“SECRETARY OF LABOR,Complainant,v.UNITED PARCEL SERVICE,Respondent.OSHRC Docket No. 82-0815_DECISION_Before: BUCKLEY, Chairman; WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Occupational Safety andHealth Administration of the Department of Labor. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).The issues on review are whether Administrative Law Judge Foster F.Furcolo properly granted the Secretary’s motion for summary judgment anddenied United Parcel Service’s cross motion for summary judgment, and,if neither motion is granted what disposition is appropriate. We setaside the judge’s order granting the Secretary’s motion and remand forfurther proceedings.In March of 1981, in docket no. 81-1162, United Parcel was cited forviolating 29 C.F.R. 1910.132(a)[[1]] at its sorting and distributioncenter or hub in Hartford, Connecticut. The citation stated that:29 C.F.R.1910.132(a): Protective equipment was not used when necessarywhenever hazards capable of causing injury and impairment were encountered:* * *(b) Throughout the plant: Not all employees, including (but not limitedto) loaders, unloaders, sorters, pickers, and rewrappers, who regularlyhandle heavy parcels, were wearing foot protection in accordance with1910.136.[[2]]United Parcel timely contested the citation, but in a letter to thejudge dated February 8, 1982, it withdrew its notice of contest. Inthe letter withdrawing the contest, United Parcel stated that it \”in noway concedes that it was guilty of any of the violations alleged in thecitations or that the citations were properly issued by OSHA.\” Administrative Law Judge Richard DeBenedetto granted United Parcel’srequest to withdraw its notice of contest in March 1982. Subsequently,Judge DeBenedetto’s order became a final order of the Commission undersection 12(j) of the Act when no Commissioner directed that it be reviewed.In July 1982, the Secretary reinspected the Hartford hub, and found thatthe employees referred to in the citation were not wearing safetyshoes. He issued a failure-to-abate notification for United Parcel’sfailure to comply with sections 1910.132(a) and 1910.136. He proposed apenalty of $1,000.The Secretary subsequently moved for summary judgment on the groundsthat although the section 1910.132(a) citation in docket no. 81-1162 hadbecome a final order of the Commission, United Parcel had not requiredthe use of safety shoes. United Parcel filed a cross-motion for summaryjudgment. It provided affidavits and documents regarding theimplementation of a \”sturdy shoe\” program at its Hartford hub, wherebycertain employees who handled iron and irregular objects were requiredto wear safety shoes, and other employees were required to wear sturdyshoes. United Parcel contended this program abated the condition forwhich it received the section 1910.132(a) citation in docket no. 81-1162.Administrative Law Judge Foster F. Furcolo granted the Secretary’smotion and denied United Parcel’s motion. He concluded that there was\”no question\” that United Parcel failed to comply with the underlyingcitation that became the Commission’s final order in docket no.81-1162. In drawing this conclusion, Judge Furcolo found that UPS hadbeen \”cited under 29 CFR 1910.132(a) for failing to require that ‘allemployees’ wear steel-toed shoes . . . \”Before the Commission, United Parcel renews the arguments it made beforethe judge. It also maintains that its withdrawal of its notice ofcontest in docket no. 81-1162 does not collaterally estop it fromarguing that sturdy work shoes constitute compliance with section1910.132(a). It relies an _York Metal Finishing Co_., 74 OSAHRC 19\/D2,1 BNA OSHC 1655, 1973-74 CCH OSHD ? 17,633 (No. 245, 1974), where theCommission held that employers in failure-to-abate actions may contestthe existence of a violation, either at the time of the originalcitation or at the time of the reinspection giving rise to thefailure-to-abate citation, if the original citation had not beencontested. United Parcel also notes that it had not yet implemented itssturdy shoe program at the time of the inspection in docket no. 81-1162. It claims therefore that in that litigation it could not have arguedthat it was in compliance with section 1910.132(a), and had no choicebut to withdraw its notice of contest.The Secretary contends that United Parcel’s