“SECRETARY OF LABOR,Complainant,v.JEFFERSON SMURFIT CORPORATION,Respondent.UNITED PAPERWORKERS INTERNATIONAL UNION, LOCAL 1009,Authorized Employee Representative.OSHRC Docket No. 89-0553DECISIONBEFORE: FOULKE, Chairman, WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:Following an inspection at a cardboard box manufacturing facility inLakeland, Ohio operated by Respondent, Jefferson Smurfit Corporation(\”Smurfit\”), the Secretary issued a citation alleging that Smurfitviolated the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-78 (\”the Act\”) by exposing its employees to in running nip pointscreated by unguarded belts and pulleys on a gluing machine. The issuebefore us is whether Administrative Law Judge Joe D. Sparks erred infinding that Smurfit failed to comply with the Secretary’s standard at29 C.F.R. ? 1910.212(a)(1), which requires as follows:? 1910.212 General requirements for all machines.(a) Machine guarding–(1) Types of guarding. One or more methods ofmachine guarding shall he provided to protect the operator and otheremployees in the machine area from hazards such as those created bypoint of operation, ingoing nip points, rotating parts, flying chips andsparks. Examples, of guarding methods are–barrier guards, two-handtripping devices, electronic safety devices, etc.We conclude that the Secretary failed to prove that Smurfit’s employeeswere exposed to a hazard within the meaning of this standard.[[1]] Wereverse the judge’s decision and vacate item 1 of the citation.[[2]]*FACTS*The alleged violation concerns one machine, gluer no. 18e. This machine,known as a \”straight-line gluer,\” processes flat cardboard into finishedboxes by passing the cardboard through a series of folder bars and glueapplicators which gradually form it into boxes of the prescribed sizeand shape. One employee, the feeder, inserts flat cardboard into themachine at one end while another, the finisher, takes the completedboxes from the other end, approximately 80 to 85 feet away. There isalso a machine operator who sets up the machine and inspects the qualityof the finished product. The finisher at times assists the operator.The gluer contains a horizontal belt, referred to as a \”folder belt,\”that carries the cardboard through one section of the machine. Itoperates at a speed of 248 feet per minute. At issue here are the twonip points formed where the return run of the belt winds over itspulleys. This portion of the belt is 57 inches in length and 30 inchesabove the floor. It is located at least 15 feet and possibly as much as25 feet from the nearest work station. An emergency stop cord extendsalong the length of the gluer, parallel to the folder belt but above andin back of it. The stop cord is 63 inches from the floor and about 12inches past the location of the nip points. In addition to the stopcord, there are two sets of start stop jog buttons 7 feet apart about 16inches from the belt. The jog button is used in setting up the machinefor each product. It allows the operator to position the box materialprecisely at the location where the box will be folded so that thefolder rail, or \”sword,\” can be properly adjusted.Compliance officer Jackie L. Hunt, who conducted the initial inspection,stated that the nip points presented a hazard of possible fingeramputation. He observed a machine operator, Ray Lewis, standing 1 or 2feet away from the nip points while watching the machine. He also sawthe operator’s assistant and two other employees walk past the nippoints 2 to 3 feet from them, while proceeding to their work stations.He stated that they could have fallen or slipped into the nip points butobserved nothing in the aisle that would have caused them to slip or trip.A second compliance officer, James Zucchero, conducted a subsequentdiscovery inspection of the plant for the purpose of determiningfeasible guarding methods. During this inspection, Zucchero made avideotape of the gluer in operation. Zucchero observed operator Lewismaking an adjustment with a wrench approximately 36 inches from the nippoint. Zucchero also concluded that because the stop cord is locatedbehind the nip points, any employee wishing to pull the cord from thatside of the machine would have to reach over and past the nip point.However, Zucchero was not asked whether an employee would have any morereason to pull the cord in the area of the nip points than at some otherlocation along the 80- to 85-foot length of the cord. Finally, Zuccherosaw some tool carts \”stored\” in the aisle but did not know whether theyare there on a permanent basis, how frequently they are there, orwhether there were any carts in the aisle at the time of Hunt’s inspection.In addition to the testimony of the two compliance officers, theSecretary presented the testimony of three other employees: TimothyGilb, the president of the union local at Smurfit’s plant; Ruby Aker,who had worked as a finisher at the gluer but had never operated theequipment, and Wendall Alder, who delivered material to the gluer. Gilband Aker testified that the operator stood as close as 5 inches from theunguarded nip points while he watched the machine to be sure it wasoperating properly. Alder stated he had seen the operator within 2 to 3,inches from the nip points and that the operator was adjusting the