“SECRETARY OF LABOR,Complainant.v.MOSSER CONSTRUCTION COMPANY,Respondent.INTERNATIONAL UNION OFOPERATING ENGINEERSLOCAL UNION 18,Authorized EmployeeRepresentative.OSHRC Docket No. 89-1027DECISIONBefore: FOULKE, Chairman: WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:At issue before us is a single citation item (citation no. 1, item 1b)alleging a serious violation of the Occupational Safety and Health Actof 1970, 29 U.S.C. ? 651-678. Commission Administrative Law Judge PaulL. Brady affirmed this citation item as amended, finding that anemployee of Mosser Construction Co. (\”Mosser\”) was exposed to the hazardof moving gears on a truck crane while performing duties such aschecking the fuel level and obtaining stored materials, and that Mosserviolated the cited standard, 29 C.F.R. ? 1926.550(a)(8), by falling toguard those gears. The judge also held that Mosser’s affirmativedefenses of unpreventable employee misconduct and \”impossibility ofperformance\” were \”without merit.\” For the reasons stated below, weconclude that the judge correctly decided the issues in this case, andwe therefore affirm his decision and order to the extent it affirms thecontested citation item. However, we modify the judge’s penalty assessments.BACKGROUNDThe contested Citation item arises from an incident that occurred onJanuary 16, 1989, while employees of Mosser, including crane operatorEric Hofstatter, were engaged in construction work at a Glidden Paintplant in Huron, Ohio. On this project, Hofstatter was the operator of a65-ton Link-Belt truck crane that was being used in the construction ofa \”paint building.\” At this stage of the construction, the crane wasbeing used to set up steel reinforcing bars (\”rehar\”) so that a concretefloor could be poured. When he arrived at the worksite on the morning ofJanuary 16. however, Hofstatter learned that he had about an hour offree time before any lifts were scheduled. He therefore decided to dosome maintenance work on the crane.Although maintenance work was primarily the responsibility of anotheremployee, referred to as \”the oiler,\” crane operator Hofstatter, who hadworked as both an oiler and an operator for 11 1\/2 years, decided to dothe work himself because he was \”the only one there.\” The record revealsthat this was not an unusual occurrence, that Hofstatter was fullyqualified to do maintenance work on the crane, and that he stillperformed the work of an oiler on numerous occasions, particularly whenhis father, also a Mosser employee, operated the Link-Belt crane.The maintenance operation that Eric Hofstatter performed on the morningof January 16 was tile oiling and greasing of mechanical powertransmission apparatus that apparently controlled the movement of thecrane’s boom and hoist. This apparatus was contained within acompartment referred to as \”the doghouse,\” that was located on thecrane’s rotating superstructure. Although the space inside thiscompartment was quite confined, it was large enough that an employeecould enter into it through a hatch-like door that also served as theslanted roof of the compartment. Inside the compartment, along with themechanical power transmission apparatus, were fuel tanks and gauges. Inaddition, the doghouse served as a storage area for materials, equipmentand tools that were used by the oiler and the operator in their cranemaintenance work.At the hearing, crane operator Hofstatter testified as to the eventsthat resulted in the severing of his hand. Unfortunately, this testimonyis ambiguous and incomplete, and even internally inconsistent in oneimportant respect, which is discussed below. Nevertheless, based on ourreading of the testimony and related evidence, we conclude that theinjury occurred in the following manner. After deciding to oil andgrease the mechanical power transmission apparatus. Hotstatter followedhis usual practice, which was to first disengage the master clutchbefore beginning this maintenance operation. By disengaging the masterclutch, while standing or seated in the crane’s cab, he stopped themovement of the gears that were inside the doghouse. He then went overto the doghouse and went inside, where he \”greased the fittings thatwere open to him\” and \”put some lube on the crane gears.\” After he had\”finished the greasing oiling,\” he returned to the crane cab andre-engaged the clutch so that the gears began to move again. He thenreturned to the doghouse to check the fuel levels and to pick up toolsand materials \”as part of the greasing operation.\” While he was handlinga rag that he either had used or was then using to clean up oil andgrease, first the rag, and then his hand, became entangled in the movinggears. As a result. Hofstatter’s hand was severed.Following an investigation of this incident and an inspection of theworkplace, the Occupational Safety and Health Administration (\”OSHA\”) ofthe United States Department of Labor issued a citation alleging seriousviolations of the Act. Item 1b of the citation alleged that Mosserviolated 29 C.F.R. ? 1926.550 (a)(8) by failing to guard the movinggears that caused the amputation. The cited standard provides, as follows:? 1926.550 Cranes and derricks.(a) General requirements.