” SECRETARY OF LABOR,Complainant,v.FRITO-LAY, INC.,Respondent.OSHRC DOCKET NO. 86-1026_ORDER_The Commission treats the Secretary’s second notice of withdrawal as amotion to withdraw Citation 1 and grants the motion. In addition, theCommission sets aside the Judge’s decision to the extent that it ruleson Citation 1, the withdrawn citation. The Judge’s report now becomes afinal order to the extent that it rules on Citation 2.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDated: April 3, 1989————————————————————————SECRETARY OF LABOR,Complainantv.FRITO-LAY, INC.RespondentOSHRC Docket No. 86-1026Order Granting Respondent’s Motion to Dismiss the Characterization ofCitation No. 1 as WillfulThe complainant presented his proof[[1\/]] and rested his case on January22, 1987 (Tr. 197). Respondent then moved to dismiss citation no. 1insofar as it characterizes the single alleged violation there aswillful (Tr. 199). The formal motion was filed with accompanyingmemorandum on February 19, 1987. Complainant’s memorandum in support ofhis presentation and in opposition to the motion was filed on February18, 1987. Respondent is scheduled to present its defense on February26, 1987.The motion, filed under rule 41(b) of the Federal Rules Of CivilProcedure,[[2\/]] presents the broad question of whether \”…upon thefacts and the law the plaintiff [complainant] has shown no right to relief.\”Complainant translates this to mean that the motion may not be grantedunless the evidence \”clearly establishes that the employer _did not_commit a violation,\” citing _Secretary_ v. _Texland Drilling Corp_., BNA9 OSHC 1023, 1980 OSHD ? 24,954. (Emphasis from Opposition, page 2)That case states the proposition differently, and the motion may not begranted \”…unless it is clear that the Secretary has not proven hiscase by a preponderance of the evidence.\” The Commission there insistson a high level of definitiveness to avoid the necessity of remand andprotracted proceedings.[[3\/]]This is in accord with rule 41(b) after the 1946 amendment (requiringthe court to determine the facts upon a grant of the motion) and a primafacie showing is not sufficient to defeat a motion to dismiss. Asstated in _Ellis v. Carter_, 328 F.2d 573 (1964) at 577:Accordingly, the trial court was not required to deny the 41(b) motioneven if the evidence, viewed in a light most favorable to the plaintiff,made a prima facie case. If, from the record as it stood at the closeof plaintiff’s case, the court was convinced that the evidencepreponderated against Ellis [plaintiff], it was empowered to grantCarter’s [defendant] motion.Thus, the complainant has no benefits here. The evidence may not beviewed in a light most favorable to him and a mere prima facie showing,i.e., satisfying the burden of producing evidence, is not enough. Allfictions and verbiage evaporate in the heat of a motion to dismiss. Thefacts, and those alone, determine the issue of whether the complainanthas \”the right to relief\” on the question of whether respondentviolated–if it did at all–one of the three standards cited against itwillfully._The Plain Meaning of \”Willful\” and the Issue_:There is no divisive difference of opinion among the Circuit Courts ofAppeal on the Commission’s definition of the \”willfulness\” of aviolation. That is,A violation is willful if it was committed voluntarily with either anintentional disregard for the requirements of the Act or with plainindifference to employee safety. _Secretary_ v. _A. C. Dellovade,Inc_. BNA 13 OSHC 1019 (1987)The Third Circuit had added to this, what later was interpreted merelyas a cosmetic with no significant variation from the generally accepteddefinition, the elements or \”flounting\” (\”flouting\”?) \”obstinaterefusal,\” and \”bad purpose.\” _Frank Irey, Jr. v. OSHRC_, 519 F.2d 1200(1974). In 1980, that Circuit agreed with the D. C. Circuit [_CedarConstruction Co_. v. _OSHRC_, 587 F.2d 1303, 1305 (1978)] that there islittle, if any, difference between the approaches taken by the Circuit. The meaning of the terms–obstinate refusal, defiance, flounting orflouting and intentional disregard–is the same. See _Universal AutoRadiator Mfg_. _Co. v. Marshall_, 631 F.2d 20, 23 (3d Cir. 1980),quoting from _Babcock & Wilcox v. OSHRC_, _et_ _al_., 622 F.2d 1160,1167-68 (3d Cir. 1980).And that meaning has been put most simply and directly by the recentdecision of the First Circuit in _Brock_ v. _Morello Bros_._Construction_, No. 86-1442, Jan. 20, 1987, BNA 13 OSHC 1033, as follows:…\”indifference\” to the rules; he [the employer] need not beconsciously aware that the conduct is forbidden at the time he performsit, but his state of mind must be such that, _if he were informed of therule, he would not care_. 13 BNA 1033 at 1034 (emphasis mine)By the same token, as pointed out by complainant,[[4\/]] if an employeris aware of a hazard–albeit not of any safety standard governing thecontrol of that danger–and persists in exposing employees to it, awillful violation will lie. _Secretary v. John W_. _Eshelman & Sons_,BNA 9 OSHC 1397 (1981).[[5\/]]Conversely, a knowing and intentional disregard of a safety standardwill justify its characterization as willful despite the employer’s goodfaith belief–and, perhaps, even the fact–that the work could be donewithout endangering the employees. _Donovan v. Capital_ _CityExcavating Co., Inc._, 712 F.2d 1008, 1010 (6th Cir. 1983).[[6\/]]The foregoing describes the circumstances determining a willfulviolation. Factors erasing that label have been found to be:Actions which an employer takes to bring itself into compliance with astandard’s requirements when it learns of its application. _Secretary v.R. D. Anderson Construction Co., Inc._, BNA 12 OSHC 1665 (1986). Thisremains true even if the attempts were \”albeit inadequate,\” _Secretary_v. _Williams Enterprises, Inc._, BNA 4 OSHC 1663 at 1668 (1976), or ifthe actions fall short of complying with the directives in theemployer’s safety manual, _Secretary_ v. _U.S. Steel Corp_, BNA 12 OSHC1692 (1986).