No. 77-893, 1982), appeal filed, No. 82-1572(1st Cir. July 19, 1982) cases therein (29 C.F.R. ? 1910.212(a)(3)(ii) providing forguards to protect employees from point of operation hazards at machines requires aphysical device and does not allow reliance on employee skill and attentiveness toinstructions); Concrete Construction Co., 76 OSAHRC 139\/A2, 4 BNA OSHC 1828, 1976-77 CCHOSHD ? 21,269 (No. 6592, 1976), aff’d per curium, 589 F.2d 1031 (6th Cir. 1979) (29C.F.R. ? 1926.550(a)(9) specifying that the swing radius of cranes \”shall bebarricaded\” requires a physical device and an employee cannot act as a substitute).Thus, these standards impose the same requirement as the cited standard, section1910.22(b)(1) which explicitly prohibits any \”obstruction . . . that could create ahazard.\” Because the record in this case shows that the electrical conduit waslocated where, when the pot of molten aluminum was kept below the monorail systemoperator’s head, the conduit would obstruct the movement of the pot and thereby create ahazard to the operator, the Secretary has established a violation of both the citedstandard and the standards to which Emerson Electric points. Moreover, Emerson Electric’ssole defense to the merits of the charge must be rejected, for the company’s instructionto raise the pot to clear an obstruction is not sufficient under all of these standardswhere, as in this case, the employer has not demonstrated that it was impossible to alterthe operation or surroundings to eliminate the obstruction. Accordingly, we find itunnecessary to decide whether the standards in section 1910.179 are more specificallyapplicable than the cited standard, and we affirm the nonserious citation item. [[14\/]]Having considered the record relating to Emerson Electric’s size, good faith, and priorhistory, as well as the gravity of this violation, we assess $0 in penalty.Nonserious Citation Item 11 – Eye Protection EquipmentDuring inspection of operations in the stator core fabrication area of Emerson Electric’sfacility, the compliance officer observed employees hand-dipping parts into a small,rotating dip tank. The dip tank contained a resin which was identified as an acid. EmersonElectric’s data sheet on the resin identified it by chemical name and contained anumerical description of its acidity, but there was no testimony relating this informationto a hazard of corrosion to eyes. Also, the compliance officer indicated that thecontainer of the resin did not specify that the resin was corrosive to eyes and that theresin might be only a mild irritant. However, according to the container which thecompliance officer examined, eye protection should be used and, if any of the substancecontacted the eyes, the eyes should be flushed with water. The employees were not wearingeye protection equipment. Because the compliance officer believed that the resin mightsplash or be introduced into the employees’ eyes from their hands, OSHA alleged thatEmerson Electric violated 29 C.F.R. ? 1910.133(a)(1).[[15]]Judge Pat’ a affirmed the item and Emerson Electric filed a petition for review in whichthe company argued that there was no hazard warranting eye protection equipment. FormerCommissioner Barnako directed review of the item on this issue.To establish a violation of section 1910.133(a)(1), the Secretary must establish thatthere existed \”a reasonable probability of injury that can be prevented\” by useof protective eye equipment. See Tobacco River Lumber Co., 75 OSAHRC 52\/A2, 3 BNA OSHC1059, 1974-75 CCH OSHD ? 19,565 (No. 1694, 1975), and cases cited therein; see alsoConsolidated Rail Corp., 82 OSAHRC 42\/A2, 10 BNA OSHC 1869, 1982 CCH OSHD ? 26,164 (No.78-2546, 1982) (section 1910.133(a)(1) was violated where the record demonstrated thatemployees were not wearing eye protective equipment and there was a danger of eye injury);cf. Auto Sun Products, 81 OSAHRC 71\/E14, 9 BNA OSHC 2008, 1981 CCH OSHD ? 25,808 (No.71-2616, 1981) (29 C.F.R. ? 1910.94(d)(9)(v), requiring eye protection equipment\”whenever there is a danger of splashing,\” was violated where the recorddemonstrated a possibility of injury from splashing). The compliance officer’s testimonyestablishes that the resin was an acid and that the directions for use provided on thecontainer for the resin in Emerson Electric’s facility specified that eye protectionequipment be used and that eyes be flushed after contact with the resin. From thisevidence, an inference arises that the resin was hazardous to the eyes. Emerson Electrichas not rebutted this inference with the evidence to the contrary.The record also demonstrates that there was a reasonable probability of contact with theeyes. Emerson Electric’s employees were hand-dipping parts in a tank of resin. Accordingto the terms of a similar standard pertaining to eye protection equipment, this activitypresents a \”danger of splashing.\” See 29 C.F.R. ? 