“Docket No. 89-0553 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 boxmanufacturing facility in Lakeland, Ohio operated by Respondent, Jefferson SmurfitCorporation (\”Smurfit\”), the Secretary issued a citation alleging that Smurfitviolated the Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-78 (\”theAct\”) by exposing its employees to in running nip points created by unguarded beltsand pulleys on a gluing machine. The issue before us is whether Administrative Law JudgeJoe D. Sparks erred in finding that Smurfit failed to comply with the Secretary’s standardat 29 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 ormore methods of machine guarding shall he provided to protect the operator and otheremployees in the machine area from hazards such as those created by point of operation,ingoing nip points, rotating parts, flying chips and sparks. Examples, of guarding methodsare–barrier guards, two-hand tripping devices, electronic safety devices, etc.We conclude that the Secretary failed to prove that Smurfit’s employees were exposed to ahazard within the meaning of this standard.[[1]] We reverse the judge’s decision andvacate item 1 of the citation.[[2]]FACTSThe alleged violation concerns one machine, gluer no. 18e. This machine, known as a\”straight-line gluer,\” processes flat cardboard into finished boxes by passingthe cardboard through a series of folder bars and glue applicators which gradually form itinto boxes of the prescribed size and shape. One employee, the feeder, inserts flatcardboard into the machine at one end while another, the finisher, takes the completedboxes from the other end, approximately 80 to 85 feet away. There is also a machineoperator who sets up the machine and inspects the quality of the finished product. Thefinisher at times assists the operator.The gluer contains a horizontal belt, referred to asa \”folder belt,\” that carries the cardboard through one section of the machine.It operates at a speed of 248 feet per minute. At issue here are the two nip points formedwhere the return run of the belt winds over its pulleys. This portion of the belt is 57inches in length and 30 inches above the floor. It is located at least 15 feet andpossibly as much as 25 feet from the nearest work station. An emergency stop cord extendsalong the length of the gluer, parallel to the folder belt but above and in back of it.The stop cord is 63 inches from the floor and about 12 inches past the location of the nippoints. In addition to the stop cord, there are two sets of start stop jog buttons 7 feetapart about 16 inches from the belt. The jog button is used in setting up the machine foreach product. It allows the operator to position the box material precisely at thelocation where the box will be folded so that the folder rail, or \”sword,\” canbe properly adjusted.Compliance officer Jackie L. Hunt, who conducted theinitial inspection, stated that the nip points presented a hazard of possible fingeramputation. He observed a machine operator, Ray Lewis, standing 1 or 2 feet away from thenip points while watching the machine. He also saw the operator’s assistant and two otheremployees walk past the nip points 2 to 3 feet from them, while proceeding to their workstations. 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 subsequent discovery inspection of the plant for the purpose of determiningfeasible guarding methods. During this inspection, Zucchero made a videotape of the gluerin operation. Zucchero observed operator Lewis making an adjustment with a wrenchapproximately 36 inches from the nip point. Zucchero also concluded that because the stopcord is located behind 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 wasnot asked whether an employee would have any more reason to pull the cord in the area ofthe nip points than at some other location along the 80- to 85-foot length of the cord.Finally, Zucchero saw some tool carts \”stored\” in the aisle but did not knowwhether they are there on a permanent basis, how frequently they are there, or whetherthere were any carts in the aisle at the time of Hunt’s inspection.In addition to the testimony of the two complianceofficers, the Secretary presented the testimony of three other employees: Timothy Gilb,the president of the union local at Smurfit’s plant; Ruby Aker, who had worked as afinisher at the gluer but had never operated the equipment, and Wendall Alder, whodelivered material to the gluer. Gilb and Aker testified that the operator stood as closeas 5 inches from the unguarded 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 thenip points and that the operator was adjusting the gluer while it was operating. Aker alsotestified that there was a \”possibility\” of other employees approaching the nippoints. Gilb testified that other employees could walk by within 1 to 2 feet of the nippoints, and that there were objects such as toolboxes in the aisle.Operator Lewis and operator’s assistant andmaintenance technician Combs appeared as