“SECRETARY OF LABOR,Complainant,v.EMERSON ELECTRIC COMPANY, EMERSONELECTRIC MOTOR DIVISION,Respondent.OSHRC Docket No. 78- 0275DECISIONBefore: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:Emerson Electric Company, Emerson Electric Motor Division, manufactureselectric motors at a plant in Oxford, Mississippi. In December 1 acompliance officer with the U.S. Department of Labor, OccupationalSafety and Health Administration, conducted an inspection of the plantand thereafter the Secretary of Labor issued two citations allegingserious and nonserious violations of the Occupational Safety and HealthAct of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). Emerson Electriccontested the citations and a hearing was held before Administrative LawJudge John S. Patton. In his decision, Judge Patton vacated one citationitem concerning an operation for transferring molten aluminum to diecasting machines in the die casting area of the plant. He also affirmedtwo citation items concerning obstructions in a passageway and eyeprotection equipment for employees working in the stator corefabrication area. Commissioner Cottine and former Commissioner Barnakodirected review of the case pursuant to section 12(j) of the Act, 29U.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 Transfer_IIn the die casting area of Emerson Electric’s plant, the complianceofficer observed the operation of a \”monorail system\” or \”monorailcrane,\” which was used to transfer molten aluminum from the pit toindividual die casting machines. The monorail system consisted of ahook, ropes, and motor suspended by a trolley from a rail near theceiling. The monorail system could lift objects up and down as well asback and forth. The movements were controlled by an operator with anelectrical pendant control.For use in transferring the molten aluminum, there was suspended fromthe monorail system a large, cylindrical container called a \”pot,\” whichthe operator, who walked along the path of the monorail system,generally guided and steadied during operation by holding a handle or\”tiltwheel\” on one end.[[1]] About ten times each shift, the operatorfilled the pot at the molten aluminum pit, moved and guided the potalong the row of die casting machines, and poured molten aluminum intothe machines. During the inspection, the compliance office\” saw theoperator raise the pot to a level above his head so as to clear anelectrical conduit which was part of one of the adjacent machines andwhich projected into the passageway. At one time, the operator raisedthe pot so high that he was unable to hold onto the tiltwheel to steadyit. The compliance officer feared that the aluminum could spill out ofthe pot and endanger the operator. He posited that a part of themonorail system might fail because of hitting the obstruction in thepassageway and cause the pot to tip or fall, spilling molten aluminumonto the operator. The aluminum was as hot as 1350 degrees Fahrenheit.While the operator did not stand directly under the pot, he wasgenerally within arm’s reach of it. Also, because the compliance officersaw 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 couldbe eliminated by either elevating the operator on a platform along thepassageway and correcting the problem of water in the passageway orimplementing a remote control system for moving and guiding the monorailsystem. Emerson Electric’s general maintenance foreman testified thatthe operators were instructed to keep the pot at or below waist, levelexcept where necessary to raise the pot to a higher level in order toclear an obstruction. When the molten aluminum was poured into the diecasting machines, the pot was higher than waist level but the operatorstood on a platform, bringing him up next to the pot. The operators werealso instructed not to stand under the pot. When operators were trainedat the plant, they observed experienced operators perform the operation,they were instructed in the safety requirements, and their ownperformance of the operation was closely observed for a time. Employeeswho committed infractions of the safety requirements or rules weredisciplined, with suspension if necessary.IIThe citation item concerning the monorail system for transferring moltenaluminum alleged that Emerson Electric violated section 5(a)(1) of theAct.[[3]] During the hearing, Emerson Electric moved to dismiss thecitation item on the basis that specific standards in 29 C.F.R. ?1910.179 pertaining to overhead and gantry cranes applied to themonorail system in this case. Judge Patton reserved ruling at thehearing but in his decision he determined that Emerson Electric’smonorail system was a crane within the meaning of definitional standardsin section 1910.179.[[4]] Reasoning that citation to section 5(a)(1) isinappropriate where specific standards apply, Judge Patton dismissed thecitation item. He declined to amend the citation item to allege aviolation of any standard in section 1910.179 because the Secretary hadnot made a motion to amend.The Secretary filed a petition for review in which he argued that thejudge should have amended the citation to allege a violation of section1910.179 (n)(3)(vi).