withdrawal of its notice ofcontest in docket no. 81-1162 collaterally estops it from challengingthe merits of that citation because it had an opportunity to fullylitigate the citation. He maintains that the Commission’s decision in_York Metal_ is contrary to the language and intent of the Act and, inany event, does not apply if the underlying citation had been contestedand the contest was withdrawn. He also argues that United Parcel cannotclaim that its sturdy workshoe program constituted abatement when thecitation clearly put it on notice that abatement would require the useof safety-toe footwear as it is described in ANSI Z41.1-1967.The issue here is whether United Parcel failed to abate as ordered bythe citation in docket no. 81-1162. The citation did not require thatsafety-toe footwear be worn in all circumstances; though it citedsection 1910.136, that standard does not state when safety-toe footwearmust be worn. Instead, the citation’s abatement requirement waspredicated on the existence–in the language of both the citation andsection 1910.132(a)–of \”hazards capable of causing injury andimpairment.\” United Parcel could therefore have met its abatementobligation under the citation if it had eliminated this underlyingcondition, just as an employer required by a Commission final orderunder section 1910.95(b)(1) to ensure that employees wear earplugs couldavoid the requirement by instead reducing noise levels or employeeexposure time. _See_ _Savina Home Industries_, 77 OSAHRC 5\/D5, 4 BNAOSHC 1956, 1976-77 OSHD ? 21,469 (No. 12298, 1977)(no failure to abateif employees no longer exposed to cited hazards), _aff’d on othergrounds_, 594 F.2d 1358 (10th Cir. 1979). _Cf_. _Cyprus Mines Corp_.,83 OSAHRC 19\/B2, 11 BNA OSHC 1063, 1066, 1983 CCH OSHD ? 26,387, p.33,486 (No. 76-616, 1983)(employer may abate a violation in anyappropriate way). A program in which some employees wear sturdy shoesrather than safety-toe footwear has been found adequate to eliminate thehazard in workplaces similar to United Parcel’s. _General Motors Corp.,GM Parts Division_, 84 OSAHRC 23\/A2, 11 BNA OSHC 2062, 1984 CCH OSHD ?26,691 (Nos. 78-1443, 79-4478), _aff’d_, 764 F.2d 32 (1st Cir. 1985);_Haysite Division of Synthane Taylor_, 84 OSAHRC 18\/A2, 11 BNA OSHC1967, 1969, 1984 CCH OSHD ? 26,917, p. 34,478 (No. 79-407, 1984)(use ofsturdy work shoes tends to negate inference that hazard of injury tofeet recognizable by reasonable man existed); _American Airlines v.Secretary_, 587 F.2d 38, 41 (2nd Cir. 1978); _United Parcel Service v.OSHRC_, 570 F.2d 806, 812-13 (8th Cir. 1978).Accordingly, because the judge did not consider whether United Parcel’ssturdy shoe program negated the underlying hazards, we find that thereis a genuine issue of material fact still in dispute. We therefore setaside the judge’s order granting the Secretary’s motion for summaryjudgment. We remand to the judge for a hearing to determine whether, atthe time of reinspection, the \”hazards\” cited in docket no. 81-1162 hadbeen abated or continued to exist in light of all the facts, includingUnited Parcel’s sturdy shoe program.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: October 7, 1986————————————————————————SECRETARY OF LABOR,Complainant,v.UNITED PARCEL SERVICE,RespondentOSHRC DOCKET NO. 82-0815APPEARANCES:Michael D. Felsen, Esq., for ComplainantRichard Voigt, Esq., for Respondent_DECISION AND ORDER_This case arose under 29 USC, sec. 651 _et_ _seq_., of the OccupationalSafety and Health Act of 1970 (the Act). As a result of an inspectionby the Occupational Safety and Health Administration (OSHA) of theRespondent’s premises on or about July 6, 1982, Citation #1 was issuedon or about July 9, 1982, charging the Respondent with the repeatedviolation of sec. 5A1 of the Act by permitting supervisors to walk, workor ride on overhead conveyors, including moving conveyors, as a commonpractice to free jammed parcels.The Respondent was also issued a notification of failure to correctviolations for which a citation for violations of the standard at 29 CFR1910.132(a) had become a final order.On or about August 2, 1982, the Respondent filed Notice of Contest toCitation #1 and to the Notification of Failure to Correct Violation, andthe penalties proposed therefor.The pertinent sections of the Act and the standards are appended