\”Merely negligent conduct is never deemed ‘willful.’\” _Wehr_ v._Burroughs Corp._, 619 F.2d 276, 282 (3d Cir. 1980);[[7\/]] nor is afailure to exercise due diligence alone equal to what might be said tobe a careless disregard of safety, _Secretary v. Mosites_ _ConstructionCo_., BNA 9 OSHC 1808, 1813 (1981).Applying these rationales and criteria to this case, the factual issuemay be framed as follows:Were the corrective actions taken by respondent after it became aware ofa hazard existing in its workplace merely lacking in due diligence ornegligent; or were they taken with plain indifference to employee safety.The findings of fact below answer the first question affirmatively andits disjunctive negatively._Findings of Fact Based on Complainant’s Case-in-Chief_:I find the following:I) The scene: Respondent produces potato chips at a plant in Dayville,Connecticut, employing about 500 people. The fryer, a large, stationarymachine some 12 feet wide, is capable of processing two and a quartertons of potatoes an hour. (Tr. 11)[[8\/]]Chips drop from the fryer onto vibrating Allen conveyor lines (to shakeoff excess oil) abutting to it taxing them to other areas for furtherprocessing. These lines are energized by flexible cables from a powersource to the lines’ motors.To allow the fryer operator and pickers (who along the conveyors removefaulty chips) to cross from one area to another, a catwalk extends overa conveyor. This is made of stainless steel consisting of two verticalladders between which extends the walkway or catwalk. As many as fiveemployees may cross.The conveyors are heavy (Tr. 13) and equipped with rollers; the catwalkis not and weighs about 100 pounds. (See photo exhibits C-4 and C-7). At the bottom of the ladder (at least one of them) is a kickplate whichextended to the floor before it was cut and shortened on March 31,1986. (See photo exhibits C-4 and C-5)The flexible cord powering Allen conveyor no. 2 was, on two occasions,resting under that kickplate.The entire area is cleaned by the respondent’s sanitation departmentusing high pressure hoses every weekend and more often if requiredbecause the process is greasy. The conveyors are disconnected and thecords are wrapped around the machinery. They and the catwalk are movedout of the way to facilitate the cleaning. (Tr. 39-40)II) The first shock: In January 1986, the fryer’s operator, RobertHohler, as he was climbing off the catwalk, touched a conveyor and felta \”tingle,\” an electrical current, run up his arm.He reported this to his supervisor, Mr. Dan Hanson, and \”immediately\”(Tr. 20) someone (Brian Arnio, a maintenance mechanic) was sent to lookat it after Mr. Hanson investigated (Tr. 128-29).Mr. Arnio, after testing the catwalk, found it was energized from thecord,[[9\/]] underneath it which had been cut through by the kickplate. He unplugged the cord, taped the cut, put it back on the floor, andwrote up a work order to have the cord replaced. It was 15 feet seveninches long (Tr. 77).Mr. Arnio, did not know what became of the work order which he gave tohis supervisor, Mr. Borden[[10\/]] (Tr. 50). Charles Wall, theprocessing supervisor, could not find his copy of the work order butbelieved he had ordered replacement according to Compliance OfficerMulligan; Mr. Hanson told him that he did not think that the cord hadbeen replaced but that the problem had been rectified (Tr. 173). Mr.Borden did not think replacement had occurred. (Tr. 129-31)The supervisor of the sanitation crew [Mr. Shultz (Tr. 129)] told theOfficer that, among the many volumes of rules and regulations respondentmaintains, there were no written rules governing the placement of cordson the floor (Tr. 131).In the seven years Mr. Arnio has been employed in maintenance, he hastaped minor cuts in the cords about six times. In each case, heprepared work orders for the replacement of the cords (Tr. 42).III) The second shock: Some two months after this January incident, onMarch 31, 1986, Mr. Hohler, while crossing over on the catwalk, grabbedthe siderails and received a severe shock. He was thrown from thecatwalk, hospitalized overnight for observation and does appear to havesuffered severely.[[11\/]]As in the January experience, again it was found that the kickplate hadcut through the cord powering Allen conveyor no. 2 and the catwalk hadbecome energized.In response to this incident, Mr. Arnio that day was directed by hissupervisor to cut the kickstand, that is, shorten it so the cord couldnot be cut; and, in addition, the cords were run through pipes.IV) The procedural facts regarding the inspection, citation andamendments: On April 1, 1986, the day after the second shock,Compliance Officer Stephan Mulligan made his inspection. As a result,and after discussion with his immediate supervisor, he recommended thata citation be issued alleging a willful violation of some sub-part of 29C.F.R. ? 1910.303 [not specified (Tr. 179)] because the cord was ofinsufficient strength and durability. At his closing conference, somefive days later (Tr. 176), he told respondent’s management officialsthat the use of those cords, because of the stated deficiencies, wouldbe the basis of any citation that might be issued (Tr. 176-77).But this was changed. The citation, as originally issued, alleges awillful violation of 29 C.F.R. ? 1910.305(g)(1)(i), using flexible cordswhere they should not be used, i.e., this standard specifies where suchcords may be used.On January 21, 1986, the day before the hearing, complainant moved toamend[[12\/]] the citation to plead in the alternative (1) a willfulviolation of 29 C.F.R. ? 1910.305(a)(2)(ii)(G), alleging a failure toprotect flexible cords from accidental damage while in temporaryuse;[[13\/]] or (2) a willful violation of the general duty clause, 29U.S.C. ? 