witnesses for Smurfit. Lewis had been employed asit gluer operator for twenty-nine years. Combs, an operator’s assistant who also was incharge of maintenance of the gluer, had 35 years experience with gluers of the type atissue here. Lewis testified that when he is simply observing the operation of the gluer,he stands at least 2 feet away from the frame of the machine. He also testified that ifany problems were to arise during the course of a production run. he would turn off thegluer before making the necessary corrections. While Lewis did state that he would makeadjustments to the glue pot while the equipment was running, he testified that theadjustment crank for the glue pot is 28 to 30 inches away from the nip point. He furthertestified that the crank handle had a fitting to accommodate an employee’s hand, and therehad never been an occasion when his hand slipped off the crank. Lewis and Combs alsoagreed that the operator would have occasion to make adjustments to the folder bars of thegluer while it was operating but differed somewhat regarding the locations where theadjustments are made. Lewis testified that the adjustment cranks for the folder bars arepositioned at the middle and ends of the gluer, nowhere near the nip points. Combs,however, stated that the crank the operator uses to adjust the track of the foldermechanism is 24 inches from the belt in issue here. Combs and Lewis also stated that anemployee could grasp the safety line from the location of the nip points by reaching upand over the nip points. Lastly, Combs noted that there are often toolboxes in the aisle 3to 4 feet from the nip points.DISCUSSION AND ANALYSISAfter reciting the testimony of the witnesses forboth the Secretary and Smurfit, Judge Sparks found that \”the weight of theevidence\” 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 observingoperations and making adjustments only a few inches from the nip points. Other employeeswalk by the nip points in aisles which have tool chests and other obstructions. It isentirely possible that persons could trip or accidentally fall into the nip points.Ironically, a worker attempting to use the safetytrip wire could be required to reach over the nip points. During an emergency situation,it could result in accidental contact with the nip points. In summary, the evidence showsthat employees in pursuit of their work and comfort activities are regularly exposed tothe danger of serious bodily injury in the nip points.Essentially, the judge implicitly found the testimony of the Secretary’s witnesses Glib,Aker, and Alder more persuasive than that of Smurfit’s witnesses, operator Lewis andoperator’s assistant and technician Combs, regarding how close operators would come to thenip points during their work tasks. The judge also found exposure based on possibility ofaccidental contact by employees when walking past the gluer or operating the safety cord.We disagree.The standard at issue, ? 1910.212(a)(1), requiresthe Secretary to prove that a hazard within the meaning of the standard exists in theemployer’s workplace. Armour Food Co., 14 BNA OSHC 1817, 1821, 1987-90 CCH OSHD ? 29,088,p. 38,883 (No. 86-247, 1990). In order to meet this burden, the Secretary must do morethan show that it may be physically possible for an employee to come into contact with theunguarded machinery in question. Rather, the Secretary must establish that employees areexposed to a hazard as a result of the manner in which the machine functions and the wayit is operated. Id.: Rockwell International 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 evidencewith regards to the exposure of the machine operators. The Secretary present testimonythat the gluer operators routinely came in very near proximity to the unguarded nippoints, as close as 2 to 5 inches, while performing their assigned task. That evidence iscontradicted by, Smurfit’s witnesses, who testified that the operator would at least 2feet from the gluer while observing it and that they would make their adjustments to theequipment using crank handles located and designed to keep their hands no closer than 2feet from the nip points. In finding the machine operators to be exposed to a hazard, thejudge relied on the testimony of the Secretary’s witnesses. In our view, however,Smurfit’s evidence is entitled to greater weight than that of the Secretary.None of the Secretary witnesses had any first-hand experience with the operation of thegluer and two of the Secretary’s witnesses, Gilb, the union president, and Alder, who madedeliveries to the gluer, had never even worked in the gluer area. Their testimony consistsentirely of estimates of the proximity of the operators to the nip points based on theirobservations of operators during the course of their work. On the other hand, Combs andLewis, who testified for Smurfit, had years of actual experience with the operation of thegluer. Each stated specifically where he stood in relation to the gluer when observing itor making