“Docket No. 89-1027 SECRETARY OF LABOR, Complainant. v. MOSSER CONSTRUCTION COMPANY, Respondent. INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL UNION 18, Authorized Employee Representative.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 andHealth Act of 1970, 29 U.S.C. ? 651-678. Commission Administrative Law Judge Paul L.Brady affirmed this citation item as amended, finding that an employee of MosserConstruction Co. (\”Mosser\”) was exposed to the hazard of moving gears on a truckcrane while performing duties such as checking the fuel level and obtaining storedmaterials, and that Mosser violated the cited standard, 29 C.F.R. ? 1926.550(a)(8), byfalling to guard those gears. The judge also held that Mosser’s affirmative defenses ofunpreventable employee misconduct and \”impossibility of performance\” were\”without merit.\” For the reasons stated below, we conclude that the judgecorrectly decided the issues in this case, and we therefore affirm his decision and orderto the extent it affirms the contested citation item. However, we modify the judge’spenalty assessments.BACKGROUND The contested Citation item arises from an incidentthat occurred on January 16, 1989, while employees of Mosser, including crane operatorEric Hofstatter, were engaged in construction work at a Glidden Paint plant in Huron,Ohio. On this project, Hofstatter was the operator of a 65-ton Link-Belt truck crane thatwas being used in the construction of a \”paint building.\” At this stage of theconstruction, the crane was being used to set up steel reinforcing bars(\”rehar\”) so that a concrete floor could be poured. When he arrived at theworksite on the morning of January 16. however, Hofstatter learned that he had about anhour of free time before any lifts were scheduled. He therefore decided to do somemaintenance work on the crane.Although maintenance work was primarily theresponsibility of another employee, referred to as \”the oiler,\” crane operatorHofstatter, who had worked as both an oiler and an operator for 11 1\/2 years, decided todo the work himself because he was \”the only one there.\” The record reveals thatthis was not an unusual occurrence, that Hofstatter was fully qualified to do maintenancework on the crane, and that he still performed the work of an oiler on numerous occasions,particularly when his father, also a Mosser employee, operated the Link-Belt crane.The maintenance operation that Eric Hofstatterperformed on the morning of January 16 was tile oiling and greasing of mechanical powertransmission apparatus that apparently controlled the movement of the crane’s boom andhoist. This apparatus was contained within a compartment referred to as \”thedoghouse,\” that was located on the crane’s rotating superstructure. Although thespace inside this compartment was quite confined, it was large enough that an employeecould enter into it through a hatch-like door that also served as the slanted roof of thecompartment. Inside the compartment, along with the mechanical power transmissionapparatus, were fuel tanks and gauges. In addition, the doghouse served as a storage areafor materials, equipment and tools that were used by the oiler and the operator in theircrane maintenance work.At the hearing, crane operator Hofstatter testified as to the events that resulted in thesevering of his hand. Unfortunately, this testimony is ambiguous and incomplete, and eveninternally inconsistent in one important respect, which is discussed below. Nevertheless,based on our reading of the testimony and related evidence, we conclude that the injuryoccurred in the following manner. After deciding to oil and grease the mechanical powertransmission apparatus. Hotstatter followed his usual practice, which was to firstdisengage the master clutch before beginning this maintenance operation. By disengagingthe master clutch, while standing or seated in the crane’s cab, he stopped the movement ofthe gears that were inside the doghouse. He then went over to the doghouse and wentinside, where he \”greased the fittings that were open to him\” and \”put somelube on the crane gears.\” After he had \”finished the greasing oiling,\” hereturned to the crane cab and re-engaged the clutch so that the gears began to move again.He then returned to the doghouse to check the fuel levels and to pick up tools andmaterials \”as part of the greasing operation.\” While he was handling a rag thathe either had used or was then using to clean up oil and grease, first the rag, and thenhis hand, became entangled in the moving gears. As a result. Hofstatter’s hand wassevered.Following an investigation of this incident and aninspection of the workplace, the Occupational Safety and Health Administration(\”OSHA\”) of the United States Department of Labor issued a citation allegingserious violations of the Act. Item 1b of the citation alleged that Mosser violated 29C.F.R. ? 1926.550 (a)(8) by failing to guard the moving gears 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, fly wheels, chains, or other reciprocating, rotating, or other movingparts or equipment shall be guarded if such parts are exposed to contact by employees, orotherwise create a hazard. Guarding shall meet the requirements of the American NationalStandards Institute B 15.1-1958 Rev., Safety Code for Mechanical Power TransmissionApparatus.The incorporated ANSI Safety Code provisions requireemployers to guard moving gears by installing at least one of four permissible physicalguarding devices — a complete enclosure, a standard guard, a band guard, or a disk guardand by meeting the specification requirernents that the Code establishes for whicheverguard is selected. (See Rule 230–Gears).In both her citation and her complaint, the Secretaryalleged that employee exposure to these unguarded gears occurred during