“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13401 \u00a0 PRATT & WHITNEY AIRCRAFT, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 April 27, 1981DECISIONBefore BARNAKO, Acting Chairman; CLEARY and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Foster Furcolo is before the Commissionfor review pursuant to section 12(j), 29 U.S.C. ? 661(i), of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?). The case[1] involves a 68-item otherthan serious citation issued to Respondent, Pratt & Whitney Aircraft(?Pratt & Whitney? or ?P & W?), after four compliance officers of theSecretary of Labor (?the Secretary?) inspected Pratt & Whitney?s aircraftparts manufacturing facility in North Haven, Connecticut. We review theaffirmance of twelve of those items by Judge Furcolo.[2]??????????? TheDocument Production Issue??????????? Pratt& Whitney first contends that all items of the citation should be vacatedbecause the judge refused to order the Secretary to turn over for inspection byP & W certain notes that the Secretary?s compliance officers (?Co?s?) hadmade. During its cross-examination of the first compliance officer to testify,Pratt & Whitney requested production of any written notes that the complianceofficer had prepared that were relevant to the case. P & W later extendedits request to include notes made by the other three CO?s as well. TheSecretary resisted the requests on a number of grounds, including (1) the notescontained the names of employees who had given information to the complianceofficers and were exempt from disclosure under the informer?s privilege; (2)the notes were interagency memoranda exempt from disclosure under the Freedomof Information Act; (3) certain of the notes had been prepared at the requestof the Secretary?s attorneys after the case was in litigation; and (4) certainparts of the notes reflected the mental impressions and conclusions of thecompliance officers.??????????? Afterhearing argument on P & W?s request, Judge Furcolo essentially ruled thatthe notes should be produced, but with some qualifications. He examined thenotes in camera and authorized the deletion of material prepared at the requestof the Secretary?s attorneys and of any information that would be protected by theinformer?s privilege or other privileges. The net result was that P & W hadthe opportunity to examine ?sanitized? versions of the notes, but was deniedthe opportunity to examine the notes in their entirety. The original notes,consisting of ten documents, were placed by the judge in a manila envelope. Theenvelope was sealed and included in the official record of the proceedings inthis case. Sanitized copies of all ten documents were produced by the Secretaryas ordered, and, with one exception, were introduced into evidence.[3]??????????? Pratt& Whitney argues that the judge erred in refusing to order production ofthe compliance officers? notes in their entirety. P & W contends that Jencks v. United States, 353 U.S.657(1957), requires the production of all pre-trial statements made bywitnesses who testify at criminal trials and that NLRB v. Adhesive Products Corp., 258 F.2d 403 (2d Cir. 1958),applied that requirement to administrative hearings. P & W also points outthat the proceedings of this Commission are subject to the Jencks rule, citing FrazeeConstruction Co., 73 OSAHRC 34\/B5, 1 BNA OSHR 1270, 1973?74 CCH OSHD?16,409 (No. 1343, 1973) and OklandConstruction Co., 76 OSAHRC 30\/F4, 3 BNA OSHC 2023, 1975?76 CCH OSHD ?20,441 (No. 3395, 1976).??????????? Weconclude that the judge erred in failing to order the Secretary to turn overthe withheld notes of the compliance officers for use by P & W duringcross-examination of the compliance officers. We have held that:[W]hen a witness has completed testifyingfor the Secretary on direct examination, the Secretary shall, upon motion by arespondent, turn over to it all the witness?s prior statements that are in thegovernment?s possession and that relate to the subject matter of the witness?stestimony.?Massman-Johnson(Luling), 80 OSAHRC 44\/B8, 8 BNA OSHC 1369, 1376, 1980 CCH OSHD?24,436 at p. 29,808 (No. 76?1484, 1980), pet.for review filed, No. 80?3413 (5th Cir. June 2, 1980). Massman-Johnson (Luling) was consistent with our earlier decisionin Frazee Construction Co., supra,which predated the hearing in this case. Moreover, the requirement that awitness?s prior statements be produced after that witness has testified ondirect examination does not depend on whether the statements include anymaterial that would be exempt from pretrial discovery under the work productdoctrine. Bethlehem Steel Corp., 81OSAHRC ___, 9 BNA OSHC 1321, 1981 CCH OSHD ?25,200 (No. 12817, 1981). However,any material in the statements that would reveal the identity of confidentialinformants need not be produced. SeeMassman-Johnson (Luling), supra. Thus, the judge erred in ruling that theSecretary need not produce the complete notes made by the compliance officers,with only the names of informants deleted, after the compliance officers hadtestified on direct examination concerning the subject matter contained in thenotes.??????????? Eventhough Pratt & Whitney was wrongfully barred from using the completeversions of the withheld notes, we reject its argument that all the contesteditems should be vacated as a result. If the judge?s action was a harmless errorthen it would offend common sense and the fair administration of justice tovacate those items. See Rosenberg v.United States, 360 U.S. 367 (1959). The harmless error doctrine is,however, strictly applied in these situations, and a judge?s erroneous rulingdenying the production of a witness?s statement will only be deemed harmlesswhen it is clear that the party aggrieved by the ruling could not have made anymeaningful use of the statement at the hearing. Id. See Bethlehem Steel Corp., supra, 9 BNA OSHC at 1330?31, 1981CCH OSHD at p. 31,112. Accordingly, we have examined the record to determinewhether P & W could have made meaningful use of the documents improperlywithheld from it.??????????? Thewithheld notes consist primarily of worksheets on which the compliance officersrecorded information they obtained during the inspection. The worksheetscontain boxes for listing certain information. Spaces are provided for thecompliance officers to record descriptions of conditions they believe mayviolate the Act, together with other information concerning their observations,such as the location at which the condition existed and the section of the Actthat may have been violated.??????????? Althoughthe sanitized versions of the notes delete information on items not involved inthis case, the sanitized notes contain exactly the same descriptions of thealleged violations as are contained in the withheld notes with respect to theitems that are on review. Deleted are the section of the Act or the standardthat the compliance officers listed for each item, certain numbers appearing inthe boxes containing the descriptions of the observed conditions,[4] and, in some instances,names of employees.??????????? Intwo instances, the sanitized version of the notes does not include informationof a substantive nature that does appear in the withheld notes. As stated innote 3 supra, item 10 of the withheldnotes is a photograph, on the back of which appear the written observations ofa compliance officer, pertaining to subitem 61(k) of the citation. The exhibitmade available to P & W lacked the compliance officer?s writings. However,the judge vacated subitem 61(k), and that subitem is not on review.Additionally, the description by compliance officer Cavalieri of the conditionscited in subitems 61(aa) and (dd) contain the circled designation ?OK? on thewithheld notes. The sanitized notes have this designation omitted. The meaningof ?OK? is ambiguous, and P & W should have had the opportunity tocross-examine Cavalieri on its significance. However, for the reasons discussedlater in this opinion, we vacate subitems 61(aa) and 61(dd) on their merits.Thus, although the judge?s error deprived P & W of material which it mayhave used meaningfully in the conduct of its cross-examination on subitems61(aa) and 61(dd), our disposition of those subitems resolves the issue byeliminating P & W?s need for the withheld material.??????????? As tothe remaining items and subitems, Pratt & Whitney had available, in thesanitized notes, all the necessary substantive information enabling it tocross-examine the compliance officers to the same extent as if P & W hadthe complete notes. The judge?s error in not allowing P & W to examine thewithheld material was, therefore, harmless, because P & W could not havemade any meaningful use out of the withheld material.??????????? Pratt& Whitney?s De Minimis Argument??????????? Pratt& Whitney argues generally, with respect to all of the items on review,that if noncompliance with any of the cited standards occurred at all, anyhazards to employees were either nonexistent or so slight as to warrant deminimis classifications for the items.[5]??????????? TheCommission has held that noncompliance with a standard should properly beclassified as de minimis when the hazard involved bears such a negligiblerelationship to employee safety as to render inappropriate the imposition of apenalty or the entry of an abatement order. ContinentalOil Co., 79 OSAHRC 42\/C3, 7 BNA OSHC 1432, 1979 CCH OSHD ?23,626 (No.13750, 1979), and cases cited therein. However, in determining whether anyparticular violation of the Act warrants de minimis classification, we mustbear in mind that the Act is intended to protect against minor as well as majorinjuries. Ryder Truck Lines, Inc. v.Brennan, 497 F.2d 230 (5th Cir. 1974). Thus, the fact that noncompliancewith a standard would likely result in only a minor injury is not alonesufficient for classifying the instance of noncompliance as de minimis.Instead, the de minimis classification is reserved for those unusual situationswhere the hazard is so trifling that an abatement order would not significantlypromote the objective of employee safety or health.??????????? Withthe one exception noted below, the instances of noncompliance that Pratt &Whitney committed in this case are of the type that have traditionally beenclassified as other than serious rather than de minimis, that is, the instancesof noncompliance are of the type for which abatement will significantly promoteemployee safety even though they would not likely cause major injuries.Accordingly, in discussing the individual citation items below, we will notreiterate P & W?s argument that the items are de minimis because, with thenoted exception, we reject the argument without further discussion.??????????? Weturn now to the individual violations on review.??????????? Item1?29 C.F.R. ? 1910.22(a)(1)[6]??????????? TheSecretary alleges Pratt & Whitney failed to comply with section1910.22(a)(1) in that it did not keep clean and orderly all places ofemployment, passageways, storerooms, and service rooms in the plant. The judgeaffirmed violations at eight different locations. Each of the eight will bediscussed separately below.??????????? Subitem(a). Compliance Officer Stanton testified that tripping hazards were present inthe Arace Building. The area was a general storage area made disorderly by thepresence of lumber, boxes, and other debris. Exhibits C?67 and C?68 illustratethe conditions referred to by the compliance officer. The judge found that thearea was in a disorderly condition and affirmed the subitem. He found thattripping hazards were present, and that materials could drop onto the feet of employees.??????????? Pratt& Whitney argues that the standard is applicable to sanitation and theprevention of disease, not to conditions that are merely disorderly or unclean.It also argues that even if the standard is applicable to the cited conditions,the photographs and testimony fail to establish a direct or immediate hazard tothe employees in the area.??????????? Wereject Pratt & Whitney?s contention that the scope of the cited standard islimited to disease prevention and does not encompass tripping hazards. The standard?srequirement that places of employment be kept ?in a sanitary condition? is inaddition to the requirement that workplaces be ?clean and orderly?, thusdemonstrating that the standard is directed not merely to sanitation but to allhazards arising from poor housekeeping, including tripping hazards. See Bunge Corp. v. Secretary of Labor,638 F.2d 831 (5th Cir. 1981); GeneralElectric Co., 75 OSAHRC 50\/A2, 3 BNA OSHC 1031, 1974?75 CCH OSHD ?19,567(No. 2739, 1975), rev?d on other grounds,540 F.2d 67 (2nd Cir. 1976). The record supports the judge?s determination thatthe area was disorderly and presented a tripping hazard. We affirm subitem (a).??????????? Subitem(c). Compliance officer Stanton testified that the Precipitron Crib area indepartment 2027 presented tripping hazards in that metal, wood, lumber, andother materials were stored there in a disorderly manner. Exhibit C?69 picturesthe disorderly conditions in the area. The judge affirmed this subitem, findingthat the area was in a disorderly condition that was hazardous to employees.??????????? Pratt& Whitney contends that the standard is not applicable to disorderlyconditions, but that even if it is applicable, the conditions observed did notfail to comply with the standard.??????????? Weaffirm subitem (c). We conclude that the cited standard is applicable for thereasons stated in our discussion of subitem (a) and agree that the recordsupports the judge?s finding of noncompliance with the standard.??????????? Subitem(d). Compliance officer Stanton testified that the Oil House of department 2032presented fire hazards and slipping hazards because there was an excess of oilin and around the piping and because paper towels were located behind machine37978. Exhibit C?70 shows a paper towel holder and some storage drums behind machine37978. P & W?s safety engineer testified that an employees? wash basin waslocated near the area depicted by the exhibit and that there may have been oilon the floor. In response to the Secretary?s request for admissions, P & Wadmits that grease, buckets, and miscellaneous materials were behind machine37978. Judge Furcolo found that the area was not clean and orderly, and thatthe employees going into the area for maintenance purposes were subject toslipping and fire hazards.??????????? Pratt& Whitney argues that the Secretary failed to prove employee exposure inthat C?70 depicts an area not normally traversed by employees.??????????? Weagree with the judge that the standard is applicable and that the recordsupports a finding of employee access to the cited conditions. We affirmsubitem (d).??????????? Subitems(e), (f) and (g). Compliance officer Cavalieri testified that a fire hazard wascreated by the dust and oil that blocked the breathing vents of machine numbers516113, 175543, and 501037. In its responses to the Secretary?s request foradmissions, Pratt & Whitney admitted that the breathing vents on themachines were partially obstructed. Exhibit C?106 of the Secretary shows thepartially clogged vents of one of the machines.??????????? JudgeFurcolo found that the blocked breathing vents of the machines presented a firehazard and also resulted in the continual release of impure air that wasbreathed by employees. Pratt & Whitney argues that the standard is notapplicable to either fire hazards or the hazard of impure air.??????????? We concludethat the standard is inapplicable because the breathing vents of the threemachines are neither ?places of employment?, ?passageways?, ?storerooms?, nor?service rooms? under the standard. The American National Standards Institute(?ANSI?) source standard from which the cited standard is derived[7] defines a ?[p]lace of[e]mployment? as ?[e]very place, within the scope of this standard, where anyperson is directly or indirectly employed.? It would unduly strain the meaningof this definition to include part of a machine within its scope. The standardis directed at housekeeping, not machine maintenance, and if interpreted toapply here would not give adequate notice of the precautions it requires. Wevacate subitems (e), (f), and (g).??????????? Subitem(h). Compliance officer Cavalieri testified that Osborn Brushomatic machinesnumbered 175235, 175220, and 175648 were covered with dust and dirt. A Pratt& Whitney foreman admitted that the machines needed cleaning. The dustycondition of the machines is depicted in photographic exhibits C?107, C?108,and C?109. Judge Furcolo found that the machines were not in a clean condition,and that therefore employees were exposed to the hazard of breathing dust.??????????? Pratt& Whitney argues that the standards dealing with airborne dust orcontaminants are found in the section 1910.1000 series, not at section 1910.22.P & W also argues that the operation of the Brushomatics is inherentlydusty and dirty so that these machines cannot be kept in a continuous state ofcleanliness.??????????? ActingChairman Barnako and Commissioner Cottine conclude that the cited standard isinapplicable because the Brushomatics are neither places of employment,passageways, storerooms, nor service rooms under the cited standard. Theyvacate this subitem.??????????? CommissionerCleary concludes that the cited standard is applicable. Section 1910.1000 isdirected, among other things, against employees breathing excessive dust and isonly violated if an employee is exposed to excessive dust. The cited standard,however, is directed against unclean conditions in general and does not requirethe showing of a specific hazard. Thus, section 1910.1000 does not preemptsection 1910.22(a)(1). Commissioner Cleary also finds that the record supportsthe judge?s finding of a violation. Pratt & Whitney?s assertion that themachines cannot be kept clean is unsupported by the record. P & W presentedno evidence that the machines remained dirty despite frequent cleaning.Accordingly, Commissioner Cleary would affirm subitem (h).??????????? Subitem(i). Compliance officer Terroux testified that there was an accumulation oftrash and excess grease in back of a J & L grinder in department 2315. Hefound an oily rag inside the machine. Union representative Gilbert testifiedthat there were rags, papers, and chicken bones in the area of the grinder.Pratt & Whitney admits that paper scraps were observed in the machine.??????????? Thejudge made two separate findings with respect to this subitem. His primaryfinding was that because the trash and chicken bones in the area constituted adisorderly, unclean condition the alleged violation should be affirmed.Alternatively, however, he ruled that the unclean condition of the machine didnot create a hazard, and if the standard requires proof of a hazard, he would vacate.??????????? Pratt& Whitney argues, ?[T]he hazard apparently alleged is a fire hazard byreason of the grease and trash . . .. Not only does the standard cited havenothing to do with fire hazards, it was proven that grinding machines arenormally and inherently greasy internally.? P & W also argues that even ifthe standard is applicable, the Secretary did not establish noncompliance withthe standard.??????????? Weagree with the judge that the record supports a finding that the area aroundthe grinder was unclean and disorderly. The Secretary has therefore provennoncompliance with the terms of the cited standard. Proof of a hazard is notnecessary to the finding of noncompliance here because the standard assumesthat unclean and disorderly conditions are hazardous. See Lee Way Motor Freight Inc., 74 OSAHRC 22\/D12, 1 BNA OSHC 1689,1973?74 CCH OSHD ?17,693 (No. 1105, 1974), aff?d,511 F.2d 864 (10th Cir. 1975). We find that noncompliance with the citedstandard was proven.??????????? Item2?29 C.F.R. ? 1910.22(a)(2)[8]??????????? Subitem(b). Compliance officer Terroux testified that there was excessive oil on thewooden block floor of department 2317, and that the floor was so slippery hecould skate on it. Union representative Gilbert corroborated that testimony.Pratt & Whitney admits that a ?nominal? amount of water was present, but P& W representative Kershaw testified that there was not an excessive amountof oil on the floor.??????????? Thejudge credited the testimony of Terroux and Gilbert in finding that the floorwas not kept in a clean and, insofar as possible, dry condition. He found thatthe presence of excessive oil created a slip and fall hazard for employees andaffirmed the item.??????????? Pratt& Whitney argues again that section 1910.22 is a sanitation standarddirected against the spread of disease and not to slipping hazards. Even if thestandard is applicable, however, P & W argues that noncompliance was notproven in that (1) the Secretary?s exhibit C?136 does not demonstrate aslippery condition and (2) P & W?s representative testified that the oil onthe floor was not excessive.??????????? Pratt& Whitney?s challenge to the applicability of the cited standard isrejected. The standard requires workroom floors to be kept clean and dry, and P& W has offered no persuasive reason why we should limit the standard?sapplication to sanitation hazards. Moreover, the Commission has previouslyapplied the standard to slip and fall hazards. Armco Steel Corp., 77 OSAHRC 76\/B9, 5 BNA OSHC 1415, 1977?78 CCHOSHD ?21,805 (No. 11764, 1977). The Commission agrees with the judge thatnoncompliance with the cited standard was proven by the Secretary. Item 2(b) isaffirmed.??????????? Item3?29 C.F.R. ? 1910.22(b)(1)[9]??????????? Subitem(a). Compliance officer Hatcher testified that the aisle in the service cribfor departments 2042?2056 was not wide enough to turn a cart around. Hetestified that the aisle was 24 inches wide in most places and 21 inches widein some places, and that a cart he saw in the area could not make it throughthe aisle. The CO also testified that metal gauges on racks and pegboardsprotruded into the aisle so that employees had to walk sideways to avoid them.He testified that the gauges could cause head injuries. Union representativeDeRoy testified that gauges and tools extending beyond the racks obstructed thepassageway used by the crib attendant. DeRoy also testified that pegboards andbrackets protruded into the aisle so much that it was sometimes safer to walksideways. Exhibit C?123 of the Secretary shows the aisle as well as certainobjects protruding from the shelves of bins and some brackets protruding from apegboard.??????????? Pratt& Whitney representative Cote testified that the aisles were between 27 and36 inches wide and provided plenty of room for safe passage. He also testifiedthat the cart observed by the CO was only 20 ? inches wide. The judge, findingthat gauges and other materials protruding from the shelves, racks, andpegboards constituted hazardous obstructions in the aisle, affirmed the allegedviolation.??????????? Pratt& Whitney argues that the cited standard is inapplicable because the sourceof the standard is the Walsh-Healey standard at 41 C.F.R. ? 50?204.3, andWalsh-Healey Inspection Survey Guide section 20.4.4 makes it clear that thesource standard refers only to aisles used by industrial motorized trucks. Theaisle pictured in C?123, however, is not used by industrial trucks. P & Walso argues that even if the standard is applicable, the Secretary did notprove noncompliance with the standard. P & W contends it established thatthe cart involved was only 20 ? inches wide while the narrowest part of theaisle was between 27 and 36 inches wide and that exhibit C?123 does notdisclose any obstruction from gauges.??????????? ActingChairman Barnako and Commissioner Cleary agree with Pratt & Whitney thatthis subitem should be vacated. The Commission has earlier held that the citedstandard is applicable only to operators of mechanical handling equipment andnot to pedestrians. Love Box Co., 76OSAHRC 45\/D5, 4 BNA OSHC 1138, 1975?76 CCH OSHD ?20,588 (No. 6286, 1976). Thecompliance officer?s testimony on this item indicates that he was whollyconcerned with hazards to employees using that aisle as pedestrians. He stated:Some of the hooks are just about eyelevel, and in a narrow aisle, if someone comes down the aisle, then it ispossible that they may get an eye injury or their face gashed or something likethat, or they may get hit in the head with them.???????????? Thecompliance officer himself, however, testified that the cart in the area wastoo wide to travel through the aisle. He also testified that the cart did nothave anything to do with the danger presented by the narrow aisle. Therefore,on the basis of the just-mentioned testimony of the CO, we conclude that thestandard does not apply to the conditions for which P & W was cited.Subitem 3(a) is vacated.??????????? CommissionerCottine disagrees with the interpretation of the cited standard set forth in Love Box Co., supra, and would overrulethat case to the extent it holds that the standard is intended to protect onlyoperators of mechanical handling equipment. While the first sentence of thestandard refers to aisles and passageways where mechanical handling equipmentis used, the second sentence is not by its terms limited to aisles andpassageways where such equipment is used. By reading the ?mechanical handlingequipment? limitation into the second sentence, the majority renders the secondsentence redundant in that the first sentence states the requirement for safeclearance in aisles where mechanical handling equipment is used. CommissionerCottine would read the second sentence of the standard to require aisles andpassageways free of hazardous obstructions regardless of whether mechanicalhandling equipment is used in those aisles and passageways. He points out that theCommission, in Love Box Co., did notoffer any rationale for limiting the entire standard to aisles and passagewayswhere mechanical handling equipment is used, but simply accepted withoutexplanation the employer?s argument that the standard should be so limited. Hewould affirm subitem 3(a) on the basis of the compliance officer?s testimonythat the aisle was obstructed and that the obstructions created hazards toemployees.??????????? Subitem(e). Compliance officer Terroux testified that a rubbish barrel, steel drums,dollies, hand trucks, and other materials were in an aisle in department 2315near column B?61. He did not recall any mechanized equipment other than handcarts using the aisle. Union representative Gilbert testified that the barrelsin the aisles were there for changing coolant in the machines and usuallystayed there for two or three hours but had occasionally remained for as longas 48 hours. He testified that the barrels obstructed the aisle and could beplaced between machines instead. Kershaw, P & W?s representative, testifiedthat the barrels were only in the aisle when coolant was to be changed. ExhibitC?141 of the Secretary shows barrels and hand trucks in the aisle. JudgeFurcolo ruled that the testimony of Terroux and Gilbert was corroborated byexhibit C?141, and that the aisle could have been kept clear by temporarilystoring the coolant barrels between machines. He affirmed subitem (e).??????????? Pratt& Whitney argues that the cited standard is inapplicable, but that even ifthe standard is applicable, the temporary presence of oil drums in the aislewas a normal adjunct to the process of draining coolant oil from the machinesand did not create a hazard.??????????? TheCommission agrees with the judge that the record supports a finding that P& W failed to comply with the cited standard. Numerous items including arubbish barrel, hand trucks, and metal drums are shown blocking the aisle inexhibit C?141. The record amply demonstrates that hand trucks and barrel cartswere used in the aisle. Further, as mentioned in the majority?s discussion ofsubitem (a) above, Acting Chairman Barnako and Commissioner Cleary acknowledgethat the cited standard does not apply to pedestrian hazards. They do not,however, consider the employees pushing the hand trucks and barrel carts downthe aisle to be pedestrians. Such employees were the operators of mechanicalhandling equipment and as such were subjected to the hazard of bumping againstthe metal barrels and unused hand trucks that blocked the aisle. Hand trucksand barrel carts fall within the dictionary definitions of the language?mechanical handling equipment? used in the cited standard. ?Mechanical? means?[o]perated or produced by a machine?. TheAmerican Heritage Dictionary of the English Language 813 (1976). Thedefinitions of ?machine? do not restrict that word to vehicles with motors inthem; they include ?[a] simple device, such as a lever, pulley, or inclinedplane, that alters the magnitude or direction or both, of an applied force . ..? Id. at 780. Commissioner Cottinewould conclude that the standard applies regardless of whether the exposedemployees are considered the operators of mechanical handling equipment. Hebelieves that the majority?s strained interpretation of section 1910.22(b)(1)is evident from the distinction they find it necessary to draw between?pedestrians? and employees pushing hand trucks and carts.??????????? ActingChairman Barnako and Commissioner Cleary also note that the Walsh-Healey sourcestandard at 41 C.F.R. ? 50?204.3 cited by P & W does not restrict its termsto aisles used by motorized trucks. Even if the Walsh-Healey standard wasinterpreted to apply only to motorized trucks, however, the Commission wouldnot be bound by such a restrictive interpretation.[10] See Lee Way Motor Freight, Inc., supra. Accordingly, subitem (e) isaffirmed.??????????? Item13?29 C.F.R. ? 1910.94(d)(9)(v)[11]??????????? TheSecretary alleges that Pratt & Whitney violated the standard at section1910.94(d)(9)(v) by failing to require its plating operators in department 2432to wear either tight-fitting chemical goggles or face shields while workingaround open-surface plating tanks where there was a danger of splashing.Compliance officer Terroux testified that employees worked waist-high against.tanks containing cyanide, sulfuric acid, and nitric acid. The employees woreordinary safety glasses while putting various parts in and out of the tanks; achain hoist was used for the heaviest parts. According to Terroux, theemployees were exposed to the hazard of chemical burns resulting from thesplashing of the tanks? contents if a part dropped or a sling broke. One of P &W?s plating department employees, Champney, testified that on one occasion hehad to jump back from a tank in order to prevent a splash going over his headand that, on another occasion, he was splashed on his shirt sleeves by ahydrofluoric acid nickel solution. He had once seen hooks break and a part dropinto a tank. Pratt & Whitney admitted that the plating operators werewearing ordinary safety glasses. Judge Furcolo found the Secretary proved ahazardous condition existed from the danger of splashing. He relied primarilyon the above testimony of Champney.??????????? Pratt& Whitney argues that the standard is inapplicable here because it isdirected by its terms to employees manually adding or removing chemicals fromtanks, not at employees dipping parts into tanks. If the standard is foundapplicable, however, P & W argues that the danger of splashing was notproven because the Secretary did not show any injuries had resulted from thesplashing of chemicals in the tanks and because employee Champney?s narrow missinvolved water or degreasing solvents, not corrosives.??????????? Pratt& Whitney?s challenge to the applicability of the cited standard isrejected. Since the terms ?when additions are made manually to the tanks, orwhen acids and chemicals are removed from the tanks? are preceded by ?forexample?, the former terms are plainly intended to be illustrative only and notto limit the protection against splashing dangers to the times when tankadditions or removals are made. Further, we agree that the judge?s finding ofnoncompliance is supported by the evidence. As to the absence of injuries, theCommission has consistently ruled that the absence of proof of injuries doesnot negate the existence of a hazard. Arkansas-Best Freight Systems, Inc., 75OSAHRC 35\/D6, 2 BNA OSHC 1620, 1974?75 CCH OSHD ?19,326 (No. 2375, 1975), aff?d,529 F.2d 649 (8th Cir. 1976). ?One purpose of the Act is to prevent the firstaccident,? Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 870(10th Cir. 1975). Accordingly, item 13 is affirmed.??????????? Items21(b) and 22?29 C.F.R. ?? 1910.108(c)(2)(i) and 1910.108(c)(3)(i)[12]??????????? TheSecretary alleges that Pratt & Whitney failed to comply with sections1910.108(c)(2)(i) and 1910.108(c)(3)(i) in that P & W did not equip twolarge Varsol tanks in departments 2979?2154 with overflow pipes and bottom drains.[13] Compliance officerTerroux testified that the hazard presented by the lack of overflow pipes wasthat if a fire in the vicinity served to activate the sprinkler system, and ifwater from the sprinkler system filled the tanks, the Varsol could overflow.The Varsol, which has a flash point of between 110 and 115 degrees, could thenfuel the fire?s flames. Terroux also testified that the bottom drains werenecessary for quickly draining the tanks in the event of a fire or rupture ofthe tanks. The two interconnected tanks are pictured in P & W exhibits 5Aand 5B. P & W admits that the tanks are not equipped with either overflowpipes or bottom drains. P & W also admits that the tanks are over 500gallons in capacity and have over ten square feet in liquid surface area. P& W contends, however, that the tanks did not present a hazard because theywere protected by fusible wires that would cause their lids to close whenheated and thus preclude sprinkler system water from filling up the tanks andcausing the Varsol in them to overflow and fuel the flames of a fire.??????????? Onthe basis of the above admissions, Judge Furcolo held that P & W failed tocomply with the cited standards. The judge also held, alternatively, that ifproof of a hazard is an essential element of the alleged violations, then thestandards had not been violated because a hazard had not been proven. The judgefound that the tanks were adequately protected against the hazard thatconcerned the compliance officer by the fusible wires.??????????? Pratt& Whitney admits on review that the tanks fall within the literal terms ofthe standards. It argues first, however, that only a de minimis violation wasproven because the fusible wires on the tanks would melt if there was a fireand thereby cause the tank covers to fall, sealing the tanks. Water from thesprinkler system could not therefore penetrate the cover and cause the contentsof the tanks to overflow. Also, P & W contends that because it has anelaborate fire fighting system in the building, it is not necessary for thetanks with fusible wire covers to have bottom drains for the rapid draining oftheir contents in case of fire. Pratt & Whitney further argues that section1910.108(c)(2)(i), by the words ?property will not be endangered,? and section 1910.108(c)(3)(ii),[14] by its terms ?which willnot endanger property,? reveal an intention to protect property rather thanpersons.??????????? CommissionersCleary and Cottine affirm the judge?s finding of noncompliance on the basis ofP & W?s admissions. The cited standards seek to protect against a fire thatcould increase in intensity after being fueled by Varsol overflowing from thedip tanks. Because the increased intensity of a fire might well present asignificant hazard to employees in the area, noncompliance is not de minimis. See Belger Cartage Service, Inc., 79OSAHRC 16\/B4, 7 BNA OSHC 1233, 1979 CCH OSHD ?23,440 (No. 76?1480, 1979).Commissioners Cleary and Cottine also reject the argument that the standardsare intended to protect only property. While property protection may be onepurpose underlying the standards, employee safety is also adversely affected bynoncompliance with the standards. SeeContinental Oil Co., supra.??????????? ActingChairman Barnako would vacate both items. He agrees with P & W?s contentionthat the cited standards are intended to protect property rather than persons.See Continental Oil Co., supra (concurring and dissenting opinion).[15] Section 1910.108(c)(2)(i)explicitly evidences that intention by its terms that ?the overflow pipe shouldbe so located and arranged that if the entire combustible contents of the diptank is overflowed through overflow pipe by the application of water duringfire fighting, property will not be endangered.? While the terms of citedsection 1910.108(c)(3)(i) do not specifically refer to property, the terms ofthe immediately following subsection, section 1910.108(c)(3)(ii), reveal thatthe intention of both subsections is also to protect property. Section1910.108(c)(3)(ii) provides that bottom drains shall be trapped and ?dischargeto a closed properly vented salvage tank or to a safe location outside whichwill not endanger property.???????????? Item23?29 C.F.R. ? 1910.132(a)[16]??????????? TheSecretary, in this item with its five subitems, alleges Pratt & Whitney?sfailure to provide or assure the use of certain protective equipment.??????????? Subitems(a) and (b). Compliance officer Cavalieri testified that the asbestos around ahot steam pipe in department 2562 had fallen off and that anyone contacting thehot pipe would be burned. He also testified that a steam pipe on the degreasingmachine in department 2435 was generating a great deal of heat but did not haveany protective guarding. The pipes are pictured in exhibits C?110 and C?111.The judge affirmed these subitems after finding that Pratt & Whitney didnot provide, use, and maintain adequate protective shields or barriers for thehazardous pipes.??????????? Pratt& Whitney argues that the cited standard is inapplicable because it dealswith personal protective equipment to be worn by employees, not protectivecovering for pipes. P & W also argues that if the standard is applicable, ahazard was not shown because the pipes are located in areas where employees arenot normally located and because the Secretary did not prove that the pipeswere hot enough to injure employees.??????????? TheCommission concludes that the standard is inapplicable to the cited conditionshad vacates subitems (a) and (b). The cited standard is listed in Subpart I ofthe general industry standards. That subpart is entitled ?Personal ProtectiveEquipment.? Although section 1910.132(a) does include the term ?barriers,?which might be construed to include objects other than those that an employeecould wear, all the other equipment mentioned in the cited standard refers toobjects that may be worn by employees. Reading the standard as a whole, weconclude that its terms do not encompass the covering of hot pipes.??????????? Subitems(c), (d) and (f). Compliance officer Cavalieri, in testifying about subitem(c), stated that he observed women employees in department 2555 working withsharp-edged parts weighing about 13 pounds each while not wearing safety shoes.One of the employees was wearing canvas shoes. Equipment was being moved aroundthe area by a buggy. P & W admits that one of the employees in thedepartment was wearing canvas shoes, and that the employees regularly handledparts weighing more than 12 pounds.??????????? Complianceofficer Cavalieri testified, regarding subitem (d), that a machine operator indepartment 2551 was wearing moccasins while handling a piece of metal weighing20?25 pounds. There were materials on skids and pallets in department 255? thatwere to be lifted by truck. P & W admits the machine operator was wearingmoccasins.??????????? Subitem(f) encompasses a substantial number of the employees at the North Haven plant.In subitem (f), the Secretary alleges that P & W failed to require thatprotective footwear be worn by (1) plant and machine maintenance personnel, (2)material handlers, (3) machine operators, and (4) bench assemblers and inspectors.Testimony on this subitem was elicited from all four compliance officers. Thecompliance officers observed many employees throughout the North Haven plantnot wearing safety shoes. These employees handled parts and sharp-edgedmaterials weighing over thirteen pounds. Some of the parts were oily andslippery. Certain materials weighing over twenty pounds were stacked in anunstable manner. In moving the parts and materials, the employees used forklifttrucks, dollies, carts, moveable racks, and other equipment. The complianceofficers testified that the employees they observed subject to the hazardscreated by the above-mentioned conditions included maintenance employees,material handlers, machine operators, and assemblers and inspectors.??????????? Unionrepresentative Neal testified that thousands of pats are transported throughoutthe plant each month, and that consequently forklifts, skids, and movable racksmove from place to place with great frequency. He also testified that manyparts are easy to drop because they are oily and slippery. He has seenmaterials dropped from hoists, pallets, and broken boxes.??????????? Unionrepresentative Gilbert testified that in departments 2315 and 2317 up to 200shuttles weighing as much as 38 pounds are handled everyday. Hammers, grindingwheels, wrenches, and shuttles are moved about on heavy-duty trucks, racks, andcarts. He had seen materials dropped many times and could not recall a day whena tray, tool, or part did not fall in his vicinity. All employees in hisdepartment did not wear safety shoes.??????????? Unionrepresentative DeRoy testified that metal parts of various sizes are droppedfrequently, and that there are dents in the floor rom dropped parts. He haddropped materials on his toes or hit his toes against objects at the plantseveral times. Pratt & Whitney?s nurse testified about eight specificemployees who had sustained foot or toe injuries. Exhibits C?9 through C?28 ofthe Secretary are OSHA forms listing toe and foot injuries sustained by tenplant employees between January 1974 and April 1975 as a result of having partsor materials dropped onto their feet or of having forklifts or carts run overtheir toes or feet.??????????? Pratt& Whitney admits that safety-toed shoes are sold to employees at the plantbut also admits that employees are not required to wear the shoes. Exhibit C?2of the Secretary is a nearly two-inch high sheaf of about 400 job descriptionsprepared by P & W. Each job description lists as one of the unavoidablehazards of the job crushed hands or feet from dropped parts, boxes, wheels, orequipment. The job descriptions include those for maintenance personnel,material handlers, machine operators, bench assemblers, and inspectors, ascited in the complaint.??????????? JudgeFurcolo affirmed subitems (c) and (d) on the basis of the uncontrovertedevidence that employees did not wear safety shoes while exposed to the hazardof foot injuries from the 12 to 25 pound metal parts that could fall on theirfeet. The judge also affirmed subitem (f), which dealt with maintenancepersonnel, material handlers, machine operators, bench assemblers, andinspectors. He stated that the plant was an extremely busy worksite withhundreds of employees handling thousands of pieces of equipment of everyconceivable size and weight. He also found that equipment was moved by variousmechanical means, that some equipment was slippery, and that there was a hazardof injury from frequently dropped materials.??????????? P& W raises four arguments in support of its position that these subitemsshould be vacated: (1) the cited standard does not apply to the hazard oftraumatic injury, (2) the standard only requires that protective equipment be?provided,? (3) if the standard is applicable, it is unenforceable becausethere is no approved specification for women?s safety-toe footwear, and (4)even if the standard is both applicable and enforceable, the hazards involvedhere do not warrant the use of safety shoes.??????????? Insupport of its first argument, Pratt & Whitney asserts that the standard?slegislative history shows that the standard was intended to protect againstchemicals, radiation, and mechanical irritants that could enter the body orcause skin irritation. P & W argues that ?physical contact? as used in thestandard means contact between an employee?s body and chemical and radiologicalhazards or mechanical irritants, not contact with parts or other equipment.??????????? P& W next argues that the word ?used? in the standard should be considered anullity because it was improperly added to the standard by the Secretary aspart of a miscellaneous amendment to correct typographical errors. It statesthat it did ?provide? shoes for its employees through its safety shoe salesprogram.??????????? Insupport of its third argument, P & W claims that compliance with the standardwould force it to discharge all its female employees because it has establishedthat there is no approved specification for women?s footwear. P & W pointsout that the standard at section 1910.136 provides that ?Safety-toe footwearfor employees shall meet the requirements and specifications in AmericanNational Standard for Men?s (emphasissupplied) Safety-Toe Footwear, Z41.1?1967.? It further asserts that anatomicaldifferences prevent women from wearing safety toe footwear designed for men.??????????? Pratt& Whitney finally argues that protective footwear is not ?necessary byreason of hazards of processes or environment.? It contends that nearly all theReview Commission?s safety shoe cases deal with shipping and receivingfacilities where materials are hand-loaded and there is a danger of toes beingrun over by mechanized equipment. For this plant, however, the company arguesthat it proved the toe injury rate was only 0.0005 per man-year, and that sucha figure does not realistically represent exposure to a hazard. P & Wfurther argues that the employees in its plant should not be forced to spend$1,125,000 for safety shoes at $25 a pair to pay for unnecessary protection.??????????? TheCommission rejects Pratt & Whitney?s argument that the standard does notapply to traumatic injuries. The argument is contrary to the plain language ofthe standard, and the Commission has applied the standard to protect againstthe hazard of traumatic injuries on many occasions. See, e. g., Chief Freight Lines, Inc., 76 OSAHRC 38\/A2, 3 BNAOSHC 2083, 1975?76 CCH OSHD ? 20,507 (No. 6483, 1976); Modern Automotive Service Inc., 74 OSAHRC 9\/All, 1 BNA OSHC 1544,1973?74 CCH OSHD ?17,369 (No. 1541, 1974).??????????? Wealso reject P & W?s argument that the standard does not impose a userequirement. The contention that the word ?used? was improperly added to thestandard was recently considered by the Commission in General Motors Corp., GM Parts Division, 81 OSAHRC ___, 9 BNA OSHC1331, 1981 CCH OSHD ?25,202 (No. 79?4478, 1981), pet. for review filed, No. 81?3194 (6th Cir. Apr. 6, 1981). Wenoted there that the argument involves an amendment made to the standard underthe Walsh-Healey Act, 41 U.S.C. ?? 35?45, not any alleged impropriety in themanner in which the standard was promulgated under the Occupational Safety andHealth Act. We held that the validity of an OSHA standard cannot be challengedon the ground that the established federal standard from which it was derivedwas invalidly amended before its adoption under the Occupational Safety and HealthAct. Accordingly, the current version of the standard, including the userequirement, is fully enforceable under the Occupational Safety and Health Act.??????????? TheCommission further rejects P & W?s argument that the standard isunenforceable because safety shoes for women do not meet the requirements ofsection 1910.136. Pratt & Whitney was cited for failing to comply withsection 1910.132(a) by not requiring its employees to wear safety shoes. P& W was not cited for failing to comply with section 1910.136 by notrequiring women employees to wear safety shoes meeting the specifications ofANSI Z41.1?1967, as referred to in section 1910.136. P & W safety engineer,James A. Martin, testified that safety-toe shoes for women were sold at thisvery plant.??????????? P& W?s final argument on this issue is that the Secretary failed to proveits employees were exposed to hazards warranting the use of safety shoes. TheCommission rejects this argument as well. The hazards involved parts andequipment of various sizes and weights being dropped on the feet of employees.The hazards also included mechanized equipment that could run over the feet ofemployees. These hazards have been found to require protection to the feet ofemployees by the use of safety shoes in numerous cases. See United Parcel Service, Inc. v. OSHRC, 577 F.2d 743 (6th Cir.1978); Arkansas-Best Freight Systems,Inc. v. OSHRC, 529 F.2d 649 (8th Cir. 1976); Yellow Freight System, Inc., 75 OSAHRC 50\/C9, 2 BNA OSHC 1690,1974?75 CCH OSHD ?19,439 (No. 2658, 1975), aff?d,530 F.2d 1095 (D.C. Cir. 1976). Further, the P & W job description formscontained in exhibit C?2 indicate P & W realizes that its employees workingas maintenance personnel, material handlers, machine operators, benchassemblers, and inspectors are exposed to foot injuries. All such employees arerequired to wear an appropriate type of protective footwear. See United Parcel Service of Ohio, Inc.,76 OSAHRC 72\/E11, 7 BNA OSHC 1685, 1979 CCH OSHD ?23,837 (No. 76?3621, 1979).??????????? TheCommission therefore agrees with the judge that the evidence demonstratessubitems (c), (d), and (f) of item 23 should be affirmed.??????????? Item32?29 C.F.R. ? 1910.176(b)[17]??????????? Subitems(a) and (b). The Secretary alleges that Pratt & Whitney created a hazard byits material storage practices in the Arace Building and in a chemical storagecrib of the main plant. With respect to the Arace Building, compliance officerStanton testified that he observed storage bins with boxes placed in the binsthat were about 10 feet above the floor and that protruded over the edges ofthe bins. Stanton also observed a box that was stored on top of a rafter thatwas about 15 feet above the plant floor. Exhibit C?75 shows the boxes thatextended over the edge of the bins; exhibit C?76 shows the box on the rafter.??????????? Thecompliance officer also testified that there were three pallets of metalbarrels stacked on top of each other in a chemical storage area of the main plant.Because some of the metal barrels had been removed from the bottom two pallets,the compliance officer believed that mechanical handling equipment used in thearea could hit the pallets and topple the stored barrels. Exhibit C?77 showsthe stacked pallets and barrels. Judge Furcolo ruled that the above testimonyand photographic exhibits established P & W?s failure to comply with thecited standard.??????????? P& W argues that the Secretary failed to establish that the stored materialsconstituted a hazard. P & W argues with respect to subitem (a) that thecompliance officer did not establish what, if anything, was inside the storedboxes, and that empty boxes do not constitute a hazard. With respect to subitem(b), P & W argues that the Secretary did not prove the stacked pallets wereunstable. It argues that the compliance officer testified the containers on thepallets might fall if a forklift truck hit them, but did not testify that thecontainers could fall by themselves.??????????? TheCommission agrees with the judge that the evidence referred to above issufficient to find that P & W failed to comply with the cited standard.Absent any evidence to the contrary, we will presume that boxes stored in binsare not empty. Also, heavy cardboard boxes of the size pictured in theexhibits, even if empty, could be hazardous to employees. With respect to the metalbarrels, the Secretary need not prove that the barrels could fall off bythemselves. Proof that the barrels were on pallets in areas used by mechanicalhandling equipment is sufficient. Subitems 32(a) and (b) are affirmed.??????????? Item35?29 C.F.R. ? 1910.178(m)(12)(i)[18]??????????? TheSecretary, in his citation, alleged that P & W failed to equip a safetyplatform on a forklift truck with a 42-inch high standard railing. In hiscomplaint, however, the Secretary attempted to amend the citation to allegethat P & W had violated that standard by failing ?to provide a safetyplatform secured to the lifting carriage and\/or forks.? During the hearing, theSecretary?s evidence was directed at establishing the initial description ofthe violation as it appeared in the citation, that is, the lack of a standard42-inch high railing. At one point in the hearing, compliance officer Terrouxeven admitted that the platform was ?secured to the forklift truck.? Otherwise,Terroux testified that the railing was only about 28 inches high, and that theemployees working on the platform, which had been raised to a height of tenfeet by the forklift, could fall over the low railing. P & W admitted thatthe top rail of the platform was not more than 28 inches high.??????????? Inhis brief to the judge, the Secretary moved to alternatively allegenoncompliance with section 1910.23(a)(2),[19] but argued that he hadestablished noncompliance under either standard. The Secretary stated, inbehalf of his amendment motion, that the issue of railing height was tried atthe hearing.??????????? Thejudge denied the Secretary?s motion to alternatively allege noncompliance withsection 1910.23(a)(2), but ruled that P & W failed to comply with section1910.178(m)(12)(i) in that ?Respondent did not controvert the evidence.???????????? Pratt& Whitney argues that this item should be vacated because the citedstandard does not impose any particular height requirement for the railing onits safety platform. P & W asserts that the Secretary, in effect,recognized that the standard was inapplicable by seeking to amend the citationto allege noncompliance with section 1910.23(a)(2). Pratt & Whitney alsoargues that section 1910.23(e)(1)[20] is also inapplicable toplatforms on powered industrial trucks because powered industrial trucks aregoverned elsewhere in the standards, at section 1910.178. P & W furthercontends that the cited standard is inapplicable because the platform here didnot have its own elevatable controls and was elevatable only by controls on thevehicle.??????????? CommissionersCleary and Cottine reverse the judge?s action in finding that Pratt &Whitney failed to comply with section 1910.178(m)(12)(i). They conclude thatthis standard is inapplicable because it applies only to trucks havingelevatable controls, and the truck in question did not have such controls.Further, they would not amend to section 1910.23(a)(2), as the Secretaryrequests, because that section is also inapplicable. It applies to ladderwayplatforms, and P & W?s platform was not a ladderway platform.??????????? CommissionersCleary and Cottine find, however, that noncompliance with the standard atsection 1910.23(c)(1)[21] was tried by the impliedconsent of the parties. That standard requires a standard railing on allplatforms that are four feet or higher above the adjacent ground level. Astandard railing has a height of 42 inches.[22] The parties clearly triedthe issue of the height of the railing, as both parties introduced evidencerelevant to that issue. See D. Fortunato,Inc., 79 OSAHRC 69\/B12, 7 BNA OSHC 1643, 1979 CCH OSHD ?23,781 (No.76?3103, 1979); Kaiser Aluminum andChemical Corp., 76 OSAHRC 52\/C10, 4 BNA OSHC 1162, 1975?76 CCH OSHD ?20,675(No. 3685, 1976), aff?d after show causeorder, 77 OSAHRC 39\/E8, 5 BNA OSHC 1180, 1977?78 CCH OSHD ?21, 692 (1977).The evidence establishes that the platform?s railing was 28 inches high and,accordingly, that P & W failed to comply with section 1910.23(c)(1).Because P & W participated fully in trying the issue of the railing height,it would not have tried the case any differently if it had originally beencited under section 1910.23(c)(1) and would not, therefore, be prejudiced by anamendment to that standard. Consequently, Commissioners Cleary and Cottineamend the citation, pursuant to Rule 15(b) of the Federal Rules of CivilProcedure, to allege that Pratt & Whitney failed to comply with section1910.23(c)(1). They affirm item 35 as so amended.??????????? ActingChairman Barnako agrees that both the cited standard, section1910.178(m)(12)(i), and section 1910.23(a)(2), to which the Secretary sought toamend, are inapplicable. He would not amend to section 1910.23(c)(1) becausePratt & Whitney neither expressly nor impliedly consented to the amendment.Section 1910.23(c)(1) was never mentioned at or prior to the hearing, and theparties plainly did not believe that they were trying a violation of thatstandard. See McLean-Behm Steel Erectors,inc., 78 OSAHRC 93\/A9, 6 BNA OSHC 2081, 1978 CCH OSHD ?23,139 (No. 15582,1978) (dissenting opinion), rev?d,608 F.2d 580 (5th Cir. 1979). Although P & W questioned the complianceofficer at the hearing on the railing height, it did so in conjunction withtrial of the cited standard, section 1910.178(m)(12)(i), and P & W objectedto the evidence on the basis that the conditions were not covered by the citedstandard. This does not constitute consent to litigate noncompliance with anotherstandard. See D. Fortunato, Inc., supra(concurring and dissenting opinion); CarlstromBrothers Construction, 78 OSAHRC 96\/A2, 6 BNA OSHC 2101, 1978 CCH OSHD?23,155 (No. 13502, 1978) (dissenting opinion). Accordingly, Acting ChairmanBarnako would vacate item 35.??????????? Item40?29 C.F.R. ? 1910.212(a)(1)[23]??????????? TheSecretary alleges that Pratt & Whitney failed to guard numerous machineslocated throughout the plant. the judge affirmed 22 of the subitems in citationitem 40, and P & W contests his action in doing so.??????????? Subitems(a), (b), (c), (p), (q), (t), (u), (x), and (z). Compliance officers Terrouxand Stanton testified that thirteen lathes in various areas of the plant hadunguarded rotating chucks[24] containing protrusions orindentations that could catch the hands, hair, or clothing of employees. Partt& Whitney admitted that the lathes were not equipped with physical barrierguards. Judge Furcolo found the lathe chucks constituted rotating parts, withinthe meaning of section 1910.212(a)(1), that had not been guarded. He statedthat the testimony and photographic exhibits support a conclusion that theprotrusions and indentations of a rotating chuck could easily catch theclothing, hair, or hands of employees. Accordingly, the judge affirmed the ninesubitems.??????????? Onreview, Pratt & Whitney argues that lathe chucks need not be guardedbecause the NASI Bll committee, which was charged with setting standards formetal working machine tools, never reached a consensus on whether chucks shouldbe guarded. It cites the testimony of one of its witnesses, a certified safetyprofessional, to this effect. P & W also points out that the same anysafer. P & W further argues that do not make working around the lathes anysafer. P. & W. further argues that the Secretary did not introduce anyevidence of injuries suffered from contact with rotating chucks at this plant.??????????? Wereject Pratt & Whitney?s argument that section 1910.212(a)(1) does notrequire guarding of lathe chucks because an ANSI committee purportedly did notreach a consensus as to whether such chucks should be guarded. Section 1910.212was not derived from an ANSI standard but from an established federal standard.See generally Rockwell InternationalCorp., 80 OSAHRC ___, 9 BNA OSHC 1092, 1980 CCH OSHD ?24,979 (No. 12470,1980). By its terms, section 1910.212 applies to all machines. Thus, on itsface, the standard applies to lathes and requires the guarding of lathe chucksto the extent that such chucks present hazards to employees. Thisinterpretation is not affected by the fact that a private organization has notdecided whether it is necessary to guard lathe chucks. See Diebold, Inc., 76 OSAHRC 3\/E5, 3 BNA OSHC 1897, 1899 n. 6,1975?76 CCH OSHD ? 