654(a)(1). The description of the violation, in any case, wentunchanged as stated in the citation–in essence–insufficient strengthand durability of the cords. To be consistent, these terms must meanthat flexible cords were not permitted. For the purposes of thismotion, I find that meaning to be the citation’s charge._Conclusions and Order_:The definition of a \”willful\” violation requires that if it is foundthat an employer(1) intentionally disregarded a requirement of the Act (i.e., a standardor the general duty clause);(2) acted with plain indifference to employee safety; or(3) committed both of the above,then the violation for which it is charged must be deemed willful.The procedural facts show that there is some doubt as to just whatgoverns the respondent’s use or the flexible cord here and what itviolated, if anything. While this may not be fatal to justifying acharacterization of willfulness so long as some standard can be shown toapply,[[14\/]] there is no evidence that respondent was aware it wasviolating any specific standard while employing these cords as it did,let along willfully so.As originally charged, 29 C.F.R. ? 1910.305(g)(1)(i) might permit theuse of flexible cords for sub-part (H) allows them for \”Appliances wherefastening means and mechanical connections are designed to permitremoval for maintenance and repair.\”\”Appliances\” are defined at 29 C.F.R. ? 1910.399(a)(6) asUtilization equipment, _generally_ other than industrial, _normally_built in standardized sizes or types, which is installed or connected asa unit to perform one or more functions such as clothes washing, airconditioning, food mixing, deep frying, etc. (Emphasis mine)This definition is taken directly from the 1978 _National ElectricalCode_, Article 100, according to complainant (Tr. 139-41 and quoted atTr. 140). While this appears to exclude the conveyors, some doubt isinjected by use of the terms \”generally\” and \”normally.\” Moreimportantly, the 1981 Code Handbook[[15\/]] deletes the definitions of\”fixed,\” \”portable\”[[16\/]] and \”stationary\” appliances because \”. ..some requirements for [these] appliances were based on differentmeanings of the terms.\” Hence, respondent could reasonably believe thatthe conveyors were \”portable\” equipment and use of the cords would beexcluded only \”generally\” but not totally. Any error here could notconceivably be deemed willful.Or, subpart (F) permits the use of flexible cords for the \”connection ofstationary equipment to facilitate their frequent interchange.\” Althoughthe compliance officer testified that it was not so used (Tr. 141),there was no explanation as to why the conveyors, locked into placeexcept when unplugged, are not stationary in the main, or \”not easilymoved from one place to another in normal use\” (1978 National ElectricCode, Article 100, if this were to apply). Here, again, any error ininterpretation could not be deemed as willful.Either of these instances permits the use of flexible cords to operatethe conveyors so that any misuse cannot be considered as a foregoneconclusion.Amendment one charges the alternative violation of 29 C.F.R. ?1910.305(a)(2)(iii)(G) under which flexible cords must be protected fromaccidental damage. But this entire section [29 C.F.R. ? 1910.305(a)(2)]is directed only to temporary wiring such as while remodeling, etc.,experiments and development, or Christmastime. That certainly is notthe case here and this amended section does not apply.Finally, the second proposed amendment of a violation of the generalduty clause would apply only if no standard does. One standard notcited by complainant (a fourth possibility including the complianceofficer’s) is 29 C.F.R. ? 1910.305(g)(1)(iii)(C) which forbids the useof flexible cords if otherwise permitted by subsection (1)(i) of thatsection \”Where run through doorways, windows or similar openings.\” While some interpretive difficulties would be encountered here, runningthe cords under the conveyors must include openings similar to thehazard of one run through a doorway or window. But this subsection hasneither been charged nor has any proof been brought forward to sustain it.Complainant does not address this latter point (applicability of thegeneral duty clause) only that it has been violated in any event becauserespondent was on notice of the hazard (the January shock) and did notremove it (the March incident).Suffice to say that this record allows no basis for holding that nostandard applies to bring down onto respondent the general duty clause. No violation of that mandate is yet possible here.Since it may not be found that respondent intentionally disregarded arequirement of the Act by the use of flexible cords where a standardforbids it willfulness will only lie if it can be shown that respondentacted with plain indifference to employee safety. There is no such proof.Respondent reacted immediately to the first sign of danger. It had noother choice. A repair was made. Replacement of the cord was to havetaken place and that it did not is not traceable to any intentional act. Its lack of diligence here in not assuring that the cord would not beplaced under the kickplate was unfortunate amounting to negligence butit falls short of any intentional or willful failure to protect employees.As soon as respondent became aware that its first protective step(taping) was insufficient, it went further and removed the edge that cutthe cord (shortening the kickplate) and the cords were run through pipesto forestall other types of damage. These were acts directed byrespondent’s managerial personnel.At best complainant has shown a serious violation if some requirement ofthe Act may be said to apply in that, with diligence, respondent shouldhave been aware of the hazard; but no shadow of willfulness blackenswhat may be there. Applying the _Morello_ test, above, as