maintenanceoperations and specifically while greasing the mechanical power transmission apparatus. Atthe hearing in this case, however, the undisputed testimony of crane operator Hofstatterclearly established that he was not exposed to moving gears during oiling and greasingoperations. Instead, his regular practice was to disengage the master clutch therebystopping the movement of the gears, before beginning his oiling and greasing work.On the other hand, Hofstatter also gave unrebuttedtestimony that he was regularly and recurringly exposed to the moving gears on otheroccasions specifically, while checking the fuel gauges or obtaining stored materials. Asindicated above, the doghouse served multiple purposes since the mechanical powertransmission apparatus, the fuel tanks and fuel gauges, and stored materials were alllocated inside the compartment. In particular, Hofstatter identified certain objects inphotographic exhibit C-4 as containers of torque converter oil, which is used in thecrane’s hydraulic system and which was stored in very close proximity to the unguardedgears that are at issue. He further testified that the doghouse was also used for thestorage of buckets, brackets, wedges, cable clamps, and \”all kinds of stuff thatpertain to the rig.\”The key testimony of Hofstatter concerning the extentof his exposure and the reasons for that exposure is the following:Q. Now, during he course of your employment withMosser Construction, did you have occasion to go inside this [\”doghouse\”] doorwhile the gears 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, plus you have fueltanks located in this compartment too.So, you’re in and out of it–or I was–a lot oftimes, just to get stuff, rags, grease, oils.Q. Had you checked the fuel level on this cranebefore [the date of the incident] while the gears were running?A. Yes.Q. Do you know on how many occasions besides the time of the accident you were exposed tothe moving gears?A. I can’t count them, but I was in and out of the compartment numerous times.Q. Why wouldn’t the gears be shut down when you had to go into that compartment?A. I don’t know. They usually were when I was alone, but like I say, if Dad was runningthe crane or something and I was oiling, if I needed something, like some oil and somegrease, I would go in there while the crane was being operated and grab some stuff …Based on this testimony, which was introduced withoutobjection at the hearing, the Secretary in her post-hearing brief included a motion underFed. R. Civ. P. 15(b) [[1]] to amend her pleadings to conform to the evidence: \”[T]othe extent that the Complaint limited exposure to maintenance work on the crane,Complainant moves to amend the pleadings to include exposure at other times such as whenchecking the fuel level and obtaining stored materials while the gears were moving.\”It was this amended charge that was affirmed by Judge Brady, and it is this amended chargethat is now before us on review. [[2]] DISCUSSION1. Did the Secretary prove a violation of the citedstandard?\”To establish a violation of a standard, theSecretary must show by a preponderance of the evidence that: (1) the cited standardapplies, (2) its terms were not met, (3) employees had access to the violative condition,and (4) the employer knew or could have known of it with the exercise of reasonablediligence.\” Seibel Modem Mfg. & Welding Corp., 15 BNA OSHC 1218, 1221, 1991 CCHOSHD ? 29,442, p. 39,678 (No. 88-821, 1991). Here, there is no dispute over theallegation that the cited standard applies to the cited conditions. The standard clearlyapplies because Mosser was engaged in construction work and it was using a 65-ton truckcrane in its work. At issue is whether the Secretary proved the remaining three elementsof her prima facie case.A. Noncompliance with the standard’s terms.The cited standard, which we have quoted in fullabove, requires guarding of a crane’s gears \”if such parts are exposed to contact byemployees, or otherwise create a hazard.\” Mosser argues in effect that this test hasnot been met here because \”[i]n this case, the operator, by his own admission, had noreason to place his hands in the area of gear movement to perform maintenance on thecrane.\” Citing two decisions arising under other machine guarding standards, itcontends that the Commission’s case law compels the conclusion that the Secretary failedto prove the degree of exposure to a hazard that would require the installation ofguarding. [[3]]We disagree. The cases cited by Mosser are not applicable in this context. They arose insituations involving alleged exposure to point of operation hazards. Under the expressterms of 29 C.F.R. ? 1910.212(a)(3)(ii), the primary standard governing such hazards,point of operation guarding is required only on those \”machines whose operationexposes an employee to injury.\” Thus, it is the specific language of this standardthat is the source of the Secretary’s evidentiary burden of proving that a cited machineis operated in such a manner that the operator has to place his or her hands in thevicinity of the machine’s point of operation. In contrast, the language of the standardthat has been cited in this case contains no such limitation, either expressly orimplicitly. The Secretary is required to prove only that the moving gears \”areexposed to contact by employees.