SECRETARY OF LABOR,
Complainant,

v.

CLEMENT FOOD COMPANY,
Respondent.

OSHRC Docket No. 80-0607

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. § 659(c).

Clement Food Company ("Clement") bottles food products at its plant in Oklahoma City, Oklahoma.  The Secretary issued two citations alleging that Clement violated six occupational safety and health standards.  The administrative law judge vacated two items of one citation and affirmed the remaining items.  Clement obtained review of the five items affirmed by the judge.  We affirm the judge's decision in part and reverse it in part.

Citation 1, Item 1: 29 C.F.R. § 1910.176(b), Stacking of Boxes.

Section 1910.176(b) states in part that "[b]ags, containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse."  Item 1 of citation 1 alleges that the boxes in a fifteen-foot high, tiered stack were not interlocked and blocked.  The compliance officer who inspected Clement's plant testified that he saw a tiered stack of boxes fifteen feet high that was not interlocked and blocked.  He also stated, and a photograph shows, that the top tier of the boxes was leaning.   There were pallets at lower points in the stack.  The compliance officer, who had received a bachelor's degree in physics and had worked as a failure analyst, physicist, safety engineer, and accident investigator, testified that the center of mass of the stack had been so displaced that any shock or vibrations from forklift trucks and machinery in the area could cause the top tier to fall.  Each of the boxes weighed 25 pounds.  Employees walked in the area; one was seen using a walkway eight feet away.

The judge relied on the compliance officer's testimony and the photographic exhibit and found that the boxes were not stacked so as to be stable and secure.   Clement maintains that the judge erred, chiefly on the ground that the stack was not inherently unstable because an outside force would need to be applied to it to cause a collapse. [[1]]

We do not agree with Clement that the item should be vacated.  The stack of boxes was not interlocked or blocked, its top tier was leaning, and the administrative law judge credited the compliance officer's testimony that the shock of being struck by a forklift truck or vibrations from nearby machinery could cause the top tier to fall.   The standard is not limited by its words to stacks so unstable that they might collapse of their own weight.  The judge correctly found that the boxes were not stable and secure against sliding and collapse within the meaning of the standard.   This item is therefore affirmed.[[2]]

Citation 1, Item 2: 29 C.F.R. § 1910.178(n)(8), Forklift Truck.

Item 2(a) of citation 1 concerns a forklift truck that was allegedly operated at too high a speed to be brought to a safe stop.  The cited standard is section 1910.178(n)(8), which appears in section 1910.178(n) with several other provisions that deal with driving powered industrial trucks.  Some of these are:

§ 1910.178 Powered industrial trucks.

(n) Traveling.
(1) All traffic regulations shall be observed, including authorized plant speed limits.   A safe distance shall be maintained approximately three truck lengths from the truck ahead, and the truck shall be kept under control at all times.

(4) The driver shall be required to slow down and sound the horn at cross aisles and other locations where vision is obstructed....

(8) Under all travel conditions the truck shall be operated at a speed that will permit it to be brought to a stop in a safe manner.

The compliance officer testified that, according to his measurements and calculations, a forklift truck was traveling at about 15 miles per hour inside Clement's plant.  Clement had forklift pathways painted on the plant floor.  The compliance officer measured a distance of "about 30 feet" between two marks on the floor.  Using a stopwatch, he then timed a forklift traveling between those two marks and calculated the speed to be "within 15 miles an hour."[[3]]  The compliance officer stated that he had been told by the quality control operating manager that the plant had a 10 mile per hour speed limit.  The driver of the forklift told the compliance officer that he was unaware of such a limit.  The compliance officer also testified that the driver stated that he had not been instructed to sound his horn at an intersection.

The compliance officer was concerned that the speed of the forklift was too high for the truck to be stopped before it hit a pedestrian at an employee walkway that intersected the forklift path.  Factory walls obstructed the driver's vision of the walkway so that he would have had only eight feet in which to stop once he saw a pedestrian.   Because he calculated the stopping distance of the forklift to be about 15 feet, the compliance officer concluded that the vehicle was being driven too fast to stop without hitting a pedestrian.

