“Docket No. 86-1026 \u00a0SECRETARY OF LABOR, Complainant, v. FRITO-LAY, INC., Respondent.OSHRC DOCKET NO. 86-1026ORDERThe Commission treats the Secretary’s secondnotice of withdrawal as a motion to withdraw Citation 1 and grants the motion.\u00a0 Inaddition, the Commission sets aside the Judge’s decision to the extent that it rules onCitation 1, the withdrawn citation.\u00a0 The Judge’s report now becomes a final order tothe extent that it rules on Citation 2.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARY Dated: April 3, 1989 SECRETARY OF LABOR, Complainant v. FRITO-LAY, INC. RespondentOSHRC Docket No. 86-1026 Order Granting Respondent’s Motion to Dismiss the Characterization of Citation No. 1 asWillfulThe complainant presented his proof[[1\/]] andrested his case on January 22, 1987 (Tr. 197).\u00a0 Respondent then moved to dismisscitation no. 1 insofar as it characterizes the single alleged violation there as willful(Tr. 199).\u00a0 The formal motion was filed with accompanying memorandum on February 19,1987.\u00a0 Complainant’s memorandum in support of his presentation and in opposition tothe motion was filed on February 18, 1987.\u00a0 Respondent is scheduled to present itsdefense on February 26, 1987.The motion, filed under rule 41(b) of theFederal Rules Of Civil Procedure,[[2\/]] presents the broad question of whether\”…upon the facts and the law the plaintiff [complainant] has shown no right torelief.\”Complainant translates this to mean that themotion may not be granted unless the evidence \”clearly establishes that the employer didnot commit a violation,\” citing Secretary v. Texland Drilling Corp.,BNA 9 OSHC 1023, 1980 OSHD ? 24,954.\u00a0 (Emphasis from Opposition, page 2) That casestates the proposition differently, and the motion may not be granted \”…unless itis clear that the Secretary has not proven his case by a preponderance of theevidence.\”\u00a0 The Commission there insists on a high level of definitiveness toavoid the necessity of remand and protracted proceedings.[[3\/]]This is in accord with rule 41(b) after the 1946amendment (requiring the court to determine the facts upon a grant of the motion) and aprima facie showing is not sufficient to defeat a motion to dismiss.\u00a0 As stated in Ellisv. Carter, 328 F.2d 573 (1964) at 577:Accordingly, the trial court was not required todeny the 41(b) motion even if the evidence, viewed in a light most favorable to theplaintiff, made a prima facie case.\u00a0 If, from the record as it stood at the close ofplaintiff’s case, the court was convinced that the evidence preponderated against Ellis[plaintiff], it was empowered to grant Carter’s [defendant] motion.Thus, the complainant has no benefits here.\u00a0 The evidence may not be viewed in a light most favorable to him and a mere primafacie showing, i.e., satisfying the burden of producing evidence, is not enough.\u00a0 Allfictions and verbiage evaporate in the heat of a motion to dismiss.\u00a0 The facts, andthose alone, determine the issue of whether the complainant has \”the right torelief\” on the question of whether respondent violated–if it did at all–one of thethree standards cited against it willfully.The Plain Meaning of \”Willful\” and the Issue:There is no divisive difference of opinion amongthe Circuit Courts of Appeal on the Commission’s definition of the \”willfulness\”of a violation.\u00a0 That is,A violation is willful if it was committed voluntarily with either an intentionaldisregard for the requirements of the Act or with plain indifference to employee safety.\u00a0 Secretary v. A. C. Dellovade, Inc. BNA 13 OSHC 1019 (1987) The Third Circuit had added to this, what later was interpreted merely as a cosmetic withno significant variation from the generally accepted definition, the elements or\”flounting\” (\”flouting\”?) \”obstinate refusal,\” and \”badpurpose.\”\u00a0 Frank Irey, Jr. v. OSHRC, 519 F.2d 1200 (1974).\u00a0 In 1980,that Circuit agreed with the D. C. Circuit [Cedar Construction Co. v. OSHRC,587 F.2d 1303, 1305 (1978)] that there is little, if any, difference between theapproaches taken by the Circuit.\u00a0 The meaning of the terms–obstinate refusal,defiance, flounting or flouting and intentional disregard–is the same.\u00a0 See UniversalAuto Radiator Mfg. Co. v. Marshall, 631 F.2d 20, 23 (3d Cir. 1980), quotingfrom Babcock & Wilcox v. OSHRC, et al., 622 F.2d 1160, 1167-68(3d Cir. 1980).And that meaning has been put most simply anddirectly by the recent decision 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 be consciously aware that the conduct is forbidden at the time heperforms it, but his state of mind must be such that, if he were informed of the rule,he would not care.\u00a0 13 BNA 1033 at 1034 (emphasis mine)By the same token, as pointed out by complainant,[[4\/]] if an employer is aware of ahazard–albeit not of any safety standard governing the control of that danger–andpersists in exposing employees to it, a willful violation will lie.\u00a0 Secretary v.John W. Eshelman & Sons, BNA 9 OSHC 1397 (1981).[[5\/]] Conversely, a knowing and intentional disregardof a safety standard will justify its characterization as willful despite the employer’sgood faith belief–and, perhaps, even the fact–that the work could be done withoutendangering the employees.\u00a0 Donovan v. Capital City Excavating Co., Inc.,712 F.2d 1008, 1010 (6th Cir. 1983).[[6\/]]The foregoing describes the circumstancesdetermining a willful violation.\u00a0 Factors erasing that label have been found to be:Actions which an employer takes to bring itselfinto compliance with a standard’s requirements when it learns of its application. Secretaryv. R. D. Anderson Construction Co., Inc., BNA 12 OSHC 1665 (1986).