\”Furthermore, there are important differences in thesafety considerations that are involved in these two different situations. With movinggears and other moving parts of mechanical power transmission apparatus, such as in thiscase, there is a very real possibility of an employee inadvertently coming into contactwith the moving part while his or her attention is directed elsewhere, e.g., by backinginto the moving gears or by catching an article of clothing on them. In contrast, theprimary hazards created by a point of operation are the possibility that the machine couldbe inadvertently activated while the operator’s hands are in the point of operation andthe possibility that an employee who must work near the point of operation willaccidentally enter into the zone of danger and be injured. We therefore conclude thatneither the case law, safety considerations, nor the underlying intent of 1926.550(a)(8)support a limitation of the standard’s guarding requirements to situations where employeeshave to place their hands \”in the area of gear movement to perform maintenance on thecrane,\” as Mosser suggests.In this case, the incident that led to theseproceedings conclusively establishes that the gears in question were \”exposed tocontact by employees.\” The testimony and photographic exhibits provide furthersupport for this conclusion and also show that Hofstatter’s exposure on the day he wasinjured was neither isolated nor unforeseeable. On the contrary. the close proximity ofstored materials used in the maintenance of the crane to the gears in questiondemonstrates that the exposure of employees to contact with those gears was a regular andrecurring situation. We therefore conclude that the Secretary met her burden of provingthat guarding of the gears was required under the express terms of the standard.We further conclude that the Secretary met her burdenof proving that the gears were not in fact guarded. Mosser challenges the judge’s findingto this effect by arguing strenuously that it did provide one of the means of guardingexpressly permitted under the standard, that is, a \”complete enclosure.\” Citingunrebutted testimony from several witnesses, Mosser correctly points out that the housingand the door of the doghouse acted as a fully effective guard–specifically, a completeenclosure of the cited gears–so long as the door was closed and employees remainedoutside of the compartment. In Mosser’s view, Hofstatter was injured because hecircumvented the guarding that it had provided; in the absence of this unpreventable andunforeseeable employee misconduct, it reasons, the crane operator would have been fullyprotected from the hazard created by the moving gears.For the reasons that follow, we reject this argumentand hold that Mosser did not comply with the requirements of the cited standard. We assumefor the sake of argument that the housing and the door of a crane compartment can undercertain circumstances constitute a complete enclosure guard for the mechanical powertransmission apparatus inside the compartment. Nevertheless, we must conclude that thosecircumstances did not exist at Mosser’s workplace. The method of \”guarding\”provided by Mosser could easily be circumvented merely by opening the door of the doghousewhile the gears were still moving. It was therefore incumbent upon Mosser to adopt andstrictly enforce a work rule that prohibited entry into the doghouse for any reason unlessthe main clutch was first disengaged. This would have eliminated the hazard to employeeswho entered into the compartment. Indeed, Mosser’s arguments on review show that it fullyrecognizes the necessity of supplementing the protection provided by the physicalenclosure. Thus, it has repeatedly asserted in its arguments to us that, prior to theincident that led to these proceedings, it had already adopted and enforced such a workrule and that, by combining this work rule with the physical protection provided by the\”complete enclosure,\” it had satisfied its duty under the cited standard.We conclude however, that the record provides nosupport for Mosser’s claims that it adopted and implemented a work rule that was adequateto eliminate the hazard to its employees. Instead, the record fully supports the findingof Judge Brady that Mosser’s work rule required employees to disengage the master clutchonly before engaging in oiling and greasing operations.Insofar as written work rules are concerned, it isbeyond dispute that Mosser did not have the broad rule governing into the doghouse that itclaims it had. The only clearly applicable rule it is able to cite is Rule 26 under thesection of its safety pamphlet that is captioned \”cranes, hoists, elevators andconveyors.\” That rule states that \”[t]he oiler should never grease or oil whilethe crane is operating.\” Crane operator Hofstatter characterized this rule as nothingmore than \”common sense,\” noting that it was necessary to stop the movement ofthe gears in order to perform the oiling and greasing operations properly. His testimonyclearly reveals that he did not view the rule as having any broader safety purpose, and hecertainly did not construe it, as Mosser apparently did, as a rule requiring employees todisengage the main clutch 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 6of the section captioned \”motor vehicles and mechanized equipment.\” It is notclear. however, that this work rule even applies to cranes since the rules governing craneoperations are found in a separate section of the pamphlet. In any event, the ruleprovides only that equipment operators are required to check fuel levels \”beforestarting [their] equipment each day.