to thisdecision under appropriate titles._THE WORKSITE_The worksite is a central sorting facility for packages coming from allsections of the country and going to various destinations. It houses amaze of conveyors or belts of various colors [red, yellow, brown, blue,orange, purple, pink, etc.], the color-coding relating to the ultimatedestinations of the packages carried on the conveyors to outbound trucks.The conveyors or belts [the terms were used interchangeably bywitnesses] were described in detail by Brown, the Respondent’s SafetyManager, as follows: \”The belt rides on the steel itself … The actualgauge of it, I would say, is about 3\/16 inch steel, welded to the sidesupports … you are walking on that firm steel surface, with the belton top … a rubberized surface, so it is a non-slip situation … a 12inch side guard on each side … the belts are 5 feet wide.\”…Tr.918-920. That description of the conveyors or belts was notcontradicted or challenged in any way by either party.With the exception of the \”receiving counter belt\”, the belts orconveyors are 5 feet wide, vary in length from 25 to 200 feet, and runat various heights above the concrete floor of the building … Tr. 333,618, 672. The \”receiving counter belt\” is 3 feet wide and, as itsdesignation indicates, is the place where incoming parcels are broughtby retail customers. The testimony of the Respondent tended toestablish that the \”receiving counter belt\” was a part-time conveyorthat only handled a few hundred parcels a day whereas regular conveyorstransported thousands, and that it was not a part of the worksite…Tr.735, 736, 901-905. However, the Respondent’s jobsite manager (Lane)conceded that it was in the same physical plant as the other belts andthat it feeds into the other belts…Tr. 905.I find that the \”receiving counter belt\” was included as a \”flat belttransfer conveyor\” as that term was used in Citation #1.While some of the conveyors or belts are level for the length of theirrun, others may be as low as a few feet above the floor in certainplaces and rising to 25 or 30 feet in others…Tr. 43, 70, 202, 355,672, 690. The \”low volume\” belts carry fewer packages than the \”highvolume\” ones and, in general, are operated at lower heights. Some ofthe belts are parallel to each other and, when running at differentheights, may be totally or partially under higher belts; while otherbelts are lateral or transverse to the main ones. There are metal orwood chutes or slides running off some of the belts at various places;and there are belt-supporting structures and catwalks alongside of someareas of some belts. The edges of all belts have a metal guard or lipor riser some 12 inches high to keep packages from falling off the belt.Employees with such job descriptions as \”loaders\”, \”unloaders\”,\”sorters\”, and \”pickers\” work at various places along the belt lines,sorting and diverting packages from one belt to another in routing themto their different destinations; and several supervisors oversee thegeneral operation. The packages, which are of different sizes andshapes, measure not more than 84 square inches, weigh between 10 to 50pounds, and number in the thousands, estimates ranging from severalhundred an hour to 150,000 a day … Tr. 92, 224, 954, 957, Exh. R-10,and the Respondent’s Answers to Interrogatories 16 and 17.While package jams occur on all belts, there might be as few as oneevery three days on a very \”low volume\” belt to as many as 25 or 30 aday on a \”high volume\” belt…Tr. 191, 627, 628. The jams are broken bysupervisors._STIPULATIONS_The Respondent stipulated, and the uncontradicted evidence established,that until about February or March of 1982, it was common practice forsupervisors to walk or work on moving conveyors as well as stationaryones. The parties differed on the practice after that date, theRespondent contending that it thereafter had a strictly enforced ruleagainst walking or working on moving conveyors whereas the Complainantoffered testimony tending to establish that supervisors continued to do so.The parties also agreed that walking or working on moving conveyors washazardous; but they disagreed as to walking or working on stationaryconveyors, the Complainant alleging that that, too, was hazardous whilethe Respondent maintained it was not._THE ALLEGATION_The