“SECRETARY OF LABOR,Complainant,v.YAZOO MANUFACTURING COMPANY,Respondent.OSHRC Docket No. 81-2141_DECISION_Before: BUCKLEY, Chairman; CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), 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 Department of Labor and theOccupational Safety and Health Administration. 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).Following an inspection of Yazoo Manufacturing Company’s (\”Yazoo\”) lawnequipment manufacturing plant in Jackson, Mississippi, the Secretary ofLabor issued to Yazoo one five-item serious citation and one three-itemnonserious citation. The administrative law judge affirmed each item inthe citations, but reduced the classification of three items in theserious citations to nonserious. He assessed a total of $500 inpenalties. Both parties petitioned for review of the judge’s decisionand both petitions were granted. The issues on review are whether thejudge erred in affirming the two citations and whether he erred indowngrading the three allegedly serious items to nonserious.[[1]] Weaffirm in part and reverse in part._Citation 1, Item 1 — Guarding of Nip Points on Belt Sander_The Secretary alleged that Yazoo violated 29 C.F.R. ?1910.212(a)(1)[[2]] by failing to guard a belt sander. During theinspection, compliance officer Butler observed an employee using a beltsander to sand a piece of metal. The sander did not have a guard tocover the ingoing nip points where the belt ran onto the pulleys. Thecompliance officer testified that an employee’s fingers could be crushedin the ingoing nip points because of the forward motion, tightness, andspeed of the belt. The compliance officer also testified that theemployee operating the sander worked within four inches of the machineand at times would be even closer. Yazoo plant manager Bell testifiedthat Yazoo had provided a guard for the sander, but that the guardapparently had been removed by an employee to change the belt on themachine. Bell had not noticed that the guard was off the sander, buttestified that he should have been aware the guard was off.We affirm the judge’s decision finding Yazoo in nonserious violation ofthe standard. The compliance officer’s testimony that the sander wasunguarded and presented a hazard to the operator while in operation wasuncontradicted. Plant manager Bell admitted he should have been awareof the unguarded machine. The lack of guarding was an obviouscondition. Thus, Yazoo could have known about the condition with theexercise of reasonable diligence. _See_, _e.g._, _Scheel Construction,Inc_.,76 OSAHRC 138\/B6, 4 BNA OSHC 1824, 1976-77 CCH OSHD ? 21,263 (No.8687, 1976).We conclude the violation is nonserious because the Secretary failed toestablish that death or serious physical harm could result from aninjury. Considering the factors set forth in section 17(j) of the Act,29 U.S.C. ? 666(i), we assess a $100 penalty._Citation 1, Item 2 and Item 5 — Guarding of Fan Blades and V-Belt onFloor Fan _The Secretary alleged that Yazoo violated 29 C.F.R. ? 1910.212(a)(5) byfailing to guard the blades of three different fans located less thanseven feet above the floor.[[3]] Subitem (a) involves a 42-inch exhaustfan, subitem (b) an 18-inch floor fan, and subitem (c) a 30-inch floorfan. The Secretary also alleged that Yazoo violated 29 C.F.R. ?1910.219(e)(3)(i) [[4]] by failing to guard the V-belt on the unguarded30-inch floor fan referred to in subitem (c) of item 2.Employees testified that the fans were unguarded and used. Employeesapproached within several feet of the fans and some had bumped into thefloor fan referred to in subitem (c). The compliance officer testifiedthat the unguarded fan blades and V-belt created a hazard that couldresult in the amputation of a finger. However, the compliance officerdid not know the speed at which the V-belt traveled.The judge affirmed both items, finding that the fans were unguarded andthat employees had access to the unguarded blades and V-belt. The judgefound that Yazoo had not presented any evidence to refute theSecretary’s prima facie showing of a violation. He classified the bladeguarding item of the violation as serious, but found that the failure toguard the V-belt on the floor fan was nonserious. On review, Yazooargues that the Secretary failed to prove exposure to any hazard andthat, because of its size and speed, the belt was not covered by thecited standard.We affirm the judge’s decision as to the violations. The fact that thefan blades and V-belt were unguarded is not disputed. Yazoo employeeswere exposed to the unguarded fan blades and this presented a serioushazard of amputation. Also uncontroverted is the fact that employeeswere exposed to the unguarded V-belt, which was not shown to be exemptedfrom the standard’s guarding requirements. _See_ 29 C.F.R. ?1910.219(a)(1).