\” The rule does not prohibit these operators fromchecking fuel levels at other times during the day. Nor does it require them to disengagethe motor before entering a compartment to check the fuel levels, as Mosser would have usbelieve.Finally, Mosser relies on oral instructions andtraining that it provided to its employees. However, crane operator Hofstatter was theonly witness to testify on this subject and his testimony taken as a whole indicates thatMosser’s oral instructions were no different than its written work rule. We thereforeconclude that there is no evidence in this record to support a finding that Hofstatter wastrained to disengage the master clutch before entering the doghouse, except in the limitedinstance when he entered for the purpose of oiling and greasing the mechanical powertransmission apparatus.Here, it is undisputed, as Mosser contends, that thehousing and the door of the doghouse acted as a complete enclosure in relation to themoving gears in question if and when the door was closed and employees remained outside ofthe compartment. On the other hand, it is also undisputed that crane operator Hofstatterrepeatedly circumvented this guarding method by opening the door and going into thecompartment while the gears were moving; the witness testimony to this effect was notrebutted. At those times there was nothing to prevent Hofstatter from coming into contactwith the gears, as he did on the day of the accident. We therefore affirm the judge’sfinding \”[t]hat although a door was used to enter the gear compartment, the gearsthemselves were not guarded.\” While the door in question could have been used as aneffective means of guarding, it lost its effectiveness as a guard when it became the meansof access to a frequently entered storage area.In her review brief, the Secretary asserts that\”Mosser’s argument that compartment door was itself an adequate guard ismeritless\” because the undisputed evidence establishes that \”ordinary workprocesses required Mosser’s employees to enter that compartment\” while the gears weremoving and \”Mosser, had neither a workrule nor a physical guard protecting its craneoperators and oilers from the hazard of turning gears at any time other than greasing whenthey opened the doghouse compartment in the course of their duties.\” We conclude thatthe record fully supports this argument. The judge was therefore correct in holding thatMosser failed to comply with the terms of the cited standard and in rejecting Mosser’sargument that it met the standard’s terms by providing complete enclosure guarding.B. Access to the violative conditions.From our previous discussion, it is clear that theSecretary met this element of her burden of proof. At least one of Mosser’s employees,crane operator Hofstatter, was \”in and out of [the doghouse] all the time\” whilethe gears were moving. He testified that he could not count the number of times he wasexposed to the moving gears. Given the confined nature of the compartment and the storageof materials used in the maintenance of the crane in close proximity to the moving gears,we have little difficulty in crediting this testimony and concluding that Hofstatter hadaccess to the zone of danger created by the unguarded moving gears on those occasions.\u00a0 The record is silent as to whether any other employees were exposed to theviolative conditions, and we are unable to draw any inference one way or the other on thatquestion.\u00a0 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 supervisoryemployees had actual knowledge that Hofstatter was entering into the doghouse to checkfuel levels and obtain stored materials without first disengaging the master clutch.\u00a0 We therefore cannot conclude that Mosser had actual knowledge of the violativeconditions.\u00a0 Accordingly, the issue becomes whether Mosser had construction knowledgethat is, could it have known with the exercise of reasonable diligence of Hofstatter’sexposure to the hazard created by the unguarded moving gears.\u00a0 We conclude that ithad such constructive knowledge and that the Secretary therefore established this finalelement of her prima facie case.In determining whether an employer has constructiveknowledge of a violation, it is appropriate to examine whether the employer has exercisedresponsible diligence requires adequate supervision of employees and the formulation andimplementation of adequate training programs and work rules, all for the purpose ofensuring that the employees 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); TowneConstr. Co., 12, BNA OSHC 2185, 2190-91, 1986-87 CCH OSHD ?27,760, pp. 36,312-13 (No.83-1262, 1986) , aff’d, 847 F. 2d 1187 (6th Cir. 1988).Here, Hofstatter’s unrebutted testimony establishesthat he was in and out of the doghouse while the gears were moving \”all thetime\” to get stored materials used in his crane maintenance work and to check thefuel levels.\u00a0 Yet the work rule Mosser formulated to protect its employees requiredthem to disengage the master clutch only before greasing and oiling operations and notbefore entering the compartment for other purposes.\u00a0 In the absence of a work ruleprohibiting such entries, Hofstatter’s entry into doghouse while the gears were moving inorder to get stored materials and to check on fuel levels was foreseeable and predictable.As for supervision of Hofstatter, the record isessentially silent. Mosser’s safety officer did testify, as a general matter that hisduties included making sure that employees complied with all of Mosser’s safety rules.However, Mosser provided no testimony or other evidence of any specific actions taken toensure that the crane operators and oiler’s performed their work in a safe manner. On thisrecord, therefore, we conclude that Mosser, with the exercise of reasonable diligence,could have known that Hofstatter repeatedly entered into the doghouse without firstdisengaging the master clutch, thereby exposing himself to the moving gears. Based on thisreasoning, we further conclude that the Secretary has met her burden of proving theknowledge element of the alleged violation.Focusing on the events that led up to Hofstatter’sinjury, Mosser argues that the citation must be vacated because the Secretary failed toprove that it \”knew or reasonably should have known that its employee would performmaintenance on the crane in question in an unsafe manner.