(8) Belts, gears, shafts, pulleys, sprockets, spindles, drums, flywheels, chains, or other reciprocating, rotating, or other moving partsor equipment shall be guarded if such parts are exposed to contact byemployees, or otherwise create a hazard. Guarding shall meet therequirements of the American National Standards Institute B 15.1-1958Rev., Safety Code for Mechanical Power Transmission Apparatus.The incorporated ANSI Safety Code provisions require employers to guardmoving gears by installing at least one of four permissible physicalguarding devices — a complete enclosure, a standard guard, a bandguard, or a disk guard and by meeting the specification requirernentsthat the Code establishes for whichever guard is selected. (See Rule230–Gears).In both her citation and her complaint, the Secretary alleged thatemployee exposure to these unguarded gears occurred during maintenanceoperations and specifically while greasing the mechanical powertransmission apparatus. At the hearing in this case, however, theundisputed testimony of crane operator Hofstatter clearly establishedthat he was not exposed to moving gears during oiling and greasingoperations. Instead, his regular practice was to disengage the masterclutch thereby stopping the movement of the gears, before beginning hisoiling and greasing work.On the other hand, Hofstatter also gave unrebutted testimony that he wasregularly and recurringly exposed to the moving gears on other occasionsspecifically, while checking the fuel gauges or obtaining storedmaterials. As indicated above, the doghouse served multiple purposessince the mechanical power transmission apparatus, the fuel tanks andfuel gauges, and stored materials were all located inside thecompartment. In particular, Hofstatter identified certain objects inphotographic exhibit C-4 as containers of torque converter oil, which isused in the crane’s hydraulic system and which was stored in very closeproximity to the unguarded gears that are at issue. He further testifiedthat the doghouse was also used for the storage of buckets, brackets,wedges, cable clamps, and \”all kinds of stuff that pertain to the rig.\”The key testimony of Hofstatter concerning the extent of his exposureand the reasons for that exposure is the following:Q. Now, during he course of your employment with Mosser Construction,did you have occasion to go inside this [\”doghouse\”] door while thegears were running?A. Yes, I was in and Out of it all the time.Q. For what purposes were you in there?A. That’s where we store our oils and greases, in that compartment, plusyou have fuel tanks located in this compartment too.So, you’re in and out of it–or I was–a lot of times, just to getstuff, rags, grease, oils.Q. Had you checked the fuel level on this crane before [the date of theincident] while the gears were running?A. Yes.Q. Do you know on how many occasions besides the time of the accidentyou were exposed to the moving gears?A. I can’t count them, but I was in and out of the compartment numeroustimes.Q. Why wouldn’t the gears be shut down when you had to go into thatcompartment?A. I don’t know. They usually were when I was alone, but like I say, ifDad was running the crane or something and I was oiling, if I neededsomething, like some oil and some grease, I would go in there while thecrane was being operated and grab some stuff …Based on this testimony, which was introduced without objection at thehearing, the Secretary in her post-hearing brief included a motion underFed. R. Civ. P. 15(b) [[1]] to amend her pleadings to conform to theevidence: \”[T]o the extent that the Complaint limited exposure tomaintenance work on the crane, Complainant moves to amend the pleadingsto include exposure at other times such as when checking the fuel leveland obtaining stored materials while the gears were moving.\” It was thisamended charge that was affirmed by Judge Brady, and it is this amendedcharge that is now before us on review. [[2]]DISCUSSION1. Did the Secretary prove a violation of the cited standard?\”To establish a violation of a standard, the Secretary must show by apreponderance of the evidence that: (1) the cited standard applies, (2)its terms were not met, (3) employees had access to the violativecondition, and (4) the employer knew or could have known of it with theexercise of reasonable diligence.\” Seibel Modem Mfg. & Welding Corp., 15BNA OSHC 1218, 1221, 1991 CCH OSHD ? 29,442, p. 39,678 (No. 88-821,1991). Here, there is no dispute over the allegation that the citedstandard applies to the cited conditions. The standard clearly appliesbecause Mosser was engaged in construction work and it was using a65-ton truck crane in its work. At issue is whether the Secretary provedthe remaining three elements of her prima facie case.A. Noncompliance with the standard’s terms.The cited standard, which we have quoted in full above, requiresguarding of a crane’s gears \”if such parts are exposed to contact byemployees, or otherwise create a hazard.\” Mosser argues in effect thatthis test has not been met here because \”[i]n this case, the operator,by his own admission, had no reason to place his hands in the area ofgear movement to perform maintenance on the crane.\” Citing two decisionsarising under other machine guarding standards, it contends that theCommission’s case law compels the conclusion that the Secretary failedto prove the degree of exposure to a hazard that would require theinstallation of guarding. [[3]]We disagree. The cases cited by Mosser are not applicable in thiscontext. They arose in situations involving alleged exposure to point ofoperation hazards. Under the express terms of 29 C.F.R. ?1910.212(a)(3)(ii), the primary standard governing such hazards, pointof operation guarding is required only on those \”machines whoseoperation exposes an employee to injury.\” Thus, it is the specificlanguage of this standard that is the source of the Secretary’sevidentiary burden of proving that a cited machine is operated in such amanner that the operator has to place his or her hands in the vicinityof the machine’s point of operation. In contrast, the language of thestandard that has been cited in this case contains no such limitation,either expressly or implicitly. The Secretary is required to prove onlythat the moving gears \”are exposed to contact by employees.