gluerwhile it was operating. Aker also testified that there was a\”possibility\” of other employees approaching the nip points. Gilbtestified that other employees could walk by within 1 to 2 feet of thenip points, and that there were objects such as toolboxes in the aisle.Operator Lewis and operator’s assistant and maintenance technician Combsappeared as witnesses for Smurfit. Lewis had been employed as it glueroperator for twenty-nine years. Combs, an operator’s assistant who alsowas in charge of maintenance of the gluer, had 35 years experience withgluers of the type at issue here. Lewis testified that when he is simplyobserving the operation of the gluer, he stands at least 2 feet awayfrom the frame of the machine. He also testified that if any problemswere to arise during the course of a production run. he would turn offthe gluer before making the necessary corrections. While Lewis did statethat he would make adjustments to the glue pot while the equipment wasrunning, he testified that the adjustment crank for the glue pot is 28to 30 inches away from the nip point. He further testified that thecrank handle had a fitting to accommodate an employee’s hand, and therehad never been an occasion when his hand slipped off the crank. Lewisand Combs also agreed that the operator would have occasion to makeadjustments to the folder bars of the gluer while it was operating butdiffered somewhat regarding the locations where the adjustments aremade. Lewis testified that the adjustment cranks for the folder bars arepositioned at the middle and ends of the gluer, nowhere near the nippoints. Combs, however, stated that the crank the operator uses toadjust the track of the folder mechanism is 24 inches from the belt inissue here. Combs and Lewis also stated that an employee could grasp thesafety line from the location of the nip points by reaching up and overthe nip points. Lastly, Combs noted that there are often toolboxes inthe aisle 3 to 4 feet from the nip points.DISCUSSION AND ANALYSISAfter reciting the testimony of the witnesses for both the Secretary andSmurfit, Judge Sparks found that \”the weight of the evidence\”established that employees were exposed to the hazard presented by theunguarded nip points. The judge stated as follows:The operator was seen by several witnesses observing operations andmaking adjustments only a few inches from the nip points. Otheremployees walk by the nip points in aisles which have tool chests andother obstructions. It is entirely possible that persons could trip oraccidentally fall into the nip points.Ironically, a worker attempting to use the safety trip wire could berequired to reach over the nip points. During an emergency situation, itcould result in accidental contact with the nip points. In summary, theevidence shows that employees in pursuit of their work and comfortactivities are regularly exposed to the danger of serious bodily injuryin the nip points.Essentially, the judge implicitly found the testimony of the Secretary’switnesses Glib, Aker, and Alder more persuasive than that of Smurfit’switnesses, operator Lewis and operator’s assistant and technician Combs,regarding how close operators would come to the nip points during theirwork tasks. The judge also found exposure based on possibility ofaccidental contact by employees when walking past the gluer or operatingthe safety cord. We disagree.The standard at issue, ? 1910.212(a)(1), requires the Secretary to provethat a hazard within the meaning of the standard exists in theemployer’s workplace. Armour Food Co., 14 BNA OSHC 1817, 1821, 1987-90CCH OSHD ? 29,088, p. 38,883 (No. 86-247, 1990). In order to meet thisburden, the Secretary must do more than show that it may be physicallypossible for an employee to come into contact with the unguardedmachinery in question. Rather, the Secretary must establish thatemployees are exposed to a hazard as a result of the manner in which themachine functions and the way it is operated. Id.: RockwellInternational Corp., 9 BNA OSHC 1092, 1097-98, 1980 CCH OSHD ? 24,979,p. 30,846 (No. 12470, 1980).In this case, there is a conflict in the evidence with regards to theexposure of the machine operators. The Secretary present testimony thatthe gluer operators routinely came in very near proximity to theunguarded nip points, as close as 2 to 5 inches, while performing theirassigned task. That evidence is contradicted by, Smurfit’s witnesses,who testified that the operator would at least 2 feet from the gluerwhile observing it and that they would make their adjustments to theequipment using crank handles located and designed to keep their handsno closer than 2 feet from the nip points. In finding the machineoperators to be exposed to a hazard, the judge relied on the testimonyof the Secretary’s witnesses. In our view, however, Smurfit’s evidenceis entitled to greater weight than that of the Secretary.None of the Secretary witnesses had any first-hand experience with theoperation of the gluer and two of the Secretary’s witnesses, Gilb, theunion president, and Alder, who made deliveries to the gluer, had nevereven worked in the gluer area. Their testimony consists entirely ofestimates of the proximity of the operators to the nip points based ontheir observations of operators during the course of their work. On