\” Mosser reasons thatHofstatter’s conduct in entering the crane compartment without first disengaging themaster clutch was unforeseeable in view of the comprehensive training he had received andhis awareness of the proper procedures to be followed in performing crane maintenance.We disagree. We note initially that it is not at allclear on this record that Hofstatter in fact performed crane maintenance in a mannercontrary to his training and instructions. (This matter will be discussed more fully belowin connection with Mosser’s unpreventable employee misconduct defense.) More importantly,however, we conclude that Mosser’s entire focus on the issue of exposure duringmaintenance operations is misplaced, given the Secretary’s amendment of the charge. Thus,even if we were to accept Mosser’s claim that Hofstatter’s contact with the moving gearson January 16 was caused by his failure to perform his duties properly, we would still beleft with the evidence of Hofstatter’s repeated exposures to the moving gears on otheroccasions when he was not engaging in maintenance work at all but was merely checking thefuel levels or obtaining stored materials. As we have noted above, Mosser has failed toprove its claim that these other exposures were contrary to its work rules or the trainingit provided to Hofstatter. We therefore reject Mosser’s argument on the knowledge issue.Having concluded that the Secretary proved all of theelements of her prima 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 employeemisconduct defense the employer must establish that the violative conduct on the part ofan employee was a departure from a uniformly and effectively communicated and enforcedwork rule. Archer Western Contractors Ltd., 15 BNA OSHC 1013, 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 his decision, Judge Brady rejected Mosser’s unpreventable employeemisconduct defense on the ground that crane operator Hofstatter did not in fact violateMosser’s work rule on the day he was injured. In so holding, the judge entered two keyfinding: (1) that Mosser’s work rule required that the gears he disengaged only whilegreasing and oiling the crane and (2) that Hofstatter had completed this process before here-engaged the master clutch. Mosser however, disagrees with both of these findings, andit continues to argue before us that Hofstatter’s exposure to the moving gears was due tohis own misconduct in entering the doghouse without first disengaging the master clutch.With regard to the first of the judge’s two keyfindings, we have little’ difficulty in affirming the Judge. For the reasons we havestated previously, we reject Mosser’s claim that it had a work rule strictly prohibitingemployee entry into the doghouse whenever the gears were moving. The judge correctly foundthat Mosser only required its employees to disengage the master clutch when they wereentering the compartment to perform a greasing and oiling operation.Mosser’s challenge to the judge’s second key findingraises a more difficult issue. The only evidence as to Hofstatter’s actions on the day ofhis injury is Hofstatter’s own testimony, and that testimony unfortunately is internallyinconsistent. At one point, the witness that he had finished the greasing mid oilingoperation before he re-engaged the master clutch, thereby complying with Mosser’s workrule. At another point, however, he testified that he re-entered the doghouse, afterre-engaging the clutch, to pick up his tools, his grease gun, and his rags \”as partof the greasing operation.\” In other words, Hofstatter’s testimony provides supportboth for the judge’s finding that Hofstatter complied with the work rule and for Mosser’sargument that Hofstatter violated the work rule. [[4]]We conclude that it is not necessary to resolve thisfactual, dispute in order to rule on Mosser’s unpreventable employee misconduct defense.As we have emphasized in this decision, the Secretary’s amendment of the charge hasshifted the focus away from maintenance operations generally and away from the eventsleading up to Hofstatter’s injuries in particular. Assuming we were to agree with Mosserthat Hofstatter’s exposure on the day of his injury was \”unpreventable,\” wewould still be left with the fact of Hofstatter’s exposure to the moving gears on numerousother occasions that were not even related to oiling and greasing operations, such as theexposure that occurred while Hofstatter was checking the fuel level or obtaining storedmaterials. On this record, 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 wasclear enough or broad enough to eliminate employee exposure to the moving gears, andbecause strict compliance with the literal terms of Mosser’s limited work rule would nothave fully protected Hofstatter the judge ruled correctly in rejecting Mosser’sunpreventable employee misconduct defense. See Gary Concrete, 15 BNA OSHC at 1055 56, 1991CCH OSHD at pp. 39,452-53 ( unpreventable employee misconduct defense rejected whereemployer failed to prove that it had established \” work rules designed to prevent thecited violation\”; Gar’s instructions \”too general\” to inform the employeeof \”how to prevent the violation of the standard which resulted in his death\”);Archer-Western, 15 BNA OSHC at 1017 1991 CCH OSHD at p. 39,377 (\”An unpreventablemisconduct defense will not be established where the employer’s instructions wereinsufficient to eliminate the hazard even if the employee had complied with thoseinstructions\”); Brown & Root, Inc., 8 BNA OSHC 2140, 2144, 1980 CCH OSHD ?24,853 p. 30,656 (No. 76-1296, 1980) (Commission rejects unpreventable employee misconductdefense with observation that \”the work rule as perceived by Respondent’s employeesis quite distinct from the rule Brown & Root suggests is enforced\”).B. Infeasibility of Compliance.On review, Mosser argues that Judge Brady \”erredin falling to find that compliance with 29 C.F.R. ? 