parties also disagreed on exactly what was alleged by the citationand complaint. They seemed to be in agreement that the citation andcomplaint alleged that walking or working on moving conveyors washazardous; but they differed on whether the allegation also includedstationary belts. The citation [and the complaint, which followed itswording] specified \”overhead conveyors, including moving conveyors\”. Inmy opinion, the only reasonable interpretation of those words is thatthe allegation refers to both moving and stationary belts when it says\”including\” moving conveyors. That wording would obviously mean thatsomething more than moving belts was referred to – and that could onlybe stationary ones. What other explanation can there be for suchwording? Moreover, the uncontradicted testimony of Safety SpecialistPellegrini and Safety Specialist Supervisor Kaletsky tends to establishthat such an interpretation was clearly understood in conferences withthe Respondent … Tr. 423, 493-497, 501-504, 539.I find that both stationary and moving conveyors were alleged in thecitation and complaint. Was it hazardous to walk or work on either?_\”RECOGNIZED HAZARD\”_In trying to establish that the conveyor industry recognized the hazardof employees working or walking on stationary conveyors or belts, theComplainant relied primarily on the witnesses Pellegrini and Ferris. The Respondent’s main witness to the contrary was Vitek.Pellegrini, who has had great experience as a professional safetyexpert, stated that \”conveyors in most places of employment…arehazardous. This is immediately recognized.\” And he then gave specificillustrations of how \”misuse of a conveyor\” was treated at one place ofemployment. He also pointed out that, in some 900 inspections, the onlyplace where he had ever seen a person on a conveyor was at theRespondent’s jobsite.Vitek, who had had extensive experience in and knowledge of the conveyorindustry, testified that the Respondent’s conveyor practices conformedto those followed by the industry. He gave specific illustrations thattended to show that walking or working on stationary conveyors was not a\”recognized hazard\”.Ferris’ testimony was practically limited to the postal service and,important as that governmental department is, it is not necessarilyrepresentative of the entire conveyor industry. Knowledge of everydetail of the postal service does not constitute knowledge of theconveyor industry. As a result, the question of whether there is a\”recognized hazard\” must be determined largely by the testimony ofPellegrini and Vitek.While I was greatly impressed with Pellegrini’s qualifications andexperience, and he made an excellent witness, the same is true ofVitek. In that state of the evidence, I cannot find that it has beenestablished that walking or working on conveyors is a \”recognizedhazard\” in the conveyor industry._THE HAZARD_In the instant case, at first blush the very description of theRespondent’s operation seems to lead to the conclusion that it ishazardous for anyone to do any sort of work on even a stationaryconveyor that is only 5 feet wide and that slants upward in a shortdistance from a low of several feet to a high of 25 or 30 feet. However, as the court said in the Southern Ohio case [649 F(2) 456]:\”The fact that serious injury may occur in a fall from a roof is notproof that working on a roof is likely to produce a fall.\”Pause is further given when it is noted that there has apparently neverbeen an injury due to a fall from a conveyor or belt at the worksite. That was the uncontradicted [and, in fact, unchallenged] testimony ofall witnesses who testified on that question. Brown said that was thefact during his 20 years of employment, Lane during his 18 years,Skukowski during his 16 years, and other witnesses during their severalyears of employment. That 20 year period of time also included severalyears of the then usual practice of walking or working on _moving_conveyors, which are far more dangerous than stationary ones … Tr.622, 664, 665, 710, 792, 824, 848, 925, 980, 1054.While injury records are not conclusive on the presence or absence ofhazardous conditions, they are nevertheless a significant factor. Theprotection of employees certainly does not have to wait until someonehas been hurt; on the other hand, careful