\”Furthermore, there are important differences in the safetyconsiderations that are involved in these two different situations. Withmoving gears and other moving parts of mechanical power transmissionapparatus, such as in this case, there is a very real possibility of anemployee inadvertently coming into contact with the moving part whilehis or her attention is directed elsewhere, e.g., by backing into themoving gears or by catching an article of clothing on them. In contrast,the primary hazards created by a point of operation are the possibilitythat the machine could be inadvertently activated while the operator’shands are in the point of operation and the possibility that an employeewho must work near the point of operation will accidentally enter intothe zone of danger and be injured. We therefore conclude that neitherthe case law, safety considerations, nor the underlying intent of1926.550(a)(8) support a limitation of the standard’s guardingrequirements to situations where employees have to place their hands \”inthe area of gear movement to perform maintenance on the crane,\” asMosser suggests.In this case, the incident that led to these proceedings conclusivelyestablishes that the gears in question were \”exposed to contact byemployees.\” The testimony and photographic exhibits provide furthersupport for this conclusion and also show that Hofstatter’s exposure onthe day he was injured was neither isolated nor unforeseeable. On thecontrary. the close proximity of stored materials used in themaintenance of the crane to the gears in question demonstrates that theexposure of employees to contact with those gears was a regular andrecurring situation. We therefore conclude that the Secretary met herburden of proving that guarding of the gears was required under theexpress terms of the standard.We further conclude that the Secretary met her burden of proving thatthe gears were not in fact guarded. Mosser challenges the judge’sfinding to this effect by arguing strenuously that it did provide one ofthe means of guarding expressly permitted under the standard, that is, a\”complete enclosure.\” Citing unrebutted testimony from severalwitnesses, Mosser correctly points out that the housing and the door ofthe doghouse acted as a fully effective guard–specifically, a completeenclosure of the cited gears–so long as the door was closed andemployees remained outside of the compartment. In Mosser’s view,Hofstatter was injured because he circumvented the guarding that it hadprovided; in the absence of this unpreventable and unforeseeableemployee misconduct, it reasons, the crane operator would have beenfully protected from the hazard created by the moving gears.For the reasons that follow, we reject this argument and hold thatMosser did not comply with the requirements of the cited standard. Weassume for the sake of argument that the housing and the door of a cranecompartment can under certain circumstances constitute a completeenclosure guard for the mechanical power transmission apparatus insidethe compartment. Nevertheless, we must conclude that those circumstancesdid not exist at Mosser’s workplace. The method of \”guarding\” providedby Mosser could easily be circumvented merely by opening the door of thedoghouse while the gears were still moving. It was therefore incumbentupon Mosser to adopt and strictly enforce a work rule that prohibitedentry into the doghouse for any reason unless the main clutch was firstdisengaged. This would have eliminated the hazard to employees whoentered into the compartment. Indeed, Mosser’s arguments on review showthat it fully recognizes the necessity of supplementing the protectionprovided by the physical enclosure. Thus, it has repeatedly asserted inits arguments to us that, prior to the incident that led to theseproceedings, it had already adopted and enforced such a work rule andthat, by combining this work rule with the physical protection providedby the \”complete enclosure,\” it had satisfied its duty under the citedstandard.We conclude however, that the record provides no support for Mosser’sclaims that it adopted and implemented a work rule that was adequate toeliminate the hazard to its employees. Instead, the record fullysupports the finding of Judge Brady that Mosser’s work rule requiredemployees to disengage the master clutch only before engaging in oilingand greasing operations.Insofar as written work rules are concerned, it is beyond dispute thatMosser did not have the broad rule governing into the doghouse that itclaims it had. The only clearly applicable rule it is able to cite isRule 26 under the section of its safety pamphlet that is captioned\”cranes, hoists, elevators and conveyors.\” That rule states that \”[t]heoiler should never grease or oil while the crane is operating.\” Craneoperator Hofstatter characterized this rule as nothing more than \”commonsense,\” noting that it was necessary to stop the movement of the gearsin order to perform the oiling and greasing operations properly. Histestimony clearly reveals that he did not view the rule as having anybroader safety purpose, and he certainly did not construe it, as Mosserapparently did, as a rule requiring employees to disengage the mainclutch when they entered the doghouse for other purposes, such as.checking the fuel levels or obtaining stored materials.Mosser also cites a second written work rule, Rule 6 of the sectioncaptioned \”motor vehicles and mechanized equipment.\” It is not clear.however, that this work rule even applies to cranes since the rulesgoverning crane operations are found in a separate section of thepamphlet. In any event, the rule provides only that equipment operatorsare required to check fuel levels \”before starting [their] equipmenteach day.\” The rule does not prohibit these operators from checking fuellevels at other times during the day. Nor does it require them todisengage the motor before entering a compartment to check the fuellevels, as Mosser would have us believe.Finally, Mosser relies on oral instructions and training that itprovided to its employees. However, crane operator Hofstatter was theonly witness to testify on this subject and his testimony taken as awhole indicates that Mosser’s oral instructions were no different thanits written work rule. We therefore conclude that there is no evidencein this record to support a finding that Hofstatter was trained todisengage the master clutch before entering the doghouse, except in thelimited instance when he entered for the purpose of oiling and greasingthe mechanical power transmission apparatus.Here, it is undisputed, as Mosser contends, that the housing and thedoor of the doghouse acted as a complete enclosure in relation to themoving gears in question if and when the door was closed and employeesremained outside of the compartment. On the other hand, it is alsoundisputed that crane operator Hofstatter repeatedly circumvented thisguarding method by opening the door and going into the compartment whilethe gears were moving; the witness testimony to this effect was notrebutted. At those times there was nothing to prevent Hofstatter fromcoming into contact with the gears, as he did on the day of theaccident. We therefore affirm the judge’s finding \”[t]hat although adoor was used to enter the gear compartment, the gears themselves werenot guarded.