\u00a0 This remainstrue even if the attempts were \”albeit inadequate,\” Secretary v. WilliamsEnterprises, Inc., BNA 4 OSHC 1663 at 1668 (1976), or if the actions fall short ofcomplying with the directives in the employer’s safety manual, Secretary v. U.S.Steel Corp, BNA 12 OSHC 1692 (1986). \”Merely negligent conduct is never deemed ‘willful.’\”\u00a0 Wehr v. BurroughsCorp., 619 F.2d 276, 282 (3d Cir. 1980);[[7\/]] nor is a failure to exercise duediligence alone equal to what might be said to be a careless disregard of safety, Secretaryv. Mosites Construction Co., BNA 9 OSHC 1808, 1813 (1981).Applying these rationales and criteria to thiscase, the factual issue may be framed as follows:Were the corrective actions taken by respondentafter it became aware of a hazard existing in its workplace merely lacking in duediligence or negligent; or were they taken with plain indifference to employee safety.The findings of fact below answer the firstquestion affirmatively and its disjunctive negatively.Findings of Fact Based on Complainant’sCase-in-Chief:I find the following:I) The scene:\u00a0 Respondent produces potatochips at a plant in Dayville, Connecticut, employing about 500 people.\u00a0 The fryer, alarge, stationary machine 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 Allenconveyor lines (to shake off excess oil) abutting to it taxing them to other areas forfurther processing.\u00a0 These lines are energized by flexible cables from a power sourceto the lines’ motors.To allow the fryer operator and pickers (who along the conveyors remove faulty chips) tocross from one area to another, a catwalk extends over a conveyor.\u00a0 This is made ofstainless steel consisting of two vertical ladders between which extends the walkway orcatwalk.\u00a0 As many as five employees may cross.The conveyors are heavy (Tr. 13) and equippedwith rollers; the catwalk is not and weighs about 100 pounds.\u00a0 (See photo exhibitsC-4 and C-7).\u00a0 At the bottom of the ladder (at least one of them) is a kickplatewhich extended to the floor before it was cut and shortened on March 31, 1986.\u00a0 (Seephoto exhibits C-4 and C-5)The flexible cord powering Allen conveyor no. 2was, on two occasions, resting under that kickplate. The entire area is cleaned by the respondent’ssanitation department using high pressure hoses every weekend and more often if requiredbecause the process is greasy.\u00a0 The conveyors are disconnected and the cords arewrapped around the machinery.\u00a0 They and the catwalk are moved out of the way tofacilitate the cleaning. (Tr. 39-40)II) The first shock:\u00a0 In January 1986, thefryer’s operator, Robert Hohler, as he was climbing off the catwalk, touched a conveyorand felt a \”tingle,\” an electrical current, run up his arm.He reported this to his supervisor, Mr. DanHanson, and \”immediately\” (Tr. 20) someone (Brian Arnio, a maintenance mechanic)was sent to look at it after Mr. Hanson investigated (Tr. 128-29).Mr. Arnio, after testing the catwalk, found itwas energized from the cord,[[9\/]] underneath it which had been cut through by thekickplate.\u00a0 He unplugged the cord, taped the cut, put it back on the floor, and wroteup a work order to have the cord replaced.\u00a0 It was 15 feet seven inches long (Tr.77). Mr. Arnio, did not know what became of the workorder which he gave to his supervisor, Mr. Borden[[10\/]] (Tr. 50).\u00a0 Charles Wall, theprocessing supervisor, could not find his copy of the work order but believed he hadordered replacement according to Compliance Officer Mulligan; Mr. Hanson told him that hedid not think that the cord had been replaced but that the problem had been rectified (Tr.173).\u00a0 Mr. Borden did not think replacement had occurred. (Tr. 129-31)The supervisor of the sanitation crew [Mr.Shultz (Tr. 129)] told the Officer that, among the many volumes of rules and regulationsrespondent maintains, there were no written rules governing the placement of cords on thefloor (Tr. 131).In the seven years Mr. Arnio has been employedin maintenance, he has taped minor cuts in the cords about six times.\u00a0 In each case,he prepared work orders for the replacement of the cords (Tr. 42).III) The second shock:\u00a0 Some two monthsafter this January incident, on March 31, 1986, Mr. Hohler, while crossing over on thecatwalk, grabbed the siderails and received a severe shock.\u00a0 He was thrown from thecatwalk, hospitalized overnight for observation and does appear to have sufferedseverely.[[11\/]]As in the January experience, again it was found that the kickplate had cut through thecord powering Allen conveyor no. 2 and the catwalk had become energized.In response to this incident, Mr. Arnio that daywas directed by his supervisor 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 theinspection, citation and amendments:\u00a0 On April 1, 1986, the day after the secondshock, Compliance Officer Stephan Mulligan made his inspection.\u00a0 As a result, andafter discussion with his immediate supervisor, he recommended that a citation be issuedalleging a willful violation of some sub-part of 29 C.F.R. ? 1910.303 [not specified (Tr.179)] because the cord was of insufficient strength and durability.\u00a0 At his closingconference, some five days later (Tr. 176), he told respondent’s management officials thatthe use of those cords, because of the stated deficiencies, would be the basis of anycitation that might be issued (Tr. 176-77).But this was changed.\u00a0 The citation, asoriginally issued, alleges a willful violation of 29 C.F.R. ? 1910.305(g)(1)(i), usingflexible cords where 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 to amend[[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 to protect flexiblecords from accidental damage while in temporary use;[[13\/]] or (2) a willful violation ofthe general duty clause, 29 U.S.C. ? 