consideration should be givenbefore requiring an employer to change a practice that has beenaccident-free over a long period of time._STATIONARY CONVEYORS_As far as stationary belts are concerned, there is no basic disagreementabout the Complainant’s allegation that the Respondent’s supervisorswalked or worked on them: both parties have clearly established thatit is and has always been customary for supervisors to walk or work onstationary conveyors … Tr. 20, 79. However, the witnesses differed onwhether that practice is hazardous.The Complainant’s main witnesses on hazard were Safety SpecialistPellegrini, Supervisory Safety Specialist Kaletsky, and the expertFerris. All were very experienced and well-qualified in their fields,and they were excellent witnesses. Each opined it was hazardous to walkor work on stationary belts, and each gave reasons for his belief. Themain reasons were tripping over a package, losing balance, bumping anoverhead obstacle, or falling for one cause or another … Tr. 427-432,493, 507, 510, 1075-1078.The Respondent’s main witnesses on hazard were supervisors Sheneth,Donovan, Washington, Gibney, Hancock, Llewellyn, Safety Director Brown,Maintenance Manager Skukowski, Hartford Manager Lane, and the expertVitek. They all believed that walking or working on stationaryconveyors was not hazardous.I saw no reason to doubt the honesty of any witness’s opinion abouthazard. That being so, was one to be preferred over another? While Icertainly would accept the expert opinions of Pellegrini, Kaletsky,Ferris, Brown, Skukowski, Lane, and Vitek over those of the \”non-expert\”supervisors of the Respondent on any question involving expertise, thatis not the type of hazard in dispute in the instant case. Here, nogreat expertise is required to assess the possible hazard. It does notinvolve complicated machinery or highly technical situations but merelyconcerns tripping or losing balance or falling for some reason thatwould be as apparent to someone who had worked on conveyors for severalyears as it would be to the most highly qualified expert. For thatreason, the opinions of the Respondent’s supervisors are entitled to atleast as much weight as those of the experts.What was the substance of their testimony? They all had several yearsof experience with conveyors or belts, and all concluded that walking orworking on a stationary conveyor was not hazardous. Sheneth said it was\”impossible\” to fall off the belt … Tr. 638. Donovan said it was\”safe\” to walk on … Tr. 696, 697, 700. Washington said he didn’t seehow a person could fall … Tr. 720, 721. Gibney, Hancock, and Llewellynall gave similar testimony … Tr. 791, 824, 843, 848. There was nocontrary opinion expressed by any employee who customarily worked orwalked on stationary conveyors.The determination of whether a hazard existed did not involve any greatdegree of technical or scientific knowledge but was merely a question ofwhether an experienced employee might lose his balance or trip or fallfrom the described conveyor for some reason. From that point of view,the supervisors were more knowledgeable than the \”experts\”, some of whomhad never seen anyone breaking a jam on a stationary conveyor or hadmuch personal experience with such conditions. While the supervisorswere not as well-qualified \”on paper\” as the experts, they had at leastas much knowledge of and experience with conveyors in the Respondent’soperation as anyone. Their testimony tended to establish that there wasno hazard.There are four additional factors that weigh heavily in the Respondent’sfavor. The first is that, in determining whether there is a hazardouscondition, it is important to note that the average employee is notpermitted to walk or work on stationary conveyors; the only ones allowedto do so are those who through knowledge, experience, seniority, or forother reason, have attained supervisory positions.The second is the injury record, which tends to corroborate theRespondent’s contention that there is no hazard.The third is the stability and firmness of the conveyors, as portrayedby Brown, Gibney, and Vitek, who were the only witnesses who testifiedspecifically on the point. Brown’s testimony described the conveyor asa \”very stable, non-slip\” rubberized surface resting on a steel table3\/16 inch thick without any give in the steel