SECRETARY OF LABOR,
Complainant,

v.

BLOCKSOM AND COMPANY,
Respondent.

OSHRC Docket No. 76-1897

DECISION

Before:  ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:

Respondent, Blocksom and Company ("Blocksom"), produces stuffing material for mattresses and furniture at a plant in Michigan City, Indiana.  Following an inspection of the plant by an OSHA compliance officer, the Secretary of Labor ("Secretary") issued citations to Blocksom alleging numerous violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-78 ("the Act").  A number of the alleged violations were settled, and a hearing on the items remaining in dispute was held before Administrative Law Judge Sidney J. Goldstein.  The judge affirmed some items, vacated others, and concluded that certain of the affirmed violations should be classified as de minimis.  Commissioner Cleary granted Blocksom's petition for review of certain aspects of the judge's decision pursuant to section 12(j) of the Act, 29 U.S.C. § 661(i).  The alleged violations on review involve emergency respirator training, grounding of electrical equipment, splices in flexible electrical cords, machine guarding, and lockout procedures for machinery during cleaning and maintenance.  We affirm in part and reverse in part.

Citation 1, [[1/]] item 12(2) - Respirator Training. 

This item alleged that Blocksom violated 29 C.F.R. § 1910.134(b)(3) [[2/]] by failing to train its employees in the proper use of Universal Gas Masks, which Blocksom kept in its maintenance department.  The respirators had been obtained by Blocksom a considerable length of time before the inspection for use by employees in fire emergencies.  It is undisputed that employees were not trained in the proper manner of using the masks.  During the inspection, the compliance officer learned of an incident that occurred a year earlier in which an employee had attempted to use one of the masks to enter a building during a fire but was unable to do so because the employee did not know how to get air through the mask.  The compliance officer was concerned that an employee attempting to use the respirator during a fire could be overcome by smoke if the employee did not know how to use the respirator properly.

Blocksom's plant manager, McDonald, testified that the respirators had not been used in the year prior to the inspection.  He stated that it was now Blocksom's policy to evacuate employees in the event of any fire that was beyond immediate control and that this policy was communicated to Blocksom's employees.  He further testified that all work areas now contained automatic sprinklers and that the company relied on two nearby fire departments to fight fires.

We vacate this item. [[3/]]  The cited standard requires that the user of a respirator be properly trained in its use and limitations.  The mere presence of respirators on a jobsite does not trigger the training requirement.  In this case, it appears that Blocksom at one time did intend that the respirators would be used by employees in fighting fires.  However, at the time of the alleged violation, Blocksom no longer intended that the respirators be used but had a policy to evacuate the plant in the event of any fire beyond immediate control and to rely on its automatic sprinkler system and the nearby fire departments to control all other fires.  Thus under the circumstances of this case, training in the use of respirators was not required. [[4/]]

Citation 1, items 50(2), (3), and (4) - Ungrounded Electrical Equipment

During the inspection, the compliance officer observed that the ground prongs of the plugs supplying electrical power to a pedestal light, two pedestal fans, and an extension light were broken off.  The Secretary alleged that Blocksom's failure to ground these pieces of equipment violated Article 250-45 of the 1971 National Electrical Code ("NEC") as adopted by 29 C.F.R. § 1910.309(a). [[5/]] 

We vacate these items.  In order to prove that an employer violated a standard, the Secretary must establish by a preponderance of the evidence that the standard applies to the facts, that there was a failure to comply with the standard, that employees had access to the violative condition, and that the employer either knew or could have known of the condition with the exercise of reasonable diligence.  Astra Pharmaceutical Products, 81 OSAHRC 79/D9, 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ¶ 25,578 at pp. 31,899-900 (No. 78-6247, 1981), aff'd, 681 F.2d 69 (1st Cir. 1982).  The pertinent part of Article 250-45 requires grounding of equipment only when that equipment is used in damp or wet locations, or by persons standing on the ground or on metal floors or working inside of metal tanks or boilers.  The Secretary presented no evidence that the cited equipment was used under such conditions.  Moreover, various photographic exhibits of Blocksom's workplace do not indicate the presence of metal floors or of any of the other conditions mentioned in the standard.  Accordingly, the Secretary has not proven that the cited standard applies to the facts. [[6/]]

Citation 1, item 52 - Spliced Electrical Cords
The compliance officer observed two electrical cords containing splices in Blocksom's plant.  One of the cords supplied power to a portable electrical spotlight; the other was a motor lead cable to the No. 2 Wet Picker Machine.  Bare wire was visible at the splice in the motor lead cable.  The compliance officer testified that he observed employees working in areas where they could contact the cords and he was concerned that employees could suffer electric shock or electrocution.  Blocksom's expert witness, James F. Van Namee, testified that the splices were in inaccessible locations where they could not be contacted by employees.[[7/]]

The Secretary alleges that Blocksom violated Article 400-5 of the 1971 NEC.  That article provides:  "Flexible cord shall be used only in continuous length without splice or tap."