theother hand, Combs and Lewis, who testified for Smurfit, had years ofactual experience with the operation of the gluer. Each statedspecifically where he stood in relation to the gluer when observing itor making adjustments, and each described the actual mechanisms used tomake adjustments to the equipment’s and specified the location of theadjusting cranks. Furthermore, the testimony of Combs and Lewis is moreconsistent with that of the Secretary’s compliance officers than is thetestimony of the employee’s who appeared for the Secretary. Neither ofthe two compliance officers observed operators working as close as 2 to5 inches from the nip points, as described by Secretary’s witnesses.Rather, compliance officer Hunt saw operator Lewis standing 1 to 2 feetfrom the gluer while observing it, and compliance officer Zucchero sawLewis making adjustment approximately 36 inches from the nip point.These observations by the compliance officers substantiate the directtestimony of Combs and Lewis that operators customarily do not closethan 2 feet from the nip points. Similarly, they cast doubt on theaccuracy the employees’ estimates placing operators as close as severalinches to the nip points. Since we find testimony of Combs and Lewisinherently more persuasive because it is based on their own personalknowledge and experience, and since it is corroborated by the complianceofficers’ testimony, we conclude that the judge erred in failing to giveit dispositive weight on the question of the exposure of operators tohazard. See All Purpose Crane Inc., 13 BNA OSCH 1236, 1986-87 CCH OSHD ?27,877 (No. 82-284, 1987) (Commission has the same authority as thejudge to evaluate the relative qualifications of various witnesses andweigh their testimony in the light of the totality of the record). [[3]]The testimony of Combs and Lewis conclusively establishes that operatorswould not have occasion to approach closer than 2 feet to the nip pointswhen simply observing its operation and that the adjustment handles ordevices are located and designed so as to keep the operators hands awayfrom the nip points. The record shows that the start, stop, and jogbuttons the operator uses to control the gluer were located 16 inchesfrom the belt in issue here. There is no evidence from which we couldconclude that operators would have occasion to come any closer to thenip points when operating these controls. On these facts, the Secretaryhas failed to establish that operators are exposed to a hazard under ?1910.212(a)(1) while performing their normal work duties. As theCommission held in Syntron, Inc., 11 BNA OSHC 1868, 1983-84 CCH OSHD ?26,841 (No. 81-1491-S, 1984), where the operator of a cut-off saw stoodabout 1 foot from the unguarded blade while the saw was operating in anautomatic mode, a violation of ? 1910.212(a)(1) cannot be found in theabsence of evidence that the operator would have any reason to put hishands close enough to the unguarded parts of the machinery to be exposedto a hazard. See Rockwell International, 9 BNA OSHC at 1097- 98, 1980CCH OSHD at p. 30,846 (employees not exposed to the hazard of unguardedpower presses where operators did not hold the metal pieces duringprocessing and had no cause to place their hands within the bed of thepress ram).We further conclude that the judge erred in finding that employees otherthan the gluer operator would be exposed to a hazard. As the judge’sdecision indicates, the evidence shows only a mere possibility thatemployees could come into contact with the unguarded nip points whilewalking past the gluer. In addition, the record indicates at even thatpossibility would be remote. The video tape taken by Zucchero, which wasadmitted into evidence, plainly shows that the belts and nip points inquestion are located in a small alcove in the exterior framework of thegluer that is no less than 16 inches deep. [[4]] Accordingly, in orderfor employees to be exposed to a hazard while merely walking past thegluer, they would have to deliberately turn from the aisle into thealcove, walk alongside the length of the folder belt, and then turnagain at the Opposite end of the alcove to reenter the aisle. There isno evidence to show that employees would have any reason to use such anindirect route merely to walk by the equipment. While occasionallyarticles such as toolboxes and tool carts are left in the aisle, theonly evidence showing the actual location of these objects is Comb’stestimony that they may have been 3 to 4 feet from the nip points. Wecannot conclude on this record that they were positioned in such a wayas to require employees to enter the alcove or recess area in order toavoid them. Indeed, the record fails to show the toolboxes or otherobjects created any obstruction or hindrance to employees in the courseof their movement through the gluer area. As the Commission held inArmour Food, 14 BNA OSHC at 1825, 1987-90 CCH OSHD at p. 38,886,exposure to a hazard is not established where employees have sufficientspace to walk past unguarded machinery such that contact with thehazardous nip points, while possible, is unlikely.While the record supports the conclusion that an employee could comeinto contact with the nip point if he approached the folder belt inorder to operate the stop cord, there is no showing of any