when walked on … Tr.918, 191. Gibney’s testimony indicated that the belts were \”verysturdy\” and had a stability the same as a floor … Tr. 816. Vitek saidthere was no vibration or movement, and the belt was non-skid… Tr.1025. Their description of the conveying system was not contradicted oreven questioned in any way.The fourth is that the Complainant has the burden of proof.In that situation, I find that the Complainant has not sustained theburden of proving that it was hazardous for the Respondent’s supervisorsto walk or work on stationary conveyors._MOVING CONVEYORS_As far as _moving_ conveyors are concerned, there can be no questionthat walking or working on them is hazardous. The Respondent itselfconceded as much, and that the resulting injury could be serious … Tr.115-117, 513, Respondent’s Answer to Complainant’s Interrogatory #5.Did the Respondent permit its supervisors to walk or work on movingconveyors? There is marked disagreement of the witnesses in theirtestimony on that point._THE COMPLAINANT’S WITNESSES_Several employees of the Respondent testified to specific incidentswhere named supervisors walked or worked on moving conveyors. Callahantestified that she saw supervisors Hancock, Goodale, and others onmoving belts…Tr. 162-168. She also said she had seen manager Lane andsupervisor Corliss on belts but did not know if they were moving orstationary; and that she knew of only one instance in the last ninemonths of any supervisor being on a moving belt … Tr. 166-168, 187. Flanigan testified that in January, 1983, he saw supervisor Donovan on amoving belt 15 feet high and supervisor Wooley on a moving belt 20-25feet high… Tr. 210, 214, 216, 222. Glen Brielman testified that,between October of 1982 and January of 1983, he saw supervisor Goodaleand manager Brown on moving belts…Tr. 258-262, 284-287. JulieBrielman testified that she saw manager Lane on a moving belt on June23, 1982 … Tr. 299-302. Croce testified he saw supervisor Sprona[Spranzo?] on a moving belt in January of 1983 and supervisor Nodgren onone several months before the hearing…Tr. 314-318, 350. Wurthtestified that in November and December of 1982 he saw supervisorsDesjardins, Sheneth, and Lane on moving belts…Tr. 353-362, 371. Fogarty testified that he saw supervisor Spranzo on January 12, 1983, ona moving belt about 18 – 20 feet high … Tr. 319, 392. Linarestestified that he saw supervisors in December of 1982 on moving belts… Tr. 399-400L.In addition to those direct allegations by the Complainant’s witnesses,there was also some slight corroboration of their testimony. Forexample, although the Respondent contended it was \”unpreventablemisconduct\”, it did concede that one supervisor [Colavolpe] had walkedor worked on a moving conveyor … Tr. 80, 706, 722, 723. Moreover,there is at least some minimal corroboration of the Complainant’switnesses’ testimony that supervisors walked or worked on movingconveyors when both supervisors Sheneth and Washington testified thatthey had been on top of moving conveyors, even though to only some veryslight degree and for the briefest of time … Tr. 621, 622, 644, 711, 730.The Respondent also attempted to show that some of the Complainant’switnesses were biased or hostile as members of a union havingdisagreements with the Respondent, or as employees who had beendisciplined by the Respondent. I did not detect that such feeling [ifit existed] had any influence on their testimony… Tr. 177-183,193-196, 292, 308-310, 395, 400Q. In fact, the Transcript indicatesseveral instances where witnesses [for example, Callahan, Glen Brielman,Julie Brielman, Flanigan, Murphy] did not hesitate to testify favorablyto the Respondent when it would have been just as easy to do otherwiseif they had wanted to … Tr. 166-168, 187, 214, 223, 224, 236, 241,244-248, 269, 271, 300, 301._EXHIBITS C12-14_Although I would not accept the statements in Exh. C12-14 alone assufficient evidence to sustain Citation #1, I do accord those swornstatements some slight corroborative weight tending to establish theallegation that supervisors worked or walked on moving conveyors. TheRespondent did not contradict [or even challenge] any of the statements,and there was no explanation of the failure to do so._THE RESPONDENT’S WITNESSES_The Respondent’s witnesses testified that they never saw anyone