We conclude that Blocksom violated the standard as alleged.  The standard absolutely prohibits splices in flexible cords, and it is undisputed that the two cords in Blocksom's plant were spliced.  Thus, there was noncompliance with the standard.  Blocksom contends, however, that the violative condition was not accessible to employees, relying on Van Namee's testimony.

We conclude that access was proven.  One of the splices was on a portable spotlight.  Even if that splice was inaccessible at one time, the fact that it was on a portable piece of equipment, which could be used in different locations, shows that the splice was accessible to employees.  Concerning the motor lead cable, the compliance officer testified that the splice was visible, there were operators in front of the machine and other employees working at the discharge end of the machine.  He also testified that the improper splicing could mean the machine was not properly grounded.  Van Namee concluded that "[t]here is no possibility of the employees, operators coming in contact with" the spliced cord because it was under the table on which the machine rested.  However, he did not explain why employees working at the machine could not contact the visible splice and bare wire under the machine table.  We conclude that the Secretary established by a preponderance of the evidence that employees had access to the hazards of electrical shock and electrocution, and we affirm this item [[8/]] See Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD ¶ 23,135 (No. 16057, 1978).

Citation 2 - Lockout Procedures
The citation alleged that Blocksom violated section 5(a)(1) of the Act [[9/]] by failing to "establish a procedure for securing or deenergizing electricity on machinery to prevent employees from being exposed to dangerous equipment during machine adjustment, cleaning and maintenance operations."  At the hearing, the compliance officer testified that the alleged violation concerned Blocksom's failure to institute a lockout procedure during machine maintenance and cleaning operations."  He described such a procedure as a positive means of deenergizing equipment such that it could not be accidentally turned on.  One way this could be accomplished is by placing a lock on the main power switch to the machine, with the key to the lock kept in the possession of the employee working on the machine.  The Secretary presented a witness, Eugene L. Permenter, whom Blocksom stipulated was an expert on safety in the textile industry.  Permenter testified that the major cause of serious injuries in the textile industry is machine accidents and that the industry recognized the need to implement lockout procedures to prevent such accidents.

Blocksom did not attempt to rebut any of the factual or opinion testimony offered by the Secretary but contends that it did not violate section 5(a)(1) in the precise manner alleged in the citation.  Blocksom points out that the citation alleged a violation for not "securing or deenergizing" equipment.  The company interprets the citation to permit compliance by either of two means:  locking out (securing) machinery or deenergizing the machinery.  Because all machinery was turned off during the instances of alleged violation observed by the compliance officer, Blocksom contends it was in compliance with the deenergization alternative it asserts is permitted by the citation.

We reject Blocksom's argument and affirm the citation.  Although the citation is not worded as specifically as it might have been, the testimony at the hearing made it clear that the violation alleged by the Secretary consisted of Blocksom's failure to implement a lockout procedure.  All of the testimony of the compliance officer and Permenter, the two witnesses who testified with respect to this citation, was directed at the absence of a lockout procedure at Blocksom's plant.  "So long as fair notice is afforded, an issue litigated at an administrative hearing may be decided by the hearing agency even though the formal pleadings did not squarely raise the issue."  Baroid Division of NL Industries v. OSHRC, 660 F.2d 439, 449 (10th Cir. 1981), quoting National Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1264 (D.C. Cir. 1973).  See also Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1164 (3rd Cir. 1980).  We conclude that the evidence presented at the hearing gave Blocksom fair notice that the citation charged a violation for failure to implement a lockout procedure [[10/]] and we affirm the judge's finding of a violation.[[11/]]

Citation 3 - Machine Guarding

This citation alleged that Blocksom violated 29 C.F.R. §§ 1910.219(f)(1) and (f)(3) [[12/]] by failing to guard certain chain and sprocket drives and gears.  The citation involves two types of machine:  a 72-inch Garnett machine and a rope-spinning machine.