1910.94(d)(9)(v)(\”[w]henever there is a danger of splashing, for example, when additions are mademanually to the tanks . . .\”). Thus, there was a hazard of liquids in this casepresenting a reasonable probability of injury that could be prevented by eye protectionequipment. Accordingly, we affirm the judge’s decision affirming this item.[[16]] Havingconsidered the record relating to Emerson Electric’s size, good faith, and prior history,as well as the gravity of this violation, we assess $0 in penalty.ORDER We amend serious citation item 1 to allege a violation of 29 C.F.R. ? 1910.179(n)(3)(vi).On the basis of the existing record, we conditionally affirm the item and assess $300 inpenalty. In view of the amendment, Emerson Electric may submit a request within ten daysof the issuance of this order that our order respecting this item be set aside and thatthe opportunity be given to the company to present argument on defenses to the amendedcharge. If Emerson Electric does not submit a request within the time permitted, the orderwill become a final order of the Commission. We vacate nonserious citation item 1 insofaras it alleges a violation of 29 C.F.R. ? 1910.22(b)(1) respecting the tripping hazardallegedly posed by the pipe in the passageway in this case. We affirm this item insofar asit alleged a violation of the standard respecting the electric conduit. We assess nopenalty ($O) for this item. We also affirm nonserious citation item 11 alleging aviolation of 29 C.F.R. ? 1910.133(a)(1). We assess no penalty ($O) for this item. SOORDERED.FOR THE COMMISSIONRAY H DARLING, JR. EXECUTIVE SECRETARYDATED: APR 27 1983The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-mail ( [email protected] ) , telephone(202-606-5398), fax (202-606-5050), or TTY (202-606-5386)\u00a0FOOTNOTES: [[1]]The pot was shaped like a cylinder slung on its side. At the top, along the length ofthe cylinder, there was an opening to receive molten aluminum when the pot was loweredinto the pit of molten aluminum. On one side, there was a pour spout through which themolten aluminum was emptied into the individual die casting machines. On the bottom, therewere legs capable of holding the pot in an upright position if it rested on a surface. Onone end of the cylinder, there was the tiltwheel used to guide and steady the pot. Thetiltwheel was also used to tip the pot when the molten aluminum was emptied into a diecasting machine.[[2]]The theory was that the hot metal layer over the water would vaporize the water andthe resulting steam, in expanding, would explode. See United States Steel Corp., 82 OSAHRC35\/A2, 10 BNA OSHC 1752, 1982 CCH OSHD ? 26,123 (No. 77-1796, 1982).[[3]] Section 5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1), provides: Sec. 5.(a) Each employer–(1) shall furnish to each of his employees employment and a place of employment which arefree from recognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees;The citation alleged that Emerson Electric violated ? 5(a)(1) in the following manner:A molten aluminum transfer pot was used to deliver hot metal to die casting machine in thedie casting area. Sufficient safe clearance was not provided for the operation, therefore,the transfer pot had to be lifted above the employee’s head numerous times during thetransfer sequence. Also, the employee must guide the pot over an area with heavyconcentrations of moisture. During the entire transfer, the employee was in closeproximity to the molten aluminum pot. Failure of a critical element of the hoisting unitcausing the pot to drop, or should it bounce off another object, the employee could be ina hazardous position and would not be able to avoid the dangers involved.[[4]] The judge referred to 29 C.F.R. ?? 1910.179(a)(1), (a)(5), (a)(8), and (b).Section 1910.179(a)(1) defines a \”crane\” as \”a machine for lifting andlowering a load and moving it horizontally, with the hoisting mechanism an integral partof the machine.\” Section 1910.179(a)(5) defines a \”floor-operated crane\” as\”a crane which is pendant or nonconductive rope controlled by an operator on thefloor or an independent platform.\” Section 1910.179(a)(8) defines an \”overheadcrane as a crane with \”a movable bridge carrying a movable or fixed hoistingmechanism and traveling on an overhead fixed runway structure.\” Section 1910.179(b)states that \”[t]his section applies to overhead and gantry cranes, . . . These cranesare grouped because they all have trolleys and similar characteristics.\”[[5]] 29 C.F.R. ? 1910.179(n)(3)(vi) provides:? 1910.179 Overhead and gantry cranes. (n) Handling the load–* * *(3) Moving the load.(vi) The employer shall require that the operator avoid carrying loads over people.[[6]] Commissioner Cleary and Commissioner Cottine note that, as Judge Patton determinedand Emerson Electric argues, the company’s monorail system met the specifications forcranes which appear in ? 