20,333 at p. 24,249 n. 6 (No. 6767, 1976), rev?d on other grounds, 585 F.2d 1327(6th Cir. 1978).??????????? Weconclude that the cited standard applies to P & W?s lathes and that theunguarded chucks presented a hazard to P & W?s employees. Acting ChairmanBarnako and Commissioner Cleary conclude, however, that the violation is deminimis. This case is indistinguishable from Southwestern Electric Power Co., 80 OSAHRC ___, 8 BNA OSHC 1974,1980 CCH OSHD ?24,732 (No. 77?3391, 1980), in which the Commission found thatthe hazard presented by unguarded lathe chucks was too trifling to warrant theimposition of an abatement requirement or the assessment of a penalty.Commissioner Cottine would find that noncompliance by P & W was other thanserious rather than de minimis for the reasons stated in his dissenting opinionin Southwestern Electric Power Co., supra.??????????? Subitems(f), (h), (i), (j), (k), (m), (n), (o),. Compliance officer Cavalieri testifiedthat he observed unguarded shafts[25] capable of rotating athigh rates of speed on machines at the eight cited locations. He also testifiedthat, although most of the shafts were located in the back of the machineswhere only maintenance personnel would be likely to have access to them, someof the shafts were adjacent to walkways. The shafts were not guarded by anybarriers to prevent clothing or hands from being caught by rotating shafts.Cavalieri testified that a U-shaped metal barrier should be placed over therotating shafts to protect employees from touching the shafts when the shaftsare rotating. Judge Furcolo found that employees were exposed to the hazard ofinjury from the improperly guarded rotating parts and affirmed the eightsubitems.??????????? Pratt& Whitney argues that employee exposure to the unguarded shafts wasunlikely, that the foreseeability of injury was remote in that there was notestimony of past injuries, and that its witness testified there was noconsensus reached in the ANSI B?11 committee on whether rotating shaftsrequired barrier-type guards.??????????? TheCommission finds that maintenance employees had access to the revolving shafts,which are ?rotating parts? under the standard, and that the shafts should havebeen guarded. We reject Pratt & Whitney?s argument that the standard doesnot apply to rotating shafts for the same reason we rejected its similarargument made with respect to the lathe chucks. We also reject the argumentthat no hazard was proven because there was no testimony that the unguardedshafts had injured employees. Evidence of past injuries is not necessary toprove a hazard. See A. E. Burgess LeatherCo., 77 OSAHRC 25\/D6, 5 BNA OSHC 1096, 1977?78 CCH OSHD ?21,573 (No. 12501,1977), aff?d, 576 F.2d 948 (1st Cir.1978). Subitems (f), (h), (i), (j), (k), (m), (n), and (o) are affirmed.??????????? Subitem(1). The Secretary alleges that the oblong-shaped metal ram on a Browne &Sharpe grinder near column P?55 in department 2550 extended into the walkwayand was not guarded against accidental contact. Compliance officer Cavalieritestified that the ram proceeded back and forth on a horizontal plane whileconveying materials to and from the grinding wheel and reached a point about 2?feet from the machine when fully extended in an outward direction. He testifiedthat the ram was not equipped with a barrier to protect employees walkingbetween the grinder and other machines.??????????? Unionrepresentative Joseph testified that the unguarded ram would have knocked himinto some stacked boxes or barrels stored near the grinder if he had walkedpast the machine in a particular direction Instead, however, he was warned notto proceed further in that direction by a foreman. Joseph stated that he couldhave been hurt if he had been pushed against the boxes and could have beencrushed if he had been knocked against more solid objects. He also testifiedthat both employees working in the area and maintenance employees could beexposed to these hazards. The judge found that employees of P & W wereexposed to the improperly guarded ram and affirmed the subitem.??????????? Pratt& Whitney argues that its employees were not exposed to the unguarded ramand that if they were exposed, there was not a hazard. We conclude that therecord supports the judge?s finding that the ram exposed P & W?s employeesto a hazard and affirm this subitem.??????????? Subitem(r). Compliance officer Stanton testified that a machine with a set ofelectrically-run rollers, through which an employee hand-fed a belt, was notequipped with a barrier guard to prevent the machine operator?s hands fromentering the roller area. The machine is pictured in exhibit C?82 and waslocated in department 2033. Judge Furcolo, finding that the evidence ofnoncompliance was uncontradicted, affirmed subitem (r).??????????? Pratt& Whitney argues there was a failure of proof that a hazard existed, sincethe compliance officer never saw the machine in operation and did not know howclose the operator?s hands normally got to the rollers. We reject P & W?sargument because the compliance officer testified that the operatordemonstrated the machine?s operation to the CO. The evidence supports thejudge?s finding of noncompliance and we affirm subitem (r).??????????? Subitem(v). Compliance officer Stanton testified that there was not apoint-of-operation guard on pneumatic press 175834 in department 2986. Themachine is similar in operation to a punch press and was used to stamp numberson metal parts. Stanton testified that the part to be stamped was hand-fed intoan opening at the front of the machine. Foot pedals were then used to bring thepress down and punch a number into the part. Because the point-of-operation wasnot guarded, the CO testified, a machine operator?s hand or fingers could getcrushed if they were in the point-of-operation when the foot pedals werepushed. Exhibit C?83 shows the pneumatic press.??????????? Thejudge found that the evidence was not contradicted. He affirmed subitem (v)because P & W?s failure to guard the press subjected those who operated itto a hazard.??????????? Pratt& Whitney argues that the compliance officer failed to establish the degreeor amount of access an operator had to the point-of-operation. P & W alsostates that the Commission in CollatorCorp., 78 OSAHRC 32\/A2, 3 BNA OSHC 2041, 1975?76 CCH OSHD ?20,446 (No.2004, 1976), vacated a section 1910.212(a)(1) allegation where the access distancewas only ? inch or less.??????????? Thepreponderant evidence supports the finding of noncompliance. We particularlyrely on the compliance officer?s testimony that the metal parts put into themachine for stamping were more than ?-inch high, and that an operator could puthis hand into the point-of-operation and activate the machine without a metalpart being in the machine. See AmericanPackage Co., 80 OSAHRC ___, 8 BNA OSHC 2167, 1980 CCH OSHD ?24,871 (No.76?2349, 1980). We affirm subitem (v).??????????? Subitems(bb) and (cc). Compliance officer Stanton testified that the unused portions ofthe blades of two different hand-fed band saws were not guarded. One was avertical DoAll saw located in department 2038; the other was a horizontal sawin department 2032. Although the compliance officer testified that the portionof each blade used for cutting did not need guarding because the material beingcut served to guard these portions, he also testified that portions of theblades not being used for cutting were similarly exposed on each saw and didneed guarding. The hazard was that a machine operator could have his fingers ora hand cut off from contact with the unguarded portions of the saws not beingused for cutting. Exhibits C?80 and C?81 show the vertical and horizontal saws,respectively, and the unguarded, exposed blade edges that were not used forcutting.??????????? JudgeFurcolo found that the uncontradicted evidence established that operators ofboth the unguarded saws were exposed to a hazard.??????????? Pratt& Witney argues that the Secretary failed to prove noncompliance with thestandard because the CO did not see either saw in operation. P & W alsoargues that the length of the used portion of the horizontal saw blade variedwith the width of the material being cut and that if the piece being cutextended over the full width of the exposed blade, there would be no unusedportion of the blade.??????????? Weaffirm subitems (bb) and (cc). Exhibit C?80, which pictures the vertical saw,clearly shows the unguarded, unused portion of the saw blade above that portionof the blade used for cutting. Although the CO did not testify that he viewedthe saw in operation, the saw was available for use and constituted a hazard toemployees. Palmer Christiansen Co.,76 OSAHRC 39\/D10, 4 BNA OSHC 1020, 1975?76 CCH OSHD ?20,517 (No. 3108, 1976).Exhibit C?81 shows an unguarded portion of horizontal saw blade to the left ofadjustable guides between which material is fed for cutting. The complianceofficer testified that the machine operator had told him he operated themachine in that condition. That employee was, therefore, exposed to the hazardcreated by the unguarded, unused portion of the saw blade.??????????? Item54?29 C.F.R. ? 1910.252(a)(2)(iv)(c)[26]??????????? Subitem(b). The Secretary alleges Pratt & Whitney filed to store oxygen cylindersseparate from fuel gas cylinders. Compliance officer Stanton testified thattanks of oxygen, acetylene, and flammable propane were stored together in thecorner of a refrigerator crib. Regulators and hoses were attached to the tanks.Dust had accumulated on the tops of the tanks and on the regulators. Stantonalso testified that the department head told him the tanks had not been used in?quite awhile?.??????????? P& W representative Dupre recognized that storing oxygen and acetylenetogether was contrary to the regulations and could be hazardous. Exhibit C?94shows the different tanks tied together in a corner of the refrigerator crib.??????????? JudgeFurcolo affirmed this subitem. He ruled that the presence of dust on thecylinders, together with the statement of the department head that thecylinders had not been used for ?quite awhile,? established that the oxygencylinders were in storage. Since the oxygen cylinders were not separated by adistance of at least twenty feet from the other fuel gas cylinders, the judgefound that noncompliance with the cited standard was proven.??????????? Pratt& Whitney contends that the cylinders were not in storage and that thepresence of the hoses and regulators probably meant that the tanks were aboutto be used or had just been used. P & W argues that the dust on theregulators did not indicate when the cylinders were last used because thecylinders could have been used without touching the regulators.??????????? Weagree with Judge Furcolo and affirm subitem 54(b). While P & W?s representativedid recognize the hazard of storing oxygen with flammable gases, he could onlyspeculate about when the cylinders had been used or were to be used. The factthat the cylinders were tied together in a corner of the crib gives rise to aninference that the cylinders were being stored. Further, the department head?sstatement that the cylinders had not been used in ?quite awhile? indicates thatthe cylinders were not intended to be available for immediate use. Cf. Grossman Steel & Aluminum Corp.,78 OSAHRC 85\/A2, 6 BNA OSHC 2020, 1978 CCH OSHD ?23,097 (No. 76?2834, 1978)(gas tanks that are located in a position where they are used intermittentlyare not in storage).??????????? Item61?29 C.F.R. ? 1910.309(a)[27]??????????? TheSecretary alleges that Pratt & Whitney failed to guard against accidentalcontact the live parts of certain electrical equipment operating at 50 volts ormore. Guarding is required by Article 110?17[28] of the NationalElectrical Code, NFPA 70?1971, ANSI C1?1971 (Rev. of C1?1968). This item containsnineteen subitems.??????????? Subitems(a) and (e). Both subitems concern electrical outlet boxes with missing?knockout? caps. Knockouts are coin-shaped pieces of metal that cover thecircular holes through which wires or cords are fed into outlet boxes. Becausethe knockout caps were missing, employees had access to the live parts insidethe outlets. Compliance officer Terroux, testifying about subitem (a), saidthat exhibit C?144 shows a hoist pendant control with three knockouts missingfrom its flush mount receptacle. The receptacle contained the on\/off switch forcontrol of the hoist. The CO also testified that the switch was located atabout eye level and contained a bare terminal wire visible through the centerknockout. The voltage at the switch exceeded 100 volts.??????????? Unionrepresentative Gilbert testified that he also observed the missing knockout onthe switch and the exposed live wire located about one inch into the switchbox. He also testified that a person operating a hoist must hold the hoist withone hand and the pendant box with the other. Because the operator?s eyes arefocused on the material he is attaching to the hoist, Gilbert testified, theoperator must reach for the dangling pendant box with his free hand and operateits switch or buttons by feel.??????????? Complianceofficer Stanton, testifying about subitem (e), said that exhibit C?97 shows ahoist with a metal box switch pendant that had one knockout missing from itsbase and bare wires in the box. The voltage exceeded 50 volts. He alsotestified that it would be easy for anyone grasping the box to have his fingerpass two inches through the knockout hole and touch the live wires inside thebox.??????????? JudgeFurcolo affirmed subitems (a) and (e). He found that the knockouts weremissing, that live parts were exposed within the outlet boxes, and that thevoltages in the boxes exceeded 50 volts. He also emphasized that because theboxes were pendant and not fixed any employee operating them could, withoutdifficulty, accidentally put a finger into the knockout holes and get shocked.??????????? Pratt& Whitney argues that it cannot be penalized for intentional conduct andthat an employee would have to intentionally insert a finger into the knockoutholes in order to get shocked.??????????? Weaffirm subitems (a) and (e). The evidence supports the judge?s finding that anyemployee could accidentally put a finger into the empty knockout holes of theoutlet boxes and be shocked by the live parts within. The violation is notpredicated on possible deliberate misconduct by an employee but on P & W?sfailure to adequately guard live parts as required by the standard.??????????? Subitem(j). Compliance officer Hatcher testified that the 110-volt raceway[29] along the front side of atable near lathe number 292349 in department 2320 was broken. He testified thatthe break exposed bare terminal ends at an electrical outlet on the raceway. Healso testified that an employee could get shocked from contact with the bareterminal ends while plugging electrical tools into the outlet box unless theemployee was very careful. Exhibit C?125 shows the broken raceway and plug.??????????? P& W representative Cote testified that employees positioned themselvesright up against the table while working there with metal tools and equipment.He testified that the face plate belonging on the bench outlet was missing, butthat all the involved wires were insulated and that an employee would have towork ?real hard? to touch exposed terminal ends.??????????? JudgeFurcolo, finding that the CO?s testimony about the presence of bare terminalends was not contradicted and finding that accidental contact with the exposedterminal ends was probable, affirmed subitem (j).??????????? Pratt& Whitney argues for vacation on the basis that the CO?s testimony wascontradicted by Cote?s.??????????? Weagree with the judge that the evidence establishes noncompliance with the citedstandard. Cote did not contradict the CO?s testimony about the presence of bareterminal ends. Indeed, Cote?s testimony tends to indicate that employees wereexposed to a shock hazard because they worked right up against the table withthe broken raceway. Accordingly, subitem (j) is affirmed.??????????? Subitem(m). Compliance officer Hatcher testified that he observed wires, the ends ofwhich were not completely taped, in an open junction box of 220 volts. The box,pictured in exhibit C?127, was about seven feet above the floor and nearmachine 501051 in department 2963. The CO also testified that a person couldreach up to the box, inadvertently touch the wires, and receive a shock. Pratt& Whitney admits that two electrical boxes on machine 501051 were notfitted with covers. P & W representative Cote admitted that the junctionbox shown in C?127 was not covered, but stated that there were no exposed liveparts in the box.??????????? JudgeFurcolo noted that Cote?s testimony and that of the CO appeared to conflict. Hefound, however, that Cote never specifically contradicted the CO?s testimonyabout the wires not being completely taped. The judge, therefore, affirmedsubitem (m).??????????? Pratt& Whitney argues that the CO?s testimony about being able to see bare wiresin a junction box seven or eight feet above the floor was incredible. P & Walso argues that even if there were live parts in the junction box, the partswould not expose employees to injury because the box was located so high abovethe floor.??????????? ActingChairman Barnako and Commissioner Cleary affirm subitem (m). They conclude thatthe judge properly based his finding of a violation on the fact that Cote?stestimony had not contradicted the more specific testimony of the CO that theends of the wires were not completely taped. They also find that the judgeproperly accepted the CO?s opinion testimony that an employee reaching a handover his head could get shocked upon contact with the partially bare wires inthe box. Additionally, Article 110?17(a)(4) of the NEC, note 28 supra, statesthat the live parts of electrical equipment are guarded if they are elevated atleast eight feet above the floor. Judge Furcolo credited the CO?s testimony herethat the junction box was only about seven feet above the floor.??????????? CommissionerCottine would vacate subitem (m). He finds that the testimony offered byHatcher and Cote is in conflict and concludes that there is no basis in therecord to review the judge?s implied credibility finding in favor of COHatcher. See Asplundh Tree Expert Co.,78 OSAHRC 109\/A2, 7 BNA OSHC 2074, 1980 CCH OSHD ?24,147 (No. 16162, 1979). Hewould accordingly conclude that the Secretary has not proven the violation by apreponderance of the evidence.??????????? Subitem(p). Compliance officer Hatcher testified that there was a broken live wirewith a switch attached in department 2963 at machine 2391. The wire carried 220volts. Exhibits C?128 and C?129 show the wire. Pratt & Whitney representativeCote testified that although the outer jacket was pulled away from the cordgrip, there was not any section of bare wire exposed because the wires werecovered with an inner layer of insulation. Judge Furcolo affirmed the subitem.He found that the aforementioned testimony and exhibits established that thewire was broken and exposed.??????????? Pratt& Whitney argues for vacation on the basis that Cote was a more crediblewitness than the CO.??????????? Becausethe Commission is unable to discern any broken live wire in the aforementionedexhibits, we do not agree with the judge that the exhibits corroborate thecompliance officer?s testimony. Acting Chairman Barnako and Commissioner Clearywould affirm this subitem, however, because the judge impliedly credited thetestimony of the CO over that of Cote in finding the violation, and there is nobasis in the record to reject that finding. SeeWilliams Enterprises, Inc., 78 OSAHRC 80\/D12, 6 BNA OSHC 1986, 1978 CCHOSHD ? 23,064 (No. 76?1801, 1978). Commissioner Cottine would vacate subitem(p) because the judge?s decision contains no basis for review of the judge?simplied credibility finding, and the evidence therefore does not preponderatein favor of finding a violation. SeeAsplundh Tree Expert Co., supra.??????????? Subitems(r) and (s). Compliance officer Cavalieri testified with respect to subitem (r)that the interlock handle had broken off the panel box at broaching machine506866 on column No. p?41. The hazard was that more than 400 volts of power wassupplied to the machine and that the power could not be turned off without thehandle. Union representative Joseph corroborated the CO?s testimony. Joseph andunion representative Gilbert also stated that employees would routinely go intoelectrical panel boxes for a variety of unauthorized reasons. The employeeshad, however, been told not to go into any electrical boxes shortly after afatality that occurred on April 11, 1975, when an employee who opened anelectrical box was electrocuted.??????????? Withrespect to subitem (s), the CO testified that the power could not be turned offmachine 101182 because the interlock handle from the panel box there wasmissing as well. P & W admitted that the handles were broken or missingfrom the electrical panels of machines 506866 and 101182. Judge Furcoloaffirmed subitems (r) and (s), finding that each panel box had a broken ormissing part and that the boxes were not guarded against accidental contact.??????????? Pratt& Whitney advances several arguments in behalf of its position thatsubitems (r) and (s) should be vacated. P & W states that these argumentsare also applicable to the panel boxes listed in the citation as subitems (w),(x), (y), (z), (aa), (bb), (cc), (dd), (ee), (gg), (ii) and (jj) of item 61 anddiscussed below. P & W states first that the panel boxes are electricaldistribution boxes associated with metalworking machine tools and that hestandards governing metalworking machine tools[30] are found in a standardpublished by the National Fire Protection Association, NFPA No. 79, not in theNational Electrical Code (?NEC?). Chapter 160 of NFPA No. 79, entitled ?ControlEnclosures and Compartments,? is directed at interlocks and reads:16?13. Interlocks. All door(s) whichpermit access to live parts operating at 50 volts or more shall be sointerlocked that the door(s) cannot be opened unless all power is disconnected.??????????? Note?Meansmay be provided for qualified persons to gain access without removing power, ifthe interlocking is reactivated automatically when the door(s) is closed.\u00a0??????????? Pratt& Whitney states that ?(s)ince ? 1910.309(a) adopts only certain portionsof the National Electric Code and none of NFPA No. 79, it is apparent that theRespondent cannot be found to be in violation of ? 1910.309(a) for allegeddeficiencies with respect to electrical panel boxes on metal working machinetools.???????????? Pratt& Whitney?s second argument is that even if Chapter 160?13 had been adoptedby section 1910.309(a), there still would not be a violation here becauseneither NFPA No. 79 nor the NEC require electrical panel boxes to be bolted orlocked. Instead, P & W argues, the basic protective device specified is aninterlock which shuts off power before a panel box door can be opened but alsopermits power to be reactivated by a qualified person when the door is opened.P & W contends that all the cited panel boxes that contained relays wereequipped with the interlocks specified in Chapter 160?13, NFPA No. 79.??????????? Thethird argument made by P & W is that even if Article 110?17 of the NEC isapplicable, the Secretary did not prove employee exposure. With respect tosubitem (r), P & W asserts the compliance officer testified that he did notdetermine whether the door to the panel box cited in that subitem could beopened without a handle. With respect to the panel box in subitem (s), P &W alleges the CO testified that it would take a special instrument to open thedoor to that box. Since it would have taken an intentional rather than anaccidental act to open either of these two doors and gain access to the liveparts within, P & W argues, there can be no violation.??????????? TheCommission rejects the argument that P & W cannot be found in noncompliancewith section 1910.309(a) because a more specific standard, NFPA No. 79, isapplicable to P & W?s panel boxes. The National Fire Protection Associationis a private organization, and, absent promulgation by the Secretary pursuantto the procedures in Section 6 of the Act, 29 U.S.C. ?\u00a0655, an NFPAstandard cannot preempt the application of a duly promulgated OSHA standard. Diebold, Inc., supra.??????????? CommissionersCleary and Cottine agree with Pratt & Whitney, however, that Chapter 160?13of NFPA No. 79 provides appropriate criteria for determining whether the panelboxes complied with the cited standard. Article 110?17(a) of the NEC[31] permits guarding of liveelectrical parts by approved cabinets or other forms of approved enclosures. InArticle 100 of the NEC, the word ?approved? is defined as ?(a)cceptable to theauthority enforcing this Code.? This definition, read alone, gives littleguidance as to the requirements panel boxes must meet to be approved. TheCommission has held, however, that even if the words of a standard are broad,the standard ?can acquire meaning when read together with other standards orcodes and industry custom.? Gold Kist,Inc., 79 OSAHRC 93\/C8, 7 BNA OSHC 1855, 1859?60, 1979 CCH OSHD ?23,998 (No.76?2049, 1979).??????????? AsPratt & Whitney points out, a private standard, NFPA No. 79, containscriteria for preventing accidental contact with the live parts in electricalpanel boxes. Commissioners Cleary and Cottine conclude that the criteria setforth in that standard are appropriately applied under Article 110?17 of theNEC. The NFPA standard requires that the door of a panel box be interlocked sothat the door cannot be opened unless the power is disconnected. It alsocontains a provision for qualified persons to gain access without removing thepower. This latter provision, however, is consistent with Article 110?17 of theNCE, which generally contemplates that live parts must be accessible toqualified persons. Commissioners Cleary and Cottine therefore conclude that apanel box, to comply with Article 110?17 of the NEC, must have a properlyfunctioning interlock that shuts off power to the exposed parts inside the boxwhen the door is opened. The box may also contain a means whereby a qualifiedperson can restore the power when the door is open as long as the interlock isreactivated automatically when the door is closed.??????????? ActingChairman Barnako agrees that a standard is not necessarily unenforceable simplybecause it is broadly worded. Gold Kist,Inc., supra (dissenting opinion). However, a standard must provide someguidance as to its proper interpretation. In this case, an electrical panel boxmeets the requirement of the cited standard only if it is ?acceptable to theauthority enforcing (the standard).? On its face, this gives unbridleddiscretion to the Secretary or the Commission to determine what characteristicspanel boxes must have in order to comply. Acting Chairman Barnako does notagree with his colleagues that this problem can be cured by referring to otherstandards to develop appropriate criteria. While such a course is appropriatewhen a standard provides some guidance as to its requirements, a standard thatprovides no guidance at all cannot, in Acting Chairman Barnako?s view, be readto contain objective criteria simply because other standards dealing with the samesubject exist. The Secretary has the power to promulgate standards under theAct, and Acting Chairman Barnako would not permit him to, in effect, enforceunpromulgated private standards through citations alleging violations ofstandards that themselves provide no notice of the precautions they require.Accordingly, Acting Chairman Barnako would not attempt to establish thecriteria that electrical panel boxes or other enclosures must meet in order tobe ?approved.? Acting Chairman Barnako would vacate all the subitems withinitem 61 that involve live electrical parts protected within a panel box orother enclosure. He would not inquire whether the boxes or enclosures wereinterlocked in some manner.??????????? CommissionersCleary and Cottine would affirm subitems (r) and (s). The handles that normallywere used to open the panel boxes were broken, thus permitting the boxes to beopened without activating the interlocks that would shut off the power. Theboxes therefore did not have properly functioning interlocks. CommissionersCleary and Cottine also reject both P & W?s argument that there was noemployee exposure to the live parts and its related argument that it would takean intentional act to open the doors of the boxes. Gilbert?s testimonyestablishes that unqualified employees routinely entered panel boxes for avariety of unauthorized reasons, such as to store their lunches, clothing, ortools or to activate the reset buttons in the panel boxes.??????????? ActingChairman Barnako would vacate subitems (r) and (s) because the live parts wereguarded by their enclosure within panel boxes, and the standard cannot be readto require additional precautions for the reasons set forth above.??????????? Subitem(w). Compliance officer Terroux testified that one of the electrical control panelbox doors for a grinding machine in department 2318 was open. The panel box ispictured in exhibit C?156. Although the panel box was equipped with aninterlock device, the CO testified that there were still live parts within thebox with 440 volts running through them. At the same machine, the CO alsoobserved an energized junction box with its cover off and employees working inthe area. The junction box is depicted in exhibit C?157.??????????? Unionrepresentative Gilbert also testified that the above mentioned panel box doorwas open. He further testified that the Cincinnati grinding machine which thebox activated was running at the time. Gilbert stated that there were noindications, like tags or an electrical cart, that maintenance work was beingperformed on either the panel box shown in C?156 or the junction box shown inC?157, but that both boxes were open and energized. P & W representativeKershaw testified the electrical foreman told him that neither box wasenergized and that the grinding machine was not running because maintenancework was being performed on it.??????????? JudgeFurcolo affirmed subitem (w). He found that the Secretary?s testimony about thepanel box being open and the junction box being uncovered was uncontradicted.He also found that, since P & W had asserted the defense, it should have,but did not, produce its electrical foreman to testify that maintenance workwas being performed on the panel box. He then credited the testimony of theSecretary?s witnesses that the panel box was energized and the machine wasrunning.??????????? Prattand Whitney argues that there was a conflict in the testimony with respect towhether the power was on or off. It states that there was no dispute about thepanel box being equipped with an interlock device, and that therefore if thedoor was open and the power was off, only an intentional act by a qualifiedperson could have caused the parts in the box to have become energized. P &W further states that in such circumstances it was inconceivable for JudgeFurcolo to disbelieve Kershaw?s testimony that qualified electricians wereworking on the box.??????????? Weaffirm subitem (w). As the judge indicates, there was no dispute about thepanel box door being open and the junction box cover being off. But whereas P& W witness Kershaw only introduced hearsay evidence about the panel boxnot being energized, the CO?s testimony about the box being energized wascorroborated by the union representative?s testimony to the same effect.Further, both of the Secretary?s witnesses testified that there was no one inthe area working on the panel box. One of those witnesses, the unionrepresentative, also testified there were no indications that an electricianwas working on the box.??????????? Subitem(x). Compliance officer Terroux testified that in department 2243 he observedthe panel box to machine 175390 shown in exhibit C?158. The box was not locked,was not equipped with an interlock system, and had live connections inside itof over 100 volts. Judge Furcolo, finding that the CO?s testimony wasessentially uncontroverted, affirmed the subitem.??????????? Pratt& Whitney argues that the evidence does not show exposure of employees toaccidental contact with live parts because the box did not contain any overloadrelay switches, and machine operators only entered boxes with overload relayswitches.??????????? CommissionersCleary and Cottine affirm subitem (x) because the record establishes thatemployees and access to the unlocked, energized panel box which was notequipped with an interlock. Acting Chairman Barnako would vacate because thelive electrical parts were enclosed in the panel box and he would not base theviolation on the failure of the panel box to be ?approved.???????????? Subitems(y) and (z). Compliance officer Hatcher testified that in department 2963 heobserved the two panel boxes pictured in C?131, No. 501074, and C?132, No.101246. The boxes were not locked and the interlock system on one of them wasnot working. The boxes each carried 440 volts.??????????? Unionrepresentative DeRoy testified that the panel boxes were unlocked and could beopened by the turn of a handle. He also testified that the boxes and separatepower handles that remained in the ?On? position after the doors were opened. P& W representative Cote testified that the control box pictured in C?131was equipped with an interlocking device and that, therefore, when the panelbox was open there were no exposed live parts. Cote also testified that theinterlock engaged a switch inside the box and that the power was cut off fromall points below the switch in the box. He further testified that even if thebox door was open employees could not have gotten shocked from contact with thebus bars above the switch because the bus bars should have been insulated.??????????? JudgeFurcolo affirmed subitems (y) and (z). He found that ?the interlock on each boxwas either not working or the box opened simply by turning the handle. . . .?He also found that each panel had live parts in excess of 50 volts and was notproperly guarded against accidental contact.??????????? Pratt& Whitney argues that its