circumstancesthat could reasonably be expected to cause an employee to pull the cordat the location of the nip point. In the first place, there is noshowing that employees have ever had occasion to operate the safety cordfor any reason. Furthermore as Smurfit points out in its brief, the cordstretches the entire 80 to 85-foot length of the machine. In the eventan emergency were to occur requiring immediate cessation of power to theequipment, the safety cord could he activated from any position alongthe gluer. It is logical to assume that an employee would be most likelyto pull the stop cord at the location of the folder belt if he hadalready become caught or was about to become caught in the nip pointitself. In that event, the placement of the stop cord behind the nippoints would not present any additional hazard to the employee.Moreover, as we have held above, the Secretary failed to prove thateither the operators or other employees would be exposed to theunguarded nip points during their normal work activities. Therefore, wecannot find that an operator or another employee would have occasion toreach for the cord in order to stop the machine for his own safety.Should a situation arise that would require the gluer to be shut off forsome other reason, an operator or other employee in the vicinity of thenip points could cut off the machine power by using the start and stopbuttons located adjacent to the area of the folder belt just as easilyas he could by pulling the emergency cord. Accordingly, we conclude thatthe evidence fails to show that employees would be exposed to a hazardas a result of the presence of the emergency stop cord above and behindthe nip points.For the reasons stated, we hold that the Secretary failed to prove thatSmurfit was in noncompliance with ? 1910.212(a)(1). That portion ofJudge Sparks’ decision affirming item 1 of the citation is reversed, andthe citation item is vacated.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: December 19, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.JEFFERSON SMURFIT CORPORATION,Respondent,andUNITED PAPERWORKERSINTERNATIONAL UNION,LOCAL 1009,Authorized EmployeeRepresentative.Apperances:Betty Klaric, Espire, Office of the Solicitor, U.S. Department of Labor,Cleveland, Ohio, on behalf of complainant.Robert A. Dimling, Esquire, Frost and Jacobs, Cincinnati, Ohio, onbehalf of respondent.Timothy L. Gilb, President, United Paperworkers International Union,Local 1009, Reading, Ohio, on behalf of authorized employeerepresentative. _DECISION AND ORDER_SPARKS, Judge: Respondent, Jefferson Smurfit Corporation, is acorporation with offices and a plant in Lockland, Ohio. It is admittedthat Jefferson Smurfit is an employer engaged in a business affectingcommerce within the meaning of section 3(5) of the Occupational Safetyand Health Act of 1970 (Respondent’s answer).On December 9 and 12, 1988, Jackie L. Hunt, a compliance officer for theOccupational Safety and Health Administration (OSHA), conducted aninspection of ‘the Jefferson Smurfit plant at Cooper and Lock Streets inLockland. As a result of that inspection, a serious citation with twoitems was issued to respondent on January 6, 1989. Respondent timelycontested the citation. On August 15, 1989, a hearing was held inCincinnati, Ohio, on the contested citation.On August 8, 1989, the Secretary moved to amend item one of the citationto allege a violation of 29 C.F.R. ? 1910.212(a)(1) or, in thealternative, 29 C.F.R. ? 1910.261(a)(3)(ix), instead of 29 C.F.R. ?1910.219(e)(1)(i). The statement of conditions constituting theviolations was not amended. At the commencement of the hearing on August15, 1989, the Secretary’s motion to amend citation was granted (Tr. 10).At the close of complainant’s case, respondent moved to dismiss thecitation as amended and the motion was taken under advisement (Tr. 140-142).After both sides had rested, the Secretary moved to amend item two ofthe citation to allege a violation 29 C.F.R. ? 1910.261(a)(3)(ix) and toamend item one by deleting the alternative alleged violation. Respondentobjected to the amendment which was also taken under advisement.IThe basic facts are not in dispute and are as stated by respondent asfollows:At its Lockland location, Jefferson Smurfit Corporation operates aboxboard mill and a carton plant as separate entities (Tr. 144). Boththe board mill and the carton plant were purchased by Smurfit in 1982from Diamond International (Tr. 194, 199). At the carton plant, thecompany is a rotogravure converter of detergent cartons for theindustry’s three largest detergent companies as well as for certain fastfood customers (Tr. 144). The carton plant obtains approximately 80percent of its boxboard material from the company board mill locatedacross the street (Tr. 145). At the carton plant, the board material isprinted, cut, and scored in the rotogravure department, and then is sentto the finishing department where it is folded, glued, and shipped tocustomers (Tr. 144).In the finishing department, the flat cartons are fed into the magazineor hopper of a straight-line gluer machine (Tr. 147) that isapproximately 80 to 85 feet long (Tr. 158). The printed flat board iscarried down the length of the machine by various belts (Tr. 147). Alongthe way, the board is folded along its