\” While the door in question could have been used as aneffective means of guarding, it lost its effectiveness as a guard whenit became the means of access to a frequently entered storage area.In her review brief, the Secretary asserts that \”Mosser’s argument thatcompartment door was itself an adequate guard is meritless\” because theundisputed evidence establishes that \”ordinary work processes requiredMosser’s employees to enter that compartment\” while the gears weremoving and \”Mosser, had neither a workrule nor a physical guardprotecting its crane operators and oilers from the hazard of turninggears at any time other than greasing when they opened the doghousecompartment in the course of their duties.\” We conclude that the recordfully supports this argument. The judge was therefore correct in holdingthat Mosser failed to comply with the terms of the cited standard and inrejecting Mosser’s argument that it met the standard’s terms byproviding complete enclosure guarding.B. Access to the violative conditions.From our previous discussion, it is clear that the Secretary met thiselement of her burden of proof. At least one of Mosser’s employees,crane operator Hofstatter, was \”in and out of [the doghouse] all thetime\” while the gears were moving. He testified that he could not countthe number of times he was exposed to the moving gears. Given theconfined nature of the compartment and the storage of materials used inthe maintenance of the crane in close proximity to the moving gears, wehave little difficulty in crediting this testimony and concluding thatHofstatter had access to the zone of danger created by the unguardedmoving gears on those occasions. The record is silent as to whetherany other employees were exposed to the violative conditions, and we areunable to draw any inference one way or the other on that question. Nevertheless, the unrebutted evidence of Hofstatter’s repeated exposuresto sustain the Secretary’s burden of proof.C. Knowledge of the violative conditions.There is no evidence that any of Mosser’s supervisory employees hadactual knowledge that Hofstatter was entering into the doghouse to checkfuel levels and obtain stored materials without first disengaging themaster clutch. We therefore cannot conclude that Mosser had actualknowledge of the violative conditions. Accordingly, the issue becomeswhether Mosser had construction knowledge that is, could it have knownwith the exercise of reasonable diligence of Hofstatter’s exposure tothe hazard created by the unguarded moving gears. We conclude that ithad such constructive knowledge and that the Secretary thereforeestablished this final element of her prima facie case.In determining whether an employer has constructive knowledge of aviolation, it is appropriate to examine whether the employer hasexercised responsible diligence requires adequate supervision ofemployees and the formulation and implementation of adequate trainingprograms and work rules, all for the purpose of ensuring that theemployees perform their work safely. See Gary Concrete Prod., Inc., 15BNA OSHC 1051, 1054-55, 1991 CCH OSHD ?29.344, pp. 39,451-52 (No.86-1087,1991); Towne Constr. Co., 12, BNA OSHC 2185, 2190-91, 1986-87CCH OSHD ?27,760, pp. 36,312-13 (No. 83-1262, 1986) , aff’d, 847 F. 2d1187 (6th Cir. 1988).Here, Hofstatter’s unrebutted testimony establishes that he was in andout of the doghouse while the gears were moving \”all the time\” to getstored materials used in his crane maintenance work and to check thefuel levels. Yet the work rule Mosser formulated to protect itsemployees required them to disengage the master clutch only beforegreasing and oiling operations and not before entering the compartmentfor other purposes. In the absence of a work rule prohibiting suchentries, Hofstatter’s entry into doghouse while the gears were moving inorder to get stored materials and to check on fuel levels wasforeseeable and predictable.As for supervision of Hofstatter, the record is essentially silent.Mosser’s safety officer did testify, as a general matter that his dutiesincluded making sure that employees complied with all of Mosser’s safetyrules. However, Mosser provided no testimony or other evidence of anyspecific actions taken to ensure that the crane operators and oiler’sperformed their work in a safe manner. On this record, therefore, weconclude that Mosser, with the exercise of reasonable diligence, couldhave known that Hofstatter repeatedly entered into the doghouse withoutfirst disengaging the master clutch, thereby exposing himself to themoving gears. Based on this reasoning, we further conclude that theSecretary has met her burden of proving the knowledge element of thealleged violation.Focusing on the events that led up to Hofstatter’s injury, Mosser arguesthat the citation must be vacated because the Secretary failed to provethat it \”knew or reasonably should have known that its employee wouldperform maintenance on the crane in question in an unsafe manner.