654(a)(1).\u00a0 The description of the violation,in any case, went unchanged as stated in the citation–in essence–insufficient strengthand durability of the cords.\u00a0 To be consistent, these terms must mean that flexiblecords were not permitted.\u00a0 For the purposes of this motion, I find that meaning to bethe citation’s charge.Conclusions and Order:The definition of a \”willful\”violation requires that if it is found that an employer(1) intentionally disregarded a requirement ofthe Act (i.e., a standard or the general duty clause);(2) acted with plain indifference to employeesafety; or (3) committed both of the above,then the violation for which it is charged mustbe deemed willful.The procedural facts show that there is somedoubt as to just what governs the respondent’s use or the flexible cord here and what itviolated, if anything.\u00a0 While this may not be fatal to justifying a characterizationof willfulness so long as some standard can be shown to apply,[[14\/]] there is no evidencethat respondent was aware it was violating any specific standard while employing thesecords as it did, let along willfully so.As originally charged, 29 C.F.R. ?1910.305(g)(1)(i) might permit the use of flexible cords for sub-part (H) allows them for\”Appliances where fastening 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 instandardized sizes or types, which is installed or connected as a unit to perform one ormore functions such as clothes washing, air conditioning, food mixing, deep frying, etc.(Emphasis mine)This definition is taken directly from the 1978 NationalElectrical Code, Article 100, according to complainant (Tr. 139-41 and quoted at Tr.140).\u00a0 While this appears to exclude the conveyors, some doubt is injected by use ofthe terms \”generally\” and \”normally.\”\u00a0 More importantly, the 1981Code Handbook[[15\/]] deletes the definitions of \”fixed,\”\”portable\”[[16\/]] and \”stationary\” appliances because \”. . .somerequirements for [these] appliances were based on different meanings of the terms.\”\u00a0Hence, respondent could reasonably believe that the conveyors were\”portable\” equipment and use of the cords would be excluded only\”generally\” but not totally.\u00a0 Any error here could not conceivably bedeemed willful.Or, subpart (F) permits the use of flexiblecords for the \”connection of stationary equipment to facilitate their frequentinterchange.\” Although the compliance officer testified that it was not so used (Tr.141), there was no explanation as to why the conveyors, locked into place except whenunplugged, are not stationary in the main, or \”not easily moved from one place toanother in normal use\” (1978 National Electric Code, Article 100, if this were toapply).\u00a0 Here, again, any error in interpretation could not be deemed as willful.Either of these instances permits the use of flexible cords to operate the conveyors sothat any misuse cannot be considered as a foregone conclusion.Amendment one charges the alternative violationof 29 C.F.R. ? 1910.305(a)(2)(iii)(G) under which flexible cords must be protected fromaccidental damage.\u00a0 But this entire section [29 C.F.R. ? 1910.305(a)(2)] is directedonly to temporary wiring such as while remodeling, etc., experiments and development, orChristmastime.\u00a0 That certainly is not the case here and this amended section does notapply.Finally, the second proposed amendment of aviolation of the general duty clause would apply only if no standard does.\u00a0 Onestandard not cited by complainant (a fourth possibility including the complianceofficer’s) is 29 C.F.R. ? 1910.305(g)(1)(iii)(C) which forbids the use of flexible cordsif otherwise permitted by subsection (1)(i) of that section \”Where run throughdoorways, windows or similar openings.\”\u00a0 While some interpretive difficultieswould be encountered here, running the cords under the conveyors must include openingssimilar to the hazard of one run through a doorway or window.\u00a0 But this subsectionhas neither been charged nor has any proof been brought forward to sustain it.Complainant does not address this latter point(applicability of the general duty clause) only that it has been violated in any eventbecause respondent was on notice of the hazard (the January shock) and did not remove it(the March incident).Suffice to say that this record allows no basisfor holding that no standard applies to bring down onto respondent the general dutyclause.\u00a0 No violation of that mandate is yet possible here.Since it may not be found that respondentintentionally disregarded a requirement of the Act by the use of flexible cords where astandard forbids it willfulness will only lie if it can be shown that respondent actedwith plain indifference to employee safety.\u00a0 There is no such proof.Respondent reacted immediately to the first signof danger.\u00a0 It had no other choice.\u00a0 A repair was made.\u00a0 Replacement of thecord was to have taken place and that it did not is not traceable to any intentional act.\u00a0Its lack of diligence here in not assuring that the cord would not be placed underthe kickplate was unfortunate amounting to negligence but it falls short of anyintentional or willful failure to protect employees.As soon as respondent became aware that itsfirst protective step (taping) was insufficient, it went further and removed the edge thatcut the cord (shortening the kickplate) and the cords were run through pipes to forestallother types of damage.\u00a0 These were acts directed by respondent’s managerialpersonnel.At best complainant has shown a seriousviolation if some requirement of the Act may be said to apply in that, with diligence,respondent should have been aware of the hazard; but no shadow of willfulness blackenswhat may be there.