scored lines by belts and rollers(Tr. 147- 148). One edge of the carton is glued and compressed (Tr. 148).Straight-line Gluer No. 183, the machine cited by the Secretary,requires three persons for its operation: (1) the operator who hasoverall responsibility for productivity and quality; (2) the feeder whofeeds the flat blank cartons into the magazine and maintains the lineoperation when the operator is on break; and (3) the finisher or grabberwho places the finished boxes in a container on a conveying system (Tr.149, 157-158).In the present case, two belts of the gluer are at issue: Item oneconcerns the folder belt, a horizontal leather belt approximately oneand three-quarter inches in width (Tr. 152) which is located about 16inches inside the machine frame (Tr. 159-160). The folder belt is not apower-transmission belt; that is, the belt does not drive the machinebut is driven by the machine (Tr. 151). Item two concerns five half-inchmotor belts located on the far side of the machine. These are belts froma motor mounted at floor level, which drive the line shaft and themechanical apparatus inside a gear box (Tr. 75).In December 1988, at the time of the inspection, a yellow semi-circularguard protected the top area of the belts and pulleys (Ex. C-4; Tr. 74,76-77). Item two alleged a violation based on the lower, unguardedsection of the pulleys (Tr. 76). Subsequently, a guard was added to thelower section (Tr. 75). In his testimony, the Secretary’s expert witnesstestified that the alleged violation had been abated (Tr. 76).The gluer machine contains numerous switches used to start, stop, andjog the machine (Tr. 161). Two of these switches are located on theframe of the machine about 16 inches from the folder belt (Tr. 81). Themachine also has an emergency safety trip wire which runs along thecenter line of the machine, parallel to the sides and approximately 12inches to the rear of the folder belt (Tr. 81).IISERIOUS CITATION ONEA.During the OSHA inspection conducted in response to a complaint (Tr.30), Compliance Officer Jackie L. Hunt found that the in-running nippoints on the prefold straight line leather belt on the five half-inchbelts and pulleys on the No. 183 gluer were not guarded as required byOSHA standards. On the basis of his observation, Mr. Hunt recommendedthe issuance of the citation at issue here.Mr. Hunt testified that he observed two unguarded nip points on theprefold straight line leather belt (Tr. 17) and an unspecified number ofnip points on the five half-inch belts and pulleys (Tr. 22).Item one of the serious citation was amended to allege a violation of 29C.F.R. ? 1910.212(a)(1)[[1]] (Tr. 7, 10, 214):29 C.F.R. 1910.212(a)(1): Machine guarding was not provided to protectthe operator and other employees in the machine area from hazards suchas those created by point of operation, ingoing nip points, rotatingparts, flying chips and sparks:The inrunning nip points on the prefold straight line leather belt ongluer No. 183 were not guarded.The alleged violation involved the horizontal feeder belt called a\”folder belt\” (Ex. C-1, C-2; Tr. 48, 159). Hunt testified he saw theoperator observing the machine while standing one or two feet away fromthe nip points (Tr. 18, 47). He also saw two women walking down an aisleto their work stations come within two or three feet of the nip points(Tr. 19, 20). The belt traveled 248 feet per minute (Tr. 160). Huntsuggested workers could fall into the nip points as a result of slippingand tripping (Tr. 54 82). Hunt considered the nip points as seriousviolations because they could\”. . . cause harm to the body . . . \”or\”. .. possible amputation of fingers\” (Tr. 23, 53).James Zucchero, a safety compliance officer with OSHA, was qualified asan expert witness in machine guarding and especially In the paperindustry. He has conducted more than 1,000 inspections involving machineguarding, 70 percent of which, he estimates, were in the paper industry(Tr. 60). He made a post-inspection discovery entry of the plant duringwhich visit he made a videotape of Gluer No. 183 depicting the allegedhazards (Ex. C-5; Tr. 70, 78). Zucchero testified the belt creating theexposed nip point runs approximately 57 inches at a level 30 inchesabove the floor. The belt is 16 inches from the side framework of themachine. Zucchero testified employees were directly exposed to thehazard while the machine was running, while activating a stop button,observing the operation of the machine or while operating a safety tripwire (Tr. 80). Zucchero stated the start\/stop\/jog switch was located onthe frame about 16 inches from the exposed belt (Tr. 81, 104). Thesafety trip wire was about 12 inches from the nip points and it would benecessary to reach over them to reach the safety trip wire (Tr. 81).Obstructions were recorded in the aisleway (Tr. 83, 104). Zuccheroexpressed an opinion that the nip points could be guarded withoutcreating a greater hazard (Tr. 87). He was of the opinion that a barrierguard of plexiglass or metal would be \”best\” (Tr. 87, 92).Respondent’s managers were familiar with the nip points and the variousdevices used to guard the hazards at other locations (Tr. 25-27). At onetime, there had been an electric light beam which shut down the machinewhen one came too close (Tr. 132, 171). The