representative testified both boxes hadfunctioning interlocks and that his testimony was more credible than that ofthe Secretary?s witnesses.??????????? ActingChairman Barnako and Commissioner Cottine vacate subitems (y) and (z). ActingChairman Barnako points out that the live electrical parts were enclosed inpanel boxes and that consequently he would not base a violation on the boxesnot being ?approved.? Commissioner Cottine concludes that a violation was notproven. Although the judge made a credibility finding that the interlocks didnot work properly, the judge failed to explain the basis for his finding andCommissioner Cottine therefore does not accept the finding. See Asplundh Tree Expert Co., supra.Because panel boxes with properly functioning interlocks satisfy therequirements of the standard and because the record fails to establish that theinterlocks did not function properly, Commissioner Cottine determines that theSecretary failed to sustain his burden of proof.??????????? CommissionerCleary would affirm subitems (y) and (z). He notes that in finding that theinterlocks were not working properly, the judge impliedly credited thetestimony of Hatcher and DeRoy over that of Cote, and he would accept thejudge?s finding. Based on that finding, P & W failed to comply with theguarding requirements of Article 110?17 of the NEC because the boxes were notapproved.??????????? Subitems(aa), (bb), (cc) and (dd). Compliance officer Cavalieri testified that thepanel box to machine 506272 at column Q?37 was unlocked. The box, cited insubitem (aa) is pictured in exhibit C?118. Although the box was equipped with afunctioning interlock that cut off the power when the door was open, the COtestified that the power could be reactivated with the door open by maneuveringcertain parts within the box. The box was posted with a ?Danger, Keep Out?sign.??????????? TheCO testified that the panel box for machine 175772 in department 2551 was notlocked. The panel box is cited in subitem (bb). The CO also testified that thepanel box to machine 505978, cited by subitem (cc), was also unlocked. The boxwas at column N?33 and was equipped with an interlock; it is pictured inexhibit C?119 with a ?Danger, Keep Out? sign posted on it. The complianceofficer also testified that the panel box to machine 101869, cited in subitem(dd), was unlocked. The box had a functioning interlock and was located atcolumn S?37. It is pictured in exhibit C?120.??????????? Thejudge affirmed violations of subitems (aa), (bb), (cc) and (dd). He held thatthe CO?s testimony was uncontroverted and that the panel boxes were notproperly guarded against accidental contact.??????????? Pratt& Whitney argues that the boxes were equipped with interlocks and that,even though the CO was concerned about the power being reactivated with thedoors to the boxes open, Chapter 160?13 of NFPA No. 79 specifically permitsthat to be done.??????????? Wevacate subitems (aa), (bb), (cc), and (dd). As discussed above, CommissionersClearly and Cottine interpret Article 110?17 of the NEC to permit live parts tobe guarded by enclosure in a panel box equipped with an interlock which shutsoff the power to the exposed parts when the box is opened. The interlock systemof the box may also permit the parts to be reenergized by a qualified person whenthe box is open. The panel boxes cited in these subitems met theserequirements. Acting Chairman Barnako would vacate these subitems because thelive electrical parts were enclosed in panel boxes and thereby conformed to therequirements of Article 110?17.??????????? Subitems(ee) and (gg). Compliance officer Stanton testified that the electrical controlbox to machine 506073 in department 2036 was not locked. The box, cited insubitem (ee), is pictured in exhibit C?99; it contained live parts carrying upto 400 volts. The box had a functioning interlock. Union representative Nealtestified that the panel box was open and contained metallic input wires thatwere not covered. He observed the CO test the box for live parts and heard thetesting equipment make a sound indicating that parts in the box were live. P& W representative DuPre testified that the panel box had an interlockswitch, and that there were no live parts below the switch on the incoming sidebut that it was difficult to tell if all the parts in the box were completelycovered.??????????? Thecompliance officer also testified that the panel box to machine 175941 indepartment 2034, cited in subitem (gg), was not locked. The box, pictured inexhibit C?100, carried 400 volts that would not be completely shut off by aninterlock. Union representative Neal also testified that the box was unlocked.Although the box was equipped with an interlock, Neal stated that live voltagewas still present in the box with its door open because the interlock had apart missing. Pratt & Whitney representative DuPre testified that he didnot know if the interlock switch on this box was working, and that during thecourse of the inspection he did observe one or two instances where interlocksdid not work.??????????? JudgeFurcolo affirmed subitems (ee) and (gg). He found that the Secretary?stestimony was essentially uncontroverted and that the boxes were not properlyguarded against accidental contact.??????????? P& W argues that the subitems should be vacated because the interlocks forboth boxes were operational.??????????? CommissionersCleary and Cottine affirm subitems (ee) and (gg). Although the panel boxes wereequipped with interlocks, the interlocks did not fully deenergize the boxes. P& W representative DuPre did not testify to the contrary. Acting ChairmanBarnako would vacate because the live parts were enclosed by the panel boxes.??????????? Subitems(ii) and (jj). Compliance officer Stanton testified that the panel box picturedin exhibit C?101 had provision for a lock but was not locked. This ?B? panel,cited in subitem (ii), was located in department 2431. A ?Danger, High Voltage?sign was posted on the door to the box. Although the box had an interlock, theinterlock did not fully deenergize the box. The CO was told by an electricianin the area that over 50 volts remained after the interlock was opened.??????????? Complianceofficer Stanton also testified that the panel box cited in subsection (jj) wassimilar to the other control boxes he observed. It was not locked and not fullydeenergized by its interlock. Live parts were around the box?s reset button andpressing the button would reactivate the machine controlled by the panel box.The citation alleged that the panel box was in department 2033 and that itcontrolled machine number 109860.??????????? P& W representative Dupre testified that the panel box cited in subitem (ii)was equipped with an interlock that shut the machine down when the panel boxdoor was opened. He also testified, however, that the box was unlocked andcould be reenergized with the door open.??????????? JudgeFurcolo, finding that the CO?s testimony was essentially uncontradicted as tosubitem (ii) and uncontradicted as to subitem (jj), affirmed both subitems. Heruled that the panel boxes had live parts in excess of fifty volts, were notproperly guarded, and were hazardous to employees.??????????? Pratt& Whitney argues that subitems (ii) and (jj) should be vacated becausethere is no provision either in the National Electric Code or NFPA No. 79 forthe doors of electrical boxes to be locked or bolted, and because the capacityto reenergize an electrical box is in conformity with Chapter 160?13 NFPA No.79 as cited above.??????????? CommissionersCleary and Cottine affirm subitems (ii) and (jj). The interlocks on the panelboxes did not function properly because they did not completely shut off thepower when the doors were opened. Accordingly, the panel boxes did not complywith Article 110?17 of the NEC. Acting Chairman Barnako would vacate becausethe live electrical parts were enclosed by the panel boxes.??????????? Penaltyfor Item 61??????????? TheSecretary had proposed an $80 penalty for item 61. Judge Furcolo assessed apenalty totaling $14,000 for this item. He assessed $1,000 each for the panelbox violations found in subitems (r), (s), (w), (x), (y), (z), (aa), (bb),(cc), (dd), (ee), (gg), (ii) and (jj). He did so after finding that Pratt &Whitney should have known about the practice of unqualified employees goinginto electrical panel boxes to start machines, reset controls, and storepersonal items. A union representative had continually protested against suchconditions from March 4, 1975 to April 11, 1975. On the latter date, asmentioned above, an unqualified employee was electrocuted after reaching intoan electrical control panel. Pratt & Whitney?s investigation report on theaccident concluded that the primary cause of the accident was unauthorizedentrance into the electrical panel. A secondary cause was the failure to post asign limiting access to the panel to authorized personnel.??????????? Thejudge assessed separate penalties for the different subitems of item 61 afterinterpreting the words ?each such violation? in sections 17 (b) and (c) of theAct[32] to mean that a penaltycould be imposed for each instance of noncompliance with a cited standardgrouped within a single citation item. In the event that his interpretationproved to be erroneous, however, he indicated he would assess a total penaltyof $1000 for all of the affirmed subitems of item 61.??????????? Pratt& Whitney argues that it has already been penalized for the electrocutiondeath of its employee. P & W asserts that it was cited for a violation ofsection 5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1), after that employee?s deathand paid the proposed $700 penalty when it elected not to contest the citation.Further, P & W argues that it abated the earlier cited violation when itimmediately advised all unqualified employees not to enter electrical boxes. P& W also contends that a written rule prohibiting unauthorized entry intoelectrical control boxes appeared in its employee handbook long before thefatality.[33]??????????? TheCommission will not consider each subitem separately for penalty assessmentpurposes. The Secretary chose to combine a number of violations into one itemand to propose a single combined penalty. He did so even though he knew that anemployee had died by electrocution after unauthorized entry into an electricalpanel box and even though willful noncompliance might have been alleged here.For the Commission to now separately penalize P & W for each separateinstance of noncompliance with section 1910.309(a) would greatly increase the$1000 maximum that P & W would normally be subjected to for failing tocomply with a single standard. Under the circumstances of this case, theCommission will not sanction separate penalties for separate instances ofnoncompliance.??????????? TheCommission has permitted the Secretary to amend his pleadings to seek a higherpenalty than he originally proposed. P.A.F.Equipment Co., 79 OSAHRC 18\/A2, 7 BNA OSHC 1209, 1979 CCH OSHD ?23,421 (No.14315, 1979), aff?d, 637 F.2d 741(10th Cir. 1980); Long Manufacturing Co.,N.C., 79 OSAHRC 50\/D6, 4 BNA OSHC 1154, 1975?76 CCH OSHD ?20,658 (No. 9994,1976), aff?d, 554 F.2d 903 (8th Cir.1977). In those cases, however, the amendment placed the employers on noticethat the Secretary sought a higher penalty than he originally proposed, and theparties had an opportunity to fully litigate the question. Since the Secretarydid not seek such an amendment here,[34] P & W was entitled toassume at the hearing that the maximum penalty to which it could be subjectedfor noncompliance with section 1910.309(a) was $1000. Indeed, P & W maywell have refrained from presenting further evidence relevant to the penaltyassessment factors on the belief that $1000 was its maximum possible liability.??????????? TheCommission assesses a total penalty of $1,000 for item 61.[35] Although the Secretaryoriginally proposed a penalty of only $80 for this item, the Commission agreeswith the statement in the Secretary?s posthearing brief to the judge that the $80penalty proposed ?is inappropriately low and should be substantially raised.?Pratt & Whitney is a large employer with about 4,500 employees at the NorthHaven plant. P & W has received several citations which have become finalorders. Also, although item 61 is categorized as other than serious by theSecretary, the gravity of the violation is high because employees could bekilled upon contact with live parts in the electrical control boxes.??????????? Penaltiesfor All Other Affirmed Items??????????? JudgeFurcolo assessed the following penalties for the other items affirmed in hisdecision: Item \u00a0 Penalty \u00a0 1 $30 2 0 3 15 13 80 21 25 22 0 23 60 32 35 35 35 40 50 54 30 \u00a0??????????? Pratt& Whitney has not directly disputed the appropriateness of these penalty figures.The Commission, after a consideration of the penalty factors set forth insection 17(j) of the Act,[36] determines that thepenalties assessed by the judge are appropriate penalty amounts for each of theitems and subitems that the Commission by this decision affirms.??????????? Bythis decision, we affirm the following items and subitems of the other thanserious citation: 1(a), 1(c), 1(d), 1(i), 2(b), 3(e), 13, 21(b), 22, 23(c),23(d), 23(f), 32(a), 32(b), 40(f), 40(h), 40(i), 40(j), 40(k), 40(l), 40(m),40(n), 40(o), 40(r), 40(v), 40(bb), 40(cc), 54(b), 61(a), 61(e), 61(j), 61(m),61(p), 61(r), 61(s), 61(w), 61(x), 61(ee), 61(gg), 61(ii), and 61(jj). We amenditem 35 to allege noncompliance with 29 C.F.R. ? 1910.23(c)(1) and affirm item35 as so amended. The following subitems are affirmed as de minimis violations:40(a), 40(b), 40(c), 40(p), 40(q), 40(t), 40(u), 40(x), and 40(z). Thefollowing subitems are vacated: 1(e), 1(f), 1(g), 1(h), 3(a), 23(a), 23(b),61(y), 61(z), 61(aa), 61(bb), 61(cc), and 61(dd). A total penalty of $1360 isassessed. SO ORDERED.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: APR 27, 1981\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13401 \u00a0 PRATT & WHITNEY AIRCRAFT, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June 21, 1976APPEARANCES:For Complainant:Jerrold Solomon, Esq.Joan Entmacher, Attorney\u00a0For Respondent:Joseph C. Wells, Esq.John A. McGuinn, Esq.\u00a0Furcolo, Judge:??????????? Thisis a proceeding pursuant to the Occupational Safety and Health Act of 1970, asamended (29 U.S.C., ? 651 et seq.) hereinafter called the Act. The Complainantalleges that the Respondent has violated ? 5(a)(2) of the Act (? 654) by notcomplying with the Occupational Safety and Health Standards listed below.??????????? TheRespondent is a corporation engaged in the business of manufacturing aircraftparts, and its business affects the Commerce of the United States.??????????? TheRespondent?s worksite at 415 Washington Avenue, North Haven, Connecticut, wasinspected by the Occupational Safety and Health Administration (hereinaftercalled OSHA) on April 15?17, 1975.??????????? OnApril 29, 1975, the Respondent was charged in Citation No. 2 with thenon-serious violation of 68 items. Most of the items were subdivided byalphabetical letters into specific locations or descriptions to total some 281allegations of failure to comply with the various standards cited.??????????? ANotice of Proposed Penalties for a total of $1,265 was also issued to theRespondent on April 29, 1975.??????????? OnMay 20, 1975, the Respondent filed a Notification of Intent to contest allitems of Citation No. 2, and all the penalties proposed.??????????? Thehearing began on January 13, 1976, and was concluded on January 28, aftertestimony by some 18 witnesses and the introduction of almost 200 exhibits. Theattorneys on both sides were officially commended for the excellence of theirpreparation of this extremely complicated case because, without such diligenceon their part, the hearing would have taken much longer . . . Transcript, Vol.XI, pp. 54.??????????? Beforeand during the hearing, various items were settled either by the Complainantwithdrawing the charge or the Respondent withdrawing its Notice of Contest.There were other items that, practically, were determined by admissions of theRespondent. As a result, evidence was not introduced on all 68 items of thecitation; and the decision reflects that several of the originally contesteditems have been affirmed because of the Respondent?s withdrawal of Notice ofContest, and some have been vacated by virtue of the withdrawal by theComplainant.??????????? Therewere some instances where, by amendment, the allegation was transferred fromone numbered item to another, resulting in effect in the deletion or withdrawalof the original item. By amendment, Items 44?A and B became Items 40?BB and CC,and Item 44 was deleted; and, by amendment, Items 45?A and B became Items 40?DDand EE, and Item 45 was deleted.??????????? Becauseof such action by the parties, the following items were withdrawn by theComplainant: Items 9?B, 11, 13 (insofar as it referred to Respondent?sDepartment 2729\/2153), 14, 16, 17, 20, 24?A, 24?B, 29?B, 29?C, 40?D, 40?E,40?s, 41, 47?e, 53?a, 55, 56, 57, 58, 60, 61?l, 61?o, 61?q, 61?t, 65, 66, 67,68?B, 68?C, 68?D, and 68?H . . . Vol. I, pp. 6, 7.??????????? Becauseof the Respondent?s withdrawal of its Notice of Contest, the following itemsand related penalties will be affirmed: Items 4, 6?A, 7, 8, 9?A, 10, 15, 18,19, 24?C, 24?D, 25, 26, 27, 28, 29?A, 31, 34, 36, 42, 43, 47?A, 47?B, 47?C,47?d, 47?f, 51, 53?b, 54?c, 59, 61?hh, 61?mm, 63?c, 68?a, 68?e, 68?f, and 68?G,. . . Vol. I, pp. 7.??????????? Byamendment, Items 44 and 45 were deleted (both items being transferred to Item40 . . . Vol. I, pp. 32 and Vol. II, pp. 3.??????????? Thesubstance of the contested standards (all in 29 C.F.R. 1910) together with theproposed penalties are:STANDARD PROPOSED PENALTY?ItemNumber 1, Standard .22(a)(1) $35.00?Allplaces of employment, passageways, storerooms, and service rooms shall be keptclean and orderly . . .??ItemNumber 2, Standard .22(a)(2) -0-?Thefloor of every workroom shall be maintained in a clean and, so far as possible,a dry condition . . .??ItemNumber 3, Standard .22(b)(1) 45.00?Wheremechanical-handling equipment is used, sufficient, safe clearance shall beallowed for aisles . . . through doorways and wherever turns or passage must bemade. Aisles and passageways shall be kept clear . . . with no obstruction . .. that could create a hazard??ItemNumber 5, Standard .23(c)(1) 35.00Opensidedfloor or platform four feet high shall be guarded by a standard railing?ItemNumber 6, Standard .24(b) -0-?Fixedstairs shall be provided for access from one structure level to another whereoperations necessitate regular travel between levels . . . also . . . whereaccess to elevations is daily or at each shift for such purposes as gauging . .. or for which purposes the carrying of tools or equipment by hand is normallyrequired. (It is not the intent of this section to preclude the use of fixedladders for access of elevated tanks . . . where the use of fixed ladders iscommon practice) . . ?ItemNumber 12, Standard .37(q)(1) -0-?Exitsshall be marked by a readily-visible sign . . .?\u00a0ItemNumber 13, Standard .94(d)(9)(V) 80.00?Wheneverthere is a danger of splashing . . . employees so engaged shall . . . wear . .. chemical goggles or an effective face shield . . .??ItemNumber 21, Standard .108(c)(2)(i) $50.00?Diptanks of over 150 gallons . . . or ten square feet in liquid surface area . . .shall be equipped with . . . overflow pipe . . . Smaller dip tanks . . . also .. . where practical??ItemNumber 22, Standard .108(c)(3)(i) -0-?Diptanks over 500 gallons . . . shall be equipped with bottom drains . . .??ItemNumber 23, Standard .132(a) 80.00?Protectiveequipment . . . for . . . extremities . . . shall be . . . used . . . wheneverit is necessary . . .??ItemNumber 30, Standard .157(d)(4)(V)(iii) -0-Fireextinguishers shall have a test-date tag?ItemNumber 32, Standard .176(b) 35.00?Storageof material shall not create a hazard. Bags, containers . . . and so forth . .. shall be stacked . . . so that they are stable and secure . . .??ItemNumber 33, Standard .176(c) -0-?Storageareas shall be kept free from accumulation of materials that constitute hazardsfrom tripping, fire . . .??ItemNumber 35, Standard .178(m)(12)(i) 35.00Whenevera truck is equipped with forks for lifting personnel, a safety platform shallbe firmly secured to the forks.?ItemNumber 37, Standard .179(b)(5) -0-?Therated load of the crane shall be plainly marked on each side of the crane . ..??ItemNumber 38, Standard .179(g)(1)(V) ?0-?Pendantcontrol boxes shall be . . . clearly marked for identification . . .??ItemNumber 39, Standard .179(g)(5)(i) -0-?Thepower supply . . . shall be controlled by a switch . . . locked in the openposition.??ItemNumber 40, Standard .212(a)(1) $60.00?Oneor more methods of machine guarding shall be provided to protect . . . fromhazards such as those created by point of operation . . . rotating parts . . .chips . .? ?ItemNumber 46, Standard .215(a)(2) -0-Thesafety guard shall be properly mounted?ItemNumber 48, Standard .219(d)(1) 35.00Pulleysshall be guarded?ItemNumber 49, Standard .219(e)(1)(i) -0-Horizontalbelts shall be enclosed?ItemNumber 50, Standard .219(e)(3)(i) -0-?Vertical. . . belts . . . shall be enclosed by a guard . . .?\u00a0ItemNumber 52, Standard .242(b) -0-?Compressedair shall not be used for cleaning except . . .??ItemNumber 54, Standard .252(a)(2)(IV)(c) 65.00?Oxygencylinders in storage shall be separated from fuel-gas cylinders or combustiblematerials (esp. oil or grease) a minimum distance of 20 feet . . .??ItemNumber 61, Standard .309(a)?. . .National Electrical Code, NFPA 70?1971; ANSI Cl?1971 . .. shall apply to allelectrical installations and utilization equipment: Article 110?17 Guarding ofLive Parts (not more than 600 volts):SUBSECTIONA: Except as elsewhere required or permitted by this code, live parts ofelectrical equipment operating at 50 volts or more shall be guarded againstaccidental contact by approved cabinets or other forms of approved enclosures,or any of the following means:1. Bylocation in a room, vault, or similar enclosure which is accessible only toqualified persons;?2. Bysuitable permanent, substantial partitions or screens so arranged that onlyqualified persons will have access to the space within reach of the live parts.Any openings in such partitions or screens shall be so sized and located thatpersons are not likely to come into accidental contact with the live parts orto bring conducting objects into contact with them.?3. Bylocation on a suitable balcony, gallery, or platform so elevated and arrangedas to exclude unqualified persons.?4. Byelevation at least eight feet above the floor or other working surface.\u00a0SUBSECTIONB: In locations where electrical equipment would be exposed to physical damage,enclosures or guards shall be so arranged and of such strength as to preventsuch damage.?SUBSECTIONC: Entrances to rooms and other guarded locations containing exposed live partsshall be marked with conspicuous warning signs forbidding unqualified personsto enter.?STANDARD PROPOSED PENALTYItem Number 62, Standard .309(a) (See ItemNo. 61, above) $50.00Article 110?22 ?Each disconnecting means .. . shall be legibly marked . . .??Item Number 63, Standard .309(a) (See ItemNo. 61, above) -0-Article 250?45(d) Metal parts of cord andplug-connected equipment which are liable to become energized shall be groundedin accordance with 250?45(d)?Item Number 64, Standard .309(a) (See ItemNo. 61, above) -0-Article 250?45(d) Failed to provide apermanent and continuous path to ground\u00a0Stipulation on Penalties??????????? Theparties also stipulated that, for those items completely withdrawn by theComplainant, there will be no proposed penalty; but for those items where theRespondent has withdrawn its Notice of Contest, the proposed penalties will beas stated in the Notification of Proposed Penalties that was issued followingthe citations, except for Items 24 and 54. It was stipulated that the penaltyfor Item 24 would be $30 and $45 for Item 54 . . . Vol. I, pp. 8?10.? Motions??????????? (1)The Respondent moved to quash Subpoena No. 2433 (calling for the production bythe Respondent of over 400 current hourly job descriptions) and Subpoena No.2434 (calling for the Respondent to produce OSHA forms 100?102 from January 1,1971, to the present time).??????????? Themotion to quash Subpoena No. 2433 was denied and the motion to quash SubpoenaNo. 2434 was allowed insofar as it related to records prior to January 1, 1974. . . Vol. I, pp. 12?28.??????????? (2)The Complainant?s motion to amend the citation to delete Items 44?A and B and45?A and B, and to add such items respectively to Item 40 as Items 40?BB, CC,DD, and EE was allowed. The Respondent was not prejudiced because the allowanceof the motion did not in any way change the evidence that would be produced bythe Complainant to prove the alleged violations . . . Vol. I, pp. 31?33, andVol. II, pp. 3, 7.??????????? ?(3) The Complainant moved for summary judgmentagainst the Respondent on Items 1?B, 1?D, 1?E, 1?F, 1?G, 1?I, 3?A?E, 21?B, 22,40, and 45, citing the Respondent?s Answers to the Complainant?s Requests forAdmission. The Respondent objected, counsel for the Respondent stating that theRespondent planned to introduce evidence on the items. The motion for summaryjudgment was denied on the grounds that, regardless of the Respondent?s Answersto Requests for Admission, the Respondent still had the right to introduceevidence or submit arguments contesting the cited items . . . Vol. I, pp.35?46. (In the decision itself, as hereinafter indicated, the Complainantprevailed in all the items that were the subject of this motion for summaryjudgement.)??????????? (4)On August 28, 1975, the Respondent moved to consolidate this case with DocketNo. 13591 on the grounds that there existed common parties and common questionsof law and fact. The motion was denied on September 4, 1975.??????????? (5)On Page 47 of the Complainant?s Brief (filed May 4, 1976), the Complainant?moves? to amend by alleging a violation of Standard 29 CFR 1910.23(a)(2) inthe alternative to the citation in Item 35 of a violation of 29 CFR1910.178(m)(12)(i). Treating the language as a Motion to Amend, it is denied.Rulings on Which Counsel Requested Review??????????? Duringthe hearing, the Respondent called for the production of various notes andpapers prepared by the witness Stanton, one of the compliance officers who madethe inspection for the Complainant. The Complainant objected to the productionof any of said materials. Upon examination of the witness Stanton, it appearedthat he had made the following notes or statements (described as indicated)during or after his inspection but had not reviewed any of such materials onthe witness stand or in preparation for his testimony:??????????? (1)?Rough notes? made during the inspection.??????????? (2)More formalized ?transcribed notes? made from the ?rough notes?; the?transcribed notes? were the basis for the citations recommended by him as acompliance officer.??????????? (3)?Information requested by the Solicitor? after the Respondent had filed aNotice of Contest to the citations.??????????? (4)?The Department of Labor Form 1?C,? which is the regular form for a statementmade by the compliance officer pertaining to the inspection.??????????? (5)Notes on the back of photographs taken during the inspection.??????????? (6)Notes of ?names of individuals? in the Respondent?s plant.