\”Mosser reasons that Hofstatter’s conduct in entering the cranecompartment without first disengaging the master clutch wasunforeseeable in view of the comprehensive training he had received andhis awareness of the proper procedures to be followed in performingcrane maintenance.We disagree. We note initially that it is not at all clear on thisrecord that Hofstatter in fact performed crane maintenance in a mannercontrary to his training and instructions. (This matter will bediscussed more fully below in connection with Mosser’s unpreventableemployee misconduct defense.) More importantly, however, we concludethat Mosser’s entire focus on the issue of exposure during maintenanceoperations is misplaced, given the Secretary’s amendment of the charge.Thus, even if we were to accept Mosser’s claim that Hofstatter’s contactwith the moving gears on January 16 was caused by his failure to performhis duties properly, we would still be left with the evidence ofHofstatter’s repeated exposures to the moving gears on other occasionswhen he was not engaging in maintenance work at all but was merelychecking the fuel levels or obtaining stored materials. As we have notedabove, Mosser has failed to prove its claim that these other exposureswere contrary to its work rules or the training it provided toHofstatter. We therefore reject Mosser’s argument on the knowledge issue.Having concluded that the Secretary proved all of the elements of herprima facie case, we turn now to the issue of whether Mosser establishedeither of its affirmative defenses.II. Did Mosser establish an affirmative defense?A. Unpreventable employee misconduct.In order to establish an unpreventable employee misconduct defense theemployer must establish that the violative conduct on the part of anemployee was a departure from a uniformly and effectively communicatedand enforced work rule. Archer Western Contractors Ltd., 15 BNA OSHC1013, 1017, 1991 CCH OSHD ? 29,317, p. 39,378 (No. 87-1067, 1991),petition for review filed, No. 91-1311 (D.C. Cir. July 1, 1991). In hisdecision, Judge Brady rejected Mosser’s unpreventable employeemisconduct defense on the ground that crane operator Hofstatter did notin fact violate Mosser’s work rule on the day he was injured. In soholding, the judge entered two key finding: (1) that Mosser’s work rulerequired that the gears he disengaged only while greasing and oiling thecrane and (2) that Hofstatter had completed this process before here-engaged the master clutch. Mosser however, disagrees with both ofthese findings, and it continues to argue before us that Hofstatter’sexposure to the moving gears was due to his own misconduct in enteringthe doghouse without first disengaging the master clutch.With regard to the first of the judge’s two key findings, we havelittle’ difficulty in affirming the Judge. For the reasons we havestated previously, we reject Mosser’s claim that it had a work rulestrictly prohibiting employee entry into the doghouse whenever the gearswere moving. The judge correctly found that Mosser only required itsemployees to disengage the master clutch when they were entering thecompartment to perform a greasing and oiling operation.Mosser’s challenge to the judge’s second key finding raises a moredifficult issue. The only evidence as to Hofstatter’s actions on the dayof his injury is Hofstatter’s own testimony, and that testimonyunfortunately is internally inconsistent. At one point, the witness thathe had finished the greasing mid oiling operation before he re-engagedthe master clutch, thereby complying with Mosser’s work rule. At anotherpoint, however, he testified that he re-entered the doghouse, afterre-engaging the clutch, to pick up his tools, his grease gun, and hisrags \”as part of the greasing operation.\” In other words, Hofstatter’stestimony provides support both for the judge’s finding that Hofstattercomplied with the work rule and for Mosser’s argument that Hofstatterviolated the work rule. [[4]]We conclude that it is not necessary to resolve this factual, dispute inorder to rule on Mosser’s unpreventable employee misconduct defense. Aswe have emphasized in this decision, the Secretary’s amendment of thecharge has shifted the focus away from maintenance operations generallyand away from the events leading up to Hofstatter’s injuries inparticular. Assuming we were to agree with Mosser that Hofstatter’sexposure on the day of his injury was \”unpreventable,\” we would still beleft with the fact of Hofstatter’s exposure to the moving gears onnumerous other occasions that were not even related to oiling andgreasing operations, such as the exposure that occurred while Hofstatterwas checking the fuel level or obtaining stored materials. On thisrecord, there is no reason to believe that these other incidents ofemployee exposure were either unforeseeable or unpreventable.Because Mosser did not have a work rule that was clear enough or broadenough to eliminate employee exposure to the moving gears, and becausestrict compliance with the literal terms of Mosser’s limited work rulewould not have fully protected Hofstatter the judge ruled correctly inrejecting Mosser’s unpreventable employee misconduct defense. See GaryConcrete, 15 BNA OSHC at 1055 56, 1991 CCH OSHD at pp. 39,452-53 (unpreventable employee misconduct defense rejected where employer failedto prove that it had established \” work rules designed to prevent thecited violation\”; Gar’s instructions \”too general\” to inform theemployee of \”how to prevent the violation of the standard which resultedin his death\”); Archer-Western, 15 BNA OSHC at 1017 1991 CCH OSHD at p.39,377 (\”An unpreventable misconduct defense will not be establishedwhere the employer’s instructions were insufficient to eliminate thehazard even if the employee had complied with those instructions\”);Brown & Root, Inc., 8 BNA OSHC 2140, 2144, 1980 CCH OSHD ? 24,853 p.30,656 (No. 76-1296, 1980) (Commission rejects unpreventable employeemisconduct defense with observation that \”the work rule as perceived byRespondent’s employees is quite distinct from the rule Brown & Rootsuggests is enforced\”).B. Infeasibility of Compliance.On review, Mosser argues that Judge Brady \”erred in falling to find thatcompliance with 29 C.F.R. ? 1926.550(a)(8) was impossible.\” Citing caselaw that has since been superseded, it argues that it met its burden ofproving that \”compliance with the standard would preclude theperformance of required work or make the work functionally impossible.