light beam safety device wasremoved, because it was being hit or moved by other workers therebyannoying the operator. The light sensor was more sensitive and would notallow persons to get as close to the machine as the trip wire (Tr. 171,190-192). Timothy L. Gilb, president of Local Union 1009, did not workin the building where Gluer No. 183 was located but did make inspectiontrips through the facility. He testified he had seen the machineoperator observing the machine while standing within five inches of thenip points (Tr. 108, 117). He also had observed the assistant operatorsand feeders walk past the area within one or two feet of the nip points.Gilb had also seen tripping hazards in the aisles (Tr. 109-110, 111).Ruby Aker, a former finisher on Gluer No. 183 two years prior to thehearing, also testified she had seen the operator standing within fiveinches of the nip points while observing the glue lap and the properattachment of handles on the cartons (Tr. 121-122, 124-125, 126).Wendall A. Alder, the union steward, delivers stock each day to GluerNo. 183 (Tr. 133, 137). Alder testified he had observed the operatormaking adjustments to the machine while it is running and in suchinstances the operator is two to three inches from the nip points (Tr.129-130, 134-135, 137).At the conclusion of the Secretary’ s case, respondent moved dismissitem one on the grounds that the Secretary had failed to prove\”. . .exposure of employees to the alleged hazard.\” In addition, respondentcontended the standard cited by the Secretary was not applicable (Tr.140-141). The citation was amended from 29 C.F.R. ? 1910.219(e)(1)(i) to29 C.F.R ? 1910.212(a)(1) which corrected the problems on whichrespondent relies, making its motion to dismiss without merit.Gary C. Combs, a witness for respondent who is in charge of maintenanceof Gluer No. 183 and has worked around gluing machines for 35 years,agreed that the folder belt is one and three-quarter inches wide and islocated 16 inches inside the frame of the machine (Tr. 159-160). Twosets of start and stop buttons are located in the area of the folderbelt (Tr. 161-162). Combs stated that he had never known of a worker tobe injured in the nip points of the folder belt (Tr. 161). He agreedthat it would be possible for someone to be caught in the nip points andin such case, they would have to extend up and over the nip points toreach the safety trip wire (Tr. 168-169). He also agreed that there wereoften tool boxes in the aisle about three to four feet away from the nippoints (Tr. 169, 170).Ray Lewis, the current operator of Gluer No. 183 on the day shift,testified that he turned the machine off before \”making ready\” or makingadjustments to the machine (Tr.175). He observes the machine to insurethat the glue is being applied properly and that the handles are onstraight (Tr. 183). He testified he is at least two feet away from thenip points while making the observations.Although there have been no injuries at the nip points described in itemone, the weight of the evidence shows that employees are exposed to thehazard (Tr. 194). The operator was seen by several witnesses observingoperations and making adjustments only a few inches from the nip points.Other workers walk by the nip points in aisles which have tool chestsand other obstructions. It is entirely possible that persons could tripor accidentally fall into the nip points. Ironically, a workerattempting to use the safety trip wire could be required to reach overthe nip points. During an emergency situation, it could result inaccidental contact with the nip points. In summary, the evidence showsthat employees in pursuit of their work and comfort activities areregularly exposed to the danger of serious bodily injury in the nip points.Item two of the citation, as amended, alleges a violation of 29 C.F.R. ?1910.261(a)(3)(ix).[[2]] The condition described in the citation statesas follows:(a) The in running nip points on the on the five half inch belts andpulleys were not guarded on the No. 183 gluer.It is clear that the amended citation involved the same machine, nippoints and hazard as were cited originally. Respondent has not beensurprised or prejudiced by the change in the standard alleged to havebeen violated. The facts and issues were the same, i.e., whether thespecific nip points identified created a hazard; and, if so, whetheremployees were exposed to them. All facts and issues tried at thehearing were the same. Therefore, complainant’s motion to amend is granted.The evidence is convincing that the nip points described in item twoconstituted a hazard to which respondent’s employees were exposed. Thefive belts, which run from a motor, drive the glue machine and arelocated at floor level on the opposite side of Gluer No. 183 from thefolder belt (Tr. 176). After the inspection, a guard was installedaround the nip points which abated the hazard. Combs and Lewis agreedthat before the nip points were guarded, a hazard was present becauseworkers could get their pant leg caught in the belts (Tr. 167-168, 185).The operator and other employees were exposed to the unguarded nippoints at the time of the inspection. An electric eye counter is locatedeight to ten inches above the motor which requires adjustment (Tr. 162,178). The operator also uses a crank to adjust the cold glue pot, atwhich time the nip points are 28 to 30 inches away (Tr. 181, 184). Someadjustments are made while the machine is running (Tr. 186). EmployeeAlder testified he had observed the operator and the feeder within twoto three inches of the belts, adjusting and inspecting cartons (Tr.130). Aker testified she had observed workers within a couple of feetbut not \”right by\” the nip points (Tr. 123). Gilb stated he had seen theoperator \”. . . less than a foot. . .