\u00a0??????????? Itwas ruled that, subject to in camera deletions to be made by the AdministrativeLaw Judge relating to such matters as ?privilege,? ?work product,? ?protectionof employees,? and similar exclusions, the Complainant must produce thematerials described in Numbers 2, 4, and 5, above. Counsel for the Complainantwere given an opportunity to recommend deletions they felt should be made, notwaiving their objection to the order to produce.??????????? I didnot order the production of materials described in Nos. 1, 3, and 6 for thefollowing reasons: the witness Stanton had testified, and I find as a fact,that the notes described in No. 1 had been destroyed immediately after he hadprepared the material in No. 2; and the witness Stanton testified (andcorroborated by the Complainant?s attorneys) and I find as a fact that thematerial in No. 3 had been prepared by the witness Stanton at the specificrequest of attorneys for the Complainant for their trial preparation after theformal complaint and answer had been filed; and the ?names of individuals? inNo. 6 consisted of identified employees of the Respondent.??????????? Boththe Complainant and Respondent objected to my ruling, the Complainant on theground that I had ordered the production of too much and the Respondent on theground that I had ordered too little.??????????? Istated to counsel that I would forward to the Review Commission the originaland deleted versions of the materials that had been requested by theRespondent; and, in order to preserve the confidentiality of such material, itwould be sent in a sealed envelope and not in the ?excluded evidence? envelopeor as a part of the record. I asked the parties for any recommendations orsuggestions of a different way to achieve the result of providing the ReviewCommission with the necessary documents without revealing their contents toanyone else, but neither party had any alternative suggestion.??????????? TheRespondent moved for an interlocutory appeal under Occupational Safety andHealth Review Commission Rules of Procedure No. 75. I denied the motion on theground that, although there is an important question of law where there issubstantial ground for difference of opinion, an immediate appeal would notmaterially expedite the proceedings . . . Vol. III, pp. 36 and Vol. IV, pp. 10,11.??????????? TheRespondent made similar requests for the ?notes? of the other witnesses who hadmade inspections in their capacities as compliance officers for OSHA. Therulings made and the procedures adopted by me for the ?notes? of the witnessesCavalieri, Terroux, and Hatcher, were the same as those described for thewitness Stanton . . . Vol. II, pp. 151?167; 167; Vol. III, pp. 15?17, 23?25;Vol. IV, pp. 5?9; Vol. V, pp. 17, 29, 30?41, 143?145; Vol. VI, pp. 3?6, 45?49,57?68. The Respondent also requested the production of notes made on the backof photographs that had been taken by the witness Stanton . . . Vol. II, pp.142?144. There was testimony, and I find as a fact, that such notes were madeby the witness Stanton at the request of counsel for the Complainant after theNotice of Contest. I denied the Respondent?s request for production of suchnotes; however, when it was later agreed by counsel for both parties thatcounsel for the Complainant had earlier allowed counsel for the Respondent toinspect such photographs and the notes on the back, I then allowed theRespondent?s request for such notes. I did so on the ground that, even if suchnotes were privileged because made at the request of counsel for theComplainant, any such privilege had been waived by the earlier inspection theComplainant allowed the Respondent to make . . . Vol. III, pp. 49 and Vol. VI,pp. 45?49, 57?68.??????????? TheComplainant offered OSHA records 100 and 101 for the years from January 1,1971, through April, 1975, as Exhibits for identification C?9 through C?64 andC?66. Those from January 1, 1974, through April, 1975 (Exhibits C?9?28), wereadmitted but those before January 1, 1974 (Exhibits for identification C?29?64and C?66), were excluded on the objection of the Respondent. The witness DuPrehad earlier been questioned on their authenticity and contents and thattestimony was understood by the parties and me to constitute an offer of proof.Those excluded records showed various foot and toe injuries sustained duringthe years 1971 through 1973 by employees of the Respondent who were performingjobs similar or identical to those that were the subjects of the instantcitations . . . Vol. II, pp. 73 and Vol. V, pp. 3, 4. Exhibits foridentification C?29?64 and C?66 have been included in the file under theheading ?Excluded Evidence.?Evidence??????????? Inthe April 15?17 inspection, the Respondent?s plant at North Haven, Connecticut,was divided into four quadrants, compliance officer Stanton taking thenortheast quadrant; compliance officer Cavalieri the southeast quadrant;compliance officer Hatcher the northwest quadrant; and compliance officerTerroux the southwest quadrant. The various departments are indicated onExhibit C?1. Stanton was accompanied by Charles DuPre, representing theRespondent, and Arnold Neal, representing the union. Cavalieri was accompaniedby John Engle, representing the Respondent, and Edward Joseph, representing theunion. Hatcher was accompanied by Wilfred Cote, representing the Respondent,and Joseph DeRoy, representing the union. Terroux was accompanied by MiltonKershaw, representing the Respondent, and Wayne Gilbert, representing the union.??????????? Complianceofficers Stanton, Cavalieri, Hatcher, and Terroux explained the procedure theywould follow and asked the Respondent?s representatives to agree or disagreewith any comments they would make on conditions in the plant . . . Vol. II, pp.101; Vol. V, pp. 9, 148; Vol. VI, pp. 85. The compliance officers also madenotes and took photographs.??????????? Thebackground of those representing the Complainant or the Respondent in theinspecting party follows:??????????? JohnStanton testified that he has been a compliance officer for three years, hadseveral weeks of training in various courses at the Training Institute forSafety and Health Officers, including an electrical seminar for three days, andwas in electronics maintenance for 23 years with the United States Air Force .. . Vol. II, pp. 98.??????????? SindoCavalieri testified he has been a compliance officer for three years and was inthe Safety Department of the New Haven Railroad for 25 years, the last ten asChief in Charge of Safety . . . Vol. V, pp. 11.??????????? JosephHatcher testified he has been a compliance officer for two years and was in theMotor Equipment Division of the General Services Administration for 13 years,and was employed by the Veteran?s Administration for five years and was in themilitary service for six and a half years . . . Vol. V, pp. 146.??????????? GordonTerroux testified that he has been with OSHA since 1972 and he is now in SouthCarolina monitoring that state?s safety program but, at the time of theinspection, he was a compliance officer in the Hartford, Connecticut, office.He was in the Air Force from 1969 to 1972 as Ground Safety Superintendent in anindustrial installation that had every conceivable shop, including mechanical,engineering, sheet metal, electronics, and maintenance of electronics; andvirtually every type of equipment was used there. He testified that he had alsobeen a technician in Airborne Electronics and was responsible for safety as itrelated to airborne electronics . . . Vol. VI, pp. 78?82.??????????? CharlesDuPre testified he has been the Safety Engineer of the Respondent?s North Havenplant from 1957 through 1975; spends about 75% of his time on the factoryfloor; and is familiar with the work performed by the Respondent?s employees .. . Vol. II, pp. 63.??????????? MiltonKershaw testified that he has been employed by the Respondent since 1960 as asafety engineer and has been the Respondent?s unit supervisor of safetyengineering since August, 1975. He has a Bachelor of Science Degree inelectrical engineering, has specialized in electrical safety for 15 1\/2 years,and has worked with the National Electrical Code . . . Vol. IX, pp. 141.??????????? WilfredCote testified that he has been employed by the Respondent as a safety engineerfor over 25 years and had previously been an industrial nurse and a physicaldemands analyst . . . Vol. IX, pp. 3.??????????? JohnEngle did not testify but he was identified as the Respondent?s personneladvisor . . . Vol. V, pp. 8.??????????? Atits North Haven plant, the Respondent has approximately 4,500 employees whoregularly receive, handle, and work with goods which have been moved, and aremoving across state lines in interstate commerce . . . Answer, Paragraph 1.The Alleged Violations??????????? Insofaras possible, the format of this decision will be to discuss the allegationsitem by item. However, in several instances where practically the same evidenceapplies to more than one item, they are considered together. There are alsosome instances where the standard cited made no reference of any kind to theexistence of a hazard, thus raising the question of whether there can be aviolation if the condition does not affect the health or safety of employees.For example, under Standard 1910.22(a), if we assume a situation where emptycans and clean trash are simply thrown into an unused corner, can that be a?violation? if there is no evidence of ?hazard?? Let us assume such a conditionexists without any hazard from tripping or fire or other accident, sanitationand health are not even remotely affected, and the condition does not botherany employee and is not a nuisance or menace?can such a condition be found tobe a violation of the Act merely because it is unsightly and disorderly? If theevidence merely discloses noncompliance with the exact words of thestandard??all places of employment, passageways, storerooms, and service roomsshall be kept clean and orderly and in a sanitary condition??but there is no?hazard,? can a violation be found? Does the same reasoning follow in anotherstandard [1910.108(c)(2)(i)] where the intent was clearly to prevent the hazardof fire, but the standard merely calls for an overflow drain without mentioninghazard, can a violation be found if the evidence discloses no hazard???????????? The10th Circuit Court of Appeals touched on the subject in Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F (2) 864,when it considered Standard 29 CFR 1910.22(c), the pertinent words being: ?. .. guardrails shall be provided to protect personnel from the hazards of openpits . . .? The Court said: ?The Review Commission also held that the Secretarywas not required to show that a hazard existed in order to show noncompliancewith the standard, since ?the standard by its plain terms assumes the existenceof a hazard with regard to open pits and does not require that a hazard be provenbefore noncompliance with its terms is established.? Later on the Courtcontinued: ?. . . the Review Commission so held that a hazard, as such, neednot be shown in order to show noncompliance with this particular standard. Thestandard presupposes the obvious, namely, that an open unguarded pitnecessarily presents the hazard that someone may fall into it. We agree.? Andlater: ?. . . the Review Commission . . . determined that the hazard of someonetripping, slipping, or falling into the open service pit had a directconnection to employees? safety.???????????? Inthe instant case (Pratt and Whitney Aircraft), the standards concerned with thequestion do not use the word ?hazard,? which may distinguish them from thestandard involved in the Lee Way case cited above. (Concerning de minimis: ifthere be no hazard, trifling or otherwise, the legal ?out? of de minimis isneither consistent nor appropriate?in my opinion, at least.)??????????? Theinstant case has at least two such possible violations. Since I have discoveredconflict of opinion on the point without any clear resolution of it, I havemade an alternative finding in the instances herein where the question hasarisen. In that way, if my own interpretation of the law be erroneous, it mayeasily be corrected upon review. (Incidentally, in neither case does theevidence indicate that the Respondent applied for a variance.)Standard .22(a)??????????? ConcerningItem 1?A, compliance officer Stanton testified that the Arace Building was 70feet long by 30 to 40 feet wide; was a general storage area, and not forstoring parts they were making in the plant; materials were stacked on bothsides of a 10 to 12 foot wide dividing aisle; the area and most of the bins init were disorderly from lumber, boxes, and debris; and while the materials didnot block the exit, a person would have to go around them to get to it. Twoemployees worked full-time in the area. The hazards were the possibility oftripping or falling, or items could slide or drop on an employee?s feet . . .Vol. II, pp. 104?120.??????????? ExhibitsC?67 and C?68 are photographs of materials stored in the area.??????????? TheRespondent?s representative, Charles DuPre, testified that the Respondent has aspecial housekeeping program, including regular and special cleaning programs.Normally there is only one employee in the area shown by Exhibit C?67; theremay be two or three employees who come and go there. Storing the pallet asshown in C?67 is not the safest way to store but it is not a hazard . . . Vol.IX, pp. 51.??????????? Inits Response No. 1 to the Complainant?s Request for Admissions, the Respondentadmitted that parts, lumber, and boxes were stored in the Arace Building.??????????? Asconcerns Item 1?A, Exhibit C?67 corroborates witness Stanton?s testimony and Ifind the area was in a disorderly condition. There was a hazard of tripping orthe possibility of materials sliding or dropping on the feet of an employee. Ifind the Complainant has sustained the burden of proving a violation of .22(a).??????????? ConcerningItem 1?B, compliance officer Stanton testified the flammable liquid storagearea is a lean-to building about 15 feet by six or seven feet, enclosed in theback, the sides, and roof, with a chain fence in front. There were tanks ofacetylene, oxygen, and argon there and some flammable liquid and spilled 15 or20 feet away from the storage area, not in the storage area itself. A firetruck was called to hose it down. There was a collection about one foot inwidth and three to four inches in depth of leaves and small papers around thebase of the tanks. It was an accumulation of more than one day. There was noone working there. There was a fire hazard if the debris was ignited . . . Vol.II, pp. 120?130.??????????? Inits Response No. 2 to the Complainant?s Request for Admissions, the Respondentadmitted that leaves and paper had been blown into the storage area by thewind.??????????? Asconcerns Item 1?B, I find that, considering the location and the amount ofdebris, the evidence falls short of the proof necessary to constitute aviolation of .22(a).??????????? ConcerningItem 1?C, compliance officer Stanton testified that in the Precipitron Crib(Department 2027), there was a general disorderly storage of metal, wood,lumber, and other materials in a work area. The hazard was that someone mighttrip or fall against such material or that material might fall on an employee?sfeet. The union representative, Neal, and the Respondent?s representative,DuPre, both told him that men worked in and out of the area . . . Vol. II, pp.133?136.??????????? TheRespondent?s representative, DuPre, testified that there is usually just oneemployee in the Precipitron Crib.??????????? Inits Response No. 3 to the Complainant?s Request for Admissions, the Respondentadmitted that metal, cardboard, and dollies were located in the PrecipitronCrib.Exhibit C?69 is a photograph of the area.??????????? Asconcerns Item 1?C, Exhibit C?69 corroborates the witness Stanton?s testimony,and I find the area was in a disorderly condition that was hazardous toemployees. I find the Complainant has sustained the burden of proving aviolation of .22(a).??????????? Asconcerns Item 1?D, compliance officer Stanton testified that in the Oil House(Department 2032), there was an excess of oil in and around the piping; andthere were paper towels behind Machine 37978. Employees would go in the areafor maintenance purposes and the hazard was slipping or a fire starting . . .Vol. II, pp. 146?150.??????????? TheRespondent?s representative, DuPre, testified there may have been oil film onthe floor but there was no grease. There is no hazard and normally no employeesare there . . . Vol. IX, pp. 60.??????????? ExhibitC?70 is a photograph of the area behind Machine 37978.??????????? Inits Response No. 4 to the Complainant?s Request for Admissions, the Respondentadmitted that grease, buckets, and miscellaneous materials were behind Machine37978.??????????? Asconcerns Item 1?D, while Exhibit C?70 is not too clear, it does appear tocorroborate witness Stanton?s testimony of excessive oil. In addition, theRespondent?s representative testified there may have been an oil film on thefloor. I find the area was not clean and orderly and was hazardous in that itmight cause an employee to slip and fall. I find the Complainant has sustainedthe burden of proving a violation of .22(a).??????????? Asconcerns Items 1?E, 1?F, and I?G, compliance officer Cavalieri testified thatbreathing vents on machines were blocked by dust and oil, preventing the intakeof air, and causing a fire hazard because the purpose of the vent is to coolthe motor. Breathing air in the area was also affected. A cleaning employee wasin the area . . . Vol. V, pp. 11, 12.??????????? ExhibitC?106 is a photograph of the breathing vents.??????????? TheRespondent?s representative, DuPre, testified that the breathing vents were notclogged enough to cause the motor to overheat. If a motor overheats, it cutsout (stops). He recalls some motor fires but does not know the cause . . . Vol.IX, pp. 61, 62.??????????? Inits Responses 5, 6, and 7 to the Complainant?s Request for Admissions, theRespondent admitted that the breathing vents on the machines were partiallyobstructed.??????????? AsConcerns Items 1?E, 1?F, and 1?G, Exhibit C?106 corroborates the witnessCavalieri?s testimony. The testimony of the Respondent?s representative, DuPre,and the Respondent?s Admissions 5, 6, and 7 also indicate the presence of somedust and oil on the breather vents. I find that the breathing vents wereblocked by dust and oil and were not kept in a clean condition. The hazard toemployees was breathing impure air or the possibility of a fire, both remotehazards. I find the Complainant has sustained the burden of proving a violationof .22(a).??????????? Asconcerns Item 1?H, compliance officer Cavalieri testified the OsbornBrushomatic machines were covered with dust and dirt; the Respondent?s foremanadmitted cleaning was needed; the foreman said they clean once a week; therewould be dust expected but not this much . . . Vol. V, pp. 11?27.??????????? ExhibitsC?107, 108, and 109 are photographs of Brushomatic machines.??????????? TheRespondent?s representative, DuPre, said it is a dirty operation; the policy isfor the operator to clean it after each shift and the Building Services alsoclean periodically . . . Vol. IX, pp. 65.??????????? Inits Answer No. 8 to the Complainant?s Request for Admissions, the Respondentdenied the presence of ?excessive? dirt and dust.??????????? Asconcerns Item 1?H, I find that Cavalieri?s testimony, coupled with theadmission made by the Respondent?s foreman, established the presence ofexcessive dust and dirt. I find the machines in question were not kept in aclean condition. The hazard was the breathing of dust by employees. I find theComplainant has sustained the burden of proving a violation of .22(a).??????????? Asconcerns Item 1?I, compliance officer Terroux testified that in Department 2315there was an accumulation of trash and excess grease in back of a J & Lgrinder, and an oily rag inside the machine. This machine was an exception tothe general rule . . . Vol. VI, pp. 87.??????????? Theunion representative, Gilbert, testified grease and oil accumulation in thetray is normal in J & L grinders; and there were rags and papers andchicken bones in the area of the grinder . . . Vol. VIII, pp. 72?75.??????????? ExhibitC?134 is a photograph of the J & L grinder.??????????? TheRespondent?s representative, Kershaw, testified the presence of oil is normal.??????????? Inits Response No. 9 to the Complainant?s Request for Admissions, the Respondentadmitted that paper scraps were observed in the machine.??????????? Asconcerns Item 1?I, while the presence of grease and oil might be explainedsatisfactorily, there was no contradiction of the testimony about the trash andthe chicken bones. I find that trash and chicken bones in the area constitutedan unclean and disorderly condition; and I find the Complainant has sustainedthe burden of proving a violation of .22(a).??????????? Alternatively,I find that the unclean and disorderly conditions did not create any hazard tothe Respondent?s employees. Can there be a violation if there is no hazard???????????? InParagraph 8 of Section 3 of the Act, the following appears:?The term ?Occupational Safety and HealthStandard? means a standard which requires conditions . . . reasonably necessaryor appropriate to provide safe or healthful employment and places ofemployment.????????????? Standard.22(a) makes no reference to hazard.??????????? TheUSA Standard Z4.1?1968, approved by USA Standards Institute on 2\/26\/68 has thefollowing:1.2 ?The purpose of this standard is toprescribe minimum sanitary requirements for the protection of the health ofemployees. . .??2 Definitions Sanitary Conditions:?. . . that physical condition of workingquarters which will tend to prevent the incidence and spread of disease.?\u00a03.1 Housekeeping?the wording is identicalwith that in Standard.22(a).?3.3.2 All sweepings, solid or liquidwastes, refuse, and garbage shall be removed in such a manner as to avoidcreating a nuisance or menace to health and as often as necessary to maintainthe place of employment in a sanitary condition.\u00a0??????????? Theevidence did not disclose anything that would have a bearing on the health ofemployees or on the incidence and spread of disease or on nuisance or menace tohealth. If the law requires that a ?hazard? be found, my alternative finding isthat there is no hazard and there is no violation of .22(a).Standard .22(a)(2)??????????? ConcerningItem 2?A, compliance officer Terroux testified that there was about one-halfinch or less of water below a floor grating in a pit that had electricalequipment . . . Vol. VI, pp. 98?108.??????????? TheRespondent?s representative, Kershaw, testified that there was a leak in thewater pipe and a plumber would be fixing it . . . Vol. IX, pp. 144.Exhibit C?135 is a photograph of the location.??????????? Inits Response No. 10 to the Complainant?s Request for Admissions, the Respondentadmitted that a ?nominal? quantity of water was present.??????????? Asconcerns Item 2?A, there is no controversy about the presence of water in thearea. However, there was no evidence as to the length of time it had beenthere; in addition, the Respondent?s representative testified that there was aleak that would soon be fixed. In that state of the evidence, and taking intoconsideration the standard?s words ?so far as possible,? I find that theComplainant has not sustained the burden of proving a violation of .22(a)(2).??????????? ConcerningItem 2?B, compliance officer Terroux testified that in Department 2317 therewas excessive oil on the wooden block floor, so slippery he could skate on it .. . Vol. VI, pp. 110.??????????? Theunion?s representative, Gilbert, testified the floor was quite oily and veryslippery; in some places there were oil puddles; machines spray oil but thiswas excessive; he had suggested pans be put under the machine; and thecleaning-up program is not enforced . . . Vol. VIII, pp. 76?81.Exhibit C?136 is a photograph of the area.The Respondent?s representative, Kershaw, testifiedthere was not an excessive amount of oil there.??????????? Asconcerns Item 2?B, the witnesses Terroux and Gilbert were emphatic and veryconvincing in their illustrations. I find that the floor in the area was notmaintained in a clean and (so far as possible) a dry condition because of thepresence of excessive oil, which was hazardous because of the possibility ofemployees slipping on it and falling. I find the Complainant has sustained theburden of proving a violation of .22(a)(2).Standard .22(b)(1)??????????? ConcerningItem 3?A, compliance officer Hatcher testified that the aisle in the ServiceCrib for Department 2042\/2056 was not wide enough to turn a cart around, being24 inches wide in most places and 21 inches in others; he said there was a cartthere that could not go through the aisle way; metal gauges weighing from threeto 12 pounds are on racks, shelves, and pegboards that protrude into the aisle;and a person must go sideways to avoid them. Many gauges have long rods that donot fit into the shelves; and an employee said another employee had his facegashed by a gauge. The hazard is that the gauges at eye level could cause aneye injury and those in the racks could injure the head . . . Vol. V, pp.151?169.Exhibit C?123 is a photograph of the aisle inquestion.??????????? Theunion representative, DeRoy, testified that gauges and tools which extendedbeyond the shelves obstructed the passageway of the crib attendant. Bracketsextended six to eight inches and the pegboards protruded into the aisle so muchthat, in some instances, it was safer to go sideways . . . Vol. VIII, pp.22?25.??????????? TheRespondent?s representative, Cote, testified that each wooden block is threeinches wide; the aisle is 36 inches wide where there are 12 blocks and 27inches where there are nine; and there is plenty of room for safe passage.There are normally three employees in this crib. The cart is 20 1\/2 inches wideand a wheel table is also used . . . Vol. IX, pp. 7?9.??????????? Asconcerns Item 3?A, I find that the testimony establishes that the gauges andother materials protruding from the shelves, racks, and pegboards constitute ahazardous obstruction in the aisle; and the Complainant has sustained theburden of proving a violation of .22(b)(1).??????????? ConcerningItem 3?B, compliance officer Terroux testified that the aisle in Department2320 is a forklift route; a pallet extending into it is a hazard; there mightnot be room for personnel and forklift to go by; and the forklift is not ahazard when it is attended . . . Vol. VI, pp. 115?119.Exhibit C?137 is a photograph of the aisle.??????????? TheRespondent?s representative, Kershaw, testified that the aisle affords safepassage.??????????? Asconcerns Item 3?B, I find that the testimony of two equally credible witnessesis conflicting. In addition, Exhibit C?137 does not indicate any obstructionthat could create a hazard. In that state of the evidence, I find that theComplainant has not sustained the burden of proving a violation of .22(b)(1).??????????? ConcerningItem 3?C, compliance officer Terroux testified that a forklift could not gothrough the aisle without difficulty; that it was hazardous even if there wasroom for safe passage; that while he did not see any forklift, the materialswere of the type that usually are moved by forklift or hand truck. There was atrash barrel and a movable rack in the aisle. He did not see any equipment thatwould be blocked by the barrel; and it ?is difficult to say? whether the rackblocks the aisle . . . Vol. VI, pp. 121?128.??????????? Theunion representative, DeRoy, testified that forklifts and trucks use the aisle.The steel barrel, which is for chips from the work, is put near one of the mainaisles for pick-up by an employee who does nothing but that. He has been suchbarrels stand around for quite a few hours before pick-up . . . Vol. VIII, pp.28?37.??????????? TheRespondent?s representative, Kershaw, testified the barrel, truck, and palletsdo not create any hazard . . . Vol. IX, pp. 150, 151.??????????? ExhibitC?138 is a photograph of the barrel, pallets, and the rack in the aisle.??????????? ConcerningItem 3?C, I find that the evidence falls far short of establishing anyobstruction in the aisle that creates a hazard; and the Complainant has notsustained the burden of proving a violation of .22(b)(1).??????????? ConcerningItem 3-D, compliance officer Terroux testified that there are two pallets and aforklift in the aisle which is about ten feet wide. There is ample room for aforklift to go by material in the aisle . . . Vol. VI, pp. 129, 130.??????????? Theunion representative, DeRoy, testified that machinery from three to eight orten feet wide is moved in the aisle. A bulldozer could get by pallets shown inthe aisle in Exhibit C?139. It would be difficult to maneuver some equipment bythe obstruction in the aisle shown in Exhibit C?140 . . . Vol. VIII, pp. 28?37.??????????? ExhibitC?139 is a photograph showing the pallets in the aisle. Exhibit C?140 is aphotograph showing the forklift in the aisle.??????????? TheRespondent?s representative, Kershaw, testified that none of the itemsconstitute a hazard. It is a main aisle and there would be forklifts and otherequipment using it . . . Vol. IX, pp. 151?160.??????????? Asconcerns Item 3?D, the testimony falls short of establishing any obstructionthat would constitute a hazard; and the photographic Exhibits C?139 and C?140tend to indicate that the alleged hazard does not exist. I find that theComplainant has not sustained the burden of proving a violation of .22(b)(1).??????????? ConcerningItem 3?E, compliance officer Terroux testified that a rubbish barrel, steeldrums, dollies, hand trucks, and other material were in the aisle. He does notrecall any mechanized equipment other than hand carts using the aisle . . .Vol. VI, pp. 133?136.??????????? Theunion representative, Gilbert, testified that the barrels in the aisle arethere temporarily for changing coolant for the machines. They usually stay anaverage of about two the three hours but he once saw barrels in the aisle for48 hours. They obstruct the aisle. They could be placed between the machinesinstead . . . Vol. VIII, pp. 83, 84.??????????? TheRespondent?s representative, Kershaw, testified that the barrels are only inthe aisle when coolant is to be changed . . . Vol. IX, pp. 153, 154.??????????? ExhibitC?141 is a photograph showing the aisle.??????????? ConcerningItem 3?E, I find that Exhibit C?141 corroborates the testimony of witnessesTerroux and Gilbert that mechanical equipment use the aisle, it was obstructedby various items, and the obstruction created a hazard that could easily becorrected by temporarily storing the coolant barrels between the machines. Ifind that the Complainant has sustained the burden of proving a violation of.22(b)(1).??????????? ConcerningItem 3?F, compliance officer Stanton testified there were pallets in the aisle;two men were working there; the pathway around the pallets was one and a halfto two feet on one side and two and a half feet on the other. The hazard wasthat the pallets constituted an obstruction to free and easy egress from thearea. The pallets would have been taken there ?possibly? with forklift trucks .. . Vol. III, pp. 54?58.??????????? ExhibitC?71 is a photograph of the area.??????????? Ifind that the testimony falls far short of establishing either an obstructionin the aisle or a hazardous condition. Exhibit C?71 corroborates thatconclusion. I find that, as far as Item F is concerned, the Complainant has notsustained the burden of proving a violation of .22(b)(1).??????????? Standard.23(c)(1)??????????? Asconcerns Item 5, in its Answer, Paragraph 3, Subsection 5, the Respondentadmitted this allegation. I find that the Respondent violated .23(c)(1).??????????? Standard.24(b)??????????? Asconcerns Item 6?B, compliance officer Terroux testified that two large storagetanks, not elevated, had ladders that were not enclosed; and an employee of theRespondent said he used the ladder daily during the heating season and carriedtools for sampling and gauging. The hazard is that the ladder is exposed to theelements, could become slippery, and an employee might fall . .. Vol. VI, pp.136?146.??????????? TheRespondent?s representative, Kershaw, testified that an employee who climbs theladder to gauge the fuel normally does not carry anything because the dipstickis kept at the top of the tank . . . Vol. IX, pp. 163, 164.??????????? ExhibitsR?4A and R?4B are photographs of the tanks.??????????? TheRespondent?s explanation appears reasonable and credible. In addition, theComplainant?s evidence is based on hearsay (what an unidentified employeesaid). I find that the Complainant has not sustained the burden of proving aviolation of .24(b).??????????? Standard.37(q)(1)??????????? Asconcerns Item 12, in its Answer, Paragraph 3, Subsection 12, the Respondentadmitted this allegation. I find that the Respondent violated .37(q)(1).??????????? Standard.94(d)(9)(V)??????????? Asconcerns Item 13, compliance officer Terroux testified that in the PlatingDepartment (2432) there are tanks with contents ranging from cold water tosolutions of cyanide, sulfuric acid, and nitric acid. Employees workingwaist-high against the tanks, or a couple of inches away, put various parts inand out of the tanks, using a chain hoist for the heavier parts. Employees werewearing ordinary safety glasses which would give very little protection againsta significant splash; chemical goggles were necessary. The hazard is a chemicalburn if a significant splash were caused by a part dropping or a slingbreaking. The Respondent?s safety supervisor, Kershaw, said that protectiveface shields were required for the job in the Plating Department. In tanks withwater only, there is no need for protective equipment. He (Terroux) did not askif there had been any burns or splashing . . . Vol. VI, pp. 147?167.??????????? Champney,an employee of the Respondent doing plating in Department 2432, testified thatthe speed of lowering the part into the tank has a bearing on the size of thesplash. He jumped back once, otherwise the splash could have gone over his head. . . Vol. VII, pp. 139. He once saw hooks break and a part drop. He has neverhad a splash to his face, just to his hands and sleeves . . . Vol. VII, pp.123?145.??????????? Inits Response No. 27 to the Complainant?s Request for Admissions, the Respondentadmitted the plating operators were wearing ordinary safety glasses.??????????? Asconcerns Item 13, Standard .94(d)(9)(V) refers to Standard 1910.133, whichrequires protective equipment where there is a reasonable probability thatinjury can be prevented by such equipment. The Complainant has introducedevidence of injuries sustained by the Respondent?s employees in the year and ahalf before the inspection but none involve this standard. While that is notconclusive, of course, it is nevertheless significant. However, I thinkChampney?s testimony of a narrow miss is even more significant of thepossibility of an employee sustaining injury. While it is a close case, theevidence here does sustain the Complainant?s burden of proving a hazardouscondition from splashing and I