[[5]] The Secretary argued that the hazard involvedin this case was transferring molten aluminum over the heads of employees.Commissioner Cottine granted the Secretary’s petition. The followingissues were specified in the direction for review:1. Whether the administrative law judge erred in vacating Citation 1,item No. 1, alleging a violation of ? 5(a)(1) of the Act, on the groundthat a specific standard, 29 C.F.R. ? 1910.179, was applicable to thecited hazardous condition.2. If 29 C.F.R. ? 1910.179 is applicable, whether the administrative lawjudge erred in failing to amend the pleadings under Fed. R. Civ. P.15(b) to allege noncompliance with 29 C.F.R. ? 1910.179.The Secretary did not file a brief in response to the direction forreview. Emerson Electric filed a brief in which the company argues thatthe monorail system was a crane within the meaning of the definitionalstandards in section 1910.179 on which Judge Patton relied, and thatsection 1910.179(n)(3)(vi) applies to the facts of this case because itpertains to the hazard of lifting loads over people. Emerson Electricmaintains that it did not violate section 1910.179(n)(3)(vi).The parties thus agree that section 1910.179(n)(3)(vi) applies to thefacts of this case.[[6]] Therefore citation to section 5(a)(1) isinappropriate, e.g., Ted Wilkerson, Inc., 81 OSAHRC 70\/D8, 9 BNA OSHC2012, 1981 CCH OSHD ? 25,551 (No. 13390, 1980), and we turn to whetherthe citation item should be amended under Rule 15(b) of the FederalRules of Civil Procedure[[7]] to allege a violation of section1910.179(n)(3)(vi).IIIUnder Federal Rule 15(b), amendment will be granted where, as in thiscase, the amendment does not add any new questions of fact, only a newlegal theory; the party opposing the amendment has introduced or failedto object to evidence relevant to the unpleaded issue; and that partywould 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), and cases cited therein; see also Morgan & Culpepper,Inc. v. OSHRC, 676 F.2d 1065 (5th Cir. 1982). In this case, the factualissues relevant both to the alleged section 5(a)(1) violation and asection 1910.179(n)(3)(vi) violation concern the conditions presented byEmerson Electric’s operation using the monorail system to transfermolten aluminum, and the company’s measures or practices againstcarrying the aluminum over the operator’s head. Thus, the factual issuesrelevant to the amended charge were presented in the original charge andwere fully tried. Moreover, Emerson Electric raised the matter of theapplicability of standards in section 1910.179 and did not object toevidence showing that these standards were applicable. The companyargues in its brief that it could have introduced different evidence tothe amended charge than was introduced to the original charge, but thecontention misconceives the nature of the amended charge. EmersonElectric argues that section 1910.179(n)(3)(vi) applies because thestandard pertains to carrying loads, but the company interprets thestandard to prohibit only carrying loads directly over employees. Thecompany argues that, if the violation in this case had originally beentried under the standard rather than section 5(a)(1), the company couldhave defended showing that loads were not moved directly over theoperator. However, properly interpreted, section 1910.179(n)(3)(vi)proscribes carrying loads over employees in general, not just carryingloads directly over employees. See note 6 supra. Under thisinterpretation, a charge under the standard and the section 5(a)(1)charge in this case are substantially the same and Emerson Electric’sdefenses to the Secretary’s case should be substantially unaltered bythe amendment. Also, as discussed in the following section of thisopinion, we give Emerson Electric the opportunity to argue defenses tothe amended charge. Accordingly, we reject the company’s claim ofprejudice and grant the Secretary’s motion to amend.[[8]]IVThere remains for consideration whether Emerson Electric committed aviolation of section 1910.179(n)(3)(vi). The record reveals that loadsof molten aluminum were carried over the monorail system operator’s headand that, as a consequence, the operator was exposed to burn andexplosion hazards. The record also reveals that Emerson Electric knewthis, for the company knew that the pot had to be raised above headheight to clear obstructions and instructed its operators simply tomaintain the pot at the lowest level possible and never to stand underthe pot.Emerson Electric contends that, by giving these instructions, itcomplied with the standard. The company argues that, because thestandard requires the employer to \”avoid carrying loads over people,\”the standard simply advises the employer to comply where possible, itdoes not absolutely require compliance. However, the dictionary meaningof \”avoid\” is \”to prevent the occurrence of,\”[[9]] and thus the standardis mandatory, not advisory. Moreover, while the employer’s duty tocomply with a mandatory requirement is not absolute,[[10]] an employerin Emerson Electric’s position, knowing of the noncompliance, mustestablish an affirmative defense such as impossibility of compliance orunpreventable employee misconduct in order to escape liability for theviolation. See eg., General Electric Co., 82 OSAHRC 31\/C2, 10 BNA OSHC1687, 1982 CCH OSHD ? 