soon asrespondent became aware of the hazard, it attempted corrections andfinally cured it. It has not been shown that respondent did not care. It did, and it acted before the appearance of any regulatory authority.There is yet another serious defect in complainant’s attempt to provewillfulness. That is respondent’s awareness of the hazard. Mr. Arniotaped and had replaced cords less than once a year. While he is not theonly mechanic, no evidence was adduced that broken cords are a generallyrecurring problem. Even, perhaps, rarer is a cord cut by a kickplate orsome other piece of machinery. No evidence was adduced that this shouldbe an event respondent could be held to expect. As far as this recordgoes, it happened once, in January 1986 and was repaired. Since thishazard was not actually known to respondent before January 1986, andsteps were taken to remove it after it became known, it is not certainthat respondent–even though what it did do was insufficient–was onnotice sufficient to support a charge of willfulness.The factual picture drawn here does not portray the detail of respondentwinking at employee safety matters. It was on notice of the hazard butnot that it had to do more because it was not believed the problem wouldrecur. If it failed to finally cure the hazard in January, that failurewas not as a result of any sort of indifference to its employees’ safety.Since it has not satisfactorily been shown, which, if any, standardrespondent may have violated rendering the question of a general dutyclause violation as premature; and since it has not been shown thatrespondent was plainly indifferent to employee safety; I conclude thatrespondent did not willfully violate the Act’s requirements.It is, therefore, ORDERED that the characterization of citation no. 1,issued June 26, 1986, as willful be vacated.DAVID J. KnightJudge, OSHRCDated: February 23, 1987Boston, MassachusettsSECRETARY OF LABOR,Complainant,v.FRITO-LAY, INC.,Respondent.OSHRC Docket No. 86-1026_DECISION & ORDER_For the Complainant: Albert H. Ross, Regional SolicitorU. S. Department of LaborBoston, MassachusettsBy: _David Baskin_, Esq.For the Respondent: William J. Rodgers, Esq.Finley, Kumble, Wagner, Heine,Underberg, Manley, Myerson & CaseyWashington, D.C._Statement of Proceedings_:Frito-Lay, Inc., a producer of potato chips at a plant in Dayville,Connecticut (respondent) was charged with several allegations ofviolations[[1\/]] of safety standards by the Occupational Safety andHealth Administration of the U. S. Department of Labor (complainant orOSHA).The complainant presented his case-in-chief on January 22, 1987, andrespondent moved to dismiss the characterization of willfulness fromcitation no. 1. This motion was granted by decision [[2\/]] datedFebruary 23 and the following facts were found:(1) The scene: Respondent produces potato chips at a plant in Dayville,Connecticut, employing about 500 people. The fryer, a large, stationarymachine some 12 feet wide, is capable of processing two and a quartertons of potatoes an hour (Tr. 11) [[3\/]]Chips drop from the fryer onto vibrating Allen conveyor lines (to shakeoff excess oil) abutting to it taking them to other areas for furtherprocessing. These lines are energized by flexible cables from a powersource to the lines motors.To allow the fryer operator and pickers (who along the conveyors removefaulty chips) to cross from one area to another, a catwalk extends overa conveyor. This is made of stainless steel consisting of two verticalladders between which extends the walkway or catwalk. As many as fiveemployees may cross.The conveyors are heavy (Tr. 13) and equipped with rollers; the catwalkis not and weighs about 100 pounds. (See photo exhibits C-4 and C-7). At the bottom of the ladder (at least one of them) is a kickplate whichextended to the floor before it was cut and shortened on March 31,1986. (See photo exhibits C-4 and C-5)The flexible cord powering Allen conveyor no. 2 was, on two occasions,resting under that kickplate.The entire area is cleaned by the respondent’s sanitation departmentusing high pressure hoses every weekend, and more often if requiredbecause the process is greasy. The conveyors are disconnected and thecords are wrapped around the machinery. They and the catwalk are movedout of the way to facilitate the cleaning. (Tr. 39-40)II) The first shock: In January 1986, the fryer’s operator, RobertHohler, as he was climbing off the catwalk, touched a conveyor and felta \”tingle,\” an electrical current, run up his arm.He reported this to his supervisor, Mr. Dan Hanson, and \”immediately\”(Tr. 20) someone (Brian Arnio, a maintenance mechanic) was sent to lookat if after Mr. Hanson investigated (Tr. 128-29).Mr. Arnio, after testing the catwalk, found it was energized from thecord [[4\/]] underneath it which had been cut through by the kickplate. He unplugged the cord, taped the cut, put it back on the floor, andwrote up a work order to have the cord replaced. It was 15 feet 7inches long (Tr. 77).Mr. Arnio did not know what became of the work order which he gave tohis supervisor, Mr. Borden [[5\/]] (Tr. 50). Charles Wall, theprocessing supervisor, could not find his copy of the work order butbelieved he had ordered replacement according to Compliance OfficerMulligan; Mr. Hanson told him that he did not think that the cord hadbeen replaced but that the problem had been rectified (Tr. 173). Mr.Borden did not think replacement had occurred. (Tr. 129-31)The supervisor of the sanitation crew [Mr. Shultz (Tr. 129)] told theOfficer that, among the many volumes of rules and regulations respondentmaintains, there were no written rules governing the placement of cordson the floor (Tr. 131).In the seven years Mr. Arnio has been employed in maintenance, he hastaped minor cuts in the cords about six times. In each case, heprepared work orders for the replacement of the cords (Tr. 42).III) The second shock: Some two months after this January incident, onMarch 31, 1986, Mr. Hohler, while crossing over on the catwalk, grabbedthe siderails and received a severe shock. He was thrown from thecatwalk, hospitalized overnight for observation and does appear to havesuffered severely.