find that the Complainant has proven a violationof .94(d)(9)(V).??????????? Standards.108(c)(2)(i) and .108(c)(3)(i)??????????? Item21 [.108(c)(2)(i)] and Item 22 [.108(c)(3)(i)] will be considered together.??????????? Asconcerns Item 21?A, compliance officer Terroux testified that in Department2311 a tank of Varsol measured three feet by three feet by three feet or 27cubic Feet with 7.48 gallons per cubic foot; he measured the outside of thetank but did not place anything in the tank to measure the depth; and it couldbe possible to have a three or four inch false bottom but he heard nothing thatwould lead him to believe it was other than the true bottom; and there was nooverflow pipe . . . Vol. VI, pp. 171?174, 190, 191. The Varsol tank, withoutthe overflow pipe, is a fire hazard. Varsol, an industrial solvent, is a Class2 combustible liquid with a flash point of 100 to 110 degrees Fahrenheit. Ifthere were a fire and if the sprinkler system discharged, it might cause thetank to overflow and spread flammable substances over the wooden block floor .. . Vol. VI, pp. 172, 173.??????????? TheRespondent?s representative, Kershaw, testified that the tank has a capacity ofless than 150 gallons, the inside dimensions being nine square feet or 140gallons of liquid . . . Vol. VI, pp. 171?174.??????????? WilliamH. Doyle, an expert called by the Complainant, testified that he is a privateconsultant in the field of fire and explosion of flammable liquids andchemicals, has a Bachelor of Science Degree in chemistry, and for 20 years wasChief of Chemical Engineering for the Factory Insurance Association and hasbeen on various committees of professional associations and has written forperiodicals in the field. Varsol is a combustible hydro-carbon with a flashpoint from 130 to 150 degrees Fahrenheit . . . Vol. XI, pp. 14. The NationalFire Protective Association guide, which is authorative, says several types ofVarsol have flash points of 105 to 107 degrees . .. Vol. XI, pp. 27. The lidsof the tanks here are held open by a fusible wire which melts in 165 degreeheat, the lid closes, and the fire gets extinguished . . . Vol. XI, pp. 16.Bottom drains and overflow pipes would not add any protection . . . Vol. XI,pp. 44. The Varsol is not a hazard. Wooden blocks are not a fire hazard ifVarsol spilled on water or blocks. A film with no water might be a hazard butnot a thin film . . . Vol. XI, pp. 20?34.??????????? ExhibitsC?145, R?5A and R?5B are photographs of the tanks.??????????? Asconcerns Item 21?A, in view of the Respondent?s direct evidence of the tank?scapacity and the Complainant?s evidence that the compliance officer did notmeasure inside the tank but only its outside, I find that the Complainant hasnot established that the tank was over 150 gallons in capacity or ten squarefeet in liquid surface. If find that the Complainant has not sustained theburden of proving the Respondent violated .108(c)(2)(i).??????????? ConcerningItems 21?B and 22, compliance officer Terroux testified that Varsol tanks inDepartment 2979\/2154 had no overflow pipes.??????????? ExhibitsR?5A and R?5B are photographs of the tanks.??????????? Inthe Respondent?s Answer No. 39 to the Complainant?s Request for Admissions, theRespondent admitted that the tanks in Department 2979\/2154 were over 150gallons in capacity and over ten square feet in liquid surface area and werenot equipped with overflow pipes. In the Respondent?s Answer No. 40 to theComplainant?s Request for Admissions, the Respondent admitted that inDepartment 2979\/2154 the two Varsol tanks were over 500 gallons in capacity andwere not equipped with bottom drains.??????????? Asconcerns Item 21?B, by Admission No. 39 the Respondent has admitted theallegation. I find that the Respondent violated .108(c)(2)(i).??????????? Asconcerns Item 22, by Admission No. 40 the Respondent has admitted theallegation. I find that the Respondent violated .108(c)(3)(i). AlternativeFinding:??????????? Asconcerns Items 21?B and 22, I am also making an alternative finding because (aswith Item 1?I, above) there seems to be a conflict of opinion on the questionof whether the Complainant must prove a ?hazard? or needs only to establish aviolation of the exact words of the standard. If upon review it be determinedthat the establishment of a hazard is an essential element of the allegedviolation, then I find as a fact that the Varsol had a flash point between 100to 110 degrees Fahrenheit, that the tanks were protected by the fusible wirethat would close the lid and extinguish the fire, and that there was no hazard.The alternative finding (if hazard must be established) is that the Complainanthas not sustained the burden of proving a violation of .108(c)(2)(i) (Item21?B) and .108(c)(3)(i) (Item 22).??????????? Standard.132(a)??????????? ConcerningItems 23?A and B, compliance officer Cavalieri testified that in Department2562, a working, walking area, the asbestos around a hot steam pipe had fallenaway, the hazard being that anyone who contacted it would be burned. He ?kindof touched it very quickly.???????????? InDepartment 2435, a steam pipe on the degreasing machine hot enough to burn hadno protective guarding. He did not touch it but ?there was a great deal ofheat.? He did not test the temperature of either pipe. The foreman told him itwas a hot steam pipe. Maintenance employees were exposed to these hazards . . .Vol. V, pp. 42?50.??????????? ExhibitC?110 is a photograph of the pipe in Department 2562 and Exhibit C?111 is aphotograph of the pipe in Department 2435.??????????? Asconcerns Items 23?A and B, although the compliance officer did not test thetemperature of either pipe, his testimony clearly indicated that the pipes inquestion were not enough to burn anyone who accidentally touch either. I findthe Respondent did not provide, use, and maintain adequate protective shieldsor barriers for pipes that were hazardous to employees. I find the Respondentviolated both Items 23?A and 23?B and the Complainant has sustained the burdenof proving a violation of .132(a).??????????? Items23?C, D, and E all have to do with employees not wearing personal protectiveequipment (safety shoes).??????????? Asconcerns Item 23?C, compliance officer Cavalieri testified that in Department2555 women employees at a four foot high bench were working with sharp-edgedparts that weighed about 13 pounds. One was wearing canvas shoes and none waswearing safety shoes; the foreman admitted they were not wearing safety shoesbut said employees did not follow his instructions to wear them. Equipment wasbeing moved in the area by a buggy. The hazard was injury from a part fallingon the foot . . . Vol. V, pp. 52?59, 63.??????????? Inits Answers No. 43 and 44 to the Complainant?s Request for Admissions, theRespondent admitted that one employee in Department 2555 was wearing canvasshoes and that employee regularly handles parts weighing over 12 pounds.??????????? Asconcerns Item 23?D, compliance officer Cavalieri testified that in Department2551 there were materials on skids or pallets that would have to be lifted by atruck. A machine operator wearing moccasins that he said were not safety-toedwas handling a piece of metal weighing 20 to 25 pounds . . . Vol. V, pp. 69?74.??????????? Inits Answer No. 45 to the Complainant?s Request for Admissions, the Respondentadmitted the machine operator?s shoes could be described as moccasins.??????????? Asconcerns Item 23?E, compliance officer Cavalieri testified that in Department2045, a storage area, material was packed on skids. The hazard is thepossibility of injury when material is moved with forklift trucks. There isonly one employee there at a time and, if he were running the truck, it wouldnot fall on him . . . Vol V, pp. 75?78.??????????? Asconcerns Items 23?C and D, the uncontroverted evidence is that there wereemployees without protective equipment (safety shoes) who were exposed to thehazard of metal parts weighing from 12 to 25 pounds falling on their feet. Ifind a violation of .132(a) for both Items 23?C and 23?D.??????????? Asconcerns Item 23?E, the evidence indicates that there would be no hazard unlessmaterial were moved by truck; and if moved by truck, there is no hazard to theoperator of the truck. Since there was only one employee there at a time, theevidence falls short of establishing a hazard. I find the Complainant has notsustained the burden of proving a violation of .132(a) for Item 23?E.??????????? Asconcerns Item 23?F, compliance officers Cavalieri, Stanton, Hatcher, andTerroux testified in detail about seeing employees without safety shoes orprotective equipment on their feet . . . Vol. III, pp. 67?83; Vol. V, pp. 80; Vol.VI, pp. 17; Vol. VII, pp. 104, 109. Representatives of the Respondent said thatsome employees do not wear safety shoes . . . Vol. V, pp. 67, 81; Vol. VI, pp.19. Sharp-edged pieces of material weighing 13 pounds had to be moved from oneplace to another . . . Vol. V, pp. 53, 59. Machine operators had to lift partsweighing 20 to 25 pounds from pallets to machines . . . Vol. V. pp. 17, 82.Employees had to move grindstones weighing 12 to 15 pounds from bins . . . Vol.V, pp. 82. Parts of all sizes and weights were handled by employees . . . Vol,VII, pp. 23?28. Parts were oily and slippery and could fall . . . Vol. III, pp.67?69; Vol. V, pp. 8, 9; Vol. VII, pp. 24. Materials weighing 20 to 25 poundswere stacked in such a way that they might fall . . . Vol. III, pp. 60?78; Vol.VI, pp. 7, 10. Tote pans or trays with gauges, fixtures, and parts weighing 10to 40 pounds had to be moved by employees . . . Vol. 7, pp. 23. Some parts werehandled almost daily . . . Vol. V, pp. 93.??????????? Thecompliance officers testified that, in moving parts or materials, employeesused forklift trucks, dollies, pallets, hoists, trucks, carts, buggy carts,movable racks, and other equipment . . . Vol. III, pp. 60?65 and pp. 82, 83;Vol. V, pp. 82; Vol. VI, pp. 10, 17; Vol. VII, pp. 23, 164?169.??????????? Theareas of the plant where these conditions existed included the receiving area .. . Vol. III, pp. 60?65, the fixture store area . . . Vol. III, pp. 63, theArace Building storage area . . . Vol. III, pp. 71, the emergency generatorroom . . . Vol. III, pp. 73, tool cribs in Department 2033 . . . Vol. III, pp.77, the storage area in Department 2045 . . . Vol. V, pp. 75, the engine partsrepair area in Department 2034 . . . Vol. III, pp. 79, 80, the experimentalarea in Department 2963 . . . Vol. VI, pp. 7, the Inspection Department . . .Vol. VII, pp. 29, 30, various lathe areas . . . Vol. VII, pp. 23?28, variousshaft areas . . . Vol. VII, pp. 23?28, and all sections of the manufacturingarea . . . Vol. VII, pp. 32.??????????? TheRespondent?s employees who were subjected to the hazards created by theseconditions included maintenance employees . . . Vol. III, pp. 74?76; Vol. V,pp. 82?89; Vol. VII, pp. 29, 30 . . . material handlers . . . Vol. III, pp.60?78; Vol. V, pp. 81; Vol. VII, pp. 29, 30 . . . machine operators . . . Vol.V, pp. 82; Vol. VI, pp. 17; Vol. VII, pp. 29, 30 . . . assemblers andinspectors . . . Vol. V, pp. 82?89; Vol. VI, pp. 10, 13; Vol. VII, pp. 29, 30.??????????? ExhibitsC?112, 113, and 114 are photographs of various materials and parts.??????????? Neal,the union representative who is an expediter to supply raw material for thewhole plant, testified that thousands of parts a month move through the plant;and there is great movement from place to place of forklifts, skids, movableracks, and other equipment. There is a production schedule to keep . . . Vol.VII, pp. 164?174. Many parts are oily and slippery and can be dropped easily;he has seen materials dropped from hoists, pallets, broken boxes, and so forth. . . Vol. VII, pp. 174?189.??????????? The unionrepresentative, Gilbert, testified that in his department (2315 and 2317) some50 to 500 blades and 100 to 200 shuttles would be handled daily. The bladesweigh up to three pounds, the shuttles up to 38, and both his hands and some ofthe parts are oily. He has seen materials dropped many times and cannot recalla day when a tray or tool or part did not fall in his vicinity. The floors aremade of wooden blocks so the parts won?t be damaged when they drop. Hammers,grinding wheels, wrenches, shuttles, and other parts are moved on heavy-dutytrucks, racks, and little carts. Everyone in his department does not wearsafety shoes. In the last year and a half, he has not heard of any toe injuryin the two departments where he works . . . Vol. VIII, pp. 97?106.??????????? DeRoy,the union representative, testified that there are frequent drops of metalparts of various sizes; there are dents in the floor blocks from droppedarticles. He has dropped items on his toes several times . . . Vol. VIII, pp.42?45.??????????? TheRespondent?s representative, DuPre, testified that a 30 to 35 pound pallet, asseen in Exhibit C?67, might not be the safest way to store but it was nothazard. The Respondent?s nurse, Ann Moore, testified about the procedure ofreporting injuries and read into the record excerpts from the medical reportsof some 14 employees who had foot or toe injuries . . . Vol. X, pp. 85?108.??????????? JamesMartin testified he is the Respondent?s manager of safety engineering for theUnited Technology Corporation, which includes Pratt & Whitney. He has heldthat position nine years and before that was a superintendent of safetyengineering for 15 years; and is familiar with safety shoes. He testified thatshoes that meet the ANSI standard for men are not suitable for women becausethe foot structures are different. Various companies advertise shoes withsafety caps for women but none carry ANSI markings. The North Haven plant doessell shoes with steel caps for women . . . Vol. X, pp. 111?124.??????????? WalterFells testified he is employed by United Technology Corporation as ExecutiveDirector of the Division of Subsidiary Promotions. He testified about thehourly job descriptions of employees and defined the factor ?unavoidablehazard? in rating the jobs; and that Exhibit C?166 is an accurate description.He testified that it does not consider the probability of an accident butmerely that, if there should be an injury, it would probably be of a certainmagnitude. The figure ?3? would indicate a possibility of a lost-time injury.He prepared Exhibit C?2 . . . Vol. X, pp. 131?138.??????????? ExhibitC?166 is the Respondent?s Hourly Job Rating Plan. On Page 34, Topic 11 isheaded ?Unavoidable Hazards.? The material words are:?This factor appraises the unavoidablehazards to which the employee is subjected in the performance of his work.These hazards are evaluated in terms of the probable extent of injury resultingfrom accidents or from health hazards associated with the work or work area,taking into account the nature of the work, the work position, the equipmentand material used, the hazards arising from the work being performed by otheremployees in the adjacent area, the extent to which the employee is protected,the frequency of exposure to the hazards, and the probability of injury. Considerationis given to the type of accident which may occur and to the health hazardswhich remain even though all safety precautions are observed by the employeeand all safety devices are fully operative . . .??Another heading under Topic 11 is ?Third Degree.? Itreads as follows:?This degree covers work involvingexposure to lost-time accidents and\/or health hazards which may result ininjury or temporary disability sufficient to prevent an employee fromperforming any regularly established job on his next regular shift. The degreeincludes work in which such injuries may occur as crushed hand or foot, loss offingers, or burns or occupational diseases likely to result in lost time.????????????? TheRespondent?s employee, Patton, testified from records that from January 1, 1974to April 16, 1975, there were three reported cases of toe injury at theRespondent?s North Haven plant. They were in Departments 2032, 2242, and 2559.According to Exhibit R?15, a summary of reportable toe injuries at theRespondent?s North Haven plant, the injuries from January 1, 1974 to April 16,1975, amounted to a total of .0005 per man year.??????????? ExhibitsC?9 through 28 constitute the Respondent?s record of 20 reported injuriesinvolving toe or foot of employees.??????????? Thehazard was injury to the toe or foot because of parts or materials dropping onan employee?s foot; or equipment, such as forklifts or carts, running over thetoe or foot of an employee . .. Vol. III, pp. 77?83; Vol. V, pp. 42?50, 83, 92;Vol. VI, pp. 13. Exhibit C?166 also concerns the hazard.??????????? Availabilityof Protective Equipment:??????????? Complianceofficer Cavalieri testified that safety-toed shoes are available for both menand women in various places, including the Respondent?s North Haven plant.Women?s safety-toed shoes meet ANSI standards even though the standard justuses the term ?men? . . . Vol. V, pp. 54?58, 68.??????????? Complianceofficer Stanton testified that shoes with steel caps or various guards areavailable . . . Vol. III, pp. 88, 93, 94. Both labor and management told him therehad been a safety shoe sale program at the Respondent?s plant . . . Vol. III,pp. 100, 101.??????????? Inits Answer No. 124 to the Complainant?s Request for Admissions, the Respondentadmitted that shoes that meet the requirements of 29 CFR 1910.136 are sold toemployees at cost on the Respondent?s premises.??????????? Inits Answer No. 47 to the Complainant?s Request for Admissions, the Respondentadmitted that ?protective footwear specified in 29 CFR 1910.136, OccupationalFoot Protection, was not required to be worn by employees . . .???????????? Inits Answer No. 121 to the Complainant?s Request for Admissions, the Respondentadmitted that no employees are required to wear safety shoes.??????????? Asconcerns Item 23?F, the evidence is overwhelming that the Respondent?s NorthHaven plant is an extremely busy worksite involving hundreds of employeesworking on countless jobs that include the moving, machining, inspecting, orhandling in various ways of literally thousands of tools, gauges, machines,parts, materials, and equipment of every conceivable size and weight. Themoving is done manually and by forklifts, hoists, carts, movable racks, andother equipment. Many of the materials and tools are oily and slippery, whichincreases the likelihood of items being dropped; in any event, droppings forone reason or another are frequent. The hazard of injury from materialsdropping or equipment moving on the toes or feet of employees is a real one,whether the reportable toe injuries total three or 20 in the 18 months beforethe date of inspection. The evidence shows that employees exposed to suchhazards are in every area of the Respondent?s plant (except the office) andspecifically includes employees who are classified by the Respondent asmaintenance workers, material handlers, machine operators, and assemblers andinspectors (or so identified in Item 23). There was virtually no controversyabout the fact that such a hazard exists in any plant with the type ofproduction the Respondent has; and, in fact, common experience indicates itwould be highly unreasonable to expect a contrary conclusion. In addition, theRespondent?s own hourly job rating plan (Exhibit C?166) clearly corroboratesthe hazards described by the witnesses. The Respondent?s employee Fellstestified that Exhibit C?166 is accurate in its job ratings. The photographicexhibits also corroborate the witness? testimony about the conditionsdescribed. It is also clear that some type of protective equipment isavailable, whether called steel caps or safety shoes or something else. In fact,I find that such equipment is even available at the Respondent?s North Havenplant. I also find that the Respondent has no real program of enforcing apolicy of protective equipment for those employees who are exposed to thehazard of toe injury. I find that, as concerns Item 23?F, protective equipmentfor the extremities was not provided, used and maintained where it wasnecessary because of the described hazard; and the Complainant has sustainedthe burden of proving the Respondent violated .132(a).??????????? Standard1910.157(d)(4)(VIII)??????????? Asfar as Item 30 is concerned, in its Answer, Paragraph 3, Subsection 30, theRespondent admitted this allegation. I find that the Respondent violated.157(d)(4)(VIII).??????????? Standard.176(b)??????????? Items32?A and B are considered together.??????????? ConcerningItem 32?A, compliance officer Stanton testified that boxes stored on a rafterand shelf 10 to 15 feet high were protruding so that they could fall and injureone of the two employees normally there . . . Vol. III, pp. 101?104, 114?117.??????????? ExhibitsC?75 and 76 are photographs of the boxes.??????????? TheRespondent?s representative, DuPre, testified that the boxes should berestacked but it was unlikely they would fall . . . Vol. IX, pp. 68.??????????? Asconcerns Item 32?A, the testimony of the witnesses and the photographicexhibits establish the violation alleged. I find that the stored materialscreated the hazard alleged and was a violation of .176(b).??????????? ConcerningItem 32?B, compliance officer Stanton testified that, where containers of acidwere stacked three pallets high, some containers had been removed from thelower pallet. Material-handling equipment used in the area might hit the palletand cause containers to fall and injure an employee.??????????? ExhibitC?77 is a photograph of the pallet and the containers… Vol. III, pp. 104?112.??????????? TheRespondent?s representative, DuPre, testified that while it would be better ifthere were even rows of cans without voids, the rows were not unstable . . .Vol. IX, pp. 73.??????????? Asconcerns Item 32?B, the testimony of the witnesses and the photographic exhibitestablish the violation alleged. I find that the stored materials created thehazard alleged and was in violation of .176(b).??????????? Standard.176(c)??????????? ConcerningItem 33, compliance officer Stanton testified that palletized material andelectrical motors constituted a tripping hazard in the Generator Room used byten employees . . . Vol. III, pp. 121?125.??????????? ExhibitsC?78 and C?79 are photographs of the pallets and motors.??????????? TheRespondent?s representative, DuPre, testified that motors from 35 to 1,000pounds are stored there and no employees are regularly there . . . Vol. IX, pp.75, 76.??????????? Asconcerns Item 33, the testimony and the photographs fall far short ofestablishing any tripping hazard. I find that the Complainant has not sustainedthe burden of proving a violation of .176(c).??????????? Standard.178(m)(12)(i)??????????? ConcerningItem 35, compliance officer Terroux testified that a forklift had raised amaintenance platform to a height of ten feet. The railing, which was about 28inches above the platform, came just below the buttocks of an employee workingon the platform. The hazard was that the railing would tip the employee overrather than prevent his fall . . . Vol. VII, pp. 38?46.??????????? ExhibitC?152 is a photograph of the platform.??????????? Inits Answer No. 65 to the Complainant?s Request for Admissions, the Respondentadmitted that the top rail of the platform was no more than 28 inches high.??????????? Asconcerns Item 35, the Respondent did not controvert the evidence. I find thatthe Respondent did not take proper safety precautions and the Complainant hassustained the burden of proving the Respondent violated .178(m)(12)(i).??????????? Standard.179(b)(5)??????????? Asconcerns Item 37, in its Answer, Paragraph 3, Subsection 37, the Respondentadmitted the allegation. I find the Respondent violated .179(b)(5).??????????? Standard.179(g)(1)(V)??????????? Asconcerns Item 38, in its Answer, Paragraph 3, Subsection 38, the Respondentadmitted the allegation. I find the Respondent violated .179(g)(1)(V).??????????? Standard.179(g)(5)(i)??????????? Asconcerns Item 39, in its Answer, Paragraph 3, Subsection 39, the Respondentadmitted the allegation. I find the Respondent violated .179(g)(5)(i).??????????? Standard.212(a)(1)??????????? Thetestimony for most of the items concerned here was identical.??????????? Asconcerns Items 40?A, B, and C, compliance officer Terroux testified that inDepartment 2550 several lathes had unguarded rotating chucks with protrusionsthat could hurt an employee. The lathes operate at variable speeds; there is ahazard even if they go slowly. In that department, some lathes of the same typewere guarded while others were not . . . Vol. VII, pp. 49?51, 60.??????????? Asconcerns Items 40?P, Q, T, U, W, X, and Z, compliance officer Stanton testifiedthat these items concern the lathes with unguarded chucks. Some of the chuckswere smooth (without notches or dog) while others had protrusions andindentations. The hazard from chucks with protrusions and indentations was thatthe employee?s hands or clothing or hair might be caught. The hazard fromsmooth chucks was that the employee?s hair might be caught or the employeemight sustain friction burns from the chucks. The chucks with protrusions orindentations were: Item 40?P in Department 2036; Item 40?Q, Lathe 175939; Item40?T in Department 2034; Item 40?U in Department 2033; Item 40?X in Department2034; Item 40?Z in Department 2038. The smooth chucks were on 14 lathes inDepartment 2034 (Item 40?W).??????????? Generalenclosure guards for chucks with grooves is standard in the industry. Smoothchucks generally are not guarded in the industry and there is opinion both waysas to whether smooth chucks should be guarded . . . Vol. IV, pp. 19?37.??????????? ExhibitsC?85?92 are photographs of the machines.??????????? TheRespondent?s representative, Patton, testified that he knows of no injury fromrotating chucks. Clothing and hair do not get caught on chucks. Barrier guardswill not completely enclose the chucks; if they do, the work cannot be done . .. Vol. IX, pp. 125, 131, 136, 137.??????????? Asconcerns Items A, B, C, P, Q, T, U, X, Z, it seems reasonable to conclude thatthe protrusions or indentations of a rotating chuck could easily catch clothingor the hair or hand of an employee. The testimony and the photographs supportthis conclusion. I find that the chucks of those lathes are rotating parts thatwere not properly guarded and were a hazard to the employees. I find that theComplainant has sustained the burden of proving a violation of .212(a)(1).??????????? Asconcerns Item 40?W, the chucks of the 14 lathes are smooth. The testimony mostfavorable to the Complainant was that authorities differ as to whether theyshould be guarded. The testimony most favorable to the Respondent was thatsmooth chucks are generally not guarded in industry. In addition, theRespondent?s representative, Patton, testified that he knows of no injury fromrotating chucks; and the Complainant introduced no evidence of any injury atany time from rotating chucks. In that state of the evidence, I find that theComplainant has not sustained the burden of proving a violation of .212(a)(1).??????????? ConcerningItems 40?F?0 (except L), compliance officer Cavalieri testified that theseitems concern machines in Department 2559 that had unguarded parts revolving atvery high speed. In most cases, the revolving parts were adjacent to walkways;some were in back of machines and not near walkways. Operators and maintenancemen would be exposed to the hazard of sustaining injury through having clothingor had caught in the revolving part. The hazard could be avoided by having ametal barrier-type guard fixed to the machine. Some of the machines in thedepartment had this and they were not cited. Often, parts are guarded by beingreasonably inaccessible and there is no employee exposure in such a situation.As concerns the machine shown in Exhibit C?115 (Item 40?G), it would be veryunlikely for an employee to come in contact with that revolving part. In thenormal course of working, the employee probably would not . . . Vol. V, pp.99?112.??????????? Asconcerns Items 40?F-K, M, N, and O, the evidence was uncontradicted that thesemachines had unguarded parts revolving at high speed. With the exception of themachine in Item G, the evidence was uncontradicted that employees were exposedto the hazard of sustaining injury by having clothing or a hand caught by therevolving part. As far as the Item G machine is concerned, the complianceofficer?s testimony?that it was very unlikely that an employee would come incontact with it?leads me to find that the evidence falls short of establishinga violation of .212(a)(1).??????????? Asconcerns Items F, H, I, J, K, M, N, and O, I find that rotating parts were notproperly guarded, employees were exposed to the hazard of injury from suchcondition, and the Complainant has sustained the burden of proving a violationof .212(a)(1).??????????? Asconcerns Item 40?L, compliance officer Cavalieri testified that a grinder inDepartment 2550 has a ram with a metal end three to four inches in diameterwhich, when extended to its fullest, goes one and a half to two feet beyond themachine. It comes out at a ?fair rate of speed? on a horizontal plane, movingabout two and a half feet in three to four seconds or less. The Respondent?srepresentative, Engle, agreed it was a hazard to anyone walking by, includingmaintenance employees or others in the area. It is not a hazard to the operatorof the machine. There are 25 to 50 employees in that department . . . Vol. V,pp. 118?123.??????????? Theunion representative, Joseph, testified that there are some objects like boxesor barrels at the end of the ram?s stroke that a person could be pushedagainst. If walking in the aisle, employees would not come in contact with theram but employees cut through the machines. The ram moves a little faster thana clock pendulum. Other machines with similar rams had metal guards . . . Vol.VII, pp. 148?157.??????????? Asconcerns Item 40?L, the uncontradicted testimony establishes that the ram wasnot properly guarded and employees were exposed to the hazard of injury fromit. I find that the Complainant has sustained the burden of proving a violationof .212(a)(1).??????????? Asconcerns Item 40?R, compliance officer Stanton testified that in Department2033 there was no barrier guard on a belt machine that was hand-fed intorollers. He talked to the operator. The hazard was the possibility of crushedfingers from the rollers. General area barrier guards were easily available . .. Vol. III, pp. 143?148.??????????? ExhibitC?82 is a photograph of the machine.??????????? Asconcerns Item 40?R, the evidence of a violation is uncontradicted. I find thata hazard to the operator existed because the belt machine was not provided witha proper guard. I find the Complainant has sustained the burden of proving aviolation of .212(a)(1).??????????? Asconcerns Item 40?V, compliance officer Stanton testified that there was noguard on the Pneumatic Press 175834 in Department 2968. A metal part is placedby hand in an opening of more than one-fourth inch and, activated by a footpedal, the press punches a number on the metal part. The hazard is that theemployee?s hand or finger could be put in and crushed by the machine.Barrier-type guards or hand controls that would prevent the hazard areavailable. . . Vol. III, pp. 150?154.??????????? ExhibitC?83 is a photograph of the press.??????????? Asconcerns Item 40?V, the