Garnett Machine (Item 1A, Example 3, and Item 1C, Example 1):

The 72-inch Garnett machine processes synthetic fibers into a sheet-type material.  Along the side of the machine where the operator stands are various chain and sprocket drives and gears, which are in motion when the machine is operating.  An expanded metal screen is located between the moving parts and the operator.  The screen is supported by steel posts and can be slid upward along the posts to give access to the machine.

The machine operates automatically, with the operator observing the machine through the metal screen.  It is sometimes necessary for the operator to have access to the machine to remove excess material so that the machine will not clog.  The operator uses a five-foot-long pole to remove the excess material.  This is done with the machine running and the screen raised.  The operator also occasionally blows excess material off the machine with an air hose while the screen is raised and the machine is running.

We conclude that the Garnett machine was adequately guarded.  When the screen was in its lowered position it would prevent any possibility of contact with the chains, sprockets, and gears.  The screen was only raised for brief periods when it was necessary to have access to the machine for cleaning purposes.  The cleaning operation was performed using either an air hose or a five- foot-long pole, which would keep the operator a safe distance from the moving parts.  We therefore conclude that Blocksom's method of guarding eliminated any hazard to employees and vacate these items. [[13/]] See Rockwell International Corp. 80 OSAHRC 118/A2, 9 BNA OSHC 1092, 1097-98, 1980 CCH OSHD ¶ 24,979 at p. 30,846 (No. 12470, 1980).

Rope-Spinning Machines (Item 1A, Example 2):

Blocksom's rope-spinning machines manufacture rope from fiber.  Like the Garnett machine discussed above, expanded metal screens are positioned around a machine during normal operation.  However, in order to "thread-up" a machine, an employee must lower a hinged section of the screen and feed fibers by hand between certain rollers.  Immediately adjacent to the rollers are chain and sprocket mechanisms.  The Secretary alleges that Blocksom violated 29 C.F.R. § 1910.219(f)(3) by failing to guard these mechanisms.

In arguing for vacation of this item, Blocksom contends that the screens adequately guarded the machines.  Blocksom relies on the testimony of its expert witness, Van Namee, who offered the opinion that the machines were adequately guarded.   However, testimony, including that of Blocksom's plant manager, establishes that the machines were not guarded and running while they were being threaded up.  In view of the close proximity of employees' hands to the rollers and the chain and sprocket mechanisms while the machines were in operation we conclude the machines were inadequately guarded and affirm this item.

Citation 4 - Machine Guarding
At issue under this citation are items alleging that Blocksom violated 29 C.F.R. § 1910.212(a)(1)[[14/]] by failing to guard two machines:  a Duoform slitter and a vertical reciprocating lapper. [[15/]]

Duoform Slitter (Item 1, Example 1C):

This machine contains a number of circular rotating knives, each about eight inches in diameter, that slice sheets of fibrous padding into strips. Employees feed the material by hand into the knives. An employee testified that, on one occasion, he had been wearing gloves when a knife had caught the glove and pulled it off his hand. He was not injured. Blocksom's plant manager, McDonald, stated that the knives were too dull to injure a person who contacted a rotating blade. He testified that the knives cut the padding material by pressure rather than by the sharpness of their blades.

In order to prove a violation of section 1910.212(a)(1), the Secretary must prove that the operation of a machine presents a hazard to employees.  Papertronics, Division of Hammermill Paper Co., 78 OSAHRC 54/C6, 6 BNA OSHC 1818, 1978 CCH OSHD ¶ 22,898 (No. 76-3517, 1978).  We conclude that the Secretary has met that burden.   Although we credit McDonald's testimony that the knife blades were too dull to cut on mere contact, the fact that the blades cut the padding material by pressure establishes that the knives exerted sufficient force to injure the hands or fingers of employees should they be caught under a blade.  Moreover, the record shows that there was a danger that employees could get their fingers or hands under the blades.  The employees fed the padding material by hand directly into the blades, and the incident in which one employee had a glove removed by a blade demonstrates that employees' hands could be endangered by the blades.  Accordingly, we affirm this item.

We conclude that the violation was not proved to be serious in nature as alleged.  In order to prove that a violation is serious, the Secretary must show a substantial probability that the result of an accident would be death or serious physical harm.  29 U.S.C. § 666(j); Consolidated Rail Corp., 82 OSAHRC 24/F7, 10 BNA OSHC 1564, 1568, 1982 CCH OSHD ¶ 26,046 at p. 32,715 (No. 78-1504, 1982), appeal dismissed, No. 82-3301 (3d Cir. Nov. 16, 1982).  Although the record shows that employees could suffer injury to their fingers or hands should they get caught under a knife blade, there is no evidence showing a substantial probability that the injury would be serious. We therefore affirm this item as a nonserious violation.