[[5]] Although the width of the belt was less than 13\/32inch, there was no evidence that the belt was operating at 250 feet perminute or less. The Secretary, however, failed to prove that death orserious physical harm could result from the violative condition, and wetherefore affirm the judge’s finding of a nonserious violation. Forpurposes of assessing a penalty we combine these two items. Considering the factors set forth in section 17(j) of the Act, we assessa total penalty of $100._Citation 1, Item 3a — Guarding of Abrasive Wheel Grinders and PedestalGrinder_Item 3a has two subparts, (a) and (b). Each subpart will be discussedseparately. The Secretary alleged in subitem (a) that Yazoo violated 29C.F.R. ? 1910.215(a)(2) [[6]] by failing to guard the spindle end, nut,and flange projection of a Baldor bench grinder located in the plantassembly area. Employee Jones testified that he had used the grinderfor about thirty to forty minutes a day, five days a week, for at leastfour or five months before the inspection and that he had used thegrinder on the day before the inspection. He testified that the grinderhad been unguarded and had been used by other employees during thatperiod. The compliance officer testified that the hazards presented toemployees using the unguarded grinder included bruises and abrasions, aswell as broken teeth or a broken skull in the event the grinding wheelshattered.We affirm the judge’s decision finding a serious violation. Thecompliance officer correctly characterized the grinder as abrasive wheelmachinery, which is covered by the cited standard. The record is clearthat the grinder was unguarded and that employees were exposed to theunguarded machine. The violation was properly characterized as seriouson the basis of the complianceofficer’s uncontradicted testimony concerning the potential for seriousphysical injury resulting from shattered wheels.The Secretary also alleged that Yazoo violated section 1910.215(a)(2),_supra_, by not guarding the spindle end, nut, and flange projection ofa pedestal grinder located located in Yazoo’s machine shop. Complianceofficer Butler testified that he did not see the grinder being usedduring the inspection, but that the grinder was available for use wasnot tagged out of service. He also testified that plant manager Belltold him that the grinder was there for use. The compliance officerstated that, according to his experience, an employee using the grinderwould be about one to two feet away and could incur a skull fracture orlose an eye if the unguarded wheel shattered. Plant manager Bellindicated that the grinding wheel revolved at the rate of 3400 rpm.We affirm the judge’s decision finding a serious violation. TheSecretary established that the grinder was unguarded and available foruse. The violation is serious because an employee using the grindercould suffer severe facial or other bodily injuries if the unguardedgrinding wheel shattered while revolving at 3400 rpm. For purposes ofassessing a penalty, we combine item 3a with item 3b discussed below._Citation 1, Item 3b–Adjustment of Work Rest on Grinder_Yazoo allegedly violated 29 C.F.R. ? 1910.215(a)(4)[[7]] by failing toproperly adjust the work rest on the pedestal grinder involved in item3a, subitem (b), above. The compliance officer testified that themaximum opening should be 1\/8 inch between the work rest and thegrinding wheel, but that the opening during the inspection was about 3\/4inch. The compliance officer stated that, from his experience, if theopening is greater than 1\/8 inch, small objects may wedge between thework rest and the wheel during grinding and cause the wheel to break. Flying pieces of broken wheel may produce injuries to employees,including skull fractures, eye damage and broken teeth.We affirm the judge’s finding of a serious violation. We note that\”off- hand grinding\” is defined at 29 C.F.R. ? 1910.211(b)(11) as \”thegrinding of any material or part which is held in the operator’s hand\”and the presence of the small work rests on this pedestal grinderdemonstrates that it was used for off-hand grinding. The testimony ofthe compliance officer is unrefuted and establishes a violation. Theviolation is serious because of the serious facial or other bodilyinjuries that could result if a wheel shattered.In view of Yazoo’s moderate size, good faith, and lack of prior history,and in view of the violation’s moderate gravity based on low employeeexposure, we assess a total penalty of $100 for items 3a and 3b._Citation 1, Item 4 — Guarding of Mechanical Power Presses_The Secretary alleged that Yazoo violated 29 C.F.R. ?1910.217(c)(1)(i)[[8]] by failing to use point of operation guards onBliss press #2034 (subitem (a)) located in the new steel room and on the25 and 45-ton Bliss presses (subitem (b)) located in the high wheelwelding shop._Subitem (a) — Bliss Press #2034_Compliance officer Butler testified that the press