adjustments, and each described the actual mechanisms used to make adjustmentsto the equipment’s and specified the location of the adjusting cranks. Furthermore, thetestimony of Combs and Lewis is more consistent with that of the Secretary’s complianceofficers than is the testimony of the employee’s who appeared for the Secretary. Neitherof the two compliance officers observed operators working as close as 2 to 5 inches fromthe nip points, as described by Secretary’s witnesses. Rather, compliance officer Hunt sawoperator Lewis standing 1 to 2 feet from the gluer while observing it, and complianceofficer Zucchero saw Lewis making adjustment approximately 36 inches from the nip point.These observations by the compliance officers substantiate the direct testimony of Combsand Lewis that operators customarily do not close than 2 feet from the nip points.Similarly, they cast doubt on the accuracy the employees’ estimates placing operators asclose as several inches to the nip points. Since we find testimony of Combs and Lewisinherently more persuasive because it is based on their own personal knowledge andexperience, and since it is corroborated by the compliance officers’ testimony, weconclude that the judge erred in failing to give it dispositive weight on the question ofthe exposure of operators to hazard. See All Purpose Crane Inc., 13 BNA OSCH 1236, 1986-87CCH OSHD ? 27,877 (No. 82-284, 1987) (Commission has the same authority as the judge toevaluate the relative qualifications of various witnesses and weigh their testimony in thelight of the totality of the record). [[3]]The testimony of Combs and Lewis conclusively establishes that operators would not haveoccasion to approach closer than 2 feet to the nip points when simply observing itsoperation and that the adjustment handles or devices are located and designed so as tokeep the operators hands away from the nip points. The record shows that the start, stop,and jog buttons the operator uses to control the gluer were located 16 inches from thebelt in issue here. There is no evidence from which we could conclude that operators wouldhave occasion to come any closer to the nip points when operating these controls. On thesefacts, the Secretary has failed to establish that operators are exposed to a hazard under? 1910.212(a)(1) while performing their normal work duties. As the Commission held inSyntron, Inc., 11 BNA OSHC 1868, 1983-84 CCH OSHD ? 26,841 (No. 81-1491-S, 1984), wherethe operator of a cut-off saw stood about 1 foot from the unguarded blade while the sawwas operating in an automatic mode, a violation of ? 1910.212(a)(1) cannot be found inthe absence of evidence that the operator would have any reason to put his hands closeenough to the unguarded parts of the machinery to be exposed to a hazard. See RockwellInternational, 9 BNA OSHC at 1097- 98, 1980 CCH OSHD at p. 30,846 (employees not exposedto the hazard of unguarded power presses where operators did not hold the metal piecesduring processing and had no cause to place their hands within the bed of the press ram).We further conclude that the judge erred in finding that employees other than thegluer operator would be exposed to a hazard. As the judge’s decision indicates, theevidence shows only a mere possibility that employees could come into contact with theunguarded nip points while walking past the gluer. In addition, the record indicates ateven that possibility would be remote. The video tape taken by Zucchero, which wasadmitted into evidence, plainly shows that the belts and nip points in question arelocated in a small alcove in the exterior framework of the gluer that is no less than 16inches deep. [[4]] Accordingly, in order for employees to be exposed to a hazard whilemerely walking past the gluer, they would have to deliberately turn from the aisle intothe alcove, walk alongside the length of the folder belt, and then turn again at theOpposite end of the alcove to reenter the aisle. There is no evidence to show thatemployees would have any reason to use such an indirect route merely to walk by theequipment. While occasionally articles such as toolboxes and tool carts are left in theaisle, the only evidence showing the actual location of these objects is Comb’s testimonythat they may have been 3 to 4 feet from the nip points. We cannot conclude on this recordthat they were positioned in such a way as to require employees to enter the alcove orrecess area in order to avoid them. Indeed, the record fails to show the toolboxes orother objects created any obstruction or hindrance to employees in the course of theirmovement through the gluer area. As the Commission held in Armour Food, 14 BNA OSHC at1825, 1987-90 CCH OSHD at p. 38,886, exposure to a hazard is not established whereemployees have sufficient space to walk past unguarded machinery such that contact withthe hazardous nip points, while possible, is unlikely.While the record supports the conclusion that anemployee could come into contact with the nip point if