26,071 (No. 77-4476, 1982) (impossibility ofcompliance); George C. Christopher & Sons, 82 OSAHRC 9\/A2, 10 BNA OSHC1436, 1982 CCH OSHD ? 25,956 (No. 76-647, 1982), and cases cited therein(impossibility of compliance); Daniel Construction Co., 82 OSAHRC 23\/A2,10 BNA OSHC 1549, 1982 CCH OSHD ? 26,027 (No. 16265, 1982) and casescited therein (unpreventable employee misconduct).We interpret Emerson Electric’s argument regarding its instructions andtheir enforcement as raising the defense of unpreventable employeemisconduct. To establish this defense, the employer must demonstratethat the noncomplying conduct by an employee was a departure from anenforced workrule designed to prevent the conduct. See DanielConstruction Co., supra; Bethlehem Steel Corp., 81 OSAHRC 86\/A2, 9 BNAOSHC 2177, 1981 CCH OSHD ? 25,645 (No. 77-617, 1981), pet. denied, No.81-2802 (3rd Cir. June 17, 1982); Daniel Construction Co. of Alabama, 81OSAHRC 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 aboutkeeping the pot as low as possible was designed, the company’s generalmaintenance foreman freely admitted, to permit the employee to raise thepot above head height to clear obstructions, and the company’s otherinstruction about not standing under the pot apparently permitted theemployee to stand near enough to hold the elevated pot by the tiltwheelwhile guiding it overhead. Thus, Emerson Electric’s instructions werenot designed to prevent hazardous exposure due to raising the pot overthe employee. Accordingly, an unpreventable employee misconduct defensehas not been established on this record. This is not to say that EmersonElectric should have absolutely prohibited raising the pot despiteobstructions in the passageway which required the pot to be raised. Butthere is evidence in this case that Emerson Electric could haveeliminated the hazardous exposure of the monorail system operators byinstalling a remote control system, for example, and Emerson Electricdoes not argue that it was impossible to prevent the carrying of loadsover the operator’s head by this means.Emerson Electric’s argument and evidence imply only that physicallyremoving the obstruction may have been impossible. Therefore, weconclude that Emerson Electric violated section 1910.179(n)(3)(vi).However, because Emerson Electric was not confronted when the case wastried under section 5(a)(1) with the burden of establishing theaffirmative defenses we have mentioned in this opinion, our affirmanceof the citation item for violation of section 1910.179(n)(3)(vi) will beconditional. Emerson Electric may request the opportunity to presentargument 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 deathor serious physical harm was substantially probable as a result. KaiserAluminum & Chemical Co., 82 OSAHRC 41\/B1, 10 BNA OSHC 1893, 1982 CCHOSHD ? 26,162 (No. 77-699, 1982), and cases cited therein; 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 theresults of a molten aluminum spill would likely have been severe burnsor death, we conclude that the violation was serious. Having consideredEmerson Electric’s size, prior history, and good faith, along with thegravity 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 Passageway_During the inspection, the compliance officer saw a pipe on the floor ofthe passageway where the operator of the monorail system walked whenguiding the pot of molten aluminum. The compliance officer believed thatthe pipe presented a tripping hazard. He also saw the pot bump into theobstruction in the passage-way, a piece of electrical conduit which waspart of one of the adjacent machines. As has been discussed, the potcould be raised enough to move above the conduit without striking it andEmerson Electric intended operators to raise the pot. However, thecompliance officer believed that striking the conduit presented a hazardof damage to the monorail system and spills of molten aluminum.Accordingly, OSHA alleged in the nonserious citation that EmersonElectric violated 29 C.F.R. ? 1910.22(b)(1). [[11]]Judge Patton affirmed the item and Emerson Electric filed a petition forreview. In it Emerson Electric argued that the cited standard isinapplicable to tripping hazards such as the pipe involved in this case,that standards in section 1910.179 apply specifically to obstructions inthe path of a crane, and that the electrical conduit in this case didnot obstruct passage of the crane. Former Commissioner Barnako directedreview of the Judge’s decision on this item.In Pratt & Whitney Aircraft, Division of United Technologies Corp., 81OSAHRC 39\/A2, 9 BNA OSHC 1653, 1981 CCH OSHD ? 