in the steel room wasa mechanical power press and was not equipped with any point ofoperation guard or device. He also testified that if an employee’shands were within the unguarded point of operation there was a risk thathis hands would be amputated. Employee Griffin testified that he andother Yazoo employees had used the press without any guards or devices. He also stated, both on direct examination and on rebuttal, that thepress was capable of being operated on the day of inspection. Althoughplant manager Bell testified on direct examination that the press wasnot capable of being operated on the day of inspection, he appeared tobe uncertain as to whether the press he thought had operatingdifficulties was the cited press and stated that Griffin ought to knowwhether the press was operational. Based on the testimony of employeeGriffin and compliance officer Butler, the judge found that the standardhad been violated. He classified the violation as nonserious andassessed a total penalty of $100 for this subitem and subitem (b), whichwill be discussed below.We affirm the judge’s finding of a violation. We find, however, thatthe violation was serious and reverse that portion of the judge’sdecision. The compliance officer’s uncontradicted testimonysufficiently demonstrates that the Bliss press was a mechanicallypowered machine within the definition of the term \”press\” at 29 C.F.R. ?1910.211(d)(46).[[9]] The guarding requirements of the cited standardapply without regard to the type of clutch on a press, since thestandard requires guards \”on every operation performed on a mechanicalpower press.\” Employee Griffin’s testimony establishes that the presswas used in an unguarded condition exposing employees to potentialinjury. We reject Yazoo’s challenge to Griffin’s credibility. Thejudge heard and credited his testimony and the Commission ordinarilydefers to credibility determinations made by the administrative lawjudges. _C_. _Kaufman, Inc_., 78 OSAHRC 3\/C1, 6 BNA OSHC 1295, 1297,1977-78 CCH OSHD ? 22,481 at p. 27,099 (No. 14249, 1978). We find noreason to overturn the judge’s determination in this instance. Nor doesthe record support Yazoo’s contention that the Bliss press was providedwith alternatives to guarding. The violation is serious because anemployee could suffer serious physical harm if his hands were in thepress’s point of operation and the ram came down on them. We assess apenalty of $100 for this subitem._Subitem (b) — 25 and 45 Ton Presses_Compliance officer Butler testified that these two presses were notequipped with point of operation guards as required by 29 C.F.R. ?1910.217(c)(1)(i), cited above. The compliance officer, however,neither saw the presses in operation during the inspection, nortestified that the presses had ever been operated without guards. Plantmanager Bell testified that the presses were not guarded during theinspection because the presses were down for maintenance. He alsotestified that the presses were always guarded when he saw them inoperation and that supervisors were responsible for insuring that guardswere used when the presses were operating.The judge found that Yazoo violated the cited standard, relying on thetestimony of the compliance officer. We reverse the judge and vacatethis subitem. The Secretary did not refute the plant manager’stestimony that the presses were down for maintenance during theinspection. The Secretary therefore failed to prove employee exposureto the unguarded presses because he failed to prove that the presses hadbeen operated without guards._Citation 2, Item 1 — Locked Shop Door_The Secretary alleged that Yazoo prevented free escape from the buildingby locking the exit door located at the rear of the welding shop,thereby violating 29 C.F.R. ? 1910.36(b)(4).[[10]] The complianceofficer testified that the door led to the outside and that there was an\”exit\” sign over the door, but that the door was padlocked. He alsotestified that the welding shop was fairly clean, but that there wereobjects that could burn in the area and that, because of the exit signover the door and the door’s location at the end of an aisle through theshop, employees might try to use the door in the event of fire. Yazoo’splant manager testified that the door was intended only for ventilationand not as a means of egress. He also testified that there was anautomatic sprinkler system in the shop.We affirm the judge’s decision finding a nonserious violation of thecited standard and assess no penalty. There is no dispute that a doormarked as an exit that could be used by employees in the event of a firewas locked. Yazoo’s argument that the door was not intended for use asan exit is rejected because the door was designated with a sign as anexit. Yazoo’s contention that it did not violate the standard becauseit had installed a sprinkler system in the shop is without merit. Asprinkler system is not a defense to a citation alleging noncompliancewith section 1910.36(b)(4)._Citation 2, Item 2 — Unsecured Steel Dock Plate_Yazoo allegedly violated 29 C.F.R. ? 