he approached the folder belt inorder to operate the stop cord, there is no showing of any circumstances that couldreasonably be expected to cause an employee to pull the cord at the location of the nippoint. In the first place, there is no showing that employees have ever had occasion tooperate the safety cord for any reason. Furthermore as Smurfit points out in its brief,the cord stretches the entire 80 to 85-foot length of the machine. In the event anemergency were to occur requiring immediate cessation of power to the equipment, thesafety cord could he activated from any position along the gluer. It is logical to assumethat an employee would be most likely to pull the stop cord at the location of the folderbelt if he had already become caught or was about to become caught in the nip pointitself. In that event, the placement of the stop cord behind the nip points would notpresent any additional hazard to the employee. Moreover, as we have held above, theSecretary failed to prove that either the operators or other employees would be exposed tothe unguarded nip points during their normal work activities. Therefore, we cannot findthat an operator or another employee would have occasion to reach for the cord in order tostop the machine for his own safety. Should a situation arise that would require the gluerto be shut off for some other reason, an operator or other employee in the vicinity of thenip points could cut off the machine power by using the start and stop buttons locatedadjacent to the area of the folder belt just as easily as he could by pulling theemergency cord. Accordingly, we conclude that the evidence fails to show that employeeswould be exposed to a hazard as a result of the presence of the emergency stop cord aboveand behind the nip points.For the reasons stated, we hold that the Secretaryfailed to prove that Smurfit was in noncompliance with ? 1910.212(a)(1). That portion ofJudge Sparks’ decision affirming item 1 of the citation is reversed, and the citation itemis vacated.Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerDated: December 19, 1991SECRETARY 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, on behalf ofrespondent.Timothy L. Gilb, President, United Paperworkers International Union, Local 1009,Reading, Ohio, on behalf of authorized employee representative.\u00a0 DECISION AND ORDERSPARKS, Judge: Respondent, Jefferson SmurfitCorporation, is a corporation with offices and a plant in Lockland, Ohio. It is admittedthat Jefferson Smurfit is an employer engaged in a business affecting commerce within themeaning of section 3(5) of the Occupational Safety and Health Act of 1970 (Respondent’sanswer).On December 9 and 12, 1988, Jackie L. Hunt, acompliance officer for the Occupational Safety and Health Administration (OSHA), conductedan inspection of ‘the Jefferson Smurfit plant at Cooper and Lock Streets in Lockland. As aresult of that inspection, a serious citation with two items was issued to respondent onJanuary 6, 1989. Respondent timely contested the citation. On August 15, 1989, a hearingwas held in Cincinnati, Ohio, on the contested citation.On August 8, 1989, the Secretary moved to amend itemone of the citation to 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 the violations was not amended. At thecommencement of the hearing on August 15, 1989, the Secretary’s motion to amend citationwas granted (Tr. 10).At the close of complainant’s case, respondent moved to dismiss the citation as amendedand the motion was taken under advisement (Tr. 140-142).After both sides had rested, the Secretary moved toamend item two of the citation to allege a violation 29 C.F.R. ? 1910.261(a)(3)(ix) andto amend item one by deleting the alternative alleged violation. Respondent objected tothe amendment which was also taken under advisement.IThe basic facts are not in dispute and are as statedby respondent as follows:At its Lockland location, Jefferson SmurfitCorporation operates a boxboard mill and a carton plant as separate entities (Tr. 144).Both the board mill and the carton plant were purchased by Smurfit in 1982 from DiamondInternational (Tr. 194, 199). At the carton plant, the company is a rotogravure converterof detergent cartons for the industry’s three largest detergent companies as well as forcertain fast food customers (Tr. 144). The carton plant obtains approximately 80 percentof its boxboard material from the company board mill located across the street (Tr. 145).At the carton plant, the board material is printed, cut, and scored in the rotogravuredepartment, and then is sent to the finishing department where it is folded, glued, andshipped to customers (Tr. 144).In the finishing department, the flat cartons are fed into the magazine or hopper of astraight-line gluer machine (Tr. 147) that is approximately 80 to 85 feet long (Tr. 158).The printed flat board is carried down the length of the machine by various belts (Tr.147). Along the 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 