25,359 (No. 13401,1981)., appeal withdrawn, No. 81-4104 (2d Cir. Aug. 3, 1981), theCommission held that section 1910.22(b)(1) \”is applicable only tooperators of mechanical handling equipment and not to pedestrians\” or\”employees using the aisle as pedestrians.\” 9 BNA OSHC at 1661, 1981 CCHOSHD at pp. 31,508-31,509. Because the operator of the monorail systemin this case used the passageway only as a pedestrian, we conclude thatsection 1910.22(b)(1) does not apply to the facts of this case involvingthe hazard of the pedestrian operator tripping over the pipe.Accordingly, we vacate the citation item insofar as it relates to thishazard.[[12]]We turn now to Emerson Electric’s arguments relating to the electricalconduit which the Secretary alleged was an obstruction creating a hazardunder section 1910.22(b)(1). The standards which Emerson Electriccontends specifically apply to the facts in this case are 29 C.F.R. ?1910.179(b)(6) and 29 C.F.R. ? 1910.179(n)(2)(iii).[[13]] EmersonElectric suggests that these standards permit obstructions inpassageways alongside cranes so long as the load can be manipulatedaround obstructions. However, our examination of the standards indicatesotherwise. Section 1910.179(b)(6)(ii) explicitly prohibits obstructionsin passageways if the \”safety of personnel will be jeopardized bymovements of the crane.\” And section 1910.179(n)(2)(iii) requires\”care…to make certain\” that the load does not bump into obstructions.Reading these standards together, we conclude that they requireemployers to take all reasonable and possible steps to eliminateobstructions presenting hazards to employees. Where the employer canalter the operation or use engineering devices to eliminate the hazardpresented by an obstruction, under these standards the employer isrequired to do so. Instructions to crane operators to be careful toclear the obstructions cannot be substituted for these possible physicalchanges or devices. Cf. American Luggage Works, Inc., 82 OSAHRC 30\/C7,10 BNA OSHC 1678, 1982 CCH OSHD ? 26,072 (No. 77-893, 1982), appealfiled, No. 82-1572 (1st Cir. July 19, 1982) cases therein (29 C.F.R. ?1910.212(a)(3)(ii) providing for guards to protect employees from pointof operation hazards at machines requires a physical device and does notallow reliance on employee skill and attentiveness to instructions);Concrete Construction Co., 76 OSAHRC 139\/A2, 4 BNA OSHC 1828, 1976-77CCH OSHD ? 21,269 (No. 6592, 1976), aff’d per curium, 589 F.2d 1031 (6thCir. 1979) (29 C.F.R. ? 1926.550(a)(9) specifying that the swing radiusof cranes \”shall be barricaded\” requires a physical device and anemployee cannot act as a substitute). Thus, these standards impose thesame requirement as the cited standard, section 1910.22(b)(1) whichexplicitly prohibits any \”obstruction . . . that could create a hazard.\”Because the record in this case shows that the electrical conduit waslocated where, when the pot of molten aluminum was kept below themonorail system operator’s head, the conduit would obstruct the movementof the pot and thereby create a hazard to the operator, the Secretaryhas established a violation of both the cited standard and the standardsto which Emerson Electric points. Moreover, Emerson Electric’s soledefense to the merits of the charge must be rejected, for the company’sinstruction to raise the pot to clear an obstruction is not sufficientunder all of these standards where, as in this case, the employer hasnot demonstrated that it was impossible to alter the operation orsurroundings to eliminate the obstruction. Accordingly, we find itunnecessary to decide whether the standards in section 1910.179 are morespecifically applicable than the cited standard, and we affirm thenonserious citation item. [[14\/]] Having considered the record relatingto Emerson Electric’s size, good faith, and prior history, as well asthe gravity of this violation, we assess $0 in penalty._Nonserious Citation Item 11 – Eye Protection Equipment_During inspection of operations in the stator core fabrication area ofEmerson Electric’s facility, the compliance officer observed employeeshand-dipping parts into a small, rotating dip tank. The dip tankcontained a resin which was identified as an acid. Emerson Electric’sdata sheet on the resin identified it by chemical name and contained anumerical description of its acidity, but there was no testimonyrelating this information to a hazard of corrosion to eyes. Also, thecompliance officer indicated that the container of the resin did notspecify that the resin was corrosive to eyes and that the resin might beonly a mild irritant. However, according to the container which thecompliance officer examined, eye protection should be used and, if anyof the substance contacted the eyes, the eyes should be flushed withwater. The employees were not wearing eye protection equipment. Becausethe compliance officer believed that the resin might splash or beintroduced 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 forreview in which the company argued that there was no hazard warrantingeye protection equipment. Former Commissioner Barnako directed review ofthe item on this issue.To establish a violation of section 1910.133(a)(1), the Secretary mustestablish that there existed \”a reasonable probability of injury thatcan be prevented\” by use of protective eye equipment. See Tobacco RiverLumber Co., 75 OSAHRC 52\/A2, 3 BNA OSHC 1059, 1974-75 CCH OSHD ? 