1926.550(a)(8) was impossible.\”Citing case law that has since been superseded, it argues that it met its burden ofproving that \”compliance with the standard would preclude the performance of requiredwork or make the work functionally impossible.\” It claims that it met this burden byshowing that \”an operator cannot perform the greasing operation without first openingthe door on the crane.\” In Mosser’s view, it therefore follows that \”an employeecould not perform the required greasing operations and at the same time comply with thestandard requiring the guard to be in place.\”Before ruling on this defense, it is necessary for usfirst to restate it in fundamentally different terms. For the reasons we have previouslygiven, Mosser’s reliance on the housing and door of the doghouse as the sole means ofcompliance with the cited standard is misplaced. Therefore, it misses the point in arguingthat compliance with the standard was impossible because it had to open the door toperform crane maintenance. Giver crane operator Hofstatter’s practice of going \”inand out of [the doghouse] all the time\” while the crane was operating, and in theabsence of effective work rules and other measures to ensure that the gears were notmoving whenever it was necessary for Hofstatter to enter the compartment, Mosser’s defensemust be restated in terms of whether the gears themselves could have been guarded byinstalling at least one of the four devices specified in the cited standard.In addition, we must further modify the issue to beresolved because, as noted, the case law cited by Mosser has beensuperseded–specifically, under the precedent that now controls, the \”impossibilitydefense\” has been replaced by the \”infeasibility defense.\” Under ourcurrent case law, the issue is whether Mosser met its burden of proving that (1) literalcompliance with the terms of the cited standard was infeasible under the existingcircumstances and (2) an alternative protective measure was used or there was no feasiblealternative 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 inconcluding that Mosser failed to sustain its burden. Indeed, the only party to introduceevidence at the hearing on the feasibility of guarding the gears and the availability ofalternative protective measures was the Secretary. As noted by the judge, who implicitlycredited their testimony, both the OSHA compliance officer and the business representativefor the local union representing Mosser’s employees testified that band guards could havebeen used to protect employees from the moving gears and that they had personally observedthis form of guarding on similar gears on other cranes. Mosser made no effort to discreditor rebut this testimony. It also made no effort to show that any of the other three typesof guarding that are expressly permitted under the terms of the cited standard asalternatives to band guards could not have been used to block access to the cited cranegears. Mosser’s impossibility of performance defense is therefore clearly without merit.III. Is the assessed penalty appropriate?In discussing an appropriate penalty for item 1b, theitem that is at issue before us on review, the judge erroneously concluded that \”theproposed penalty in the amount of $210 is deemed appropriate.\” In her complaint, theSecretary proposed a penalty of $210 for a different alleged serious violation, which wasstated in item 2 of the citation. She proposed a penalty of $175 for item 1b. The judgethen compounded this error in his order, by assessing a single penalty of $210 to coverboth item 1b and item 2, even though there is to apparent relationship between these twoitems that would warrant grouping them for penalty assessment purposes.We therefore modify the judge’s order to assessseparate penalties for items 1b and 2. At the beginning of the hearing, Mosser withdrewits notice of contest to item 2 and its proposed penalty of $210. Accordingly, we assessat penalty of $210 for item 2.We Assess a separate penalty of $300 for item 1b.Under the express terms 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 dueconsideration to the appropriateness of the penalty with respect to the size of thebusiness of the employer being charged, the gravity of the violation, the good faith ofthe employer, and the history of previous violations\”. The penalty we assess givesMosser substantial credit for three of the four stated penalty criteria–size, good faith,and past history. Because the record contains little relevant information concerning thesefactors, we have given Mosser the benefit of the doubt on each of these three factors indetermining in appropriate penalty. The one factor we can assess on the basis of thisrecord is the gravity of the violation. In our view, that factor warrants a penalty higherthan the $175 proposed by the Secretary. In this regard, we note that the Secretary’sproposal was apparently based on OSHA’s erroneous belief that exposure to the moving gearsoccurred only during maintenance operations. Since employee exposure in fact occurred morefrequently than OSHA originally believed, we increase the penalty to reflect the increasedgravity of the violation that has been established on this record. We also note, as theJudge correctly held, that the violation is properly classified as a serious violationbecause the likely result of contact with the moving gears was death or serious physicalharm. Unfortunately, Hofstatter’s injury is proof of this fact.ORDER Accordingly, for the reasons given in this opinion,we affirm citation no. 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 penalty of $210 foritem 2.Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerDated: December 10, 1991SECRETARY OF LABOR, Complainant. v. MOSSER CONSTRUCTION COMPANY, Respondent. INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL UNION 18, Authorized Employee Representative.OSHRC Docket No. 89-1027APPEARANCES:Sandra B. Kramer, Esquire, Office of the Solicitor,U.S. Department of Labor, Cleveland, Ohio, on behalf of complainant. Douglas M. Bricker, Esquire, Arter & Hadden, Columbus, Ohio, on behalf of respondent.Mr. Ronald Richmond, Business Representative, Local 18, International Union of OperatingEngineers, Cleveland, Ohio, on behalf of authorized employee representative.DECISION AND ORDERBRADY, Judge: This proceeding is brought pursuant tosection 10 of the occupational Safety and Health Act of 1970 (\”Act\”) to contesta citation issued by the Secretary of Labor (\”Secretary\”) pursuant to section9(a) of the Act.Prior to commencement of the hearing, the partiesagreed to the disposition 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 by employees, or otherwisecreate a hazard. Guarding shall meet the requirements of the American National StandardsInstitute B 15.1-1958 Rev., Safety Code for Mechanical Power Transmission Apparatus.The citation alleges the standard was violated byMosser Construction Company (\”Mosser\”), because the crane operator \”waspermitted to perform maintenance on the crane while the machinery was rotating.\”[[1]]The basic facts which gave rise to issuance of thecitation are not in dispute. On January 16, 1989, Mr. Eric Hofstatter, a crane operator,performed maintenance on respondent’s Linkbelt 65-ton crane. Hofstatter disengaged thecrane’s gears before he began to grease them. Upon completion, he engaged the clutch andthe gears began to move again. When he returned to the gear compartment to check the fuellevel, a rag became tangled in the moving gears which lead to the serious injury of hishand.The Commission has held that, in order to establish aviolation as in this case, it is necessary for the Secretary to show by a preponderance ofthe evidence that (1) the cited standard applies; (2) there was a failure to comply withthe standard; (3) employees had access to the violative condition; and (4) the citedemployer either knew or could have known of the condition with exercise of reasonablediligence. Astra Pharmaceutical Products. Inc., 82 OSAHRC 55\/E9, 9 BNA OSHC 2126, 1981 CCHOSHD ? 25,578 (No. 78-6247, 1982) Daniel International Corp., 81 OSAHRC 71\/D6, 9 BNA OSHC2027, 1977-78 CCH OSHD ? 21,679 (No. 76-181, 1977).In determining the factor of applicability, thespecific language of the standard itself must first be noted. Essentially, it providesthat gears such as those in question shall be guarded \”if such parts are exposed tocontact by employees or otherwise create a hazard.\” There is no dispute that thestandard applies to the facts of this case. However, the question of compliance is thecentral issue.Clearly, the. gears themselves were not guarded, butrespondent maintains that the gear compartment door serves as a guard since no employeesare exposed to the hazards of moving gears when the door is closed. In support of itscontention, Mosser shows that prior to the inspection, a testing laboratory performed\”a complete OSHA inspection\” on the crane without any reference to inadequateguarding (Ex. R-5). It was also shown that the manufacturer had not provided specificguarding for the gears. Since Mosser maintains that the compartment door was the guard,employees were not exposed to violative conditions; it could not have known of any suchconditions.The secretary, in accordance with the foregoingcriteria, established the violation as alleged. This included employee exposure to themoving gears at times other than performance of maintenance work. The facts are clear thatalthough a door was used to enter the gear compartment, the gears themselves were notguarded. The record also shows that materials were stored in the compartment whichrequired Mr. Hofstatter to go \”in and out of it all the time\” while the gearswere moving. It was during one of these times when the accident occurred as he picked up arag which got caught in the moving gears.Mr. Ronald Richmond, a crane operator for 25 yearsand business representative for local operating engineers, testified he has seen thesegears guarded on other cranes. He stated the guards consist of metal bands that wraparound the guars and are similar to the guards used to protect the operator from movinggears in the crane’s cab.Mr. Pat Bland, the compliance officer who conductedthe inspection, testified that newer crane models include the band-type guarding.\u00a0 HEstarted such grauding would cost about $500.00.Underlying respondent’s argument is the fact that asafety rule was in effect that prohibited greasing and oiling the crane while it isoperating (Ex. R-1).\u00a0 There is no question Mr. Hofstatter was bound by, andunderstood the rule.\u00a0 Mosser, therefore reasons that it could not have knownHofstatter would lubricate the gears in an unsafe manner.The evidence in this case, however, shows thatHofstatter had completed the process of oiling and greasing the crane, in compliance withthe safety rule, when the accident occurred.\u00a0 He, in fact, was handling a rag whichwas part of the material and equipment stored in the compartment.\u00a0 The recordconvincingly shows that the standard was violated and affirmative defenses ofunpreventable employee misconduct on impossibility of performance are without merit.the violation having been established, it must now bedetermined whether it is of serious nature, as alleged.\u00a0 For a violation to bedetermined serious under section 17(k) of the Act, there must be a substantial probabilitythat death or serious physical harm could result therefrom.\u00a0 The resulting injuriessustained by Mr. Hofstatter are obviously serious within the meaning of the Act.The Next Question for determination concerns theamount of penalty to be assessed for violation.