[[6\/]]As in the January experience, again it was found that the kickplate hadcut through the cord powering Allen conveyor no. 2 and the catwalk hadbecome energized.In response to this incident, Mr. Arnio that day was directed by hissupervisor to cut the kickstand, that is, shorten it so the cord couldnot be cut; and, in addition, the cords were run through pipes.IV) The procedural facts regarding the inspection, citation andamendments: On April 1, 1986, the day after the second shock,Compliance Officer Stephan Mulligan made his inspection. As a result,and after discussion with his immediate supervisor, he recommended thata citation be issued alleging a willful violation of some sub-part of 29C.F.R. ? 1910.303 [not specified (Tr. 179)] because the cord was ofinsufficient strength and durability. At his closing conference, somefive days later (Tr. 176), he told respondent’s management officialsthat the use of those cords, because of the stated deficiencies, wouldbe the basis of any citation that might be issued (Tr. 176-77).But this was changed. The citation, as originally issued, alleges awillful violation of 29 C.F.R. ? 1910.305(g)(1)(i), using flexible cordswhere they should not be used, i.e., this standard specifies where suchcords may be used.On January 21, 1986, the day before the hearing, complainant moved toamend [[7\/]] the citation to plead in the alternative (1) a willfulviolation of 29 C.F.R. ? 1910.305 (a)(2)(ii)(G), alleging a failure toprotect flexible cords from accidental damage while in temporary use;[[8\/]] or (2) a willful violation of the general duty clause, 29 U.S.C.? 654(a)(2). The description of the violation, in any case, wentunchanged as stated in the citation–in essence–insufficient strengthand durability of the cords.Another citation, alleging three non-serious violations involving theuse of flexible cords, was also issued and contested as discussed below. _Discussion, Findings and Conclusions_:As initially cited, respondent is charged with violating 29 C.F.R. ?1910.305(g)(1)(i):(g) Flexible cords and cables–(1) Use of flexible cords and cables. (i) Flexible cords and cables shall be approved and suitable for forconditions of use and location. Flexible cords and cables shall be usedonly for:(A)(B)(C) Connection of portable lamps or appliances;(D)(E)(F) Connection of stationary equipment to facilitate their frequentinterchange;(G)(H) Appliances where the fastening means and mechanical connections aredesigned to permit removal for maintenance and repair;According to the facts and testimony given by respondent’s expertwitness, electrical engineer Bernard Stankevich, respondent’s use offlexible cord in its chip processing area complied with this standard. Specifically, the use of flexible cord to operate respondent’s conveyorswas established as being approved and suitable under either subparts(C), (F), or (H) of this section. This evidence was not rebutted.Subpart (H) would allow the use of flexible cord for \”(a)ppliances wherethe fastening means and mechanical connections are designed to permitremoval for maintenance and repair.\” The definition of \”appliances\” isfound at 29 C.F.R. ? 1910.399(a)(6) as:Utilization equipment, generally other than industrial, normally builtin standardized sizes or types, which is installed or connected as aunit to perform one or more functions such as clothes washing, airconditioning, food mixing, deep frying, etc.The definition of \”utilization equipment\” is found at 29 C.F.R. ?1910.399(a)(127):(E)quipment which utilizes electric energy for mechanical, chemical,heating, lighting, or similar useful purpose.Stankevich testified that the conveying equipment used by Frito-Lay iscontained in the definition of \”appliance\” (Tr. 14, 15, 16).Although the conveying equipment used by respondent is industrialequipment, the definition of utilization equipment comprises that whichis \”generally other than industrial.\” This would not unequivocallyexclude respondent’s conveying equipment from the definition of \”appliance.\”Subpart (C) allows the use of flexible cord for the \”(c)onnection ofportable lamps or appliances.\” Subpart (F) permits the use of flexiblecords for the \”(c)onnection of stationary equipment to facilitate theirfrequent interchange.\” As stated earlier, the conveyors are equippedwith wheels, thus, they are portable; once moved to a chosen location,the wheels are able to be locked, thus rendering them, effectively,stationary. While it may appear anomalous to deem the conveyors both\”portable\” [[9\/]] as in subpart (C), and \”stationary,\” as in subpart(F), the conveyors are capable of both characterizations by virtue oftheir locking wheels.Stankevich’s testimony confirmed that the use of flexible cord inrespondent’s chip processing area was a proper installation, and waspermitted under OSHA standards (Tr. 11). In his experience as anelectrical engineer, and based on previous inspections and safety auditsof other industrial plants, [[10\/]] he testified that the use offlexible cord in respondent’s plant conformed to industry-widepractice. Further, the type \”SO\” cord which was involved in the Januaryand March shock incidents, and which energized the drive motor on theno. 2 Allen Inspector Conveyor, was suitable for extra-hard usage of thetype in Frito-Lay’s potato chip processing area. [[11\/]] Indeed,complainant concedes that this testimony \”established that respondent’suse of flexible cords was per se reasonable and that \”serious violationof the standard was not committed by mere use of the cords in general.