\u00a0 Applying the Morello test, above, as soon as respondentbecame aware of the hazard, it attempted corrections and finally cured it.\u00a0 It hasnot been shown that respondent did not care.\u00a0 It did, and it acted before theappearance of any regulatory authority.There is yet another serious defect incomplainant’s attempt to prove willfulness.\u00a0 That is respondent’s awareness of thehazard.\u00a0 Mr. Arnio taped and had replaced cords less than once a year.\u00a0 While heis not the only mechanic, no evidence was adduced that broken cords are a generallyrecurring problem.\u00a0 Even, perhaps, rarer is a cord cut by a kickplate or some otherpiece of machinery.\u00a0 No evidence was adduced that this should be an event respondentcould be held to expect.\u00a0 As far as this record goes, it happened once, in January1986 and was repaired.\u00a0 Since this hazard was not actually known to respondent beforeJanuary 1986, and steps were taken to remove it after it became known, it is not certainthat respondent–even though what it did do was insufficient–was on notice sufficient tosupport a charge of willfulness.The factual picture drawn here does not portraythe detail of respondent winking at employee safety matters.\u00a0 It was on notice of thehazard but not that it had to do more because it was not believed the problem would recur.\u00a0If it failed to finally cure the hazard in January, that failure was not as a resultof any sort of indifference to its employees’ safety.Since it has not satisfactorily been shown,which, if any, standard respondent may have violated rendering the question of a generalduty clause violation as premature; and since it has not been shown that respondent wasplainly indifferent to employee safety; I conclude that respondent did not willfullyviolate the Act’s requirements.It is, therefore, ORDERED that thecharacterization of citation no. 1, issued June 26, 1986, as willful be vacated.DAVID J. KnightJudge, OSHRCDated:\u00a0 February 23, 1987 Boston, MassachusettsSECRETARY OF LABOR, Complainant, v. FRITO-LAY, INC., Respondent.OSHRC Docket No. 86-1026 DECISION & ORDERFor the Complainant:\u00a0 Albert H. Ross,Regional Solicitor U. S. Department of LaborBoston, Massachusetts By:\u00a0 David Baskin, Esq.For the Respondent:\u00a0 William J. Rodgers,Esq. Finley, Kumble, Wagner, Heine,Underberg, Manley, Myerson & Casey Washington, 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 of violations[[1\/]] of safety standardsby the Occupational Safety and Health Administration of the U. S. Department of Labor(complainant or OSHA).The complainant presented his case-in-chief onJanuary 22, 1987, and respondent moved to dismiss the characterization of willfulness fromcitation no. 1.\u00a0 This motion was granted by decision [[2\/]] dated February 23 and thefollowing facts were found:(1) The scene:\u00a0 Respondent produces potatochips at a plant in Dayville, Connecticut, employing about 500 people.\u00a0 The fryer, alarge, stationary machine 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 Allenconveyor lines (to shake off excess oil) abutting to it taking them to other areas forfurther processing.\u00a0 These lines are energized by flexible cables from a power sourceto the lines motors.To allow the fryer operator and pickers (whoalong the conveyors remove faulty chips) to cross from one area to another, a catwalkextends over a conveyor.\u00a0 This is made of stainless steel consisting of two verticalladders between which extends the walkway or catwalk.\u00a0 As many as five employees maycross.The conveyors are heavy (Tr. 13) and equippedwith rollers; the catwalk is not and weighs about 100 pounds.\u00a0 (See photo exhibitsC-4 and C-7).\u00a0 At the bottom of the ladder (at least one of them) is a kickplatewhich extended to the floor before it was cut and shortened on March 31, 1986.\u00a0 (Seephoto exhibits C-4 and C-5)The flexible cord powering Allen conveyor no. 2was, on two occasions, resting under that kickplate.The entire area is cleaned by the respondent’ssanitation department using high pressure hoses every weekend, and more often if requiredbecause the process is greasy.\u00a0 The conveyors are disconnected and the cords arewrapped around the machinery.\u00a0 They and the catwalk are moved out of the way tofacilitate the cleaning. (Tr. 39-40)II) The first shock:\u00a0 In January 1986, thefryer’s operator, Robert Hohler, as he was climbing off the catwalk, touched a conveyorand felt a \”tingle,\” an electrical current, run up his arm.He reported this to his supervisor, Mr. DanHanson, and \”immediately\” (Tr. 20) someone (Brian Arnio, a maintenance mechanic)was sent to look at if after Mr. Hanson investigated (Tr. 128-29).Mr. Arnio, after testing the catwalk, found itwas energized from the cord [[4\/]] underneath it which had been cut through by thekickplate.\u00a0 He unplugged the cord, taped the cut, put it back on the floor, and wroteup a work order to have the cord replaced.\u00a0 It was 15 feet 7 inches long (Tr. 77). Mr. Arnio did not know what became of the workorder which he gave to his supervisor, Mr. Borden [[5\/]] (Tr. 50).\u00a0 Charles Wall, theprocessing supervisor, could not find his copy of the work order but believed he hadordered replacement according to Compliance Officer Mulligan; Mr. Hanson told him that hedid not think that the cord had been replaced but that the problem had been rectified (Tr.173).\u00a0 Mr. Borden did not think replacement had occurred. (Tr. 129-31)The supervisor of the sanitation crew [Mr. Shultz (Tr. 129)] told the Officer that, amongthe many volumes of rules and regulations respondent maintains, there were no writtenrules governing the placement of cords on the floor (Tr. 131).In the seven years Mr. Arnio has been employedin maintenance, he has taped minor cuts in the cords about six times.