1910.179. See note 4 supra. They further note that theSecretary’s citation, see note 3 supra, and the evidence in this case concerned hazardspresented by carrying a load above an employee and that ? 1910.179(n)(3)(vi) covers thehazards. The standard proscribes \”carrying loads over people.\” In this case,while the employees operating the monorail system were not directly under the load, theemployees were where they could be harmed if the load spilled or fell. Because thestandard is not explicitly limited to the hazard of a load dropping directly onto anemployee, it must be interpreted to encompass all hazards arising from \”carryingloads over people,\” including lateral spills and explosions from water entrapment.Cf. Bunge Corp. v. Secretary of Labor, 638 F.2d 821 (5th Cir. 1981) (the occupationalhousekeeping standard ? 1910.22(a)(1) is not explicitly limited to the hazards ofslipping or tripping and therefore applies to fire and explosion hazards arising fromexcessive dust accumulations), followed in Pratt & Whitney Aircraft Div. of UnitedTechnologies Corp., 81 OSAHRC 39\/A2, 9 BNA OSHC 1653, 1981 CCH OSHD ? 25,359 (No. 13401,1981), Appeal withdrawn, No. 81-4104 (2d Cir. Aug. 3, 1981). As this case illustrates, anemployee does not have to be directly under a load to be exposed to harm. Accordingly,Commissioner Cleary and Commissioner Cottine conclude that the record as evaluated inlight of the parties’ arguments indicates that ? 1910.179(n)(3)(vi) applies in this case.Chairman Rowland finds it unnecessary to decide whether the facts show that ?1910.179(n)(3)(vi) is applicable to the conditions cited by the Secretary. ChairmanRowland agrees that the question of a violation of ? 5(a)(1) is no longer in the casebecause the Secretary has abandoned the charge and the parties now consider that ?1910.179(n)(3)(vi) is the applicable standard.[[7]] Federal Rule 15(b) provides in pertinent part:Federal Rule 15. Amended and Supplemental Pleadings.* * *(b) AMENDMENTS TO CONFORM TO THE EVIDENCE. When issues not raised by the pleadings aretried by express or implied consent of the parties, they shall be treated in all respectsas if they had been raised in the pleadings. Such amendment of the pleading as may benecessary to cause them to conform to the evidence and to raise these issues may be madeupon motion of any party at any time, even after judgment; but failure so to amend doesnot affect the result of the trial of these issues. . . .[[8]] Chairman Rowland dissents from the majority’s decision to amend the citation toallege a violation of this standard. In his view, the parties did not impliedly consent totry an alleged violation of the standard rather than ? 5(a)(1). Although Emerson Electricdefended at the hearing on the basis that standards in ? 1910.179 applied to the monorailsystem involved in this case, the Secretary did not recognize the applicability of anystandard and make a motion to amend his citation and complaint until he filed his petitionfor review. Rather, the Secretary maintained throughout the proceedings before the judgethat the proper charge was ? 5(a)(1). Moreover, all of the evidence introduced at thehearing relevant to a charge under ? 1910.179(n)(3)(vi) was also relevant to the pleaded? 5(a)(1) charge. Thus, neither party squarely recognized during the hearing that theywere trying an unpleaded charge and consent cannot be implied regardless of whetherEmerson Electric failed to object to the Secretary’s evidence. Farmers Coop. Grain &Supply Co., Supra (Rowland, Chairman, dissenting). Accordingly Chairman Rowland wouldvacate item 1 of the serious citation.[[9]] Webster’s Third New International Dictionary, 1971.[[10]] See, e.g., Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976),Brennan v. OSHRC (Alsea Lumber Co.), 511 F.2d 1139 (9th Cir. 1975), and General ElectricCo., 81 OSAHRC 42\/A2, 9 BNA OSHC 1722, 1981 CCH OSHD ? 25,345 (No. 13732, 1981) (theSecretary must establish that the employer knew or could have known, with the exercise ofreasonable diligence, of the noncomplying condition).[[11\/]] 29 C.F.R. ? 1910.22(b)(1) provides, in pertinent part:? 1910.22 General requirements. (b) Aisles and passageways. (1) Where mechanical handlingequipment is used, sufficient safe clearances shall be allowed for aisles, at loadingdocks, through doorways and wherever turns or passage must be made. Aisles and passagewaysshall be kept clear and in good repairs, with no obstruction across or in aisles thatcould create a hazard.[[12]] Commissioner Cottine disagrees with the majority that ? 1910.22(b)(1) does notapply to the tripping hazard alleged in this item of the nonserious citation. InCommissioner Cottine’s view, the standard sets forth two independent requirements. Thesecond sentence of the standard proscribes hazardous obstructions in aisles andpassageways regardless of whether mechanical handling equipment is being used. Pratt &Whitney Aircraft, Div. of United Technologies Corp., 4 BNA OSHC at 1661-62-,1981 CCH OSHDat p. 31,509. Because the record demonstrates that a pipe in the passageway presented atripping hazard to the monorail system operator, Commissioner Cottine would affirm item 1of the nonserious citation in this respect.