theSecretary, requires three persons for its operation: (1) the operator who has overallresponsibility for productivity and quality; (2) the feeder who feeds the flat blankcartons into the magazine and maintains the line operation when the operator is on break;and (3) the finisher or grabber who places the finished boxes in a container on aconveying system (Tr. 149, 157-158).In the present case, two belts of the gluer are atissue: Item one concerns the folder belt, a horizontal leather belt approximately one andthree-quarter inches in width (Tr. 152) which is located about 16 inches inside themachine frame (Tr. 159-160). The folder belt is not a power-transmission belt; that is,the belt does not drive the machine but is driven by the machine (Tr. 151). Item twoconcerns five half-inch motor belts located on the far side of the machine. These arebelts from a motor mounted at floor level, which drive the line shaft and the mechanicalapparatus inside a gear box (Tr. 75).In December 1988, at the time of the inspection, a yellow semi-circular guard protectedthe top area of the belts and pulleys (Ex. C-4; Tr. 74, 76-77). Item two alleged aviolation based on the lower, unguarded section of the pulleys (Tr. 76). Subsequently, aguard was added to the lower section (Tr. 75). In his testimony, the Secretary’s expertwitness testified that the alleged violation had been abated (Tr. 76).The gluer machine contains numerous switches used tostart, stop, and jog the machine (Tr. 161). Two of these switches are located on the frameof the machine about 16 inches from the folder belt (Tr. 81). The machine also has anemergency safety trip wire which runs along the center line of the machine, parallel tothe sides and approximately 12 inches to the rear of the folder belt (Tr. 81).IISERIOUS CITATION ONE A. During the OSHA inspection conducted in response to acomplaint (Tr. 30), Compliance Officer Jackie L. Hunt found that the in-running nip pointson the prefold straight line leather belt on the five half-inch belts and pulleys on theNo. 183 gluer were not guarded as required by OSHA standards. On the basis of hisobservation, Mr. Hunt recommended the issuance of the citation at issue here.Mr. Hunt testified that he observed two unguarded nippoints on the prefold straight line leather belt (Tr. 17) and an unspecified number of nippoints on the five half-inch belts and pulleys (Tr. 22).Item one of the serious citation was amended toallege a violation of 29 C.F.R. ? 1910.212(a)(1)[[1]] (Tr. 7, 10, 214):29 C.F.R. 1910.212(a)(1): Machine guarding was notprovided to protect the operator and other employees in the machine area from hazards suchas those created by point of operation, ingoing nip points, rotating parts, flying chipsand sparks:The inrunning nip points on the prefold straight lineleather belt on gluer No. 183 were not guarded.The alleged violation involved the horizontal feederbelt called a \”folder belt\” (Ex. C-1, C-2; Tr. 48, 159). Hunt testified he sawthe operator observing the machine while standing one or two feet away from the nip points(Tr. 18, 47). He also saw two women walking down an aisle to their work stations comewithin two or three feet of the nip points (Tr. 19, 20). The belt traveled 248 feet perminute (Tr. 160). Hunt suggested workers could fall into the nip points as a result ofslipping and tripping (Tr. 54 82). Hunt considered the nip points as serious violationsbecause they could\”. . . cause harm to the body . . . \”or\”. . . possibleamputation of fingers\” (Tr. 23, 53).James Zucchero, a safety compliance officer withOSHA, was qualified as an expert witness in machine guarding and especially In the paperindustry. He has conducted more than 1,000 inspections involving machine guarding, 70percent of which, he estimates, were in the paper industry (Tr. 60). He made apost-inspection discovery entry of the plant during which visit he made a videotape ofGluer No. 183 depicting the alleged hazards (Ex. C-5; Tr. 70, 78). Zucchero testified thebelt creating the exposed nip point runs approximately 57 inches at a level 30 inchesabove the floor. The belt is 16 inches from the side framework of the machine. Zuccherotestified employees were directly exposed to the hazard while the machine was running,while activating a stop button, observing the operation of the machine or while operatinga safety trip wire (Tr. 80). Zucchero stated the start\/stop\/jog switch was located on theframe about 16 inches from the exposed belt (Tr. 81, 104). The safety trip wire was about12 inches from the nip points and it would be necessary to reach over them to reach thesafety trip wire (Tr. 81). Obstructions were recorded in the aisleway (Tr. 83, 104).Zucchero expressed an opinion that the nip points could be guarded without creating agreater hazard (Tr. 87). He was of the opinion that a barrier guard of plexiglass or metalwould be \”best\” (Tr. 87, 92).Respondent’s managers were familiar with the nippoints and the various devices used to guard the