\” from the nip points whileobserving the machine and checking the fluid in the gear box (Tr. 112).It is clear that employees were exposed to the hazard presented by thenip points which could cause serious bodily injury (Tr. 19, 23). Withoutquestion, respondent was aware or should have been aware of theconditions (Tr. 25).III_COLLATERAL ESTOPPEL_Respondent contends items one and two should be vacated on the ground ofcollateral estoppel, because Judge Brady, in a prior case involving agluer at another plant, had decided that although \”there were exposedbelts, pulleys, shafts, wheels, gears, and chains in the work area . . .\” no hazard was created (Ex. R-6 at p. 8). In the prior case, the gluerwas from the same manufacturer, had the same configuration and operationas Gluer No. 183. Without question, collateral estoppel is properlyapplied in some cases under the Act. That is especially true where thereare indications of harassment by the Secretary. Continental Can Co.,U.S.A. v. Marshall, 630 F.2d 590 (6th Cir. 1979). There are no suchsuggestions of harassment or overreaching by the Secretary in this case.In cases where exposure of employees is an issue, the question oftenturns on the specific facts found in the case. In the prior case, JudgeBrady found that, during normal operations, there was no reason foremployees to come within a foot of the exposed areas. In the instantcase, Combs, the maintenance man, and Lewis, the operator, agreed thatworkers’ pant legs could become caught in the nip points described initem two and that a hazard was created (Tr. 167-168, 185). The findingsand rationale for Judge Brady’s decision do not exist in the instant case.It is well established that collateral estoppel should not be applied inadministrative cases where there are different facts and work practices,so respondent’s affirmative defense is rejected.IV_PENALTY_The Secretary proposed penalties of $700 for violation of item one and$600 for item two for a total of $1,300. Compliance officer Hunttestified he considered the number of employees at the location, thefrequency and the danger, as well as the size, good faith and history ofrespondent in making that determination (Tr. 24).Section 17(j) requires the Commission to assess all penalties \”. . .giving due consideration to the appropriateness of the penalty withrespect to the size of the business of the employer . . . , the gravityof the violation, the good faith of the employer, and the history ofprevious violations.\”Respondent has about 400 employees, but only a few are exposed to thenip points. It is also significant that there have been no injuries atthe locations cited; and, although an injury, if it should happen, wouldprobably not be life threatening. The compliance officer gave no creditfor good faith, but the prompt abatement of the hazard of item twodemonstrates such credit is warranted. Considering all the abovefactors, it is concluded that penalties of $400 for item one and $300for item two are reasonable and appropriate.The findings of facts in this case consist of those made in theforegoing discussion and determination and in the following:V_FINDINGS OF FACT_1. Respondent is a corporation which operates a cartoon folding plant inLockland, Ohio. It employs 400 persons.2. At the cartoon plant, Smufit prints, cuts, scores, folds, glues andships detergent cartoons.3. On December 9 and 12, 1988, an OSHA compliance officer conducted acomplaint-inspired inspection of respondent’s carton folding plant.3. The compliance officer observed two unguarded in-running nip pointson the prefold straight line leather belt and other unguarded in-runningnip points on five half-inch belts and pulleys on the No. 183 gluer. Herecommended issuance of the citation at issue here.4. In the department of the carton plant, straight-line gluer machinessuch as Gluer No. 183 are used to fold and glue flat cartons.5. The folder belt is a horizontal leather belt approximately one andthree-quarter inches in width which is located about 16 inches insidethe gluer machine frame.6. The folder belt is not a power-transmission belt.7. The gluer also has five half-inch motor belts which drive the lineshaft and the mechanical apparatus inside a gear box.8. There have been no reported injuries to employees as a result ofeither of the conditions cited.9. Employees working on the No. 183 gluer came within two or threeinches to two feet of the unguarded in-running nip points. Otheremployees walked or stood within a foot or two of the nip points at issue.10. In the event of an accident, broken bones and cuts would likely result.11. To reach an emergency stop wire that ran the length of the No. 183gluer, employees in the vicinity of the nip points would have to reachover and beyond the nip points.12. Respondent knew, or with the exercise of reasonable diligence, couldhave known of the presence of the violation.VI_CONCLUSIONS OF LAW_1. Respondent, at all times material to this proceeding, was engaged ina business affecting interstate commerce within the meaning of section3(5) of the Occupational Safety and Health Act of 1970.2. Respondent, at all times material to this proceeding, was subject tothe requirements of the Act and the standards promulgated thereunder.The Commission has jurisdiction of the parties and the subject matter.3. Complainant’s amendments were proper and are granted.4. Respondent was in violation of 29 C.F.R. ? 