[[13]]29 C.F.R. ?? 1910.179(b)(6) and (n)(2)(iii) provide, in pertinent part:? 1910.179 Overhead and gantry cranes.(b) General requirements–* * *(6) Clearance from obstruction. (i) Minimum clearance of 3 inches overhead and 2 incheslaterally shall be provided and maintained between crane and obstructions in conformitywith Crane Manufacturers Association of America, Inc., Specification No. 61 (formerly theElectrical Overhead Crane Institute, Inc.).(ii) Where passageways or walkways are provided obstructions shall not be placed so thatsafety of personnel will be jeopardized by movements of the crane.* * *(n) Handling the load–* * *(2) Attaching the load.* * *(iii) Care shall be taken to make certain that the sling clears all obstacles.[[14]] Chairman Rowland does not agree with the majority’s determination to affirm theitem with respect to the electrical conduit as a violation of the cited standard. Heconcludes that the Commission should treat ?? 1910.179(b)(6) and (n)(2)(iii) as thespecifically applicable standards. As evidenced by theiractions with respect to serious citation item 1 in this case, the parties have agreed thatthe monorail system was a crane covered by standards in ? 1910.179. Moreover, sections1910.179(b)(6) and (n)(2)(iii) concern the problem of hazardous obstructions and thereforeapply to the facts which in this case the Secretary alleged constituted a violation.However, because the Secretary has not asked to amend to the specifically applicablestandards and because the parties never impliedly consented to try a violation of theunpleaded standards, Chairman Rowland would not amend the citation item to allege aviolation of the specifically applicable standards. See note 8 supra. Accordingly,Chairman Rowland would vacate this item with respect to the electrical conduit. Heconcludes that this rationale is equally applicable with respect to the pipe obstructionand would apply it together with the reasoning in the text to vacate the item insofar asit concerns the pipe obstruction.[[15]] 29 C.F.R. ? 1910.133(a)(1) provides, in pertinent part: ? 1910.133 Eye and face protection.(a) General. (1) Protective eye and face equipment shall be required where there is areasonable probability of injury that can be prevented by such equipment. In such cases,employers shall make conveniently available a type of protector suitable for the work tobe performed, and employees shall use such protectors. No unprotected person shallknowingly be subjected to a hazardous environmental condition. Suitable eye protectorsshall be provided where machines or operations present the hazard of flying objects,glare, liquids, injurious radiation, or a combination of these hazards.[[16]]Chairman Rowland disagrees with the majority’s determination that the recordcontains sufficient evidence to show a reasonable probability of injury warranting eyeprotection equipment. The Secretary did not prove that the resin in question would behazardous if it contacted the employees’ eyes and that there was a reasonable probabilityof such contact. As the majority’s recitation of the facts indicates, there was noevidence relating the acidity of the resin to a hazard to the eyes. Thus the record doesnot reveal that the resin was sufficiently acidic to present a hazard of eye tissuecorrosion. Moreover, the compliance officer indicated that he did not perform any tests todetermine whether the resin was other than a mild acid, and he admitted that the warningon the resin container regarding the use of eye protection equipment and flushing of eyesafter contact with the resin could simply indicate that the resin was a mild eye irritant.Accordingly, contrary to the majority’s opinion, the warning on the resin container doesnot provide a basis for an inference that the resin presented a corrosion hazard for theeyes. The record is similarly insubstantial concerning the likelihood that the resin couldcontact the employees’ eyes. The compliance officer speculated that the resin could becarried to the employees’ eyes by their hands and he simply concluded that splashing was apossibility when the employees manually dipped parts in the resin. The complianceofficer’s opinions, unsupported by any specific evidence, are not sufficient bases onwhich to find a violation. See Snyder Well Servicing, Inc., 82 OSAHRC 10\/C5, 10 BNA OSHC1371, 1380, 1982 CCH OSHD ? 25,943, p. 32,515 (No. 77-1334, 1982).The majority relies on another standard to conclude that there was a reasonableprobability of such contact. However, the standard at issue here requires factual proof ofa hazard and Chairman Rowland would therefore not infer from the language of anotherstandard that a hazard exists under the cited standard in this case. Accordingly, ChairmanRowland would vacate this item.”