Vertical Reciprocating Lapper (Item 1, Example 8):

This machine contains an inclined reciprocating mechanism several feet in length that comes as close as eight inches to an aisleway in the rear of the machine.   Employees sometimes use the aisleway when the machine is operating.  The Secretary alleged that Blocksom violated section 1910.212(a)(1) in that the lapper operator and other employees were subjected to the potential hazard of being struck by the unguarded lapper.

We conclude that the Secretary failed to prove that the lapper was hazardous to employees.  Assuming that the lapper could strike an employee using the aisleway, the mere fact that moving parts of a machine could contact an employee does not prove that such contact would cause injury.  Edison Lamp Works, 79 OSAHRC 81/C7, 7 BNA OSHC 1818, 1979 CCH OSHD ¶ 23,913 (No. 76-484, 1979); Papertronics, Division of Hammermill Paper Co., supra.  The record in this case does not establish that the moving mechanism moved with sufficient force to cause injury.  We also note that the lapper's function is to distribute material, not to perform any type of cutting or processing function that requires great force.  Finally, Blocksom's expert, Van Namee, testified that he had seen many lappers and had never seen one guarded.  The fact that it is not common practice to guard lappers suggests that their operation does not present a hazard.  This item is vacated [[16/]]

Citation 5 - Machine Guarding
At issue under this citation are items alleging that Blocksom violated 29 C.F.R. § 1910.217(c)(1)(i).[[17/]] by failing to guard the point of operation of two machines:   a mechanical full-revolution die press and a Sheridan embossing machine.

Mechanical Full-Revolution Die Press (Item 1(A), Example 1):

This machine, which Blocksom admits is a mechanical power press subject to the cited standard, is used to punch pieces out of sheet metal.  The operator holds the sheet metal stock with one hand and trips the press with the other.  The compliance officer testified that there was no method of machine safeguarding at the point of operation and that the operator's hands and fingers were exposed to the potential hazard of being caught between the dies.  Blocksom contends that there was no hazard because both of the operator's hands were occupied away from the point of operation during the operating cycle, one holding the stock and the other tripping the press.

We affirm this item.  The compliance officer's testimony that the point of operation was not safeguarded was unrebutted.  We reject Blocksom's argument that the operator was protected by having both his hands occupied during the operating cycle.   Although two-hand tripping devices are a permissible type of point of operation device, such a device must require "application of both of the operator's hands to machine operating controls. . . ." 29 C.F.R. § 1910.217(c)(3)(i)(e). (Emphasis added.)  Compliance with this section cannot be achieved if one of the operator's hands is holding the material being processed, as was the case in Blocksom's operation.   Indeed, as the Secretary points out, the primary purpose of the standard is to protect an operator's hand used to hold stock from inadvertently entering the point of operation. [[18/]]  See Amforge Division, Rockwell International, 80 OSAHRC 46/A2, 8 BNA OSHC 1405, 1980 CCH OSHD ¶ 24,439 (No. 76-3488, 1980).[[19/]]

Sheridan Embossing Machine (item 2):

This machine was used to stamp patterns out of a fibrous padding material.   The compliance officer testified that the point of operation was unguarded and that employees could have gotten part of their bodies caught between the dies.  Blocksom's expert witness, Van Namee, was of the opinion that the machine was not a mechanical power press subject to the cited standard.  He stated that a mechanical power press includes a slide, to which a die is attached, that slides within guides, and that the Sheridan embossing press did not have such a mechanism.

We agree with Blocksom's argument that section 1910.217(c)(1)(i) does not apply to this machine.  Van Namee's testimony that a mechanical power press must contain a slide that slides within guides is consistent with the Commission's decision concerning the applicability of the mechanical power press standards in Western Steel Manufacturing Co., 76 OSAHRC 112/E2, 4 BNA OSHC 1640, 1976-77 CCH OSHD ¶ 21,054 (No. 3528, 1976).  Moreover, his testimony that the Sheridan embossing machine did not contain such a mechanism was unrebutted.  Because the cited standard is inapplicable, the item is vacated. [[20/]]

Penalties

With respect to the items on review, the judge assessed the following penalties:

For citation 1, item 50 and citations 3, 4, and 5, the penalties assessed by the judge encompass subitems that are not before us for review as well as those subitems discussed in this decision.  Accordingly, we will adjust those penalties to reflect the subitems that are vacated by this decision.  We assess the following adjusted penalties:

Blocksom also asks us to vacate the penalties of $35 assessed by the judge for items 46 and 51 of the nonserious citation. [[21/]] Blocksom admitted the violations alleged in these items but contested the penalties.  Blocksom offers no specific reasons why the penalties assessed by the judge are inappropriate, and we affirm the judge's assessments.