evidence was not contradicted and I find that there wasa hazard to the operator because a proper guard was not provided. I find theComplainant has sustained the burden of proving a violation of .212(a)(1).??????????? Asconcerns Item 40?AA, compliance officer Stanton testified that the abrasivestone rotating wheel of the hand-operated cutter grinder in Department 2036should be guarded but it is impractical to do so. The hazard is that, whensharpening the wheel, the operator had to hold it in his hand and the operatormay cut his hand. He has done so frequently. Neither the compliance officer northe Respondent?s representative could come up with a solution. He does not knowhow the machine could be guarded; it may be impractical. The cutter grinder hasa guard which covers approximately 180 degrees of the wheel and Standard1910.215 indicates 180 degree guarding meets the requirements but he cited itunder the Standard .212 . . . Vol. III, pp. 155?162 and Vol. IV, pp. 13?18.??????????? ExhibitC?84 is a photograph of the cutter grinder.??????????? Asconcerns Item 40?AA, the evidence indicates that, if there be a hazard, it isnot from the operation of the machine but rather from sharpening the wheelbefore operating the grinder. In addition, the compliance officer does not knowof any feasible or practical way of correcting the condition. The state of theevidence is such that I find that the Complainant has not sustained the burdenof proving a violation of .212(a)(1).??????????? Asconcerns Items 40?BB and CC, compliance officer Stanton testified that inDepartment 2038, a hand-fed vertical band saw and a hand-fed horizontal bandsaw had no guard over the unused part. The blade had an exposed cutting edge.In both vertical and horizontal band saws, where the material itself acts as aguard, there is no hazard. The hazard is the possibility of the operatorcutting a finger or hand on the unused portion that is not guarded. Anadjustable angled-type guard is available to cover the cutting point of boththe horizontal and vertical band saws.??????????? ExhibitC?80 is a photograph of the hand-fed vertical band saw and Exhibit C?81 is aphotograph of the horizontal band saw . . . Vol. III, pp. 129?142.??????????? Asconcerns Items 40?BB and CC, the uncontradicted evidence establishes that theoperator of both saws would be exposed to the hazard of a cut finger or handbecause a proper guard was not provided. I find that, as concerns both Items40?BB and 40?CC (amended to such from Items 44?A and 44?B), the Respondentviolated.212(a)(1).??????????? Standard.215(a)(2)??????????? Asconcerns Item 46, in its Answer, Paragraph 3, Subsection 46, the Respondentadmitted the allegation. I find the Respondent violated .215(a)(2).??????????? Standard.219(d)(1)??????????? ConcerningItem 48, in its Answer, Paragraph 3, Subsection 48, the Respondent admittedthis allegation. I find the Respondent violated .219(d)(1).??????????? Standard.219(e)(1)(i)??????????? ConcerningItem 49, in its Answer, Paragraph 3, Subsection 49, the Respondent admittedthis allegation. I find the Respondent violated .219(e)(1)(i).??????????? Standard.219(e)(3)(i)??????????? ConcerningItem 50, in its Answer, Paragraph 3, Subsection 50, the Respondent admittedthis allegation. I find the Respondent violated .219(e)(3)(i).??????????? Standard.242(b)??????????? ConcerningItem 52, in its Answer, Paragraph 3, Subsection 52, the Respondent admittedthis allegation. I find the Respondent violated .242(b).??????????? Standard.252(a)(2)(IV)(c) (Item 54)??????????? ConcerningItem 54?A, compliance officer Stanton testified that tanks of oxygen andacetylene were stored together in a roadway just outside the storage area; andacetylene is a flammable gas . .. Vol. IV, pp. 38.??????????? TheRespondent?s representative, DuPre, testified that the tanks were not ?stored?but had just been delivered. The delivery truck-driver?s custom is to leave thecylinder there, notify the Respondent?s officer just down the roadway a little,and the Respondent then sends an employee to pick up the cylinders and storethem properly . . . Vol. IX, pp. 80?83.??????????? Asconcerns Item 54?A, the Respondent?s explanation is reasonable and credible,and I find that the cylinders were not ?in storage.? I find that theComplainant has not sustained the burden of proving a violation of.252(a)(2)(IV)(c).??????????? Concerningitem 54?B, compliance officer Stanton testified that tanks of oxygen,acetylene, and propane, a flammable gas, were together outside the closedstorage area. Regulators and hose were attached to the tanks and there was duston the regulators. The department head of the Respondent said they had beenused ?quite a while ago? . . . Vol. IV, pp. 40, 41.??????????? ExhibitC?94 is a photograph showing the tanks were not separated.??????????? TheRespondent?s representative, DuPre, testified that dust has no bearing on whenthe cylinders were last used. There would be a hazard from cylinders beingtogether . . . Vol. IX, pp. 85?87.??????????? ConcerningItem 54?B, there was no explanation here comparable to that for Item 54?A. Inaddition, the presence of the dust plus the department head?s statement thatthe cylinders had been used ?quite a while ago? tend to substantiate theallegation. I find that the oxygen cylinder was ?in storage? and was notseparated at least 20 feet from a fuel gas cylinder. I find that theComplainant has sustained the burden of proving a violation of.252(a)(2)(IV)(c).??????????? Standard.309(a)??????????? (Article110?17 of the National Electrical Code)??????????? Standard1910.309(a): The requirements contained in the following articles and sectionsof the National Electrical Code, NFPA 70?1971; ANSI CI?1971 (Rev. of C?1?1968)shall apply to all electrical installations and utilization equipment:NationalElectrical Code?Article 110?17(a), (b), and (c) Guarding of Live Parts (notmore than 600 volts):(a) Except aselsewhere required or permitted by this code, live parts of electricalequipment operating at 50 volts or more shall be guarded against accidentalcontact by approved cabinets or other forms of approved enclosures, or any ofthe following means:?(b) In locationswhere electrical equipment would be exposed to physical damage, enclosures orguards shall be so arranged and of such strength as to prevent such damage.?(c) Entrances torooms and other guarded locations containing exposed live parts shall be markedwith conspicuous warning signs forbidding unqualified persons to enter.??????????? Neitherthe Complainant nor the Respondent contended that any of the electricalenclosures had not been ?approved? at some time under Article 110?17. Most ofthe evidence presented by both parties concerned maintenance or repair or goodcondition or the safety of such equipment; and there was also evidence on thequestion of access by unqualified personnel. Some of the items are virtuallyidentical and, wherever it seems reasonable to do so, they have been consideredtogether.??????????? NOTE:In some of the items, the compliance officer used a biomedical probe to testvoltage. The Respondent?s safety supervisor, Kershaw, testified that thebiomedical probe alone might not be reliable because it could give off a ?beep?sound from either static voltage or regular voltage. It has two settings: an ?S?for static and ?L? for adequacy of grounding of equipment. When on ?S? (whichis where the compliance officer put it), it indicates the presence of more than100 static volts. One volt of electricity is the equivalent of 295 static volts. . . Vol. X, pp. 23, 24. Kershaw did not say anything to compliance officerTerroux about the probe . . . Vol. X, pp. 22, 35.??????????? Items61?A, C, D, and E all concern missing ?knockouts.? Compliance officer Stantontestified that the ?knockout? is the circular portion or the plug that ismissing. Exhibit C?97 shows it as the circular part. It is used for theinsertion of other wires or cords to be put through the box. The knockout wasmissing from two electric boxes on the wall in the Precipitron Crib. Bothmanagement and labor told him the voltage was over 50 volts. He tested it witha biomedical probe which would not disclose if a wire was insulated or bare. Hecannot say if the wires and whatever was inside the box here were or were notfully insulated; if fully insulated, there is no hazard. If not insulated, andif a finger came in contact with live electric parts, there could be a shockcausing severe injury or death . . . Vol. IV, pp. 49?57.??????????? ExhibitC?96 is a photograph showing the knockout missing on the junction box. The twowires showing are fully insulated. If a person put his finger in the box one orone and a half inches, he could reach an exposed live part and get a shock. Thevoltage is probably in excess of 50 or 100 volts. His observations for thisitem would be the same as for Item 61?C . . . Vol. IV, pp. 59?62.??????????? Asconcerns Item 61?E, compliance officer Stanton testified that Exhibit C?97shows a hoist with a metal box switch-type pendant, the knockout missing, andexposed live parts within the box. He determined this with a biomedical probeand also visually. The voltage was in excess of 50 volts. A finger would haveto go in about two inches to hit exposed live wires. The box is about four bytwo inches in size. With this type of box, it would be easy to have the fingergo up it two inches . . . Vol. IV, pp. 63?65.??????????? Testifyingabout Item 61?A, the union representatives DeRoy and Gilbert described theoperation of a pendant switch: a person operating this hoist has to hold thehoist in one hand, the pendant box in the other, and operate the buttons orswitch on the pendant box by feel. while his eyes are focused on material he isattaching to the hoist. He must grasp the swinging pendant box in his landoperate the buttons by feel . . . Vol. VIII, pp. 53, 54, 111?115.??????????? TheRespondent?s representative, DuPre, testified that this is a two-button typeswitch and a finger would have to be inserted about an inch before touching theterminals inside the box . . . Vol. IX, pp. 91.??????????? Asconcerns Item 61?A, the facts presented by compliance officer Terroux are verysimilar to Item 61?E, except that the voltage in 61?A was over 100.??????????? ExhibitC?155 and C?156 show the hoist pendant switch . . . Vol. VII, pp. 67, 71. Thewires are not bare; the terminal is. A finger would have to go in one inch orless. Gilbert, the union representative, testified that three knockouts wereout and the exposed wire was about one inch inside the box . . . Vol. VIII, pp.111?115.??????????? Asconcerns Items 61?C and 61?D, it is clear that the knockouts were missing but,even on the compliance officer?s own statement, it is not clear whetherwhatever is inside the box is or is not fully insulated. If there is noinsulation, the hazard of a shock exists; if fully insulated, there is nohazard. In this state of the evidence, I find that the Complainant has notsustained the burden of proving a violation of .309(a).??????????? Asconcerns Items 61?A and 61?E, there was no contradiction of the complianceofficer?s testimony that the knockout was missing, there were exposed liveparts, and the voltage of the box was over 50. It is important to note thatthis was a pendant box, as distinguished from a ?fixed? one. It had to be heldin one hand and its buttons or switch operated by feel while the employee?seyes are focused on the hand which is affixing the material to the hoist. Underthose circumstances, it would not be difficult to accidentally press a fingerinside the box and sustain a shock.??????????? Asconcerns Items 61?A and 61?E, I find that each box had live parts in excess of50 volts; was not properly guarded against accidental contact; and washazardous to employees. I find that the Complainant has sustained the burden ofproving a violation of .309(a) for each item.??????????? Asconcerns Item 61?G, compliance officer Stanton testified there was a lightsocket with a bulb missing. There was in excess of 50 live volts in the socket.The hazard was the possibility of an employee putting a finger in the socketand sustaining a shock. If there were a bulb in the socket, there is no hazard. . . Vol. IV, pp. 68, 69.??????????? Inits Respondent No. 93 to the Complainant?s Request for Admissions, theRespondent admitted there was no bulb in the socket.??????????? Asconcerns Item 61?G, I find that there was in excess of 50 volts in the socketthat had no bulb; and an employee who put his finger in that socket wouldsustain a shock. However, it seems highly unlikely that a finger would be putin the socket accidentally; it would almost certainly have to be intentional.It seems to me that any employer is entitled to a minimum of reasonable conducton the part of the employees; and intentionally putting a finger in the socketwould not constitute minimum reasonable conduct, in my opinion.??????????? Section3, Paragraph 8 of the Act refers to conditions ?reasonably necessary orappropriate to provide safe or healthful employment . . .? Article 110?17 ofthe National Electrical Code uses the word ?accidentally.? As I interpretSection 3, Paragraph 8 and Article 110?17, an employer is not to be penalizedfor intentional conduct of the employee (regardless of how stupid or illadvised or without knowledge of what the consequences of such conduct may be)if the circumstances are such that an employee of even minimal intelligencewould not commit the act intentionally. In the circumstances here, I find thatthe Complainant has not sustained the burden of proving that the Respondentfailed to guard against ?accidental? contact, and I find that the Respondenthas not violated .309(a).??????????? Asconcerns Item 61?J, compliance officer Hatcher testified that in Department2320, Machine No. 282349 has a broken raceway with uninsulated exposed terminalends carrying 110 volts. There is a better-than-even chance that an employeewould come in contact with a live part, the hazard being a shock . . . Vol. VI,pp. 26?30.??????????? ExhibitC?125 is a photograph of the raceway.??????????? TheRespondent?s representative, Cote, testified there were no exposed live wiresand an employee could not come in contact with the exposed terminal unless hetried to. Employees work with metallic tools right up against the table . . .Vol. IX, pp. 14?18.??????????? Asconcerns Item 61?J, the Respondent?s representative did no contradict thecompliance officer?s testimony that the exposed terminal ends carried 110volts. He also testified that employees with metallic tools worked right upagainst the table. Those circumstances make the likelihood of an accidentalcontact probable. I find that the broken raceway had live parts in excess of 50volts; was not properly guarded against accidental contact; and was hazardousto employees. I find that the Complainant has sustained the burden of proving aviolation of .309(a).??????????? Asconcerns Item 61?K, compliance officer Hatcher testified that in Department2963, the insulation was pulled away from the terminal at the junction box fora Delta drill press, leaving exposed wires with approximate voltage of 220volts. Bare copper wire was visible, and he pointed it out to the Respondent?srepresentative, Cote. In his ?original notes? he merely put down that theinsulation was pulled off at the terminal. It was stipulated that the term?transcribed notes? (the more formal report to OSHA made from the ?originalnotes? written during the inspection) said ?exposing live wires.? The hazardwas the possibility of a shock from contact with the exposed live parts . ..Vol. VI, pp. 31?44.??????????? ExhibitC?126 is a photograph of the junction box.??????????? Inits Response No. 95 to the Complainant?s Request for Admissions, the Respondentadmitted that the outer cover of the cable had been pulled away.??????????? TheRespondent?s representative, Cote, testified that the outer jacket on a tube ofwires was pulled loose but no live parts were exposed. The wires exposed wereinsulated and there was no hazard . . . Vol. IX, pp. 16?21.??????????? Asconcerns Item 61?K, the evidence is conflicting, the two witnesses are equallycerdible, and neither one is better qualified than the other in electricalmatters (as far as the testimony discloses the background of each). Thephotographic exhibit does not help me in determining whether the wires wereinsulated. In these circumstances, I find that the Complainant has notsustained the burden of proving a violation of .309(a).??????????? Asconcerns Item 61?M, compliance officer Hatcher testified that in Department2963, at Machine No. 501051, about seven feet above the floor, there was anopen junction box with live wires with approximately 220 voltage. Hisbiomedical probe test indicated the wires were live but it would not disclosewhether they were insulated. He could see in the box and there were two exposedlive wires; the ends of the wires were not taped completely. The hazard wasthat an employee might touch the wires and sustain a shock . . . Vol. VI, pp.49?54.??????????? ExhibitC?127 is a photograph of the machine showing the junction box.??????????? Inits Response No. 97 to the Complainant?s Request for Admissions, the Respondentadmitted that two electric boxes on Machine No. 501051 were not fitted withcovers.??????????? TheRespondent?s representative, Cote, testified that there were no exposed liveparts inside the junction box; a person could not get a shock from putting hishand inside . . . Vol. IX, pp. 21, 22.??????????? Asconcerns Item 61?M, the testimony of the two witnesses is conflicting exceptthat there was no specific and direct contradiction of the compliance officer?stestimony that the ends of the wires were not taped completely. That is atleast some corroboration of the compliance officer. I find that the junctionbox had live parts in excess of 50 volts; was not properly guarded againstaccidental contact; and was hazardous to employees. I find the Respondentviolated .309(a).??????????? Asconcerns Item 61?P, compliance officer Hatcher testified that in Department2963, Machine No. 2391 had a broken live wire with a switch attached. He wastold its voltage was 200 volts. It showed bare wire. He checked it out andfound it was live . . . Vol. VI, pp. 54?57.??????????? ExhibitsC?128 and C?129 are photographs of the wire. On the back of Exhibit C?128, oneof the notes the compliance officer had written was: ?. . . broken 22power-plug attachment . . .???????????? TheRespondent?s representative, Cote, testified the outer jacket had been pulledfrom the power cord to Machine No. 2391 exposing insulated wires but there wasno danger of a shock . . . Vol. IX, pp. 26.??????????? Asconcerns Item 61?P, the testimony and the exhibits establish that the wire wasbroken and was exposed. They corroborate the compliance officer?s conclusions.I find that there was a broken live wire with voltage in excess of 50 volts; itwas not properly guarded against accidental contact; and was hazardous toemployees. I find that the Respondent violated .309(a).??????????? Asconcerns Items 61?R and 61?S, compliance officer Cavalieri testified that theelectrical panel box of Machine No. 506866 had a broken interlock handle. Thehazard was that the broken handle would prevent anyone from turning the poweroff. He believed the voltage was over 400 . . . Vol. V, pp. 126.??????????? Theunion representative, Joseph, testified that the interlock handle that turnsthe power off was broken off. It had been the practice of employees to go intothe electrical panel boxes. After the fatality of April 11, everyone was toldnot to go in the boxes . . . Vol. VII, pp. 158?162.??????????? Theunion representative, Gilbert, also testified that this had been the practiceof employees . . . Vol. VIII, pp. 125. Compliance officer Cavalieri said theelectrical panel handle on Machine No. 101182 was missing, so the power couldnot be shut off . . . Vol. V, pp. 127.??????????? Inits Answer No. 101 to the Complainant?s Request for Admissions, the Respondentadmitted the handles were broken or missing from the electrical panels ofMachines No. 506866 and 101182.??????????? Asconcerns Items 61?R and 61?S, I find that each panel box had a broken ormissing part, that each had live parts in excess of 50 volts, that each was notproperly guarded against accidental contact, and each was hazardous to employees.I find that the Respondent violated .309(a).??????????? Asconcerns Item 61?V, compliance officer Hatcher testified that an electricalpanel box which was neither locked nor bolted carried 440 volts. He did notknow if there was an interlocking system . . . Vol. VI, pp. 70.??????????? ExhibitsC?130 and R?10 were introduced as photographs of the electrical panel box.??????????? TheRespondent?s representative, Cote, testified that the box (in Department 2963)cannot be opened if the switch is at the ?on? position. The switch must beturned to the ?off? position, a screwdriver inserted in a slot and turned, andthe handle then turned. There are no exposed live parts once the box is opened.If the disconnect switch is not working properly, the electrical parts could belive when the box is open . . . Vol. IX, pp. 32?42.??????????? TheRespondent?s representative, Kershaw, who has an electrical engineeringbackground, corroborated Cote?s testimony . . . Vol. X, pp. 20?22.??????????? Asconcerns Item 61?V, the compliance officer did not know if there was aninterlock system. The Respondent?s representatives described in detail thesteps that would have to be taken to open the box. There was considerabletestimony presented to establish the Respondent?s representative, Kershaw, as aqualified electrical expert but there was no testimony as to compliance officerHatcher?s experience in that field. The Respondent presented two witnesses (atleast one being an expert) to sustain its position whereas the Complainant hadonly one witness (with no evidence at all as to his expertise) to prove theallegation. In those circumstances, I must conclude that the panel had aninterlocking system with various steps that had to be taken before the panelbox could be opened.??????????? ExhibitR?10 seems to corroborate the Respondent?s position. In my opinion, those stepsconstitute reasonable guarding against accidental contact and I find that theComplainant has not sustained the burden of proving a violation of .309(a).??????????? Asconcerns Item 61?W, compliance officer Terroux testified that the electricalcontrol panel door was open and the power was not disconnected. He tested theelectrical parts and they were live. The voltage was 440. The junction box hada voltage of over 100. Its cover had been removed and there were employees in thearea . .. Vol. VII, pp. 71?78.??????????? ExhibitC?156 is a photograph of the panel and Exhibit C?157 is a photograph of thejunction box.??????????? Theunion representative, Gilbert, testified that the electrical panel was open andthe machine was running. It was energized. He operates such machines and theycannot be on unless the panel is energized. It was common to see panel switcheswith their covers off. Employees who are not electricians go to panel boxes toreset the buttons; they do not know the right one so they experiment. Nomaintenance was being done on the machine; if an electrician were working,there would be a tag on it or a cart there, and there was neither. They alsostore such items as clothing, lunch, and tools in the panels. Beginning onMarch 4, he had many talks with the Respondent?s representatives, including thesafety director, about the dangers of these panels. He listed the dates oftalks as March 4, 5, 10, 14, 18, 25, April 4, and 11. He also told theRespondent?s representatives that it was common practice for employees to gointo the electrical panels. The employee Costa was electrocuted on April 11 . .. Vol. VIII, pp. 119?124.??????????? TheRespondent?s representative, Kershaw, testified that the electrical cabinetshown in Exhibit C?156 has an interlock; the handle operates as described inItem 61?V. The door to the electrical cabinet shown in Exhibit C?156 was ajarand the panel cover was off the junction box shown in Exhibit C?157.Maintenance was being done on the machine . . . Vol. X, pp. 20?24.??????????? Asconcerns Item 61?W, the Respondent does not dispute the Complainant?s testimonythat the electrical panel was open and the cover off the junction box. Itsapparent explanation for such conditions is that maintenance was being done;but no witness was called who was performing maintenance. Although either sidecould have called the electrician as a witness, it would seem that (in thecircumstances here) the burden of doing so would be more on the Respondent thanthe Complainant since the Respondent was the party that claimed such work wasbeing performed. I had alerted both sides to my belief that the electrician?stestimony might be an important consideration . . . Vol. X, pp. 58. The machinewas running and the panel was energized. I find that the panel and junction boxeach had live parts in excess of 50 volts; each was not properly guardedagainst accidental contact; and each was hazardous to employees. I find theRespondent violated .309(a).??????????? Asconcerns Item 61?X, compliance officer Terroux testified that in Department2243 there was no interlock handle on the door to the panel shown in ExhibitC?158. There were live connections of over 100 volts inside . . . Vol. VII, pp.78.??????????? TheRespondent?s representative, Kershaw, testified that this is not a typicalpanel and it does not have a disconnect switch on the panel but has oneadjacent to the panel. There are no overload relays (reset buttons) in thispanel. There are several exposed live parts. The panel opens simply by turningthe handle . . . Vol. X, pp. 73?76, 81?83.??????????? Asconcerns Item 61?x, the Respondent?s representative does not really controvertthe compliance officer?s testimony and I find that the panel had live parts inexcess of 50 volts; was not properly guarded against accidental contact; and washazardous to employees. I find the Respondent violated .309(a).??????????? Asconcerns Items 61?Y and Z, compliance officer Hatcher testified that inDepartment 2963 the two panel boxes were not locked or bolted. They hadinterlock systems but the interlock was not working on one box. The boxescarried 440 volts. Although it was the only box he recalls where the interlockwas not working, he did not particularly note it because it had becomerepetitious . . . Vol. VI, pp. 74?76.??????????? ExhibitsC?131 and C?132 are photographs of the panel boxes.??????????? Theunion representative, DeRoy, testified that in Department 2963 the panel boxeswere opened just by turning the handle. Although there was a separate handle toturn the power off, the power was still on after the door was open . . . Vol.VIII, pp. 56, 57.??????????? TheRespondent?s representative, Cote, (testifying on Item 61?Z) said the panelboxes shown in Exhibit C?131 and C?132 are operated (as described in Item 61?V,above). The interlock handle?s switch shuts off the power from the switch ondown but not above; but it is insulated above the switch. Once the door isopened, it is easy to throw the switch and make the entire box live . . . Vol.IX, pp. 36?42.??????????? Asconcerns Item 61?Y and Z, I find that the interlock on each box was either notworking or the box opened simply by turning the handle; each panel had liveparts in excess of 50 volts; each was not properly guarded against accidentalcontact; and each panel was hazardous to employees. I find that Standard.309(a) was violated by the Respondent for both Items 61?Y and Z.??????????? Asconcerns Items 61?AA, BB, CC, and DD, compliance officer Cavalieri testifiedthat the panel box door (shown in Exhibit C?118) was not locked and the voltageinside was about 400. The power would go off if the door were open but could bereset by maneuvering the turn-off bar inside. A sign says, ?Danger, Keep Out.?The electrician has been instructed by his superior to put locks on all suchboxes and was in the process of doing it . . . Vol. V, pp. 128?134.??????????? Thesituation was similar for Item 61?BB . . . Vol. V, pp. 136.??????????? Itwas the same situation for Item 61?CC . . . Vol. V, pp. 139, 140.??????????? Item61?DD was similar . . . Vol. V, pp. 140.??????????? Asconcerns Items 61?AA, BB, CC, and DD, the testimony of the compliance officerwas not controverted in any way. I find that each panel box had live parts inexcess of 50 volts; each was not properly guarded against accidental contact;and each was hazardous to employees. I find the Respondent violated .309(a) foreach Item 61?AA, BB, CC, and DD.??????????? Asconcerns Items 61?EE and GG, compliance officer Stanton testified that theelectrical panel box shown in Exhibit C?99 was not locked or interlocked. Therewere exposed live parts in the panel that would carry up to 400 volts. The currentis supposed to cut off when the door is open but this one had a defect and didnot. The input side of the 440 voltage was not insulated and it exposed the 400volt?s parts. When the door is open a person could get a shock . . . Vol. IV,pp. 72?76.??????????? Theunion representative, Neal, testified the panel box in Item 61?EE was open, theinput wires were metallic and were not covered. Part of the inside interlockhandle was missing on the box in Item 61?GG . . . Vol. VIII, pp. 4, 5, 11.??????????? Complianceofficer Stanton also testified that the box in Item 61?GG was similar to thatin 61?EE. In addition, he testified that electricians said 400 volts werecoming in. The interlock was not operational; the electrician was called andbegan working on it . .. Vol. IV, pp. 82, 83.??????????? TheRespondent?s representative, DuPre, testified the panel in Item 61?EE has aninterlock. When in the ?off? position, there are no exposed live parts belowthe switch but it is hard to tell about the incoming side. Anything above theswitch would be live. There is a cutoff switch of some kind for boxes of thistype; it cuts off all electricity . . . Vol. IX, pp. 92?97.??????????? Asconcerns Items 61?EE and 61?GG, the Complainant?s testimony was not reallycontradicted by the Respondent. I find that the box in each item had live partsin excess of 50 volts; each was not properly guarded against accidentalcontact; and each was hazardous to employees. I find that the Respondentviolated .309(a) for both Items 61?EE and GG.??????????? Asconcerns Item 61?II, compliance officer Stanton (who was in electronicsmaintenance for six years and worked on interlocks) testified that ExhibitC?101 is an electrical panel box that was not locked. It has voltage of over400. The interlock removes the high voltage but retains voltage in excess of 50or 100 volts through the system. After the door was opened, in excess of 50volts would still be there . . . Vol. IV, pp. 89?91.??????????? TheRespondent?s representative, DuPre, testified that the interlock here functionswhen the door is opened but the box can still be reenergized. Only qualifiedelectricians should go into these boxes. Other employees were instructed not tosince the beginning; instructions were not reissued until after the fatality ofApril 11. The biomedical probe would ?beep? even if all the wires wereinsulated. There was a lock on this box but it was not locked . . . Vol. IX,pp. 97?107.??????????? Asconcerns Item 61?II, the Complainant?s testimony was really not