hazards at other locations (Tr. 25-27).At one time, there had been an electric light beam which shut down the machine when onecame too close (Tr. 132, 171). The light beam safety device was removed, because it wasbeing hit or moved by other workers thereby annoying the operator. The light sensor wasmore sensitive and would not allow 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 work in thebuilding where Gluer No. 183 was located but did make inspection trips through thefacility. He testified he had seen the machine operator observing the machine whilestanding within five inches of the nip points (Tr. 108, 117). He also had observed theassistant operators and feeders walk past the area within one or two feet of the nippoints. Gilb had also seen tripping hazards in the aisles (Tr. 109-110, 111). Ruby Aker, aformer finisher on Gluer No. 183 two years prior to the hearing, also testified she hadseen the operator standing within five inches of the nip points while observing the gluelap and the proper attachment of handles on the cartons (Tr. 121-122, 124-125, 126).Wendall A. Alder, the union steward, delivers stock each day to Gluer No. 183 (Tr. 133,137). Alder testified he had observed the operator making adjustments to the machine whileit is running and in such instances the operator is two to three inches from the nippoints (Tr. 129-130, 134-135, 137).At the conclusion of the Secretary’ s case,respondent moved dismiss item one on the grounds that the Secretary had failed toprove\”. . . exposure of employees to the alleged hazard.\” In addition,respondent contended 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) to 29 C.F.R ? 1910.212(a)(1)which corrected the problems on which respondent relies, making its motion to dismisswithout merit.Gary C. Combs, a witness for respondent who is incharge of maintenance of 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 is located 16 inchesinside the frame of the machine (Tr. 159-160). Two sets of start and stop buttons arelocated in the area of the folder belt (Tr. 161-162). Combs stated that he had never knownof a worker to be injured in the nip points of the folder belt (Tr. 161). He agreed thatit would be possible for someone to be caught in the nip points and in such case, theywould have to extend up and over the nip points to reach the safety trip wire (Tr.168-169). He also agreed that there were often tool boxes in the aisle about three to fourfeet away from the nip points (Tr. 169, 170).Ray Lewis, the current operator of Gluer No. 183 on the day shift, testified that heturned the machine off before \”making ready\” or making adjustments to themachine (Tr.175). He observes the machine to insure that the glue is being appliedproperly and that the handles are on straight (Tr. 183). He testified he is at least twofeet away from the nip points while making the observations.Although there have been no injuries at the nippoints described in item one, the weight of the evidence shows that employees are exposedto the hazard (Tr. 194). The operator was seen by several witnesses observing operationsand making adjustments only a few inches from the nip points. Other workers walk by thenip points in aisles which have tool chests and other obstructions. It is entirelypossible that persons could trip or accidentally fall into the nip points. Ironically, aworker attempting to use the safety trip wire could be required to reach over the nippoints. During an emergency situation, it could result in accidental contact with the nippoints. In summary, the evidence shows that employees in pursuit of their work and comfortactivities are regularly 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 states as follows:(a) The in running nip points on the on the five halfinch belts and pulleys were not guarded on the No. 183 gluer.It is clear that the amended citation involved thesame machine, nip points and hazard as were cited originally. Respondent has not beensurprised or prejudiced by the change in the standard alleged to have been violated. Thefacts and issues were the same, i.e., whether the specific nip points identified created ahazard; and, if so, whether employees were exposed to them. All facts and issues tried atthe hearing were the same. Therefore, complainant’s motion to amend is granted.The evidence is convincing that the nip pointsdescribed in item two constituted a hazard to which respondent’s employees were exposed.The five belts, which run from a motor, drive the glue machine and are located at floorlevel on the opposite side of Gluer No. 183 from the folder belt (Tr. 176). After theinspection, a guard was installed around the nip points which abated the hazard. Combs andLewis agreed that before the nip points were guarded, a hazard was present because workerscould get their pant leg caught in the belts (Tr. 167-168, 185).The operator and other employees were exposed to theunguarded nip points 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 operatoralso uses a crank to adjust the cold glue pot, at which time the nip points are 28 to 30inches away (Tr. 181, 184). Some adjustments are made while the machine is running (Tr.186). Employee Alder testified he had observed the operator and the feeder within two tothree inches of the belts, adjusting and inspecting cartons (Tr. 130). Aker testified shehad observed workers within a couple of feet but not \”right by\” the nip points(Tr. 123). Gilb stated he had seen the operator \”. . . less than a foot. . .