Order

The following items are vacated:  Citation 1, items 12(2), 50(2), 50(3), and 50(4); Citation 3, item 1A, example 3 and item 1C, example 1; Citation 4, item 1, example 8; Citation 5, item 2.  The penalty for citation 1, item 50 is reduced to $10.  The penalties for citations 3, 4, and 5 are reduced to $300, $50, and $225 respectively.   In all other respects the judge's decision is affirmed.  SO ORDERED.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: FEB 28 1983

The Administrative Law Judge decision in this matter is unavailable in this format.   To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1/]] The items contained in citation 1 are alleged to be nonserious.   The violations alleged in the remaining citations are designated by the Secretary as serious in nature.

[[2/]] This standard provides:

§ 1910.134 Respiratory protection.
(b) Requirements for a minimal acceptable program.
(3) The user shall be instructed and trained in the proper use of respirators and their limitations.

[[3/]] Blocksom's petition for review did not directly challenge the merits of this item but contended that the citation was barred by the Act's six-month statute of limitations.  29 U.S.C. § 659(c).  However, in this case the statute of limitations issue is intertwined with the merits of the citation.  The Secretary alleges that Blocksom violated the standard on the date of the inspection and that the citation, which was issued within six months of the inspection, is therefore not barred.   Blocksom's argument based on the statute of limitations reduces to the contention that the company did not violate the standard within six months of the date the citation was issued.  In order to resolve this dispute, it is necessary to determine whether, as the Secretary contends, a violation of the standard occurred at the time of the inspection.  Moreover, both parties understood that the merits of the case are before the Commission for resolution, as they argued that issue in their briefs on review.

[[4/]] Commissioner Cottine dissents from the decision to vacate this item.   First, the only issue raised by Blocksom in its petition for review and directed for review concerning this item was whether the citation was precluded under the 6-month time limitation in section 9(c) of the Act.  The appropriateness of consideration of other issues is in doubt in light of the recent decision in J.L. Manta Plant Services Co., 10 BNA OSHC 2162, 1982 CCH OSHD ¶ 26,303 (No. 78-4923, 1982).  There, the majority expressly left open the question whether a party may raise issues on review different from those raised in its petition for review.  10 BNA OSHC at 2164 n. 6, 1982 CCH OSHD p. 33,267 n.6.  However, here the majority rules in favor of Blocksom based on issues different from those raised in its petition.  Regarding the merits of Blocksom's section 9(c) claim, Commissioner Cottine notes that the conditions cited here continued up to the time of the citation.  The respirators never were removed from the worksite and no instructions on their use ever were given.  The Secretary may cite a violation which first occurred more than 6 months before the citation if the violation is continuing in nature.  See Central of Ga.R.Co., 77 OSAHRC 42/A2, 5 BNA OSHC 1209, 1977-78 CCH OSHD ¶ 21,688 (No. 11742, 1977), aff'd on other grounds, 576 F.2d 620 (5th Cir. 1978).  Accordingly, Commissioner Cottine rejects Blocksom's section 9(c) claim.

Second, assuming that the other issues raised in Blocksom's brief are before us, Commissioner Cottine concludes that Blocksom violated the cited standard by making respirators available to employees for fire-fighting purposes but not training employees to use the respirators.  Cf. Bechtel Power Co., 79 OSAHRC 34/A2, 7 BNA OSHC 1361, 1366, 1979 CCH OSHD ¶ 23,575 at p. 28,577 (No. 13832, 1979) (availability for use of noncomplying equipment constitutes a violation).  As the compliance officer testified, employees could be subject to the hazard of being overcome by smoke if they attempt to use the respirators during a fire emergency but do not know how to use them properly.  Commissioner Cottine concludes that Blocksom's asserted policy of evacuating employees in the event of a fire does not eliminate the hazard.  The policy is equivocal in that Blocksom still permits employees to attempt to fight fires that are not "beyond immediate control."  Thus, Blocksom's employees still are permitted to engage in fire fighting in some circumstances.  Also, Blocksom's asserted policy is inconsistent with its making respirators available to workers when the sole use for respirators is in fighting fires.  Employees who know that respirators are available for this purpose may well attempt to fight a fire hoping that it can be brought quickly under control.  Even assuming Blocksom no longer intended that employees use the available emergency respirators at any time, there is no evidence that it specifically explained that to the employees.  Commissioner Cottine would find a violation.