\u00a0 Under section 17(j) of the Act, theCommission in required to find and give\u00a0 \”due consideration\” to the size ofthe employer’s business, the gravity of the violation, the good faith of the employer, andthe history of previous violations in determining the assessment of an appropriatepenalty. The gravity of the\u00a0 offense is the principal factor to be considered.Nacirema Operating Co., 72 OSAHRC 1\/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ? 15,032 (No.4, 1971). The Commission 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 elementsto be considered in determining the gravity are: (1) the number of employees exposed tothe risk of injury; (2) the duration of exposure; (3) the precautions taken againstinjury, if any; and (4) the degree of probability of occurrence of injury.Weighing all the foregoing factors in light of thecircumstances, 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 timeshereinafter mentioned, was a contractor performing concrete and structural steel work at300 Sprowl Road, Huron, Ohio.2. On January 30, 1989, authorized representatives ofthe Secretary conducted an inspection at the work site resulting in the issuance of acitation.3. On January 18, 1989, a crane operator at the work site performed maintenance on aLinkbelt 65-ton crane. He disengaged the gears while he oiled and greased them.4. The operator followed respondent’s safety ruleswhile he oiled and greased the gears.5. Although door was used to enter the gearcompartment, the gears themselves were not guarded. The manufacturer of the Crane had notprovided specific guards for the gears.6. Materials were stored in the compartment, andemployees entered the compartment for purposes other than oiling and greasing the gears.Those employees were exposed to the hazard of moving gears.7. On January 16, 1989, Eric Hofstatter, who hadcompleted the tasks of oiling 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 timespertinent hereto, was an employer engaged in a business affecting commerce within themeaning of section 3(5) of the Occupational Safety and Health Act of 1970, and theCommission has jurisdiction of the parties and subject matter herein pursuant to section10(c) of the Act.2. Respondent is, and at all times pertinent hereto,required to comply with the Act andthe safety and health regulations promulgated pursuant thereto.3. Respondent. violated 29 C.F.R. ? 1926.550(a)(8)and ? 1926.407(b) as alleged 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 29C.F.R. ? 1926.550(a)(8) and 1926. 407(b) is affirmed and a penalty in the sum of $210.00is hereby assessed.2. That part of the citation alleging violation of 29C.F.R. ? 1926.21(b)(2) is hereby vacated.Dated this 11th day of June, 1990.PAUL L. BRADY JudgeFOOTNOTES: [[1]] Federal Rule 15(b) states in pertinent part:(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings aretried by express or implied consent of the parties, they shall be treated in all respectsas if they had been raised by the pleadings. Such amendment of the pleadings as may benecessary to cause them 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 Bradyexpressly granted the Secretary’s pending motion to amend under Fed. R. Civ. P. 15(b).Mosser has not objected to the judge’s action. Nor did it object to the introduction ofthe underlying testimony that served as the basis of the Secretary’s motion, and it madeno effort to rebut or to discredit that testimony. Under these circumstances, we declineto review the propriety of the judge’s order granting the amendment, although we clearlyhave the authority to consider the matter under Commission Rule of Procedure 92 (a) 29C.F.R. ? 2200.92 (a).[[3]] The specific cases that Mosser cites areunreviewed judge’s decisions which assertedly support the result it urges. Smurfit DiamondPackaging Corp. 12 BNA OSHC 119,1984-85 CCH OSHD 27,115 (No. 83-1012, 1984) (consolidatedcases)(ALJ), Parr, Inc., 4 BNA OSHC 1449, 1975-76 CCH OSHD ? 20,272 (No. 9352,1976)(ALJ). However, while these unreviewed judge’s decisions maybe considered for theirpersuasive value, they \”[d]o not constitute precedent binding upon [theCommission].\” Leone Constr. Co., 3 BNA OSHC 1979, 1981. 1975-76 CCH OSHD ? 20,387,p. 24,322 (No 4090, 1976).[[4]] We consider it significant that Hofstatterbelieved he was in compliance with Mosser’s work rule at the time he was injured. As wehave observed previously, Hofstatter saw the work rule as a \”common sense\” rulebased on practical concerns — specifically, the necessity of stopping movement of thegears in order to perform the greasing and oiling operation properly. Thus, he read thework rule very narrowly as requiring the clutch to be disengaged only while he wasactually performing the tasks of oiling and greasing.Mosser argues persuasively that the cleanup activities should be considered an integralpart of the greasing and oiling operation. From a safety viewpoint, we certainly agree,and we note that there is no explanation in the record for Hofstatter’s actions inre-engaging the master clutch before checking the fuel levels and picking up the tools andmaterials used in the greasing and oiling operation. On the other hand, we also note thatthere is no evidence that Mosser actually trained or instructed its employees to finishtheir cleanup and the storage of tools and materials before re-engaging the master clutch.If this was Mosser’s intent in adopting its work rule, we must conclude that it wasineffective in communicating that intent.[[1]] Complainant’s motion to amend the pleadings isgranted. The citation is, therefore, amended to include exposure at other times while thegears are moving such as checking the fuel level and obtaining stored materials.”