\”It claims that it met this burden by showing that \”an operator cannotperform the greasing operation without first opening the door on thecrane.\” In Mosser’s view, it therefore follows that \”an employee couldnot perform the required greasing operations and at the same time complywith the standard requiring the guard to be in place.\”Before ruling on this defense, it is necessary for us first to restateit in fundamentally different terms. For the reasons we have previouslygiven, Mosser’s reliance on the housing and door of the doghouse as thesole means of compliance with the cited standard is misplaced.Therefore, it misses the point in arguing that compliance with thestandard was impossible because it had to open the door to perform cranemaintenance. Giver crane operator Hofstatter’s practice of going \”in andout of [the doghouse] all the time\” while the crane was operating, andin the absence of effective work rules and other measures to ensure thatthe gears were not moving whenever it was necessary for Hofstatter toenter the compartment, Mosser’s defense must be restated in terms ofwhether the gears themselves could have been guarded by installing atleast one of the four devices specified in the cited standard.In addition, we must further modify the issue to be resolved because, asnoted, the case law cited by Mosser has been superseded–specifically,under the precedent that now controls, the \”impossibility defense\” hasbeen replaced by the \”infeasibility defense.\” Under our current caselaw, the issue is whether Mosser met its burden of proving that (1)literal compliance with the terms of the cited standard was infeasibleunder the existing circumstances and (2) an alternative protectivemeasure was used or there was no feasible alternative measure. Seibel,15 BNA OSHC at 1226, 1228, 1991 CCH OSHD at pp. 39,682 & 39,685.On the record before us, we have no difficulty in concluding that Mosserfailed to sustain its burden. Indeed, the only party to introduceevidence at the hearing on the feasibility of guarding the gears and theavailability of alternative protective measures was the Secretary. Asnoted by the judge, who implicitly credited their testimony, both theOSHA compliance officer and the business representative for the localunion representing Mosser’s employees testified that band guards couldhave been used to protect employees from the moving gears and that theyhad personally observed this form of guarding on similar gears on othercranes. Mosser made no effort to discredit or rebut this testimony. Italso made no effort to show that any of the other three types ofguarding that are expressly permitted under the terms of the citedstandard as alternatives to band guards could not have been used toblock access to the cited crane gears. Mosser’s impossibility ofperformance defense is therefore clearly without merit.III. Is the assessed penalty appropriate?In discussing an appropriate penalty for item 1b, the item that is atissue before us on review, the judge erroneously concluded that \”theproposed penalty in the amount of $210 is deemed appropriate.\” In hercomplaint, the Secretary proposed a penalty of $210 for a differentalleged serious violation, which was stated in item 2 of the citation.She proposed a penalty of $175 for item 1b. The judge then compoundedthis error in his order, by assessing a single penalty of $210 to coverboth item 1b and item 2, even though there is to apparent relationshipbetween these two items that would warrant grouping them for penaltyassessment purposes.We therefore modify the judge’s order to assess separate penalties foritems 1b and 2. At the beginning of the hearing, Mosser withdrew itsnotice of contest to item 2 and its proposed penalty of $210.Accordingly, we assess at penalty of $210 for item 2.We Assess a separate penalty of $300 for item 1b. Under the expressterms of section 17(j) of the Act. 29 U.S.C. ? 666(j), we have the\”authority to assess all civil penalties provided in this section,giving due consideration to the appropriateness of the penalty withrespect to the size of the business of the employer being charged, thegravity of the violation, the good faith of the employer, and thehistory of previous violations\”. The penalty we assess gives Mossersubstantial credit for three of the four stated penalty criteria–size,good faith, and past history. Because the record contains littlerelevant information concerning these factors, we have given Mosser thebenefit of the doubt on each of these three factors in determining inappropriate penalty. The one factor we can assess on the basis of thisrecord is the gravity of the violation. In our view, that factorwarrants a penalty higher than the $175 proposed by the Secretary. Inthis regard, we note that the Secretary’s proposal was apparently basedon OSHA’s erroneous belief that exposure to the moving gears occurredonly during maintenance operations. Since employee exposure in factoccurred more frequently than OSHA originally believed, we increase thepenalty to reflect the increased gravity of the violation that has beenestablished on this record. We also note, as the Judge correctly held,that the violation is properly classified as a serious violation becausethe likely result of contact with the moving gears was death or seriousphysical harm. Unfortunately, Hofstatter’s injury is proof of this fact.ORDERAccordingly, for the reasons given in this opinion, we affirm citationno. 1, item 1b, as amended, (alleging a serious violation of 29 C.F.R. ?1926.550(a)(8). We assess a penalty of $300 for this item and a penaltyof $210 for item 2.