\u00a0 In each case,he prepared work orders for the replacement of the cords (Tr. 42).III) The second shock:\u00a0 Some two monthsafter this January incident, on March 31, 1986, Mr. Hohler, while crossing over on thecatwalk, grabbed the siderails and received a severe shock.\u00a0 He was thrown from thecatwalk, hospitalized overnight for observation and does appear to have sufferedseverely.[[6\/]]As in the January experience, again it was foundthat the kickplate had cut through the cord powering Allen conveyor no. 2 and the catwalkhad become energized.In response to this incident, Mr. Arnio that daywas directed by his supervisor 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 theinspection, citation and amendments:\u00a0 On April 1, 1986, the day after the secondshock, Compliance Officer Stephan Mulligan made his inspection.\u00a0 As a result, andafter discussion with his immediate supervisor, he recommended that a citation be issuedalleging a willful violation of some sub-part of 29 C.F.R. ? 1910.303 [not specified (Tr.179)] because the cord was of insufficient strength and durability.\u00a0 At his closingconference, some five days later (Tr. 176), he told respondent’s management officials thatthe use of those cords, because of the stated deficiencies, would be the basis of anycitation that might be issued (Tr. 176-77).But this was changed.\u00a0 The citation, asoriginally issued, alleges a willful violation of 29 C.F.R. ? 1910.305(g)(1)(i), usingflexible cords where 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 to amend [[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 to protect flexiblecords from accidental damage while in temporary use; [[8\/]] or (2) a willful violation ofthe general duty clause, 29 U.S.C. ? 654(a)(2).\u00a0 The description of the violation,in any case, went unchanged as stated in the citation–in essence–insufficient strengthand durability of the cords.Another citation, alleging three non-seriousviolations involving the use of flexible cords, was also issued and contested as discussedbelow.\u00a0 Discussion, Findings and Conclusions:As initially cited, respondent is charged withviolating 29 C.F.R. ? 1910.305(g)(1)(i):(g) Flexible cords and cables–(1) Use offlexible cords and cables.\u00a0 (i) Flexible cords and cables shall be approved andsuitable for for conditions of use and location.\u00a0 Flexible cords and cables shall beused only for:(A)(B)(C) Connection of portable lamps or appliances;(D)(E)(F) Connection of stationary equipment to facilitate their frequent interchange; (G)(H) Appliances where the fastening means and mechanical connections are designed to permitremoval for maintenance and repair;According to the facts and testimony given byrespondent’s expert witness, electrical engineer Bernard Stankevich, respondent’s use offlexible cord in its chip processing area complied with this standard.\u00a0 Specifically,the use of flexible cord to operate respondent’s conveyors was established as beingapproved and suitable under either subparts (C), (F), or (H) of this section.\u00a0 Thisevidence was not rebutted.Subpart (H) would allow the use of flexible cordfor \”(a)ppliances where the fastening means and mechanical connections are designedto permit removal for maintenance and repair.\”\u00a0 The definition of\”appliances\” is found at 29 C.F.R. ? 1910.399(a)(6) as:Utilization equipment, generally other thanindustrial, normally built in standardized sizes or types, which is installed or connectedas a unit to perform one or more functions such as clothes washing, air conditioning, foodmixing, deep frying, etc.The definition of \”utilizationequipment\” is found at 29 C.F.R. ? 1910.399(a)(127):(E)quipment which utilizes electric energy formechanical, chemical, heating, lighting, or similar useful purpose.Stankevich testified that the conveyingequipment used by Frito-Lay is contained in the definition of \”appliance\” (Tr.14, 15, 16).Although the conveying equipment used by respondent is industrial equipment, thedefinition of utilization equipment comprises that which is \”generally other thanindustrial.\”\u00a0 This would not unequivocally exclude respondent’s conveyingequipment from the definition of \”appliance.\”Subpart (C) allows the use of flexible cord forthe \”(c)onnection of portable lamps or appliances.\”\u00a0 Subpart (F) permitsthe use of flexible cords for the \”(c)onnection of stationary equipment to facilitatetheir frequent interchange.\”\u00a0 As stated earlier, the conveyors are equipped withwheels, thus, they are portable; once moved to a chosen location, the wheels are able tobe locked, thus rendering them, effectively, stationary.\u00a0 While it may appearanomalous to deem the conveyors both \”portable\” [[9\/]] as in subpart (C), and\”stationary,\” as in subpart (F), the conveyors are capable of bothcharacterizations by virtue of their locking wheels.Stankevich’s testimony confirmed that the use offlexible cord in respondent’s chip processing area was a proper installation, and waspermitted under OSHA standards (Tr. 11).\u00a0 In his experience as an electricalengineer, and based on previous inspections and safety audits of other industrial plants,[[10\/]] he testified that the use of flexible cord in respondent’s plant conformed toindustry-wide practice.