\”[[12\/]] This \”mere use\” is the substance and purpose of the citedstandard. It is limited to delineating those circumstances in whichflexible cord shall be used. The standard would permit the use offlexible cords to operate respondent’s conveyors pursuant to eitherthree of its aforementioned subparts, and I so conclude.But, subsection (iii) (C) of this same standard does not permit the useof flexible cords: [[13\/]](C) Where run through doorways, windows or _similar openings_. (emphasismine)Both the January and March shock incidents were attributed to theposition of the cord underneath the kickplate. The cord was found tohave been run underneath the conveyors in both instances. The spaceunderneath the conveyors, specifically under the kickplate, wouldcertainly be deemed to constitute an opening similar to doorways orwindows. When the cord was run underneath this opening, it fell withinthe prohibition of the standard. Although the _use_ of flexible cordwas approved and suitable for conditions of use and location inrespondent’s chip processing area, the real issue in dispute was the_way_ in which the cord was used. It is uncontroverted, as elicitedfrom Stankevich’s testimony, that any piece of equipment should neverrest upon any flexible cord (Tr. 41). Equipment would include the100-pound kickplate that rested on top of the cord (Tr. 45), discoveredupon the January and March shock incidents.Thus, based on respondent’s expert witness’s testimony, a violation of29 C.F.R. ? 1910.305 (g)(1)(iii)(C) is clearly evident: thepermissible use of flexible cord impermissibly placed. Complainantphrases this issue similarly, albeit citing the wrong standard:Complainant submits that Mr. Stankevich’s testimony establishes thatRespondent violated ? 1910.305(g)(1)(i) by using a cord which wasotherwise suitable for hard usage in Respondent’s work area in a mannerwhich was unsuitable due to the specific placement of the cord. (emphasis mine) (p. 3)Respondent, despite its expert’s testimony, argues (on this allegedviolation) that it \”…is aware of no standard requiring that cable …may not run across a floor.\” (p. 12-13) It does not mention thespecifics of this standard and this portion is necessarily inconsistentwith the evidence from its case-in-chief.I conclude that respondent–by not ensuring that the cable would notpass beneath the kickplate–violated this standard [29 C.F.R. ?1910.305(g)(1)(iii)(C)] in that the cable was allowed to run through anopening presenting the same hazard as a window or doorway. [[14\/]] Thisis the cause of both events in January and March and the violation, interms of potential injury, is serious (see footnote 6, above).That respondent knew or should have known of this potentially dangerouscondition [29 U.S.C. ? 666(j)] is shown either by the requirement ofshowing the cause of damage on Mr. Arnio’s work order calling forreplacement of the cable (a fact not broached by either party); or ifMr. Arnio did not report the cause of the cord’s cut, this reflects onhis training by respondent to report and correct hazards the existencewhich respondent’ s expert admitted. _Brennan_ v. _Butler Lime andCement Co_., 520 F.2d 1011, 1017. In one case and the other, respondentknew or should have known of the hazardous condition. And the factssurrounding both occurrences (January and March) were tried out to theextent that no prejudice results to the respondent by amending thisalleged non-serious violation to one of a serious characterization. _Kaiser Aluminum and Chemical Corp_, 4 OSHC 1162, 1165, 1975-76;_National Realty & Construction Co_. v. _OSHRC_, 489 F.2d 1257 (D.C.Cir. 1973). An amendment under Rule 15(b) is proper if it can bedetermined that the unpleaded issue was tried, and that the partieseither expressly or impliedly consented to do so. Rule 15(b). _Secretary of Labor_ v. _McWilliams Forge Company, Inc._, 11 OSHC 2128(July 20, 1984). \”At least it must appear that the parties understoodthe evidence to be aimed at the unpleaded issue.’\” _McWilliams Forge_,citing _Consolidated Data Terminals_ v. _Applied Digital Data Systems_,780 F.2d 385, 397 (9th Cir. 1983), quoting _MBI Motor Company_ v._Lotus\/East, Inc._, 506 F.2d 709, 711 (6th Cir. 1974).It is of no avail to respondent to argue that it could not reasonablyexpect the January event to recur in March when it took no steps (otherthan an attempted replacement of the cable) to ensure that the cablewould not again be cut in the same way.The penalty for this violation I set at $250 and is based mainly on itsgravity. Respondent’s size, good faith and history do not detract fromits commitment to safety. 29 U.S.C. ? 666(i).With these findings and conclusions the proposed amendments must bevacated. The general duty clause will not apply because a standardpreempts it exclusively concerning the hazard and conditions describedby the evidence. _Cf_., _Int. Un. U.A.W_. v. _General_ _Dynamics LandSys. Div._, 815 F.2d 1570 (1987). Complainant admits that the remainingproposed amendment [29 C.F.R. ? 1910.305 (a)(2)(iii)(g) – temporarywiring] is not applicable (Brief. p. 2)._Citation No. 2 (the non-serious items_):Item 1: An alleged violation of 29 C.F.R. ? 1910.22(a)(1)(a) Housekeeping. (1) All places of employment, passageways,storerooms, and service rooms shall be kept clean and orderly and in asanitary condition.Respondent does not dispute the fact that the flexible cord energizingthe sizer ran across the floor and presented a tripping hazard. It doestake issue with the language of the citation that the cord was subjectto damage. That should be deleted, it argues, because the cable (type\”SO\”) was suitable for this installation and there is no proofotherwise. (Brief, p. 4)As noted above, respondent’s expert testified without refutation thatthis cable is suited for the purpose used. This necessarily means thatit can withstand some abuse. The implication of the disputed languageis that the cord-which might be damaged by someone tripping over it–isless suitable than a safety-conscious employer would put to use. Givenno proof, only conjecture, that the cord would suffer or break underthis possibility, respondent’s point is well taken.This item is affirmed in the order below but only insofar as the cordcreated a tripping hazard._Item 2_:The complainant also invoked ? 