The administrative law judge found a violation on the theory that the forklift could not be stopped in time to avoid hitting a pedestrian.  Clement argues, however, that "[t]here was no evidence that the forklift trucks here could not be brought to a stop in a safe manner."  It notes in its petition for discretionary review that section 1910.178(n)(8) requires that trucks be operated at speeds that permit them to be brought to a stop in a safe manner, "not, within a 'safe distance' as the compliance officer seems to suggest." Before the judge, Clement noted that the compliance officer could not recall whether the driver had been instructed to slow down at blind intersections.  On review, the Secretary repeats the compliance officer's concern with the driver's inability to stop in time if a pedestrian stepped into the forklift's path at an obstructed crosswalk.  The Secretary also notes a lack of speed limit signs and the asserted failure to instruct the driver to sound the horn at intersections.

It is well-settled that to prove a violation of a standard, the Secretary must show that the cited standard applies to the cited condition. E.g., Howard Barthelmass Painting Co., 81 OSAHRC 84/El, 9 BNA OSHC 2160, 1981 CCH OSHD ¶ 25,636 (No. 78-5450, 1981).  The Secretary has not done so here.  The standard does not direct that a driver be able to stop within a particular distance. Instead, the sense conveyed by the standard is that forklift trucks should not be operated at speeds so high that the operator could lose control of the vehicle during braking, injuring himself and others if the forklift turns over, shifts or loses its load, or swerves out of control.  This is a particular problem with forklift trucks because they have unusual handling characteristics and stability problems, which are exacerbated when they are loaded.   See National Safety Council, Accident Prevention Manual for Industrial Operations:   Engineering & Technology, 229, 236-7, 238 (8th ed. 1980).  There is no evidence that the forklift here was operated at a speed so high that these problems would arise during braking.

That section 1910.178(n)(8) does not apply to the cited conditions is also supported by the fact that another provision, section 1910.178(n)(4), was apparently intended to deal with the Secretary's primary concern, the problem of excessive speed at cross aisles with obstructed views, as well as his secondary concern, the lack of an instruction to sound the horn at intersections with obstructed views.  That standard states that "[t]he driver shall be required to slow down and sound the horn at cross aisles and other locations where vision is obstructed."  We see no reason to construe section 1910.178(n)(8) so as to be redundant with section 1910.178(n)(4).  Much the same can be said for the Secretary's concern with the lack of speed limit signs.  Section 1910.178(n)(1) covers this point; it states that "[a]ll traffic regulations shall be observed, including authorized plant speed limits."   Clement was not cited for violations of these provisions.  The evidence does not support a finding that Clement violated the cited standard and we therefore reverse the judge and vacate this citation item.

Citation 1, Item 3A: 29 C.F.R. § 1910.219(d)(1), Unguarded Pulleys.

Item 3A(c) of citation 1 alleged a violation of section 1910.219(d)(1), which requires that pulleys seven feet or less from the floor be guarded.  The primary dispute between the parties is whether the record adequately shows that employees had "access" to the violative condition, i.e., whether in the course of their duties it is reasonably predictable that they will be, are, or have been in a zone of danger.   See Carpenter Contracting Corp., OSHRC Docket No. 81-0338 (June 26, 1984); Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD ¶ 20,448, p. 24,425 (No. 504, 1976).

Clement Food operates a bottlemoving machine called an "unscrambler," which assembles jars emptied from a case into a single file line on a conveyor so that they can be filled.  The machine has two belts, one of which contacts four pulley wheels while the other contacts three pulley wheels.  All of the pulley wheels are less than seven feet off the ground and are unguarded.  At least one of the pulleys contacts the glass bottles and causes them to move into alignment for filling.  Occasionally, a bottle falls over and the machine operator must reach in and set the bottle upright.  The dispute is whether the employees were shown to have come within the zone of danger of the nip points of the pulleys.