\u00a0 Further, the type \”SO\” cord which was involved inthe January and March shock incidents, and which energized the drive motor on the no. 2Allen Inspector Conveyor, was suitable for extra-hard usage of the type in Frito-Lay’spotato chip processing area. [[11\/]]\u00a0 Indeed, complainant concedes that thistestimony \”established that respondent’s use of flexible cords was per se reasonableand that \”serious violation of the standard was not committed by mere use of thecords in general.\” [[12\/]] This \”mere use\” is the substance and purpose ofthe cited standard.\u00a0 It is limited to delineating those circumstances in whichflexible cord shall be used.\u00a0 The standard would permit the use of flexible cords tooperate respondent’s conveyors pursuant to either three of its aforementioned subparts,and I so conclude.But, subsection (iii) (C) of this same standarddoes not permit the use of flexible cords: [[13\/]](C) Where run through doorways, windows or similaropenings. (emphasis mine)Both the January and March shock incidents wereattributed to the position of the cord underneath the kickplate.\u00a0 The cord was foundto have been run underneath the conveyors in both instances.\u00a0 The space underneaththe conveyors, specifically under the kickplate, would certainly be deemed to constitutean opening similar to doorways or windows.\u00a0 When the cord was run underneath thisopening, it fell within the prohibition of the standard.\u00a0 Although the use offlexible cord was approved and suitable for conditions of use and location in respondent’schip processing area, the real issue in dispute was the way in which the cord wasused.\u00a0 It is uncontroverted, as elicited from Stankevich’s testimony, that any pieceof equipment should never rest upon any flexible cord (Tr. 41).\u00a0 Equipment wouldinclude the 100-pound kickplate that rested on top of the cord (Tr. 45), discovered uponthe January and March shock incidents.Thus, based on respondent’s expert witness’stestimony, a violation of 29 C.F.R. ? 1910.305 (g)(1)(iii)(C) is clearly evident: \u00a0the permissible use of flexible cord impermissibly placed.\u00a0 Complainant phrases thisissue similarly, albeit citing the wrong standard:Complainant submits that Mr. Stankevich’stestimony establishes that Respondent violated ? 1910.305(g)(1)(i) by using a cord whichwas otherwise suitable for hard usage in Respondent’s work area in a manner which wasunsuitable due to the specific placement of the cord.\u00a0 (emphasis mine) (p. 3)Respondent, despite its expert’s testimony,argues (on this alleged violation) that it \”…is aware of no standard requiring thatcable … may not run across a floor.\”\u00a0 (p. 12-13) It does not mention thespecifics of this standard and this portion is necessarily inconsistent with the evidencefrom its case-in-chief.I conclude that respondent–by not ensuring thatthe cable would not pass 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 an opening presentingthe same hazard as a window or doorway. [[14\/]] This is the cause of both events inJanuary and March and the violation, in terms of potential injury, is serious (seefootnote 6, above).That respondent knew or should have known ofthis potentially dangerous condition [29 U.S.C. ? 666(j)] is shown either by therequirement of showing the cause of damage on Mr. Arnio’s work order calling forreplacement of the cable (a fact not broached by either party); or if Mr. Arnio did notreport the cause of the cord’s cut, this reflects on his training by respondent to reportand correct hazards the existence which respondent’ s expert admitted.\u00a0 Brennanv. Butler Lime and Cement Co., 520 F.2d 1011, 1017. In one case and the other,respondent knew or should have known of the hazardous condition.\u00a0 And the factssurrounding both occurrences (January and March) were tried out to the extent that noprejudice results to the respondent by amending this alleged non-serious violation to oneof a serious characterization.\u00a0 Kaiser Aluminum and Chemical Corp, 4 OSHC1162, 1165, 1975-76; National Realty & Construction Co. v. OSHRC, 489F.2d 1257 (D.C. Cir. 1973).\u00a0 An amendment under Rule 15(b) is proper if it can bedetermined that the unpleaded issue was tried, and that the parties either expressly orimpliedly consented to do so.\u00a0 Rule 15(b).\u00a0 Secretary of Labor v. McWilliamsForge Company, Inc., 11 OSHC 2128 (July 20, 1984).\u00a0 \”At least it must appearthat the parties understood the evidence to be aimed at the unpleaded issue.’\” McWilliamsForge, 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 reasonably expect the Januaryevent to recur in March when it took no steps (other than an attempted replacement of thecable) to ensure that the cable would not again be cut in the same way.The penalty for this violation I set at $250 andis based mainly on its gravity.\u00a0 Respondent’s size, good faith and history do notdetract from its commitment to safety.\u00a0 29 U.S.C. ? 666(i).With these findings and conclusions the proposedamendments must be vacated.\u00a0 The general duty clause will not apply because astandard preempts it exclusively concerning the hazard and conditions described by theevidence.\u00a0 Cf., Int. Un. U.A.W. v. General Dynamics Land Sys.Div., 815 F.2d 1570 (1987).\u00a0 Complainant admits that the remaining proposedamendment [29 C.F.R. ? 1910.305 (a)(2)(iii)(g) – temporary wiring] is not applicable(Brief. p. 2).Citation No. 2 (the non-serious items):Item 1:\u00a0 An alleged violation of 29 C.F.R.? 1910.22(a)(1)(a) Housekeeping.\u00a0 (1) All places of employment, passageways, storerooms, and servicerooms shall be kept clean and orderly and in a sanitary condition.Respondent does not dispute the fact that theflexible cord energizing the sizer ran across the floor and presented a tripping hazard.It does take issue with the language of the citation that the cord was subject to damage.