\”from the nip points while observing the machine and checking the fluid in the gear box(Tr. 112). It is clear that employees were exposed to the hazard presented by the nippoints which could cause serious bodily injury (Tr. 19, 23). Without question, respondentwas aware or should have been aware of the conditions (Tr. 25). IIICOLLATERAL ESTOPPELRespondent contends items one and two should bevacated on the ground of collateral estoppel, because Judge Brady, in a prior caseinvolving a gluer at another plant, had decided that although \”there were exposedbelts, pulleys, shafts, wheels, gears, and chains in the work area . . . \” no hazardwas created (Ex. R-6 at p. 8). In the prior case, the gluer was from the samemanufacturer, had the same configuration and operation as Gluer No. 183. Without question,collateral estoppel is properly applied in some cases under the Act. That is especiallytrue where there are indications of harassment by the Secretary. Continental Can Co.,U.S.A. v. Marshall, 630 F.2d 590 (6th Cir. 1979). There are no such suggestions ofharassment or overreaching by the Secretary in this case. In cases where exposure ofemployees is an issue, the question often turns on the specific facts found in the case.In the prior case, Judge Brady found that, during normal operations, there was no reasonfor employees to come within a foot of the exposed areas. In the instant case, Combs, themaintenance man, and Lewis, the operator, agreed that workers’ pant legs could becomecaught in the nip points described in item two and that a hazard was created (Tr. 167-168,185). The findings and rationale for Judge Brady’s decision do not exist in the instantcase.It is well established that collateral estoppelshould not be applied in administrative cases where there are different facts and workpractices, so respondent’s affirmative defense is rejected.IVPENALTYThe Secretary proposed penalties of $700 forviolation 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, the frequency and thedanger, as well as the size, good faith and history of respondent in making thatdetermination (Tr. 24).Section 17(j) requires the Commission to assess allpenalties \”. . . giving due consideration to the appropriateness of the penalty withrespect to the size of the business of the employer . . . , the gravity of the violation,the good faith of the employer, and the history of previous violations.\”Respondent has about 400 employees, but only a feware exposed to the nip points. It is also significant that there have been no injuries atthe locations cited; and, although an injury, if it should happen, would probably not belife threatening.\u00a0 The compliance officer gave no credit for good faith, but theprompt abatement of the hazard of item two demonstrates such credit is warranted.\u00a0 Considering all the above factors, it is concluded that penalties of $400 for itemone and $300 for item two are reasonable and appropriate.The findings of facts in this case consist of those made in the foregoing discussionand determination and in the following:VFINDINGS OF FACT1. Respondent is a corporation which operates a cartoon folding plant in Lockland,Ohio.\u00a0 It employs 400 persons.2. At the cartoon plant, Smufit prints, cuts, scores, folds, glues and shipsdetergent 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 points on the prefoldstraight line leather belt and other unguarded in-running nip points on five half-inchbelts and pulleys on the No. 183 gluer.\u00a0 He recommended issuance of the citation atissue here.4. In the department of the carton plant, straight-line gluer machines such as GluerNo. 183 are used to fold and glue flat cartons.5. The folder belt is a horizontal leather beltapproximately one and three-quarter inches in width which is located about 16 inchesinside the gluer machine frame.6. The folder belt is not a power-transmission belt.7. The gluer also has five half-inch motor beltswhich drive the line shaft and the mechanical apparatus inside a gear box.8. There have been no reported injuries to employeesas a result of either of the conditions cited.9. Employees working on the No. 183 gluer came withintwo or three inches to two feet of the unguarded in-running nip points. Other employeeswalked or stood within a foot or two of the nip points at issue.10. In the event of an accident, broken bones andcuts would likely result.11. To reach an emergency stop wire that ran thelength of the No. 183 gluer, employees in the vicinity of the nip points would have toreach over and beyond the nip points.12. Respondent knew, or with the exercise ofreasonable diligence, could have known of the presence of the violation.VICONCLUSIONS OF LAW1. Respondent, at all times material to this proceeding, was engaged in a businessaffecting interstate commerce within the meaning of section 3(5) of the OccupationalSafety and Health Act of 1970.2. Respondent, at all times material to thisproceeding, was subject to the requirements of the Act and the standards promulgatedthereunder. The Commission has jurisdiction of the parties and the subject matter.3. Complainant’s amendments were proper and aregranted.4. Respondent was in violation of 29 C.F.R. ?1910.212(a)(1) and 29 C.F.R. ? 