1910.305 (g)(1)(i) to charge respondentwith a non-serious violation, the substance of which was that \”theflexible cord used to energize the no. 1 Allen Conveyor had the outersheath cut. [[15\/]] While this charge may be relevant to an impropermanner in which the cord was used, it has no bearing on whether or notthe use of flexible cord was permitted under the standard. As stated,_supra_, the use of flexible cord to energize the conveyors was approvedand suitable under the standard.The compliance officer would have preferred fixed wiring here ratherthan flexible cord connected to the frame of the conveyor (Tr. 151-52, 181).According to the testimony of engineer Stankevich, a crack in a flexiblecord may only require temporary taping until it can be replaced (Tr.22). If metal in one of the interior wires is exposed, [[16\/]] it isgeneral engineering practice to temporarily repair it with electricaltape, and continue to use the cord until it can be replaced (Tr. 22,39). The inner wires in respondent’s cord were not so exposed (Tr.151). Respondent complied with general engineering practice, as ittaped and submitted a work order for the replacement, of the damagedcord. However compliant or diligent respondent may have been in thisrespect, the condition of the cord is not relevant to the approval orsuitability of flexible cord use under the cited standard. [[17\/]] Thus, the condition of the cord having no bearing on the permissibilityof its use under these circumstances, this standard was not violated byrespondent. This item is vacated in the order below._Item 3_:This item alleges two violations of 29 C.F.R. ? 1910.305 (g)(1)(iii):1. That the flexible cord to power the no. 2 conveyor was used in lieuof fixed wiring. This aspect has been decided as the nub of citationno. 1, item 1; and2. The flexible cords for the seasoner machine on the no. 1 Allenconveyor were attached to the conveyor with plastic wire ties.Complainant asks that this (as well as both items 2 and 3 here) beaffirmed as the cords created tripping hazards as in item 1 becausethese cords were strung along the floor. (Brief, pp. 8-9) All theevidence does here, and I so find, is place the cords on the floor;there is little to suggest tripping and the tenor of the officer’stestimony was a problem with these cords _under_ the conveyors (Tr.148-49, 153-55). Considering this request as a motion to amend thecitation and complaint, it is denied.I also conclude that this sub-item must be vacated. The cited sectiondoes not prohibit plastic wire ties where flexible cord is permittedeven though so fixing the cords in place this way suggests that fixedwiring should have been used (Respondent’s brief, p. 13, note 12). Onthe contrary, respondent’s unattacked evidence shows that so attachingthese cords is a standard safety practice in industry and hospitals toprevent possible disasters such as having a cord accidentally torn fromits connection (Tr. 23-24, 2\/26\/87). Complainant did not take advantageof his opportunity (which he preserved) to rebut this testimony. (Tr.61-62, 2\/26\/87).This item, too, is vacated in the order below._ORDER_:Based on the findings of fact and conclusions of law reached afterconsidering the evidence and the parties’ arguments and proposals, whichto the extent shown are adopted or rejected as having insufficientsupport in the preponderance of the evidence or precedent, it is ORDERED1) Citation no. 1, issued June 26, 1986, alleging a willful violation of29 C.F.R. ? 1910.305(g)(1)(i) is vacated (see also the order of February23, 1987) together with its proposed civil penalty of $9,000 and isaffirmed as a serious violation of 29 C.F.R. ? 1910.305(g)(1)(iii)(C)with a civil penalty of $250 assessed therefor;2) The motion to amend this citation to allege a violation either (1) of29 C.F.R. ? 1910.305(a)(2)(ii)(G) or (2) of the general duty clause, 29U.S.C. ? 654(a)(1) is denied; and3) Citation no. 2, also issued June 26, 1986, alleging non-seriousviolations ofa) 29 C.F.R. ? 1910.22(a)(1), as item 1 thereof, is affirmed only as theflexible cord specified there created a tripping hazard and no civilpenalty is assessed therefor; and b) 29 C.F.R. ? 1910.305(g)(1)(i), asitem 2 thereof, and 29 C.F.R. ? 1910.305(g)(1)(iii), as item 3 thereof,are vacated.DAVID J. KNIGHTJudge, OSHRCDated: February 5, 1988Boston, MassachusettsFOOTNOTES:[[1\/]] To support any one of three alternative charges that respondentused flexible cords improperly in powering machinery producing potatochips. It may have violated 29 C.F.R. ? 1910.305(g)(1)(i) as charged inthe citation; or, as amended on the eve of hearing, 29 C.F.R. ?1910.305(a)(2)(iii)(G) or the general duty clause, 29 U.S.C. ? 654(a)(1).[[2\/]] The Commission has no specific rule governing motions todismiss. Thus, the Federal rules apply. See Commission rule 2(b), 29C.F.R. ? 2200.2(b).[[3\/]] To the same point, _Secretary_ v. _R. C. Diving Co., Inc._, BNA 9OSHC 1402 at footnote 4. The text even goes further stating that themotion should not be granted unless the evidence preponderates againstthe complainant.[[4\/]] Opposition, page 6.[[5\/]] This case puts to rest respondent’s argument (Memorandum, page 8)that an employer unaware of a standard may normally not be found inwillful violation. It would also have to be found that it was unawareof the hazard.[[6\/]] Good or bad faith is immaterial. Respondent’s action determinesthe nature of a violation. However, a good faith attempt to comply witha standard’s dictate will relieve a respondent of the stigma ofwillfulness. _Secretary_ v. _Lukens Steel Co_., BNA 10 OSHC 1115, 1127(1981).