19,565(No. 1694, 1975), and cases cited therein; see also Consolidated RailCorp., 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 recorddemonstrated that employees were not wearing eye protective equipmentand there was a danger of eye injury); cf. Auto Sun Products, 81 OSAHRC71\/E14, 9 BNA OSHC 2008, 1981 CCH OSHD ? 25,808 (No. 71-2616, 1981) (29C.F.R. ? 1910.94(d)(9)(v), requiring eye protection equipment \”wheneverthere is a danger of splashing,\” was violated where the recorddemonstrated a possibility of injury from splashing). The complianceofficer’s testimony establishes that the resin was an acid and that thedirections for use provided on the container for the resin in EmersonElectric’s facility specified that eye protection equipment be used andthat eyes be flushed after contact with the resin. From this evidence,an inference arises that the resin was hazardous to the eyes. EmersonElectric has not rebutted this inference with the evidence to the contrary.The record also demonstrates that there was a reasonable probability ofcontact with the eyes. Emerson Electric’s employees were hand-dippingparts in a tank of resin. According to the terms of a similar standardpertaining to eye protection equipment, this activity presents a \”dangerof splashing.\” See 29 C.F.R. ? 1910.94(d)(9)(v) (\”[w]henever there is adanger of splashing, for example, when additions are made manually tothe tanks . . .\”). Thus, there was a hazard of liquids in this casepresenting a reasonable probability of injury that could be prevented byeye protection equipment. Accordingly, we affirm the judge’s decisionaffirming this item.[[16]] Having considered the record relating toEmerson Electric’s size, good faith, and prior history, as well as thegravity 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, weconditionally affirm the item and assess $300 in penalty. In view of theamendment, Emerson Electric may submit a request within ten days of theissuance of this order that our order respecting this item be set asideand that the opportunity be given to the company to present argument ondefenses to the amended charge. If Emerson Electric does not submit arequest within the time permitted, the order will become a final orderof the Commission. We vacate nonserious citation item 1 insofar as italleges a violation of 29 C.F.R. ? 1910.22(b)(1) respecting the trippinghazard allegedly posed by the pipe in the passageway in this case. Weaffirm this item insofar as it alleged a violation of the standardrespecting the electric conduit. We assess no penalty ($O) for thisitem. We also affirm nonserious citation item 11 alleging a violation of29 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 1983————————————————————————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]]The pot was shaped like a cylinder slung on its side. At the top,along the length of the cylinder, there was an opening to receive moltenaluminum when the pot was lowered into the pit of molten aluminum. Onone side, there was a pour spout through which the molten aluminum wasemptied into the individual die casting machines. On the bottom, therewere legs capable of holding the pot in an upright position if it restedon a surface. On one end of the cylinder, there was the tiltwheel usedto guide and steady the pot. The tiltwheel was also used to tip the potwhen the molten aluminum was emptied into a die casting machine.[[2]]The theory was that the hot metal layer over the water wouldvaporize the water and the resulting steam, in expanding, would explode.See United States Steel Corp., 82 OSAHRC 35\/A2, 10 BNA OSHC 1752, 1982CCH 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 ofemployment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to his employees;The citation alleged that Emerson Electric violated ? 5(a)(1) in thefollowing manner:A molten aluminum transfer pot was used to deliver hot metal to diecasting machine in the die casting area. Sufficient safe clearance wasnot provided for the operation, therefore, the transfer pot had to belifted above the employee’s head numerous times during the transfersequence. Also, the employee must guide the pot over an area with heavyconcentrations of moisture. During the entire transfer, the employee wasin close proximity to the molten aluminum pot. Failure of a criticalelement of the hoisting unit causing the pot to drop, or should itbounce off another object, the employee could be in a hazardous positionand 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 forlifting and lowering a load and moving it horizontally, with thehoisting mechanism an integral part of the machine.