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: December 10, 1991————————————————————————SECRETARY OF LABOR,Complainant.v.MOSSER CONSTRUCTION COMPANY,Respondent.INTERNATIONAL UNION OFOPERATING ENGINEERSLOCAL UNION 18,Authorized EmployeeRepresentative.OSHRC Docket No. 89-1027APPEARANCES:Sandra B. Kramer, Esquire, Office of the Solicitor, U.S. Department ofLabor, Cleveland, Ohio, on behalf of complainant.Douglas M. Bricker, Esquire, Arter & Hadden, Columbus, Ohio, on behalfof respondent.Mr. Ronald Richmond, Business Representative, Local 18, InternationalUnion of Operating Engineers, Cleveland, Ohio, on behalf of authorizedemployee representative.DECISION AND ORDERBRADY, Judge: This proceeding is brought pursuant to section 10 of theoccupational Safety and Health Act of 1970 (\”Act\”) to contest a citationissued by the Secretary of Labor (\”Secretary\”) pursuant to section 9(a)of the Act.Prior to commencement of the hearing, the parties agreed to thedisposition of items 1a and 2 of the citation, leaving in issue item 1bwhich alleges violation of 29 C.F.R. 1926.550(a)(8).The standard at 29 C.F.R. ? 1926.550(a)(8) provides:Belts, gears, shafts, pulleys, sprockets, spindles, drums, fly wheels,chains, or other reciprocating, rotating, or other moving parts orequipment shall be guarded if such parts are exposed to contact byemployees, or otherwise create a hazard. Guarding shall meet therequirements of the American National Standards Institute B 15.1-1958Rev., Safety Code for Mechanical Power Transmission Apparatus.The citation alleges the standard was violated by Mosser ConstructionCompany (\”Mosser\”), because the crane operator \”was permitted to performmaintenance on the crane while the machinery was rotating.\” [[1]]The basic facts which gave rise to issuance of the citation are not indispute. On January 16, 1989, Mr. Eric Hofstatter, a crane operator,performed maintenance on respondent’s Linkbelt 65-ton crane. Hofstatterdisengaged the crane’s gears before he began to grease them. Uponcompletion, he engaged the clutch and the gears began to move again.When he returned to the gear compartment to check the fuel level, a ragbecame tangled in the moving gears which lead to the serious injury ofhis hand.The Commission has held that, in order to establish a violation as inthis case, it is necessary for the Secretary to show by a preponderanceof the evidence that (1) the cited standard applies; (2) there was afailure to comply with the standard; (3) employees had access to theviolative condition; and (4) the cited employer either knew or couldhave known of the condition with exercise of reasonable diligence. AstraPharmaceutical Products. Inc., 82 OSAHRC 55\/E9, 9 BNA OSHC 2126, 1981CCH OSHD ? 25,578 (No. 78-6247, 1982) Daniel International Corp., 81OSAHRC 71\/D6, 9 BNA OSHC 2027, 1977-78 CCH OSHD ? 21,679 (No. 76-181, 1977).In determining the factor of applicability, the specific language of thestandard itself must first be noted. Essentially, it provides that gearssuch as those in question shall be guarded \”if such parts are exposed tocontact by employees or otherwise create a hazard.\” There is no disputethat the standard applies to the facts of this case. However, thequestion of compliance is the central issue.Clearly, the. gears themselves were not guarded, but respondentmaintains that the gear compartment door serves as a guard since noemployees are exposed to the hazards of moving gears when the door isclosed. In support of its contention, Mosser shows that prior to theinspection, a testing laboratory performed \”a complete OSHA inspection\”on the crane without any reference to inadequate guarding (Ex. R-5). Itwas also shown that the manufacturer had not provided specific guardingfor the gears. Since Mosser maintains that the compartment door was theguard, employees were not exposed to violative conditions; it could nothave known of any such conditions.The secretary, in accordance with the foregoing criteria, establishedthe violation as alleged. This included employee exposure to the movinggears at times other than performance of maintenance work. The facts areclear that although a door was used to enter the gear compartment, thegears themselves were not guarded. The record also shows that materialswere stored in the compartment which required Mr. Hofstatter to go \”inand out of it all the time\” while the gears were moving. It was duringone of these times when the accident occurred as he picked up a ragwhich got caught in the moving gears.Mr. Ronald Richmond, a crane operator for 25 years and businessrepresentative for local operating engineers, testified he has seenthese gears guarded on other cranes. He stated the guards consist ofmetal bands that wrap around the guars and are similar to the guardsused to protect the operator from moving gears in the crane’s cab.Mr. Pat Bland, the compliance officer who conducted the inspection,testified that newer crane models include the band-type guarding. HEstarted such grauding would cost about $500.00.Underlying respondent’s argument is the fact that a safety rule was ineffect that prohibited greasing and oiling the crane while it isoperating (Ex. R-1). There is no question Mr. Hofstatter was bound by,and understood the rule. Mosser, therefore reasons that it could nothave known Hofstatter would lubricate the gears in an unsafe manner.The evidence in this case, however, shows that Hofstatter had completedthe process of oiling and greasing the crane, in compliance with thesafety rule, when the accident occurred. He, in fact, was handling arag which was part of the material and equipment stored in thecompartment. The record convincingly shows that the standard wasviolated and affirmative defenses of unpreventable employee misconducton impossibility of performance are without merit.the violation having been established, it must now be determined whetherit is of serious nature, as alleged. For a violation to be determinedserious under section 17(k) of the Act, there must be a substantialprobability that death or serious physical harm could result therefrom. The resulting injuries sustained by Mr. Hofstatter are obviously seriouswithin the meaning of the Act.The Next Question for determination concerns the amount of penalty to beassessed for violation. Under section 17(j) of the Act, the Commissionin required to find and give \”due consideration\” to the size of theemployer’s business, the gravity of the violation, the good faith of theemployer, and the history of previous violations in determining theassessment of an appropriate penalty. The gravity of the offense is theprincipal factor to be considered. Nacirema Operating Co., 72 OSAHRC1\/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ? 