1910.178(n)(11) [[11]] by failingto properly secure a sheet of plate steel being used as a dockboardbefore permitting employees to drive over it. The compliance officertestified that an employee was driving a forklift truck over theunsecured steel plate between Yazoo’s loading dock and the back of ahighway truck being loaded when the steel plate slipped off the truckbed and the forklift dropped about four to six inches to the loadingdock. The compliance officer stated that a drop such as that couldresult in bumps and bruises to a forklift operator. Plant manager Belltestified that he did not recall the dock plate slipping during theinspection and knew of no injuries resulting from the occurrence. Healso testified that the highway truck involved was owned by a commoncarrier and was being loaded with lawn mowers for delivery out of state.The judge found a nonserious violation, relying on the complianceofficer’s unrefuted testimony, and assessed no penalty. On review,Yazoo contends that the Secretary failed to prove there was a hazard andthat since the highway truck was a common carrier engaged in interstateshipping, the U.S. Department of Transportation, not OSHA, hadjurisdiction over the matter.We reject Yazoo’s contention that OSHA does not have jurisdiction here. The Secretary is precluded from enforcing the cited standard only ifthe Department of Transportation has exercised authority to regulate theworking conditions that are the subject of the citation. _See__Mushroom Transportation Co_., 73 OSAHRC 51\/E10, 1 BNA OSHC 1390,1973-74 CCH OSHD ? 16,881 (No. 1588, 1973), _appeal_ _dismissed_, No.74-1014 (3d Cir. April 17, 1974). Yazoo has not cited, and we have notfound, any Department of Transportation regulation applicable to thefacts underlying this item. We affirm the judge’s decision finding aviolation based on the compliance officer’s unrefuted testimony. However, we find that the hazard bore only a negligible relationship toemployee safety and health and therefore classify the violation as _de__minimis_, assessing no penalty. _See_ _Keco_ _Industries, Inc_., 84OSAHRC 7\/A2, 11 BNA OSHC 1832, 1984 CCH OSHD ? 26,810 (No. 81-1976, 1984)._Citation 2, Item 3 — Ungrounded Drill_The Secretary alleged that Yazoo violated 29 C.F.R. ?1910.304(f)(4)[[12]] by failing to provide a ground for the electricalsupply cord of a 1\/2-inch hand-held drill in the cutting section of theassembly area. Compliance officer Butler and Yazoo employee Jonestestified that the drill was not equipped with a grounding prong on itsplug and that the drill had been used in that condition by severalemployees over a period of months. The judge, relying on the testimonyof the compliance officer, found that Yazoo had violated the citedstandard. Yazoo contends on review that the cited standard isinapplicable and that the drill, as cord-and plug-connected equipment,is covered by a different OSHA standard.We agree. The standard at 29 C.F.R. ? 1910.304(f)(5)(v)(C)(3)[[13]] ismore specifically applicable to the cited condition because it setsforth a grounding requirement for \”[h]and-held motor-operated tools\”that are \”connected by cord and plug.\” Such a specific standard\”prevail[s] over any different general standard which might otherwise beapplicable.\” 29 C.F.R. ? 1910.5(c)(1). _See_ _Vicon Corp_., 81 OSAHRC98\/C4, 10 BNA OSHC 1153, 1981 CCH OSHD ? 25,749 (No. 78-2923, 1981),_aff’d_, No. 81-2359 (8th Cir. Aug. 4, 1982). Because the Secretaryfailed to allege or try a violation of section 1910.304(f)(5)(v)(C)(3),we vacate item 3.Consequently, the Commission enters its order in accordance with thisdecision, and a total penalty of $400 is assessed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: DEC 21 1984————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] Yazoo, appearing pro se throughout these proceedings, also tookexception to certain of the judge’s procedural rulings. We find noprejudicial error in those rulings.[[2]] Section 1910.212(a)(1) provides:? 1910.212 _General requirements for all machines_.(a) _Machine guarding_ — (1) _Types of guarding_. One or more methodsof machine guarding shall be provided to protect the operator and otheremployees in the machine area from hazards such as those created bypoint of operation, ingoing nip points, rotating parts, flying chips andsparks. Examples of guarding methods are — barrier guards, two-handtripping devices, electronic safety devices, etc.[[3]] Section 1910.212(a)(5) provides:? 1910.212 _General requirements for all machines_.(a) _Machine guarding_–(5) _Exposure of blades_. When the periphery of the blades of a fan isless than seven (7) feet above the floor or working level, the bladesshall be guarded. The guard shall have openings no larger than one-half(1\/2) inch.