\” Section1910.179(a)(5) defines a \”floor-operated crane\” as \”a crane which ispendant or nonconductive rope controlled by an operator on the floor oran independent platform.\” Section 1910.179(a)(8) defines an \”overheadcrane as a crane with \”a movable bridge carrying a movable or fixedhoisting mechanism and traveling on an overhead fixed runway structure.\”Section 1910.179(b) states that \”[t]his section applies to overhead andgantry cranes, . . . These cranes are grouped because they all havetrolleys 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 loadsover people.[[6]] Commissioner Cleary and Commissioner Cottine note that, as JudgePatton determined and Emerson Electric argues, the company’s monorailsystem met the specifications for cranes which appear in ? 1910.179. Seenote 4 supra. They further note that the Secretary’s citation, see note3 supra, and the evidence in this case concerned hazards presented bycarrying a load above an employee and that ? 1910.179(n)(3)(vi) coversthe hazards. The standard proscribes \”carrying loads over people.\” Inthis case, while the employees operating the monorail system were notdirectly under the load, the employees were where they could be harmedif the load spilled or fell. Because the standard is not explicitlylimited to the hazard of a load dropping directly onto an employee, itmust be interpreted to encompass all hazards arising from \”carryingloads over people,\” including lateral spills and explosions from waterentrapment. Cf. Bunge Corp. v. Secretary of Labor, 638 F.2d 821 (5thCir. 1981) (the occupational housekeeping standard ? 1910.22(a)(1) isnot explicitly limited to the hazards of slipping or tripping andtherefore applies to fire and explosion hazards arising from excessivedust 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, an employee does not have to bedirectly under a load to be exposed to harm. Accordingly, CommissionerCleary 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 showthat ? 1910.179(n)(3)(vi) is applicable to the conditions cited by theSecretary. Chairman Rowland agrees that the question of a violation of ?5(a)(1) is no longer in the case because the Secretary has abandoned thecharge and the parties now consider that ? 1910.179(n)(3)(vi) is theapplicable 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 thepleadings are tried by express or implied consent of the parties, theyshall be treated in all respects as if they had been raised in thepleadings. Such amendment of the pleading as may be necessary to causethem to conform to the evidence and to raise these issues may be madeupon motion of any party at any time, even after judgment; but failureso to amend does not affect the result of the trial of these issues. . . .[[8]] Chairman Rowland dissents from the majority’s decision to amendthe citation to allege a violation of this standard. In his view, theparties did not impliedly consent to try an alleged violation of thestandard rather than ? 5(a)(1). Although Emerson Electric defended atthe hearing on the basis that standards in ? 1910.179 applied to themonorail system involved in this case, the Secretary did not recognizethe applicability of any standard and make a motion to amend hiscitation and complaint until he filed his petition for review. Rather,the Secretary maintained throughout the proceedings before the judgethat the proper charge was ? 5(a)(1). Moreover, all of the evidenceintroduced at the hearing 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 regardlessof whether Emerson Electric failed to object to the Secretary’sevidence. Farmers Coop. Grain & Supply Co., Supra (Rowland, Chairman,dissenting). Accordingly Chairman Rowland would vacate item 1 of theserious 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 (9thCir. 1975), and General Electric Co., 81 OSAHRC 42\/A2, 9 BNA OSHC 1722,1981 CCH OSHD ? 25,345 (No. 13732, 1981) (the Secretary must establishthat 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) Wheremechanical handling equipment is used, sufficient safe clearances shallbe allowed for aisles, at loading docks, through doorways and whereverturns or passage must be made. Aisles and passageways shall be keptclear 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 not apply to the tripping hazard alleged in this itemof the nonserious citation. In Commissioner Cottine’s view, the standardsets forth two independent requirements. The second sentence of thestandard proscribes hazardous obstructions in aisles and passagewaysregardless of whether mechanical handling equipment is being used. Pratt& Whitney Aircraft, Div. of United Technologies Corp., 4 BNA OSHC at1661-62-,1981 CCH OSHD at p. 31,509. Because the record demonstratesthat a pipe in the passageway presented a tripping hazard to themonorail system operator, Commissioner Cottine would affirm item 1 ofthe nonserious citation in this respect.