onmoving conveyors with the sole exception of one supervisor [Colavolpe],who was promptly admonished for it … Tr. 80, 706, 707, 722._DISCUSSION_Although there is a clear conflict of testimony between theComplainant’s witnesses who testified they saw supervisors on movingbelts and the Respondent’s witnesses who saw no one, I do not find anyof the witnesses unworthy of belief. A finding that no one was on amoving belt would indicate disbelief of the testimony of witnesses whosaid someone was there. On the other hand, a finding that someone wason a moving belt would not indicate disbelief of the testimony ofwitnesses who said they never saw anyone in that position: they mightsimply not have been present or looking at the time. It is for thatreason that I find that [in those cases where there was not an outrighttestimonial denial by the person named] the Complainant has sustainedthe burden of proving that supervisors worked or walked on overheadmoving conveyors._ABATEMENT_Any hazard can be quickly and easily abated simply by enforcing theRespondent’s rule that no one will be permitted to walk, work, or rideon a moving overhead conveyor._SUMMARY JUDGMENT_There are separate motions for summary judgment. As concerns the Noticeof Failure to Abate, there is no disagreement about the facts on whichit is based. As summarized in the Respondent’s Memorandum on theparties’ motions concerning summary judgement: (1) the Respondent wascited under 29 CFR 1910.132(a) for failing to require that \”allemployees\” wear steel-toed shoes; (2) the Respondent withdrew its Noticeof Contest and the Review Commission affirmed the citation; and (3) theRespondent \”did not and does not require its employees to wearsteel-toed shoes\”.The Respondent defended on the ground that, both before and after theinstant case, various divisions of OSHA in other states, and also theHartford, Conn. office, had withdrawn or vacated identical citationsbased on identical facts; and that the Hartford, Conn. OSHA officeshould accept the Respondent’s position that its program of sturdy workshoes for some employees and steel-toed shoes for others constitutescompliance with the standard at 29 CFR 1910.132(a).The Respondent’s contention is rejected because, in my opinion, theissue here is whether the Respondent failed to abate as ordered by theReview Commission. There can be no question that the Respondent didfail to comply with that order. As concerns the Notice of Failure toAbate, the Complainant’s motion for Partial Summary Judgment is grantedand the Respondent’s motion for Partial Summary Judgment is denied.As concerns the Complainant’s oral motion for summary judgment based onthe Respondent’s withdrawal of its Notice of Contest to that part ofCitation #1 alleging that a supervisory employee walked or worked on the\”receiving counter conveyor\”, the Complainant’s motion is granted andCitation #1 is affirmed insofar as it alleges that the Respondentpermitted a supervisor to work or walk on that stationary conveyor …Tr. 735, 738, 770-776, 906-909._AMENDMENT_At the hearing, the Complainant moved to amend the Complaint to includepermitting supervisors to walk or work on conveyors up to the date ofthe hearing. That motion was granted with the understanding that theRespondent would be granted time to prepare a defense to it… Tr.128-147. Following that ruling on February 1, 1983, the hearingcontinued on February 2, 3, and 4; and was then resumed on May 16, 1983,by agreement of the parties. The Respondent made no further requestconcerning the amendment._FINDINGS OF FACT_Having heard the testimony, observed the witnesses, and examined theexhibits, the following Findings of Fact are made:1. At all times concerned, the Respondent regularly received, handledor worked with goods which had moved across state lines.2. As concerns Citation #1, the Respondent permitted supervisors towalk or work on stationary and moving conveyors as a common practice tofree jammed parcels.3. The situation described in paragraph 2 was identical with a similarset of facts alleged against the Respondent involving the same worksiteand the same kind of employees several months earlier.4. The Respondent had not corrected the violations of the standard at29 CFR 1910.132(a) as specified in a final order of the Review Commission.5. The conditions described