contradicted bythe Respondent; in fact, the Respondent?s representative even agreed that thebox can be reenergized. He also said there was a lock on the box but it was notlocked. In addition, compliance officer Stanton had spent several years inelectronics maintenance and had worked on interlocks. That background strengthenshis testimony. I find that the panel box had live parts in excess of 50 volts;was not properly guarded against accidental contact; and was hazardous toemployees. I find that the Respondent violated .309(a).??????????? Asconcerns Item 61?JJ, compliance officer Stanton testified the distributionpanel was similar to the other panels; was not locked; there were live partsaround the reset button; and opening the door would not delete the voltage onthis one . . . Vol. IV, pp. 91, 92.??????????? Asconcerns Item 61?JJ, the Complainant?s testimony was not contradicted. Whilethe compliance officer did not specify the voltage, it would appear that byusing the phrase ?similar to the other control panels? (Vol. IV, pp. 91), theparties understood that to include voltage of over 50 volts. I find that by thewords ?similar to the other control panels,? the witness included voltage inexcess of 50. With that interpretation, I find that the panel had live parts inexcess of 50 volts; was not properly guarded against accidental contact; andwas hazardous to employees. I find that the Respondent violated .309(a).??????????? Asconcerns Item 61?KK, the union representative, Neal, testified that inDepartment 2431 the panel box was a maze of wires and connections. The box wasopen simply by turning the handle. He saw no interlock on the box. Electriciansthere said there was live voltage in the box . . . Vol. VIII, pp. 14.??????????? Asconcerns Item 61?KK, the only evidence of voltage here is that the unidentifiedelectricians said there was live voltage in the box. Even if the hearsay werenot disreguarded, the evidence still falls short of establishing that therewere live parts of ?50 volts or more.? I find that the Complainant has notsustained the burden of proving a violation of .309(a).??????????? Standard.309(a)??????????? Asconcerns Item 62, in its Answer, Paragraph 3, Subsection 62, the Respondentadmitted this allegation. I find that the Respondent violated .309(a) (Article110?22 of the National Electrical Code).??????????? Standard.309(a) (250?45(d) of the National Electrical Code)??????????? ConcerningItems 63?A, B, and D, compliance officer Terroux testified that in a mill area,on a wooden bookcase there was a fan connected for use but not grounded. Thehazard was the possibility of an electric shock if there was an internal shortin the fan. Where it was located was not ?office environment? . . . Vol. VII,pp. 88?95.??????????? ConcerningItem 63?B, compliance officer Stanton testified that three lamps of thetwo-wire, nongrounded type were plugged into sockets. Because the lamp frame andthe table on which it stood were metal, there was a possibility of an electricshock. On cross-examination, he testified that office desks are frequentlymetal and lamps are put on them . . . Vol. IV, pp. 96?98.??????????? ConcerningItem 63?D, compliance officer Stanton testified that an IBM typewriter operatedat 110 volts was ungrounded on a metal desk. It is office-type equipment but hecited it because the conditions here included such items as a metal desk andmetal chair. The hazard in all three cases was the possibility of a shocksustained by an employee . . . Vol. IV, pp. 100, 101.??????????? TheRespondent introduced Exhibit R?2, OSHA Directive 100?9, to the effect thatoffice-type equipment need not be grounded (with certain exceptions).??????????? ExhibitsC?102, 103, and 159 are photographs of the fan, lamps, and typewriter.??????????? Byits Answer No. 104 to the Complainant?s Request for Admissions, the Respondentadmitted that the fan, lamps, and typewriter (the subjects of Items 63?A, B,and D) were not grounded.??????????? Asconcerns Items 63?A, B, and D, the equipment referred to appears to be?office-type equipment.? As far as these items are concerned, the Complainanthas not sustained the burden of proving a violation of .309(a).??????????? Standard.309(a) (250?51 of the National Electrical Code)??????????? Asconcerns Item 64, in its Answer, Paragraph 3, Subsection 64, the Respondentadmitted this allegation. I find that the Respondent violated .309(a).??????????? PriorCitations??????????? TheRespondent has had citations in the past. They are covered in Exhibits C?161?164. . . Vol. VII, pp. 97, 98.??????????? Penaltyfor Violations of .309(a)??????????? Ifind that, as concerns the violations of .309(a), the Respondent should receivethe maximum civil penalty allowable even if the Respondent had had no priorviolations of any kind. The hazards here could result in the most serious kindof injury or death. The Respondent knew, or should have known, of the practice(apparently permissible in the sense that it was tolerated) of unqualifiedemployees going into the electrical panel boxes to start machines or resetcontrols or store articles or for other unauthorized purposes. The union?ssafety representative had protested the conditions on several occasionsbeginning on March 4, 1975, and continuing right up to the fatality of April11. The Respondent should have taken immediate action. I can find no excuse forthe Respondent?s failure to correct the situation before the fatality describedin Exhibit C?65. It showed such utter disregard of the possible consequences toits employees that, had the Secretary issued a citation for willful violation,it might well have been sustained.??????????? TheRespondent apparently had no real safety program intended to protect theRespondent?s employees from the dangers inherent in the electrical equipment.If there were only one electrical panel improperly guarded, I would still findthat the Respondent should receive the maximum civil penalty allowable. It ismy belief that the Respondent should be penalized for every such panel; whenseveral are included in one item, even the maximum penalty is inadequate.??????????? InExhibit C?65, which is the Respondent?s investigation into the fatality ofApril 11, the paragraph headed ?Conclusion? makes it clear that the primarycause of the accident was unauthorized entrance into an electrical panel, withsecondary causes including no markings to keep out unauthorized personnel.Under ?Corrective Action,? the investigation?s summary says in part: ?. . . Awritten company policy on access to electrical control panels as well as anelectrical preventive maintenance program on electrical equipment will beestablished . . .? The word ?will? is significant; it indicates that theRespondent did not have any serious safety program of that kind in effect untilafter the fatality.??????????? Penaltyfor Item 61 Violations??????????? Section17(c) of the Act says: ?Any employer who has received a citation for aviolation of the requirements of Section 5 of this Act, of any standard, rule,or order promulgated pursuant to Section 6 of this Act, or of regulationsprescribed pursuant to this Act, and such violation is specifically determinednot to be of a serious nature, may be assessed a civil penalty of up to $1,000for each such violation.???????????? Ifthere be several violations or hazardous conditions specified under one item,may there be a penalty for each hazardous condition or is the penalty limitedto just one penalty for the item? The question arises because there are severalseparate violations listed under Item 61.??????????? TheAct?s Section 17(a) on willful or repeated violations refers to a penalty for?each violation.???????????? Section17(b) on serious violations refers to a penalty for ?each such violation,? asdoes 17(c).??????????? Allthree subsections under Section 17 of the Act use the word ?each? in referringto a penalty for a violation.??????????? Iinterpret the words ?each such violation? to mean that a penalty may be imposedfor every violation listed in any one item. However, since there is an apparentconflict of opinion on the point, the Order will reflect an alternative penaltyin case it be decided on review that the words ?each such violation? refer tothe item rather than the hazardous condition.??????????? Forthat reason, I am imposing a civil penalty of $1,000 for each of the followingviolations under Item 61: R, S, W, X, Y, Z, AA, BB, CC, DD, EE, GG, II, JJ.That amounts to a total penalty of $14,000 for those violations.??????????? Inthe alternative (if upon review it be decided that the penalty may be imposedonly for the item) the penalty assessed for Item 61 would be $1,000.Findings of Facts??????????? Havingheard the testimony, observed the witnesses, and examined the exhibits, thefollowing Findings of Fact are made:??????????? (1)At all times concerned, the Respondent regularly received, handled or workedwith goods which had moved across state lines;??????????? (2)The conditions described in the following items exposed the Respondent?semployees to sustaining harm because of the hazard described therein: Items1?a, C?h; 2?B; 3?A, E; 5; 12; 13; 23?A-D, F; 30; 32?A, B; 35, 37; 38; 39; 40?A,B, C, F, H?R, T, U, V, X, Z, BB, CC; 46; 48; 49; 50; 52; 54?B; 61?A, E, G, J,M, P, R, S, W, X, Y, Z, AA, BB, CC, DD, EE, GG, II, JJ; 62 and 64;??????????? (3)One or more officers or supervisory personnel of the Respondent was aware ofsaid hazardous conditions and knew that employees were exposed to such hazard.Conclusions of law??????????? (1)At all times concerned, the Respondent was an employer engaged in a businessaffecting commerce within the meaning of the Act; and the Occupational Safetyand Health Review Commission has jurisdiction over the subject matter and theparties.??????????? (2)At all times concerned, the Respondent knew, or with the exercise of duediligence should have known, of the alleged violations.??????????? ?(3) On the date in question, the Respondentwas not in compliance with the following standards at 29 CFR 1910:.22(a)(1);.22(a)(2); .22(b)(1); .23(c)(1); .37(q)(1); .94(d)(9)(V);.108(c)(2)(i); .108(c)(3)(i); .132(a); .157(d)(4)(V); .176(b); .178(m)(12)(i);.179(b)(5); .179(g)(1)(V); .179(g)(5)(i); .212(a)(1); .215(a)(2); .219(d)(1);.219(e)(1)(i); .219(e)(3)(i); .242(b); .252(a)(2)(IV)(c); .309(a) NationalElectrical Code, Articles 110?17, 22, and 250?45(d); and the Complainant hassustained the burden of proving the Respondent violated Section 5(a)(2) of theAct (? 654).??????????? NOTE:Possible alternative finding on .108(c)(2)(i) and .108(c)(3)(i).??????????? (4)The Complainant has not sustained the burden of proving the Respondent violatedthe following standards at 29 CFR 1910: .24(b); and .176(c).??????????? NOTE:Possible alternative finding on .108(c)(2)(i) and .108(c)(3)(i).Order??????????? Thewhole record having been considered, and due consideration having been given to29 USC, Section 666(j), IT IS ORDERED:??????????? (1)Of the contested items: those affirmed, together with the penalty assessedtherefor, are as follows: ITEM \u00a0 PENALTY \u00a0 1 \u00a0 $30.00 \u00a0 2 \u00a0 -0- \u00a0 3 \u00a0 15.00 \u00a0 5 \u00a0 35.00 \u00a0 12 \u00a0 -0- \u00a0 13 \u00a0 80.00 \u00a0 *21 \u00a0 25.00 \u00a0 *22 \u00a0 -0- \u00a0 23 \u00a0 60.00 \u00a0 30 \u00a0 -0- \u00a0 32 \u00a0 35.00 \u00a0 35 \u00a0 35.00 \u00a0 37 \u00a0 -0- \u00a0 38 \u00a0 -0- \u00a0 39 \u00a0 -0- \u00a0 40 \u00a0 50.00 \u00a0 46 \u00a0 -0- \u00a0 48 \u00a0 35.00 \u00a0 49 \u00a0 -0- \u00a0 50 \u00a0 -0- \u00a0 52 \u00a0 -0- \u00a0 54 \u00a0 30.00 \u00a0 61 \u00a0 $14,000 \u00a0 \u00a0 (1,000 each for Items 61-R, S, W, X, Y, Z, AA, BB, CC, DD, EE, GG, II, and JJ.) \u00a0 \u00a0 62 \u00a0 50.00 \u00a0 64 \u00a0 -0- \u00a0 \u00a0 * \u00a0 Possible alternative finding. \u00a0 \u00a0??????????? Thosevacated, together with the penalty proposed, are: Items 6, 33, 63.??????????? NOTE:Possible alternative finding on Items 21 and 22.??????????? (2)Of the items withdrawn by the Complainant: the following are vacated, togetherwith their proposed penalties: Items 9?B; 11; 13 (insofar as it referred toRespondent?s Department 2729\/2153); 14; 16; 17; 20; 24?A and B; 29?B and C;40?D, E, S; 41; 47?E; 53?A; 55?58; 60; 61?L, O, Q. T; 65?67; 68?B, C, D, and H.??????????? (3)Of the items where the Respondent withdrew the Notification of Intent toContest: the following are affirmed, together with the penalty assessed: ITEM \u00a0 PENALTY \u00a0 4 \u00a0 $ -0- \u00a0 6-A \u00a0 -0- \u00a0 7 \u00a0 -0- \u00a0 8 \u00a0 -0- \u00a0 9-A \u00a0 15.00 \u00a0 10 \u00a0 115.00 \u00a0 15 \u00a0 -0- \u00a0 18 \u00a0 -0- \u00a0 19 \u00a0 -0- \u00a0 24-C, D \u00a0 30.00 \u00a0 25 \u00a0 -0- \u00a0 26 \u00a0 -0- \u00a0 27 \u00a0 -0- \u00a0 28 \u00a0 -0- \u00a0 29-A \u00a0 -0- \u00a0 31 \u00a0 -0- \u00a0 34 \u00a0 35.00 \u00a0 36 \u00a0 -0- \u00a0 42 \u00a0 35.00 \u00a0 43 \u00a0 -0- \u00a0 47-A, B, C, D, F \u00a0 -0- \u00a0 51 \u00a0 -0- \u00a0 53-B \u00a0 15.00 \u00a0 54-C \u00a0 -0- \u00a0 59 \u00a0 -0- \u00a0 61-HH, MM \u00a0 -0- \u00a0 63-C \u00a0 -0- \u00a0 68-A, E, F, G \u00a0 -0- \u00a0 \u00a0SO ORDERED.?FOSTER FURCOLOJudge, OSHRCDated: June 21, 1976?Boston, Massachusetts[1] This case waspreviously consolidated on review with OSHRC Docket No. 13591, also involvingPratt & Whitney. The cases were severed when the decision in Docket No.13591 was issued. Pratt & WhitneyAircraft, 80 OSAHRC 38\/A2, 8 BNA OSHC 1329, 1330 n. 1, 1980 CCH OSHD?24,447 at p. 29,820 n. 1 (No. 13591, 1980), pet. for review filed, No. 80?4102 (2d Cir. June 24, 1980).[2] CommissionerCleary granted review of the issues raised by Pratt & Whitney?s petitionfor discretionary review. Former Commissioner Robert D. Moran directed reviewof the judge?s decision ?for error.?In its petition for discretionaryreview, Pratt & Whitney took exception to the judge?s affirmance, in wholeor in part, of items 1, 2, 3, 13, 21, 22, 23, 32, 35, 40, 54 and 61. Pratt& Whitney has submitted a comprehensive brief seeking reversal of thejudge?s decision on these items. The Secretary has not filed a brief on review.The judge disposed of a number ofother contested items. Since neither party has taken exception to these actionsand since there is not any compelling interest warranting Commission review ofthese items, we will not consider them on review. See Water Works Installation Corp., 76 OSAHRC 61\/B8, 4 BNA OSHC1339, 1976?77 CCH OSHD ?20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21\/A2, 3 BNA OSHC 2032, 1975?76 CCHOSHD ?20,428 (No. 9507, 1976).[3] The following isa description of the ten withheld document items that were sealed by the judge.Item 1 contains thirteen pages ofthe worksheets of compliance officer John Stanton. The worksheets containinformation on alleged instances of noncompliance with specified OccupationalSafety and Health Administration (?OSHA?) standards as observed by Stanton.Item 1 was introduced into evidence, with deletions, as exhibit C?104. Thegeneral nature of the deletions for this and the other items will be discussedin the text infra.Item 2 is a single sheet of paperprepared by compliance officer Stanton that lists the names of employees andthe numbers of different citations. This was given to P & W at the hearingwith the names of six employees deleted from it. It was not introduced intoevidence.Item 3 contains thirteen pages ofthe worksheets of compliance officer Sindo Cavalieri with his raw notes on theworksheets. Item 3 was introduced into evidence, with deletions, as exhibitC?121.Item 4 contains nine pages of theworksheets of compliance officer Cavalieri with his notes from item 3transcribed to the worksheets. Exhibit C?122 is withheld item 4 with deletions.Item 5 contains seven pages of theworksheets of compliance officer Joseph Hatcher with his raw notes on them.These notes, with certain deletions, are part of exhibit C?133.Item 6 contains five pages of theworksheets of compliance officer Hatcher with his notes from item 5 transcribedto the worksheets. These notes, with certain deletions, are part of exhibitC?133.Item 7 is an OSHA-1C form, whichincludes information of union representation at P & W and the names ofemployees contacted by compliance officer Hatcher during his inspection. Thesenotes, with certain deletions, are part of exhibit C?133.Item 8 contains five pages of OSHAforms prepared by compliance officer Gordon Terroux. The forms containinformation on the number of P & W employees, the number of lost workdays,the names of certain employees involved with the union, a summary of theclosing conference, and Terroux?s comments on the inspection. Item 8, withcertain deletions, was introduced into evidence as exhibit C?160.Item 9 contains seven pages of theworksheets of compliance officer Terroux. These worksheets, with certaindeletions, are part of exhibit C?160.Item 10 is a photograph of one ofthe cited instances of noncompliance with OSHA standards as observed bycompliance officer Hatcher. Hatcher?s notes describing the alleged instance ofnoncompliance, reflected by citation subitem 61(k), are on the back of thephotograph. Item 10, with the compliance officer?s notes deleted, is exhibitC?126.[4] The numbers arenot part of the description of the observed conditions but appear to have somebookkeeping significance.[5] Pratt &Whitney also argues, as to certain items, that the Secretary failed to provenoncompliance created hazards to its employees. This argument misconceives theSecretary?s burden of proof. A standard that specifies the conditions to whichit applies presupposes the existence of a hazard when its terms are not met,and the Secretary need only prove that the standard applies to the citedconditions. Bunge Corp. v. Secretary ofLabor, 638 F.2d 831 (5th Cir. 1981); AustinBridge Co., 79 OSAHRC 81\/A2, 7 BNA OSHC 1761, 1979 CCH OSHD ?23,935 (No.76?93, 1979); Lee Way Motor Freight, Inc.,74 OSAHRC 22\/D12, 1 BNA OSHC 1689, 1973?74 CCH OSHD ?17,693 (No. 1105, 1974), aff?d, 511 F.2d 864 (10th Cir. 1975).[6] The standard at ?1910.22(a)(1) provides:?1910.22 General requirements.(a)Housekeeping. (1) All places of employment, passageways, storerooms, andservice rooms shall be kept clean and orderly and in a sanitary condition.[7] ANSI Z4.1?1968,Requirements for Sanitation in Places of Employment, served as the source for ?1910.22(a). 29 C.F.R. ? 1910.31.[8] The standard at ?1910.22(a)(2) provides:?1910.22 General requirements.(a)Housekeeping.(2)The floor of every workroom shall be maintained in a clean and, so far aspossible, a dry condition. Where wet processes are used, drainage shall bemaintained, and false floors, platforms, mats, or other dry standing placesshould be provided where practicable.[9] The standard at ?1910.22(b)(1) reads:?1910.22 General requirements.(b)Aisles and passageways. (1) Where mechanical handling equipment is used,sufficient safe clearances shall be allowed for aisles, at loading docks,through doorways and wherever turns or passage must be made. Aisles andpassageways shall be kept clear and in good repairs, with no obstruction acrossor in aisles that could create a hazard.[10] Acting ChairmanBarnako notes that the Secretary originally adopted the cited standard underthe Walsh-Healey Act, 41 U.S.C. ? 35?45, and subsequently adopted the standardunder the Occupational Safety and Health Act pursuant to the summary procedureestablished in ? 6(a) of the Act, 29 U.S.C. ? 655(a). Because the Secretarycould not make a substantive change in the standard when adopting it under 29U.S.C. ? 655(a), see Marshall v. Union Oil Co. of Cal., 616 F.2d 1169 (9th Cir.1980), the occupational safety and health standard must be considered in lightof any restrictions placed upon the source standard. See Newport News Shipbuilding & Drydock Co., 80 OSAHRC ___, 9BNA OSHC 1085, 1089 n. 7, 1980 CCH OSHD ?25,003 at p. 30,890 n. 7 (No. 76?171,1980). Acting Chairman Barnako joins his colleagues in affirming this subitem.He notes that the terms of the source standard are not restricted to motorizedtrucks. He further notes that Inspection Survey Guide ? 20.4.4, on which P& W relies, refers to ?vehicular traffic? and is similarly, therefore, notrestricted to motorized vehicles.[11] The standard at ?1910.94(d)(9)(v) provides:?1910.94 Ventilation.(d)Open surface tanks.(9)Personal protection.(v)Whenever there is a danger of splashing, for example, when additions are mademanually to the tanks, or when acids and chemicals are removed from the tanks,and employees so engaged shall be required to wear either tightfitting chemicalgoggles or an effective face shield. See ? 1910.133.[12] The citedstandards provide:?1910.108 Dip tanks containing flammable or combustible liquids.(c)Construction of dip tanks?(2)Overflow pipes. (1) Dip tanks of over 150 gallons in capacity or 10 square feetin liquid surface area shall be equipped with a properly trapped overflow pipeleading to a safe location outside buildings. Smaller dip tanks should also beso equipped, where practical. The discharge of the overflow pipe should be solocated and arranged that if the entire combustible contents of the dip tank isoverflowed through overflow pipe by the application of water during firefighting, property will not be endangered. The size of the overflow pipe shouldbe sufficient to conduct the maximum rate of flow of water expected to beapplied to the liquid surface of the dip tank from automatic sprinklers or fromother sources in the event of fire.(3)Bottom drains. (i) Dip tanks over 500 gallons in liquid capacity shall beequipped with bottom drains automatically and manually arranged to quicklydrain the tank in the event of fire, unless the viscosity of the liquid atnormal atmospheric temperature makes this impractical. Manual operation shallbe from a safely accessible location. Where gravity flow is not practicable,automatic pumps shall be required.[13] The Secretaryalso alleges that a third Varsol tank in the same department did not have anoverflow pipe.[14] The standard at ?1910.108(c)(3)(ii) provides:?1910.108 Dip tanks containing flammable or combustible liquids.(c)Construction of dip tanks?(3)Bottom drains.(ii)Such drain shall be trapped and discharge to a closed properly vented salvagetank or to a safe location outside which will not endanger property.[15] If the citedstandards were not viewed by Acting Chairman Barnako as property protectionstandards only, he would find that P & W failed to comply with thestandards, but would modify the citation to allege that the violations were deminimis. He believes that any hazard created by the absent overflow pipes andbottom drains was eliminated by the presence of P & W?s effective fireprotection system and by the fusible wires, which would close the tank coversand prevent the contents of the tank from overflowing.[16] Section1910.132(a) is found in Subpart I, entitled ?Personal Protective Equipment,? ofthe Secretary?s general industry standards. The standard provides:?1910.132 General requirements.(a)Application. Protective equipment, including personal protective equipment foreyes, face, head, and extremities, protective clothing, respiratory devices,and protective shields and barriers, shall be provided, used, and maintained ina sanitary and reliable condition wherever it is necessary by reason of hazardsof processes or environment, chemical hazards, radiological hazards, ormechanical irritants encountered in a manner capable of causing injury orimpairment in the function of any part of the body through absorption,inhalation or physical contact.[17] The standard at ?1910.176(b) provides:?1910.176 Handling Materials?general.(b)Secure storage. Storage of material shall not create a hazard. Bags,containers, bundles, etc., stored in tiers shall be stacked, blocked,interlocked and limited in height so that they are stable and secure againstsliding or collapse.[18] The standard at ?1910.178(m)(12)(i) provides:?1910.178 Powered industrial trucks.(m)Truck operations.(12)Whenever a truck is equipped with vertical only, or vertical and horizontalcontrols elevatable with the lifting carriage or forks for lifting personnel,the following additional precautions shall be taken for the protection ofpersonnel being elevated.(i)Use of a safety platform firmly secured to the lifting carriage and\/or forks.[19] The standard at ?1910.23(a)(2) provides:?1910.23 Guarding floor and wall openings and holes.(a)Protection for floor openings.(2)Every ladderway floor opening or platform shall be guarded by a standardrailing with standard toeboard on all exposed sides (except at entrance toopening), with the passage through the railing either provided with a swinginggate or so offset that a person can not walk directly into the opening.[20] The standard at ?1910.23(e)(1) provides, in pertinent part:?1910.23 Guarding floor and wall openings and holes.(e)Railing, toe boards, and cover specifications.(1)A standard railing shall consist of top rail, intermediate rail, and posts, andshall have a vertical height of 42 inches nominal from upper surface of toprail to floor, platform, runway, or ramp level . . .[21] The standard at ?1910.23(c)(1) provides:?1910.23 Guarding floor and wall openings and holes.(c)Protection of open-sided floors, platforms, and runways.(1)Every open-sided floor or platform 4 feet or more above adjacent floor orground level shall be guarded by a standard railing (or the equivalent asspecified in paragraph (e)(3) of this section) on all open sides except wherethere is entrance to a ramp, stairway, or fixed ladder. The railing shall beprovided with a toeboard wherever, beneath the open sides,(i)Persons can pass,(ii)There is moving machinery, or(iii)There is equipment with which falling materials could create a hazard.[22] 29 C.F.R. ?1910.23(e)(1), note 20 supra. Wereject P & W?s argument that this section does not apply to a platformsupported by a powered industrial truck. Section 1910.23(e)(1) simply providesspecifications for a standard railing. Nothing in ? 1910.178 suggests that arailing on a platform supported by a powered industrial truck should differfrom a standard railing on any other type of platform.[23] The standard at ?1910.212(a)(1) provides:? 1910.212 General requirements forall machines.(a) Machine guarding?(1) Types ofguarding. One or more methods of machine guarding shall be provided to protectthe operator and other employees in the machine area from hazards such as thosecreated by point of operation, ingoing nip points, rotating parts, flying chipsand sparks. Examples of guarding methods are?barrier guards, two-hand trippingdevices, electronic safety devices, etc.[24] A chuck is adevice that is attached to the rotating shaft of a lathe and is used forcentering and clamping work on the lathe.[25] Shafts are round,coupling-like devices on machines that rotate when the machines are on.[26] The standard at ?1910.252(a)(2)(iv)(c) provides:?1910.252 Welding, cutting, and brazing.(a)Installation and operation of oxygen-fuel gas systems for welding and cutting?(2)Cylinders and containers?(iv)Oxygen storage.(c)Oxygen cylinders in storage shall be separated from fuel-gas cylinders orcombustible materials (especially oil or grease), a minimum distance of 20 feetor by a noncombustible barrier at least 5 feet high having a fire resistancerating of at least one-half hour.[27] The standard at ?1910.309(a) provides:?1910.309 National Electrical Code.(a)The requirements contained in the following articles and sections of theNational Electrical Code, NFPA 70?1971; ANSI C1?1971 (Rev. of C1?1968) shallapply to all electrical installations and utilization equipment: (Four separatearticles and numerous sections including 110?17(a), (b), and (c) are listed.)[28] Article 110?17 ofthe National Electrical Code provides:110?17.Guarding of Live Parts. (Not more than 600 Volts)(a)Except as elsewhere required or permitted by this Code, live parts ofelectrical equipment operating at 50 volts or more shall be guarded againstaccidental contact by approved cabinets or other forms of approved enclosures,or any of the following means:(1)By location in a room, vault, or similar enclosure which is accessible only toqualified persons.(2)By suitable permanent, substantial partitions or screens so arranged that onlyqualified persons will have access to the space within reach of the live parts.Any openings in such partitions or screens shall be so sized and located thatpersons are not likely to come into accidental contact with the live parts orto bring conducting objects into contact with them.(3)By location on a suitable balcony, gallery, or platform so elevated andarranged as to exclude unqualified persons.(4)By elevation at least 8 feet above the floor or other working surface.(b)In locations where electrical equipment would be exposed to physical damage,enclosures or guards shall be so arranged and of such strength as to preventsuch damage.(c)Entrances to rooms and other guarded locations containing exposed live partsshall be marked with conspicuous warning signs forbidding unqualified personsto enter.[29] A raceway isrigid conduit in which electrical wires are placed.[30] ?A metalworkingmachine tool is a power driven machine not portable by hand, used to shape orform metal by cutting, impact, pressure, electrical techniques, or acombination of these processes.? (Quoted on p. 79?3 of the Electrical Standardfor Metalworking Machine Tools, NFPA No. 79?1971; Exhibit R?16.)[31] See note 28 supra.[32] Section 17 of theAct, 29 U.S.C. ? 666, provides, in pertinent part:PENALTIES(b)Any employer who has received a citation for a serious violation of therequirements of section 5 of this Act, of any standard, rule, or orderpromulgated pursuant to section 6 of this Act, or of any regulations prescribedpursuant to this Act, shall be assessed a civil penalty of up to $1,000 foreach such violation.(c)Any employer who has received a citation for a violation of the requirements ofsection 5 of this Act, of any standard, rule, or order promulgated pursuant tosection 6 of this Act, or of regulations prescribed pursuant to this Act andsuch violation is specifically determined not to be of a serious nature, may beassessed a civil penalty of up to $1,000 for each such violation.[33] P & W makesthese assertions in its brief on review. They are not supported by evidence ofrecord. Accordingly, we note here only that the argument is made. We cannot,however, base a factual finding on assertions that are not properly in therecord.[34] The Secretaryalso has not stated whether or not he thinks the penalty assessment procedureemployed by the judge is proper.[35] The Commissionhas consistently held that it may assess penalties higher than those proposedby the Secretary. Worcester Pressed SteelCo., 75 OSAHRC 89\/A2, 3 BNA OSHC 1661, 1975?76 CCH OSHD ?20,104 (No. 4237,1975). Since employers are on notice that the Commission has such authority,the assessment of a higher penalty than that proposed for the entire item heredoes not involve the element of unfairness that the assessment of individualpenalties for each subitem does.[36] Section 17(j) ofthe Act, 29 U.S.C. ? 666(i), provides:The Commission shall have authority toassess all civil penalties provided in this section, giving due considerationto the appropriateness of the penalty with respect to the size of the businessof the employer being charged, the gravity of the violation, the good faith ofthe employer, and the history of previous violations.”