[[13]]29 C.F.R. ?? 1910.179(b)(6) and (n)(2)(iii) provide, in pertinentpart:? 1910.179 Overhead and gantry cranes.(b) General requirements–* * *(6) Clearance from obstruction. (i) Minimum clearance of 3 inchesoverhead and 2 inches laterally shall be provided and maintained betweencrane and obstructions in conformity with Crane ManufacturersAssociation of America, Inc., Specification No. 61 (formerly theElectrical Overhead Crane Institute, Inc.).(ii) Where passageways or walkways are provided obstructions shall notbe placed so that safety of personnel will be jeopardized by movementsof the crane.* * *(n) Handling the load–* * *(2) Attaching the load.* * *(iii) Care shall be taken to make certain that the sling clears allobstacles.[[14]] Chairman Rowland does not agree with the majority’s determinationto affirm the item with respect to the electrical conduit as a violationof the cited standard. He concludes that the Commission should treat ??1910.179(b)(6) and (n)(2)(iii) as the specifically applicable standards.As evidenced by theiractions with respect to serious citation item 1 in this case, theparties have agreed that the monorail system was a crane covered bystandards in ? 1910.179. Moreover, sections 1910.179(b)(6) and(n)(2)(iii) concern the problem of hazardous obstructions and thereforeapply to the facts which in this case the Secretary alleged constituteda violation. However, because the Secretary has not asked to amend tothe specifically applicable standards and because the parties neverimpliedly consented to try a violation of the unpleaded standards,Chairman Rowland would not amend the citation item to allege a violationof the specifically applicable standards. See note 8 supra. Accordingly,Chairman Rowland would vacate this item with respect to the electricalconduit. He concludes that this rationale is equally applicable withrespect to the pipe obstruction and would apply it together with thereasoning in the text to vacate the item insofar as it concerns the pipeobstruction.[[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 requiredwhere there is a reasonable probability of injury that can be preventedby such equipment. In such cases, employers shall make convenientlyavailable a type of protector suitable for the work to be performed, andemployees shall use such protectors. No unprotected person shallknowingly be subjected to a hazardous environmental condition. Suitableeye protectors shall be provided where machines or operations presentthe hazard of flying objects, glare, liquids, injurious radiation, or acombination of these hazards.[[16]]Chairman Rowland disagrees with the majority’s determination thatthe record contains sufficient evidence to show a reasonable probabilityof injury warranting eye protection equipment. The Secretary did notprove that the resin in question would be hazardous if it contacted theemployees’ eyes and that there was a reasonable probability of suchcontact. As the majority’s recitation of the facts indicates, there wasno evidence relating the acidity of the resin to a hazard to the eyes.Thus the record does not reveal that the resin was sufficiently acidicto present a hazard of eye tissue corrosion. Moreover, the complianceofficer indicated that he did not perform any tests to determine whetherthe resin was other than a mild acid, and he admitted that the warningon the resin container regarding the use of eye protection equipment andflushing of eyes after contact with the resin could simply indicate thatthe resin was a mild eye irritant. Accordingly, contrary to themajority’s opinion, the warning on the resin container does not providea basis for an inference that the resin presented a corrosion hazard forthe eyes. The record is similarly insubstantial concerning thelikelihood that the resin could contact the employees’ eyes. Thecompliance officer speculated that the resin could be carried to theemployees’ eyes by their hands and he simply concluded that splashingwas a possibility when the employees manually dipped parts in the resin.The compliance officer’s opinions, unsupported by any specific evidence,are not sufficient bases on which to find a violation. See Snyder WellServicing, Inc., 82 OSAHRC 10\/C5, 10 BNA OSHC 1371, 1380, 1982 CCH OSHD? 25,943, p. 32,515 (No. 77-1334, 1982).The majority relies on another standard to conclude that there was areasonable probability of such contact. However, the standard at issuehere requires factual proof of a hazard and Chairman Rowland wouldtherefore not infer from the language of another standard that a hazardexists under the cited standard in this case. Accordingly, ChairmanRowland would vacate this item.”