in the Notification of Failure to Correctviolations exposed the Respondent’s employees to sustaining harm becauseof the hazard of a parcel weighing from 10 to 50 pounds falling on the foot.6. The conditions described in Citation #1 exposed the Respondent’semployees to sustaining serious or fatal harm because of the hazard offalling from a moving conveyor, but there was no hazard of falling froma stationary conveyor.7. One or more officers or supervisory personnel of the Respondent knewof the hazardous conditions described herein and knew that employeeswere exposed to such hazards.8. The Respondent withdrew that part of its Notice of Contest thatreferred to the \”receiving counter belt\”._CONCLUSIONS OF LAW_1. At all times concerned, the Respondent was an employer engaged in abusiness affecting commerce within the meaning of the Act; and theOccupational Safety and Health Review Commission has jurisdiction overthe subject matter and the parties.2. At all times concerned, the Respondent knew, or with the exercise ofdue diligence should have known, of the alleged violations.3. On the date in question, the Respondent was not in compliance withsection 5A1 as concerns moving conveyors and the stationary \”receivingcounter belt\”.4. The Complainant has not sustained the burden of proving theRespondent violated section 5A1 as concerns stationary conveyors exceptfor the \”receiving counter belt\”.5. The Complainant has sustained the burden of proving that theRespondent failed to correct violations of the standard at 29 CFR1910.132(a), and the Respondent has violated section 5(a)(2) of the Act._ORDER_The whole record having been considered, and due consideration havingbeen given to 29 U.S.C. sec. 666(j), it is ordered:1. Citation #1 is affirmed as far as it concerns moving conveyors andthe stationary \”receiving counter belt\”; and a penalty of $900 isassessed for the moving conveyors violation and a penalty of $1 for thestationary \”receiving counter belt\” violation, for a total penalty of$901 for Citation #1.2. The Notification of Failure to Abate is affirmed, and an additionalpenalty of $100 is assessed therefor.FOSTER FURCOLOJUDGE, OSHRCDated: September 13, 1983Boston, Massachusetts_APPENDIX__THE ACT__Section 654_ [section 5(a)(1)] Employer \”…shall furnish…a place ofemployment…free from recognized hazards…likely to cause death orserious physical harm to his employees; …\”_Section 654_ [section 5(a)(2)] Employer \”…shall comply withoccupational safety and health standards…\”_Section 666_ [section 17(a)] \”…employer who willfully or repeatedlyviolates…this Act…may be assessed a civil penalty of not more than$10,000 for each violation.\”_Section 666_ [section 17(b)] \”…employer who has received a citationfor a serious violation…of this Act … shall be assessed a civilpenalty of up to $1,000 for each such violation.\”_Section 666_ [section 17(j)] \”…assess all civil penalties … givingdue consideration to…the size of the business … gravity of theviolation, the good faith of the employer, and the history of previousviolations.\”_Section 666_ [section 17(k)] \”…a serious violation shall be deemed toexist…if there is a substantial probability that death or seriousphysical harm could result … unless the employer did not, and couldnot … know of the presence of the violation.\”_THE STANDARD_29 CFR 1910.132(a): \”Protective equipment … shall be provided, used,and maintained … wherever it is necessary by reason of hazards…\”FOOTNOTES:[[1]] Section 1910.132(a) states:? 1910.132 _General requirements_.(a) _Application_. Protective equipment, including personal protectiveequipment for eyes, face, head, and extremities, protective clothing,respiratory devices, and protective shields and barriers, shall beprovided, used, and maintained in a sanitary and reliable conditionwherever it is necessary by reason of hazards of processes orenvironment, chemical hazards, radiological hazards, or mechanicalirritants encountered in a manner capable of causing injury orimpairment in the function of any part of the body through absorption,inhalation or physical contact.[[2]] Section 1910.136 states:? 1910.136 _Occupational foot protection_Safety-toe footwear for employees shall meet the requirements andspecifications in American National Standard for Men’s Safety-toeFootwear, [ANSI] Z41.1-1967.”