[[5/]] 29 C.F.R. § 1910.309(a) provides:

§ 1910.309 National Electrical Code.
(a) The requirements contained in the following articles and sections of the National Electrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. of C1-1968) shall apply to all electrical installations and utilization equipment.

Article 250-45 is among the articles listed.  That article provides, in pertinent part:

250-45 Equipment Connected by Cord and Plug.  Under any of the following conditions, exposed noncurrent-carrying metal parts of cord- and plug-connected equipment, which are liable to become energized, shall be grounded:
***
(d) In other than residential occupancies, ....... (4) cord- and plug-connected appliances used in damp or wet locations, or by persons standing on the ground or on metal floors or working inside of metal tanks or boilers . . . .

[[6/]] Because of our disposition, we need not determine whether the cited pieces of equipment are "appliances" within the meaning of Article 250-45.

[[7/]] We note that evidence of the accessibility to hazardous conditions need not be addressed through expert testimony.  No particular expertise is required to offer credible evidence on the issue.

[[8/]] Chairman Rowland would classify the violation as de minimis.  The compliance officer testified that splices in cords could lead to a hazard of electric shock or electrocution.  However, there is no evidence that the splice in the cord to the portable spotlight was not insulated in manner sufficient to eliminate this hazard.  Further, there is no evidence that the portable spotlight was moved from where it was located at the time of the inspection, which was a location that, according to the unrebutted testimony of Van Namee, was inaccessible to employees.  With respect to the splice in the motor lead cable, Chairman Rowland disagrees with the majority that Van Namee's testimony is not sufficient to establish that employees could not come into contact with the wire. Therefore, Chairman Rowland concludes that the hazard to employees was negligible and that the de minimis classification is appropriate.  See Daniel Constr. Co., Boise Cascade Project, 81 OSAHRC 107/D2, 10 BNA OSHC 1254, 1260, 1982 CCH OSHD ¶ 25,840 at p. 32,331 (No. 80-1224, 1981), aff'd, 692 F.2d 818 (1st Cir. 1982).

[[9/]] Section 5(a)(1), 29 U.S.C. § 654(a)(1), provides:

Sec. 5(a)(1) Each employer--
(a) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

[[10/]] Chairman Rowland dissents from the affirmance of the citation.  The majority finds Blocksom in violation of § 5(a)(1) for failing to lock out machinery during maintenance.  The citation, however, did not allege that the violation consisted of Blocksom's failure to lock out machinery; it charged Blocksom with failing to secure or deenergize machinery.  In the Chairman's view, the majority's action amounts to an improper amendment of the citation.

An amendment of a citation to find a violation based on Blocksom's failure to lock out machinery would only be appropriate if the parties squarely recognized at the trial that they were trying an unpleaded issue.  Farmers Cooperative Grain and Supply Co., 82 OSAHRC      ,10 BNA OSHC 2086, 1982 CCH OSHD ¶ 26,301 (No. 79-1177, 1982) (Rowland, Chairman, dissenting).  During the hearing, the compliance officer, who was the only witness who testified to the operative facts surrounding the alleged violation, consistently used the words "deenergize" and "secure," as well as "lock out," in describing the precautions he believed Blocksom should have taken.  Moreover, at one point in his testimony, the compliance officer referred to the fact that Blocksom had been given "an option" between "securing and deenergizing" the machinery.  Additionally, Blocksom's attorney consistently asked questions that indicated he believed the citation permitted either deenergization or securing of the machinery.  Accordingly, Chairman Rowland would conclude that the parties did not squarely recognize they were trying an unpleaded issue.  Therefore, amendment of the citation is inappropriate.  Because all the machines involved in this citation were deenergized during the instances of alleged violation observed by the compliance officer, Chairman Rowland concludes that Blocksom did not violate the Act in the manner alleged in the citation and would vacate the citation.

[[11/]] We also reject Blocksom's argument that it cannot be found in violation of § 5(a)(1) because no specific standard requires lockout procedures.  It is precisely those situations not covered by any specific standard that are appropriately the subject of citation under § 5(a)(1).  See American Smelting and Refining Co. v. OSHRC, 501 F.2d 504 (8th Cir. 1974); United States Pipe and Foundry Co., 78 OSAHRC 8/D6, 6 BNA OSHC 1332, 1978 CCH OSHD ¶ 22,514 (No. 11739, 1978).