15,032 (No. 4, 1971). TheCommission stated in Secretary v. National Realty & Construction Co., 72OSAHRC 9\/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD ? 15,188 (No. 85, 1971),that the elements to be considered in determining the gravity are: (1)the number of employees exposed to the risk of injury; (2) the durationof exposure; (3) the precautions taken against injury, if any; and (4)the degree of probability of occurrence of injury.Weighing all the foregoing factors in light of the circumstances,including respondent’s attempts at compliance, it is concluded that theproposed penalty in the amount of $210.00 is deemed appropriate.FINDINGS OF FACT1. Mosser Construction Company, at all times hereinafter mentioned, wasa contractor performing concrete and structural steel work at 300 SprowlRoad, Huron, Ohio.2. On January 30, 1989, authorized representatives of the Secretaryconducted an inspection at the work site resulting in the issuance of acitation.3. On January 18, 1989, a crane operator at the work site performedmaintenance on a Linkbelt 65-ton crane. He disengaged the gears while heoiled and greased them.4. The operator followed respondent’s safety rules while he oiled andgreased the gears.5. Although door was used to enter the gear compartment, the gearsthemselves were not guarded. The manufacturer of the Crane had notprovided specific guards for the gears.6. Materials were stored in the compartment, and employees entered thecompartment for purposes other than oiling and greasing the gears. Thoseemployees were exposed to the hazard of moving gears.7. On January 16, 1989, Eric Hofstatter, who had completed the tasks ofoiling and greasing the crane’s gears, was exposed to the hazard ofmoving gears while performing other duties in the gear compartment.CONCLUSIONS OF LAW1. Mosser Construction Company, at all times pertinent hereto, was anemployer engaged in a business affecting commerce within the meaning ofsection 3(5) of the Occupational Safety and Health Act of 1970, and theCommission has jurisdiction of the parties and subject matter hereinpursuant to section 10(c) of the Act.2. Respondent is, and at all times pertinent hereto,required to complywith the Act and the safety and health regulations promulgated pursuantthereto.3. Respondent. violated 29 C.F.R. ? 1926.550(a)(8) and ? 1926.407(b) asalleged in the citation.4. Respondent was not in violation of 29 C.F.R. ?ORDERUpon the basis of the foregoing findings of fact, conclusions of law,and the entire record, it is ORDERED:1. That part of the citation alleging violation of 29 C.F.R. ?1926.550(a)(8) and 1926. 407(b) is affirmed and a penalty in the sum of$210.00 is hereby assessed.2. That part of the citation alleging violation of 29 C.F.R. ?1926.21(b)(2) is hereby vacated.Dated this 11th day of June, 1990.PAUL L. BRADYJudgeFOOTNOTES:[[1]] Federal Rule 15(b) states in pertinent part:(b) Amendments to Conform to the Evidence. When issues not raised by thepleadings are tried by express or implied consent of the parties, theyshall be treated in all respects as if they had been raised by thepleadings. Such amendment of the pleadings as may be necessary to causethem to conform to the evidence and to raise these issues may be madeupon motion of any party at any time, even after judgment ….[[2]] At the outset of his decision, Judge Brady expressly granted theSecretary’s pending motion to amend under Fed. R. Civ. P. 15(b). Mosserhas not objected to the judge’s action. Nor did it object to theintroduction of the underlying testimony that served as the basis of theSecretary’s motion, and it made no effort to rebut or to discredit thattestimony. Under these circumstances, we decline to review the proprietyof the judge’s order granting the amendment, although we clearly havethe authority to consider the matter under Commission Rule of Procedure92 (a) 29 C.F.R. ? 2200.92 (a).[[3]] The specific cases that Mosser cites are unreviewed judge’sdecisions which assertedly support the result it urges. Smurfit DiamondPackaging Corp. 12 BNA OSHC 119,1984-85 CCH OSHD 27,115 (No. 83-1012,1984) (consolidated cases)(ALJ), Parr, Inc., 4 BNA OSHC 1449, 1975-76CCH OSHD ? 20,272 (No. 9352, 1976)(ALJ). However, while these unreviewedjudge’s decisions maybe considered for their persuasive value, they\”[d]o not constitute precedent binding upon [the Commission].\” LeoneConstr. Co., 3 BNA OSHC 1979, 1981. 1975-76 CCH OSHD ? 20,387, p. 24,322(No 4090, 1976).[[4]] We consider it significant that Hofstatter believed he was incompliance with Mosser’s work rule at the time he was injured. As wehave observed previously, Hofstatter saw the work rule as a \”commonsense\” rule based on practical concerns — specifically, the necessityof stopping movement of the gears in order to perform the greasing andoiling operation properly. Thus, he read the work rule very narrowly asrequiring the clutch to be disengaged only while he was actuallyperforming the tasks of oiling and greasing.Mosser argues persuasively that the cleanup activities should beconsidered an integral part of the greasing and oiling operation. From asafety viewpoint, we certainly agree, and we note that there is noexplanation in the record for Hofstatter’s actions in re-engaging themaster clutch before checking the fuel levels and picking up the toolsand materials used in the greasing and oiling operation. On the otherhand, we also note that there is no evidence that Mosser actuallytrained or instructed its employees to finish their cleanup and thestorage of tools and materials before re-engaging the master clutch. Ifthis was Mosser’s intent in adopting its work rule, we must concludethat it was ineffective in communicating that intent.[[1]] Complainant’s motion to amend the pleadings is granted. Thecitation is, therefore, amended to include exposure at other times whilethe gears are moving such as checking the fuel level and obtainingstored materials.”