[[7\/]] This statement was applied to the Act’s \”willful\” while stated ina proceeding involving another statute. _Babcock & Wilcox_, above,1168, footnote 7, cited by respondent at page 11 of its memorandum.[[8\/]] Transcript references are used only where the parties’ memorandado not mention a fact or where it is in dispute.[[9\/]] The parties did not stipulate the amount of power carried by thecords; it was either 110 or 440 volts (Tr. 24-25) or a 443-phaseelectrical cord (Officer Mulligan, Tr. 186-87).[[10\/]] Complainant called four witnesses: two employees, a statepolice officer and the inspecting compliance officer and rested. Nosupervisory employees were questioned despite five otheremployees–supervisory or not– being subpoenaed by him, present in thecourtroom, but not called (Tr. 197-99)[[11\/]] Based on Mr. Hohler’s testimony (Tr. 21-25) and that of OfficerJohnson (Tr. 100), if nothing else were offered, I would find anyviolation here to be \”serious\” as that is defined at 29 U.S.C. ? 666(j).[[12\/]] This motion was granted subject to the condition that thefactual pattern did not differ from that used to support the originalcitation (Tr. 8).[[13\/]] 29 C.F.R. ? 1910.305(a)(2) governs the use or \”Temporary Wiring.\”[[14\/]] Cases on this point cited by complainant (_L. R. Willson & Sons,Inc. v. OSHRC_, 698 F.2d 507 and _Donovan_ v. _Williams_ _Enterprises,Inc._, 744 F.2d 170) are inapposite. (Opposition, page 9) In neithercase, did the Courts address the question of choosing amongcomplainant-sponsored alternatives.[[15\/]] The Code of Federal Regulations published by the Office of theFederal Register, National Archives and Records Service Administration,revised as of July 1, 1985, references the 1981 National Electrical Codeas \”…helpful in understanding and complying\” with these standards. See Appendix A following 29 C.F.R. ? 1910.399. The 1978 Code, then, isnot applicable.[[16\/]] \”Portable\” meant an appliance which is actually moved in normal use.[[1\/]] By citation issued June 26, 1986, with an amendment to pleadalternatively. The notice of contest is dated July 18, 1986. Respondentadmitted the necessary jurisdictional facts in its answer to thecomplaint. See 29 U.S.C. ?? 652, 658 and 659. Hearing was held onJanuary 22 and February 26, 1987, with both parties represented bycounsel. Final briefs were filed by May 26, 1987.[[2\/]] Attached as \”attachment A\” hereto.[[3\/]] Transcript references are used only where the parties memorandado not mention a fact or where it is in dispute.[[4\/]] The parties did not stipulate the amount of power carried by thecords; it was either 110 or 440 volts (Tr. 24-25) or a 443-phaseelectrical cord (Officer Mulligan, Tr. 186-87).[[5\/]] Complainant called four witnesses: two employees, a statepolice officer and the inspecting compliance officer and rested. Nosupervisory employees were questioned despite five otheremployees–supervisory or not–being subpoenaed by him, present in thecourtroom, but not called (Tr. 197-99)[[6\/]] Based on Mr. Hohler’s testimony (Tr. 21-25) and that of officerJohnson (Tr. 100), if nothing else were offered. I would find anyviolation here to be \”serious\” as that is defined at 29 U.S.C. ?666(j). Respondent does not raise the question of the effect ofelectrical shock in its brief.[[7\/]] This motion was granted subject to the condition that the factualpattern did not differ from that used to support the original citation(Tr. 8).[[8\/]] 29 C.F.R. ? 1910.305(a)(2) governs the use of \”Temporary Wiring.\”[[9\/]] The Code of Federal Regulations omits definitions of \”portable\”and \”‘stationary.\” \”Portable\” as it is normally used, and as it wasunderstood in this case, meant an appliance which is actually moved innormal use (attachment A), p. 10, n. 16). _See also_ _Secretary_ v._Emery Industries, Inc._, 12 OSHC 1300, OSAHRC Docket No. 84-200, March11, 1985, which adopted the same definition, but vacated employer’scitation of 29 C.F.R. ? 1910.305(g)(1), in part, \”because the regulationdoes not define ‘portable’ and therefore, fails reasonably to appriseemployer of the prohibited conduct.\”[[10\/]] Stankevich testified to having performed approximately 500inspections (Tr. 6).[[11\/]] Although charged by the Secretary as part of the 29 C.F.R. ?1910.305 (g)(1)(i) citation, the \”strength and durability\” of theflexible cord is not an element of this standard. After inspection ofthe facility by compliance officer Mulligan, he recommended that acitation be issued alleging a willful violation of 29 C.F.R. ?1910.303. Subpart (b)(ii) requires electrical equipment to be ofsufficient \”strength and durability\” to prevent damage to the innerconductors. This was later changed to allege a violation of 29 C.F.R. ?1910.305 (g)(1)(i), but the language has remained the same.[[12\/]] Complainant’s brief, p. 4.[[13\/]] there are five prohibitions against using flexible cords oncetheir use is generally permitted. Although this standard, 29 C.F.R. ?1910.305(g)(1)(iii)(C) is written as a self-contradiction, its clearmeaning is found in the National Electric Code for 1971, ? 400-4 whichstates that the cords shall not be used in the prohibited ways.[[14\/]] Shutting one or the other (or the kickplate pressing down on acable) risks cutting it through.[[15\/]] \”Cut\” meaning that the outer sheath of the flexible cord became\”broken\” or cracked (Tr. 184).[[16\/]] There are, generally, three, but no less than two, interiorwires in a cord (Tr. 22).[[17\/]] At the January hearing, respondent elicited from Mr. Mulligan,OSHA’s compliance officer, that at the January 13, 1987, deposition,Mulligan stated that the condition of the cord as it existed on March31, 1986, before the incident, was not relevant to his issuance of thecitation (Tr. 185).”