[[12/]] These standards provide:

§ 1910.219 Mechanical power-transmission apparatus
(f) Gears, sprockets, and chains -- (1) Gears.  Gears shall be guarded in accordance with one of the following methods:

(i) By a complete enclosure; or
(ii) By a standard guard as described in paragraph (o)
of this section, at least seven (7) feet high extending six (6) inches above the mesh point of the gears; or
(iii) By a band guard covering the face of gear and having flanges extended inward beyond the root of the teeth on the exposed side or sides.  Where any portion of the train of gears guarded by a band guard is less than six (6) feet from the floor a disk guard or a complete enclosure to the height of six (6) feet shall be required.

(3) Sprockets and chains.  All sprocket wheels and chains shall be enclosed unless they are more than seven (7) feet above the floor or platform.  Where the drive extends over other machine or working areas, protection against falling shall be provided.  This subparagraph does not apply to manually operated sprockets.

[[13/]] Commissioner Cottine dissents from this disposition.  He concludes that the majority impermissibly questions the wisdom of the cited standards in finding that the manner in which Blocksom has guarded the 72-inch Garnett machine eliminated any hazard to employees.  See Cox Enterprises Inc., OSAHRC , 11 BNA OSHC 1074, 1983 CCH OSHD ¶ 26,386 (No. 12074, 1982) (Cottine, Commissioner, concurring).   The standards presume that unguarded gears, chains, and sprockets are hazardous to employees.  See Austin Bridge Co., 79 OSAHRC 81/A2, 7 BNA OSHC 1761, 1979 CCH OSHD ¶ 23,935 (No. 76-93, 1979).  Moreover, the record clearly shows that a hazard exists.   During the periods when the machine is being unclogged or cleaned, the expanded metal screen that is normally between the operator and the moving parts is raised so that it no longer provides any protection.  The employee stand directly in front of the machine while performing the operation and sometimes walks around behind the guard to perform this work.  The employee may use an air hose of unspecified length to remove excess material.  Photographic exhibits show that the unguarded moving parts are significantly closer to the employee than the areas of the machine from which material is being removed.  Thus, the record establishes that the employee has access to the unguarded parts.  See Pass & Seymour, Inc., 79 OSAHRC 101/C13, 7 BNA OSHC 1961, 1979 CCH OSHD ¶ 24,074 (No. 76-4520, 1979), appeal dismissed, No. 80-4013 (2d Cir. March 19, 1980).

[[14/]] This standard provides:

§ 1910.212 General requirements for all machines.
(a) Machine guarding--(1) Types of guarding.  One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks.  Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.

[[15/]] Blocksom also takes exception to the judge's finding of a de minimis violation of § 1910.212(a)(1) for the absence of guarding on a hot wire slitter machine.   A de minimis violation carries no penalty assessment or abatement requirement and cannot be used in future proceedings as evidence of a history of previous violations.   Therefore, an employer is not aggrieved by, and cannot seek review of, a finding of a de minimis violation.  Westburne Drilling, Inc., 77 OSAHRC 79/C11, 5 BNA OSHC 1457, 1977-78 CCH OSHD ¶ 21,814 (No. 15631, 1977).  Accordingly, we will affirm the judge's disposition of this item without review.

[[16/]] Commissioner Cottine concludes that the Secretary proved the existence of a hazard and would affirm this item.  He notes that an employee familiar with the lapper testified, without contradiction, that an employee caught in the lapper would be dragged back and forth across the line until somebody shut it off.  The same employee testified that the lapper contained sharp edges. Another employee testified that the aisleway employees used at the rear of the machine was between 2 and 3 feet wide.  In Commissioner Cottine's view, this testimony establishes that employees who must work within several inches of the lapper's path of motion are exposed to a hazard within the meaning of § 1910.212(a)(1).  The evidence of a hazard is not rebutted by contrary industry custom and practice, which are not dispositive of whether particular hazards exist.  See, e.g., Beaird-Poulan, Div. of Emerson Electric Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1979 CCH OSHD ¶ 23,493 (No. 12600, 1979) (Section 5(a)(1) of the Act).

[[17/]] This standard provides:

1910.217 Mechanical power presses.
(c) Safeguarding the point of operation -- (1) General requirements.  (i) It shall be the responsibility of the employer to provide and insure the usage of "point of operation guards" or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press.  See Table 0-10.