1910.261(a)(3)(ix) for failing to provide guards on thein- running nip points on the prefold straight line leather belt and the five half-inchbelts and pulleys on the No. 183 gluer, respectively.5. Respondent has failed to establish its greaterhazard defense, because it did not show that the hazard of compliance outweighed those ofnoncompliance.6. Complainant is not estopped from alleging theviolation in this case.7. Penalties of $700 are reasonable and appropriate.ORDERIt is ORDERED:1. Serious Citation 1, Items 1 and 2 as amended, are affirmed2. Penalties of $700 are assessed. Dated this 21stday of March, 1990.JOE D. SPARKSJudgeFOOTNOTES: [[1]] In view of our disposition, we do not reach Smurfit’s contention that the Secretaryis collaterally estopped from proceeding under 29 C.F.R. ? 1910.212(a)(1) by a priordecision of Administrative Law Judge Paul L. Brady, which vacated an alleged violation ofthat standard on similar 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 otherissues, 784 F.2d 217 (6th Cir. 1986)[[2]] The citation consisted of two items alleginginadequate guarding of moving parts on the gluing machine. Unlike item 1, which deals witha belt used to feed the product through the machine, item 2 is concerned with the belt andpulley system used to power the machine itself. Originally, both items and thecorresponding portions of the complaint alleged a violation of 29 C.F.R ?1910.219(e)(1)(i), which requires guards on power-transmission belts. About one weekbefore the hearing the 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 inapplicable because the beltin question was not a power-transmission belt. The judge granted the motion. Smurfit doesnot take exception to that portion of the judge’s decision affirming item 2 of thecitation.[[3]] One of the issues specified in the Commission’sdirection for review and briefing notice was whether the judge erred in failing to makecredibility determinations to resolve the conflict than the testimony regarding thedistance from the operator to the nip point. The Secretary contends that the judge madeimplicit credibility determinations which the commission should not disturb Smurfit arguesthat because the judge did not give reasons to support this acceptance of the Secretary’stestimony over that of Smurfit’s witnesses, the Commission is free to makes its ownjudgment as to the credibility of the various witnesses. Neither party asks that the casebe remanded to the judge for further findings, and we note that Judge Sparks is no longerwith the Commission.While the Commission may defer to an implicit rejection of conflicting testimony, 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 to do so. Equitable Shipyards Inc., 13 BNA OSHC1177, 1180, 1986-87 CCH OSHD ? 27,859, p. 36,469 (No. 81-1685, 1987) (consolidated).Rather, the Commission 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 ofthis recessed area. The two sets of start, stop, and jog buttons, however, are visible inthe videotape, which shows that they are positioned on the outer corners of the recess inthe framework. Since it is undisputed that the control buttons are 16 inches from theunguarded nip points, the alcove or recessed area must necessarily have been at least 16inches deep as well.\u00a0[[1]] Section 1910.212(a)(1) of 29 C.F.R. provides asfollows:(a) Machine guarding–(1) Types of guarding. One or more methods of machine guarding shallbe provided to protect the operator and other employees in the machine area from hazardssuch as those created by point of operation, ingoing nip points, rotating parts, flyingchips and sparks. Examples of guarding methods are—barrier guards, two-hand trippingdevices, electronic safety devices, etc.[[2]] Section 1910.261(a)(3)(ix) of 29 C.F.R. statesas follows:(a) General requirements–(1) Application. This section applies to establishments wherepulp, paper, and paperboard are manufactured and converted. This section does not apply tologging and the transportation of logs to pulp, paper, and paperboard mills.(3) General incorporation of standards. Establishments subject to this section shallcomply with the following standards of the American National Standards Institute:(ix) Safety code for Mechanical Power Transmission Apparatus, B15.1–1953 (Reaffirmed1958).”