\u00a0That should be deleted, it argues, because the cable (type \”SO\”) wassuitable for this installation and there is no proof otherwise. (Brief, p. 4)As noted above, respondent’s expert testifiedwithout refutation that this cable is suited for the purpose used.\u00a0 This necessarilymeans that it can withstand some abuse.\u00a0 The implication of the disputed language isthat the cord-which might be damaged by someone tripping over it–is less suitable than asafety-conscious employer would put to use.\u00a0 Given no proof, only conjecture, thatthe cord would suffer or break under this possibility, respondent’s point is well taken.This item is affirmed in the order below butonly insofar as the cord created a tripping hazard.Item 2:The complainant also invoked ? 1910.305(g)(1)(i) to charge respondent with a non-serious violation, the substance of which wasthat \”the flexible cord used to energize the no. 1 Allen Conveyor had the outersheath cut. [[15\/]]\u00a0 While this charge may be relevant to an improper manner in whichthe cord was used, it has no bearing on whether or not the use of flexible cord waspermitted under the standard.\u00a0 As stated, supra, the use of flexible cord toenergize the conveyors was approved and suitable under the standard.The compliance officer would have preferredfixed wiring here rather than flexible cord connected to the frame of the conveyor (Tr.151-52, 181).According to the testimony of engineerStankevich, a crack in a flexible cord may only require temporary taping until it can bereplaced (Tr. 22).\u00a0 If metal in one of the interior wires is exposed, [[16\/]] it isgeneral engineering practice to temporarily repair it with electrical tape, and continueto use the cord until it can be replaced (Tr. 22, 39).\u00a0 The inner wires inrespondent’s cord were not so exposed (Tr. 151).\u00a0 Respondent complied with generalengineering practice, as it taped and submitted a work order for the replacement, of thedamaged cord.\u00a0 However compliant or diligent respondent may have been in thisrespect, the condition of the cord is not relevant to the approval or suitability offlexible cord use under the cited standard. [[17\/]]\u00a0 Thus, the condition of the cordhaving no bearing on the permissibility of its use under these circumstances, thisstandard was not violated by respondent.\u00a0 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.\u00a0 That the flexible cord to power the no.2 conveyor was used in lieu of fixed wiring.\u00a0 This aspect has been decided as the nubof citation no. 1, item 1; and2.\u00a0 The flexible cords for the seasonermachine on the no. 1 Allen conveyor were attached to the conveyor with plastic wire ties.Complainant asks that this (as well as bothitems 2 and 3 here) be affirmed as the cords created tripping hazards as in item 1 becausethese cords were strung along the floor.\u00a0 (Brief, pp. 8-9)\u00a0 All the evidencedoes here, and I so find, is place the cords on the floor; there is little to suggesttripping and the tenor of the officer’s testimony was a problem with these cords underthe conveyors (Tr. 148-49, 153-55).\u00a0 Considering this request as a motion to amendthe citation and complaint, it is denied.I also conclude that this sub-item must bevacated.\u00a0 The cited section does not prohibit plastic wire ties where flexible cordis permitted even though so fixing the cords in place this way suggests that fixed wiringshould have been used (Respondent’s brief, p. 13, note 12).\u00a0 On the contrary,respondent’s unattacked evidence shows that so attaching these cords is a standard safetypractice in industry and hospitals to prevent possible disasters such as having a cordaccidentally torn from its connection (Tr. 23-24, 2\/26\/87). Complainant did not takeadvantage of his opportunity (which he preserved) to rebut this testimony.\u00a0 (Tr.61-62, 2\/26\/87).This item, too, is vacated in the order below.ORDER:Based on the findings of fact and conclusions oflaw reached after considering the evidence and the parties’ arguments and proposals, whichto the extent shown are adopted or rejected as having insufficient support in thepreponderance of the evidence or precedent, it is ORDERED1) Citation no. 1, issued June 26, 1986,alleging a willful violation of 29 C.F.R. ? 1910.305(g)(1)(i) is vacated (see also theorder of February 23, 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 civilpenalty of $250 assessed therefor;2) The motion to amend this citation to allege aviolation either (1) of 29 C.F.R. ? 1910.305(a)(2)(ii)(G) or (2) of the general dutyclause, 29 U.S.C. ? 654(a)(1) is denied; and3) Citation no. 2, also issued June 26, 1986,alleging non-serious violations of a) 29 C.F.R. ? 1910.22(a)(1), as item 1thereof, is affirmed only as the flexible cord specified there created a tripping hazardand no civil penalty is assessed therefor; and b) 29 C.F.R. ? 1910.305(g)(1)(i), as item2 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 respondent used flexible cordsimproperly in powering machinery producing potato chips.\u00a0 It may have violated 29C.F.R. ? 1910.305(g)(1)(i) as charged in the citation; or, as amended on the eve ofhearing, 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 rulegoverning motions to dismiss.\u00a0 Thus, the Federal rules apply.\u00a0 See Commissionrule 2(b), 29 C.F.R. ? 2200.2(b).[[3\/]] To the same point, Secretary v. R.C. Diving Co., Inc., BNA 9 OSHC 1402 at footnote 4.\u00a0 The text even goes furtherstating that the motion should not be granted unless the evidence preponderates againstthe complainant.[[4\/]] Opposition, page 6.[[5\/]] This case puts to rest respondent’sargument (Memorandum, page 8) that an employer unaware of a standard may normally not befound in willful violation.\u00a0 It would also have to be found that it was unaware ofthe hazard.