[[4]] Section 1910.219(e) (3)(i) provides:? 1910.219 _Mechanical power-transmission apparatus_.(e) _Belt, rope, and chain drive_–(3) _Vertical and inclined belts_. (i) Vertical and inclined beltsshall be enclosed by a guard conforming to standards in paragraphs (m)and (o) of this section.[[5]] Section 1910.219(a)(1) provides:? 1910.219 _Mechanical power-transmission apparatus_.(a) _General requirements_. (1) This section covers all types and shapesof power-transmission belts, except the following when operating at twohundred and fifty (250) feet per minute or less: (i) Flat belts one (1)inch or less in width, (ii) flat belts two (2) inches or less in widthwhich are free from metal lacings or fasteners, (iii) round beltsone-half (1\/2) inch or less in diameter; and (iv) single strand V-belts,the width of which is thirteen thirty-seconds (13\/32) inch or less.[[6]] Section 1910.215(a)(2) provides:? 1910.215 _Abrasive wheel machinery_.(a) _General requirements_–(2) _Guard design_. The safety guard shall cover the spindle end, nut,and flange projections. The safety guard shall be mounted so as tomaintain proper alignment with the wheel, and the strength of thefastenings shall exceed the strength of the guard, except:(i) Safety guards on all operations where the work provides a suitablemeasure of protection to the operator, may be so constructed that thespindle end, nut, and outer flange are exposed; and where the nature ofthe work is such as to entirely cover the side of the wheel, the sidecovers of the guard may be omitted; and(ii) The spindle end, nut, and outer flange may be exposed on machinesdesigned as portable saws.[[7]] Section 1910.215(a)(4) provides:? 1910.215 _Abrasive wheel machinery_.(a) _General requirements_–(4) _Work rests_. On offhand grinding machines, work rests shall beused to support the work. They shall be of rigid construction anddesigned to be adjustable to compensate for wheel wear. Work restsshall be kept adjusted closely to the wheel with a maximum opening ofone-eighth inch to prevent the work from being jammed between the wheeland the rest, which may cause wheel breakage. The work rest shall besecurely clamped after each adjustment. The adjustment shall not bemade with the wheel in motion.[[8]] Section 1910.217(c)(1)(i) provides:? 1910.217 _Mechanical power presses_.(c) _Safeguarding the point of operation_ — (1) _General requirements_. (i) It shall be the responsibility of the employer to provide andinsure the usage of \”point of operation guards\” or properly applied andadjusted point of operation devices on every operation performed on amechanical power press. See Table 0-10.[[9]] Section 1910.211(d)(46) provides:? 1910.211 _Definitions_.(d) As used in ? 1910.217 [Mechanical power presses], unless the contextclearly requires otherwise, the following power press terms shall havethe meaning prescribed in this paragraph.(46) \”Press\” means a mechanically powered machine that shears, punches,forms or assembles metal or other material by means of cutting, shaping,or combination dies attached to slides. A press consists of astationary bed or anvil, and a slide (or slides) having a controlledreciprocating motion toward and away from the bed surface, the slidebeing guided in a definite path by the frame of the press.[[10]] Section 1910.36(b)(4) concerns means of egress and provides:? 1910.36 _General requirements_.(b) _Fundamental requirements_.(4) In every building or structure exits shall be so arranged andmaintained as to provide free and unobstructed egress from all parts ofthe building or structure at all times when it is occupied. No lock orfastening to prevent free escape from the inside of any building shallbe installed except in mental, penal, or corrective institutions wheresupervisory personnel is continually on duty and effective provisionsare made to remove occupants in case of fire or other emergency.[[11]] Section 1910.178(n)(11) provides:? 1910.178 _Powered industrial trucks_.(n) _Traveling_.(11) Dockboard or bridgeplates, shall be properly secured before theyare driven over. . . .[[12]] Section 1910.304(f)(4) provides:? 1910.304 _Wiring design protection_.(f) _Grounding_.(4) _Grounding path_. The path to ground from circuits, equipment, andenclosures shall be permanent and continuous.[[13]] Section 1910.304(f)(5)(v)(C)(3) provides:? 1910.304 _Wiring design and protection._(f) _Grounding_.(5) _Supports, enclosures, and equipment to be grounded_–(v) _Equipment connected by cord and plug_. Under any of the conditionsdescribed in paragraphs (f)(5)(v)(A) through (f)(5)(v)(C) of thissection, exposed non-current-carrying metal parts of cord-andplug-connected equipment which may become energized shall be grounded.(C) If the equipment is of the following types:(3) Hand-held motor-operated tools;”