[[18/]] Contrary to the dissent, the preponderance of the evidence establishes that the point of operation opening on the press was more than one fourth of an inch.  The compliance officer testified that the employee's hands or fingers could be caught between the dies. Blocksom has never denied that the opening between the dies was wide enough for a hand or finger to enter, nor argued that the Secretary failed to prove the width of the opening.  Van Namee testified that as far as safety is concerned there was no difference between the cited press and one shown in Blocksom's photographic exhibit 16-58, and that the two presses were identical in operation.  The press shown in that exhibit clearly has a die opening in excess of one-fourth inch.  We conclude that the evidence preponderates in favor of the Secretary in this issue.

[[19/]] Chairman Rowland dissents from the affirmance of this item. He notes that § 1910.217(c)(1)(ii), which immediately follows the cited standard, provides:   "The requirement of subdivision (i) of this subparagraph shall not apply when the point of operation opening is one-fourth inch or less."  Thus, an employer need not safeguard the point of operation of a mechanical power press unless the opening is greater than one-quarter of an inch. In order to prove a violation, the Secretary would have to show that the opening is larger than this amount.  In this case, however, the Secretary introduced no evidence establishing this critical fact.  In this regard, Chairman Rowland notes that the press in exhibit 16-58, on which the majority relies in concluding the Secretary proved the size of the point of operation opening, is entirely different in appearance from the one in issue here.  Moreover, even if the press in exhibit 16-58 and the press here are identical in operation and with respect to safety, this does not mean that both machines have the same point of operation openings.   Accordingly, Chairman Rowland concludes that the Secretary did not sustain his burden of proving that the cited standard applies to the facts.

[[20/]] Commissioner Cottine agrees that the cited standard does not apply.   He notes, however, that if there is no specific standard requiring point of operation guarding of a particular machine, the general machine guarding standard at 29 C.F.R. § 1910.212(a)(3)(ii) would apply.  See Western Steel Mfg. Co., supra.   On the basis of the record, he concludes that a violation of § 1910. 212(a)(3)(ii) has been established and he would amend the citation to conform to the evidence pursuant to Rule 15(b) of the Federal Rules of Civil Procedure.  See e.g., Rogers Mfg. Co., 79 OSAHRC 67/E2, 7 BNA OSHC 1617, 1979 CCH OSHD ¶ 23,800 (No. 76-896, 1979).  The unrebutted testimony of the compliance officer establishes that the point of operation of the Sheridan embossing machine was unguarded and exposed employees to injury.   Therefore, Commissioner Cottine would find that Blocksom violated § 1910.212(a)(3)(ii).  See Faultless Div., Bliss & Laughlin Indus. v. Secretary of Labor, 674 F.2d 1177 (7th Cir. 1982); Tube-Lok Products, 81 OSAHRC 17/B7, 9 BNA OSHC 1369, 1981 CCH OSHD ¶ 25,235 (No. 16200, 1981).

Amendment pursuant to Fed. R. Civ. P. 15(b) is required even in the absence of a motion to amend if all issues relevant to the amended charge have been tried by the implied consent of the parties.  See Daniel Constr. Co., 82 OSAHRC 23/A2, 10 BNA OSHC 1549, 1555 n. 13, 1982 CCH OSHD ¶ 26,027 at p. 32,675-76 n. 13 (No. 16265, 1982); Rogers Mfg. Co., supra; Southwestern Bell Tel. Co., 78 OSAHRC 100/D8, 6 BNA OSHC 2130, 1978 CCH OSHD ¶ 23,187 (No. 14761, 1978).  Where, as here, the amendment changes only the legal theory underlying the citation, consent will be implied when the party opposing amendment has introduced or failed to object to evidence relevant to the unpleaded issue and that party would not be prejudiced by the amendment.  Farmers Cooperative Grain and Supply Co., 82 OSAHRC    , 10 BNA OSHC 2086, 2088, 1982 CCH OSHD ¶ 26,301 at p. 33,262 (No. 79-1177, 1982).  Blocksom did not object to the testimony showing that the point of operation of the Sheridan embossing press was unguarded and presented a hazard to employees.  Moreover, Blocksom would not be prejudiced by the amendment as it had a full opportunity to try all issues relevant under § 1910.212(a)(3)(ii).

[[21/]] Item 46 alleged that Blocksom violated 29 C.F.R. § 1910.242(b) by using compressed air for cleaning purposes of 80 pounds per square inch.  The standard permits a maximum pressure of 30 pounds per square inch.  Item 51 alleged that Blocksom violated 29 C.F.R. § 1910.309(a) by failing to guard live electrical parts at voltages ranging from 110 to 440 volts.