[[6\/]] Good or bad faith is immaterial.\u00a0Respondent’s action determines the nature of a violation.\u00a0 However, a goodfaith attempt to comply with a standard’s dictate will relieve a respondent of the stigmaof willfulness.\u00a0 Secretary v. Lukens Steel Co., BNA 10 OSHC 1115, 1127(1981).[[7\/]] This statement was applied to the Act’s\”willful\” while stated in a proceeding involving another statute.\u00a0 Babcock& Wilcox, above, 1168, footnote 7, cited by respondent at page 11 of itsmemorandum.[[8\/]] Transcript references are used only wherethe parties’ memoranda do not mention a fact or where it is in dispute.[[9\/]] The parties did not stipulate the amountof power carried by the cords; 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:\u00a0two employees, a state police officer and the inspecting compliance officer andrested. No supervisory employees were questioned despite five other employees–supervisoryor not– being subpoenaed by him, present in the courtroom, but not called (Tr. 197-99)[[11\/]] Based on Mr. Hohler’s testimony (Tr.21-25) and that of Officer Johnson (Tr. 100), if nothing else were offered, I would findany violation here to be \”serious\” as that is defined at 29 U.S.C. ? 666(j).[[12\/]] This motion was granted subject to thecondition that the factual pattern did not differ from that used to support the originalcitation (Tr. 8). [[13\/]] 29 C.F.R. ? 1910.305(a)(2) governs theuse 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. WilliamsEnterprises, Inc., 744 F.2d 170) are inapposite.\u00a0 (Opposition, page 9)\u00a0In neither case, did the Courts address the question of choosing amongcomplainant-sponsored alternatives.[[15\/]] The Code of Federal Regulationspublished by the Office of the Federal Register, National Archives and Records ServiceAdministration, revised as of July 1, 1985, references the 1981 National Electrical Codeas \”…helpful in understanding and complying\” with these standards.\u00a0 SeeAppendix A following 29 C.F.R. ? 1910.399.\u00a0 The 1978 Code, then, is not applicable.[[16\/]] \”Portable\” meant an appliancewhich is actually moved in normal use.[[1\/]] By citation issued June 26, 1986, with anamendment to plead alternatively.\u00a0 The notice of contest is dated July 18, 1986.Respondent admitted the necessary jurisdictional facts in its answer to the complaint.\u00a0See 29 U.S.C. ?? 652, 658 and 659.\u00a0 Hearing was held on January 22 andFebruary 26, 1987, with both parties represented by counsel.\u00a0 Final briefs were filedby May 26, 1987.[[2\/]] Attached as \”attachment A\”hereto.[[3\/]] Transcript references are used only wherethe parties memoranda do not mention a fact or where it is in dispute.[[4\/]] The parties did not stipulate the amountof power carried by the cords; 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: \u00a0two employees, a state police officer and the inspecting compliance officer andrested.\u00a0 No supervisory employees were questioned despite five otheremployees–supervisory or not–being subpoenaed by him, present in the courtroom, but notcalled (Tr. 197-99)[[6\/]] Based on Mr. Hohler’s testimony (Tr.21-25) and that of officer Johnson (Tr. 100), if nothing else were offered.\u00a0 I wouldfind any violation here to be \”serious\” as that is defined at 29 U.S.C. ?666(j).\u00a0 Respondent does not raise the question of the effect of electrical shock inits brief.[[7\/]] This motion was granted subject to thecondition that the factual pattern did not differ from that used to support the originalcitation (Tr. 8).[[8\/]] 29 C.F.R. ? 1910.305(a)(2) governs theuse of \”Temporary Wiring.\”[[9\/]] The Code of Federal Regulations omitsdefinitions of \”portable\” and \”‘stationary.\” \u00a0\”Portable\” as it is normally used, and as it was understood in this case, meantan appliance which is actually moved in normal use (attachment A), p. 10, n. 16).\u00a0 Seealso Secretary v. Emery Industries, Inc., 12 OSHC 1300, OSAHRC DocketNo. 84-200, March 11, 1985, which adopted the same definition, but vacated employer’scitation of 29 C.F.R. ? 1910.305(g)(1), in part, \”because the regulation does notdefine ‘portable’ and therefore, fails reasonably to apprise employer of the prohibitedconduct.\” [[10\/]] Stankevich testified to having performedapproximately 500 inspections (Tr. 6).[[11\/]] Although charged by the Secretary aspart of the 29 C.F.R. ? 1910.305 (g)(1)(i) citation, the \”strength anddurability\” of the flexible cord is not an element of this standard.\u00a0 Afterinspection of the facility by compliance officer Mulligan, he recommended that a citationbe issued alleging a willful violation of 29 C.F.R. ? 1910.303.\u00a0 Subpart (b)(ii)requires electrical equipment to be of sufficient \”strength and durability\” toprevent damage to the inner conductors.\u00a0 This was later changed to allege a violationof 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 againstusing flexible cords once their use is generally permitted.\u00a0 Although this standard,29 C.F.R. ? 1910.305(g)(1)(iii)(C) is written as a self-contradiction, its clear meaningis found in the National Electric Code for 1971, ? 400-4 which states that the cordsshall not be used in the prohibited ways.[[14\/]] Shutting one or the other (or thekickplate pressing down on a cable) risks cutting it through.[[15\/]] \”Cut\” meaning that the outersheath of the flexible cord became \”broken\” or cracked (Tr. 184).[[16\/]] There are, generally, three, but no lessthan two, interior wires in a cord (Tr. 22).[[17\/]] At the January hearing, respondentelicited 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 March 31,1986, before the incident, was not relevant to his issuance of the citation (Tr. 185).”