1910.212(a)(1) and 29C.F.R. ? 1910.261(a)(3)(ix) for failing to provide guards on the in-running nip points on the prefold straight line leather belt and thefive half-inch belts and pulleys on the No. 183 gluer, respectively.5. Respondent has failed to establish its greater hazard defense,because it did not show that the hazard of compliance outweighed thoseof noncompliance.6. Complainant is not estopped from alleging the violation in this case.7. Penalties of $700 are reasonable and appropriate._ORDER_It is ORDERED:1. Serious Citation 1, Items 1 and 2 as amended, are affirmed2. Penalties of $700 are assessed. Dated this 21st day of March, 1990.JOE D. SPARKSJudgeFOOTNOTES:[[1]] In view of our disposition, we do not reach Smurfit’s contentionthat the Secretary is collaterally estopped from proceeding under 29C.F.R. ? 1910.212(a)(1) by a prior decision of Administrative Law JudgePaul L. Brady, which vacated an alleged violation of that standard onsimilar facts at a box manufacturing facility in Middletown, Ohio.Smurfit Diamond Packaging Corp., 84 OSAHRC 51 C8 (No. 83-1012, 1984)(ALJ), rev’d on other issues, 784 F.2d 217 (6th Cir. 1986)[[2]] The citation consisted of two items alleging inadequate guardingof moving parts on the gluing machine. Unlike item 1, which deals with abelt used to feed the product through the machine, item 2 is concernedwith the belt and pulley system used to power the machine itself.Originally, both items and the corresponding portions of the complaintalleged a violation of 29 C.F.R ? 1910.219(e)(1)(i), which requiresguards on power-transmission belts. About one week before the hearingthe Secretary moved to amend item 1 to allege a violation of ?1910.212(a)(1) on the ground that ? 1910.212(e)(1)(i) was inapplicablebecause the belt in question was not a power-transmission belt. Thejudge granted the motion. Smurfit does not take exception to thatportion of the judge’s decision affirming item 2 of the citation.[[3]] One of the issues specified in the Commission’s direction forreview and briefing notice was whether the judge erred in failing tomake credibility determinations to resolve the conflict than thetestimony regarding the distance from the operator to the nip point. TheSecretary contends that the judge made implicit credibilitydeterminations which the commission should not disturb Smurfit arguesthat because the judge did not give reasons to support this acceptanceof the Secretary’s testimony over that of Smurfit’s witnesses, theCommission is free to makes its own judgment as to the credibility ofthe various witnesses. Neither party asks that the case be remanded tothe judge for further findings, and we note that Judge Sparks is nolonger with the Commission.While the Commission may defer to an implicit rejection of conflictingtestimony, E.L. Jones & Son, 14 BNA OSHC 2129, 2132-33, 1991 CCH OSHD ?29,264 pp.39,231-32 (No.87-8, 1991), the Commission is not required todo so. Equitable Shipyards Inc., 13 BNA OSHC 1177, 1180, 1986-87 CCHOSHD ? 27,859, p. 36,469 (No. 81-1685, 1987) (consolidated). Rather, theCommission has ultimate responsibility for the factual findings entered.C. Kaufman, Inc., 6 BNA OSHC 1295, 1298, 1977-78 CCH OSHD ? 22,481, pp.27,099-100) (No. 42149, 1978).[[4]] The record does not directly state the depth of this recessedarea. The two sets of start, stop, and jog buttons, however, are visiblein the videotape, which shows that they are positioned on the outercorners of the recess in the framework. Since it is undisputed that thecontrol buttons are 16 inches from the unguarded nip points, the alcoveor recessed area must necessarily have been at least 16 inches deep as well. [[1]] Section 1910.212(a)(1) of 29 C.F.R. provides as follows:(a) Machine guarding–(1) Types of guarding. One or more methods ofmachine guarding shall be provided to protect the operator and otheremployees in the machine area from hazards such as those created bypoint of operation, ingoing nip points, rotating parts, flying chips andsparks. Examples of guarding methods are—barrier guards, two-handtripping devices, electronic safety devices, etc.[[2]] Section 1910.261(a)(3)(ix) of 29 C.F.R. states as follows:(a) General requirements–(1) Application. This section applies toestablishments where pulp, paper, and paperboard are manufactured andconverted. This section does not apply to logging and the transportationof logs to pulp, paper, and paperboard mills.(3) General incorporation of standards. Establishments subject to thissection shall comply with the following standards of the AmericanNational Standards Institute:(ix) Safety code for Mechanical Power Transmission Apparatus,B15.1–1953 (Reaffirmed 1958).”