The compliance officer testified that he interviewed the machine operator and watched him work.  According to the compliance officer's account of the interview, employees "will walk within [reaching distance of] the actual operating nip point" when "they reach in to straighten [the bottles] out."  The machine operator had also pointed to a location within a foot or so of the nip points or belts where he would be.  Clement's plant manager also testified that, although a plastic shield had been installed over the pulleys, belts and bottles after the inspection, employees have to "reach in there" under the shield and in the area of the pulleys, belts and bottles to set a bottle upright.  The photographs submitted by both parties show that the area enclosed by the pulleys and in which the bottles are moved is small.

The judge relied on the compliance officer's testimony and found that "the duties of the machine operator of the machine depicted in [a photograph] required her to go to the area of the exposed pulleys under certain conditions."   Clement Food argues that the judge's finding should be overturned.  It emphasizes that the compliance officer did not see any employee come closer than six feet to the pulleys and that it could not have fairly rebutted the compliance officer's testimony as to what a machine operator had told him.  Clement notes that it does not know the name of the employee to whom the compliance officer spoke and that the compliance officer did not take notes of the conversation, which occurred 16 months before the hearing.

We agree with the judge that the evidence is sufficient to find that a violation occurred.  This would be so even if we were to disregard the compliance officer's account of what the machine operator told him.  Clement's own plant manager testified that when bottles fell over, the employee would have to reach in to the area of the pulleys, belts and bottles.  Moreover, the photographs introduced by both parties show that the area enclosed by the pulleys and in which the bottles are moved by the belts is small.  In view of this, the judge's finding cannot be overturned.[[4]]

Clement also claimed before the administrative law judge and maintained in its petition for discretionary review that the standard cannot be complied with.   After the inspection, Clement installed a transparent plastic shield over the entire area in which there were pulleys and belts.  Clement's plant manager testified that if a bottle fell over, however, the employee would still have to reach inside the guard to set the bottle upright.  In its petition for discretionary review, Clement argues also that if the pulleys are guarded, they will not do what they are required to do--push the bottles along.  The judge rejected Clement's argument because it was not supported by the evidence.

We are not convinced that Clement cannot comply with the standard.   Section 1910.219(d)(1) requires guards for pulleys, not belts.  That Clement's employees cannot be protected by the plastic shield can be attributed to the fact that the shield covers both the pulleys and belts.  Clement did not show, however, that guards cannot be installed only over the pulleys or that the machine cannot be turned off when the operator reaches in to set a bottle upright.  And, contrary to Clement's argument, the record does not show that the pulleys need to be unguarded to push the bottles along.  At most, the record shows that the belts need to be unguarded.   As we have said, however, the standard does not require that the belts be guarded.

The judge also affirmed the citation's characterization of the violation as "serious."  The judge relied on the compliance officer's testimony that amputation could result if an employee's hand or finger were caught in the nip point of the pulleys, and on the testimony of both the compliance officer and Clement's plant manager that the belts were tight.  The compliance officer stated that the belts looked tight because they did not oscillate at their midpoints.  The plant manager stated that the belts were as tight as they could be made by hand.  Clement argues that the compliance officer's testimony that amputation could result was unsupported speculation, particularly since the compliance officer had never tested the tightness of the belts.

A violation is "serious" within the meaning of section 17(k) of the Act, 29 U.S.C. § 661(i), if the record shows that there is a substantial probability that death or serious physical harm could result from the violative condition.  We are not convinced that the judge's finding on this point was erroneous.  The compliance officer's testimony was uncontradicted and plausible, and was apparently based on his considerable experience in the investigation of accidents.  We are not convinced, however, that the violation was of high "gravity" within the meaning of section 17(j) of the Act, 29 U.S.C. § 666(i).  One of the factors considered in determining the gravity of a violation is the probability of injury.  National Realty & Construction Co., 72 OSAHRC 9/A2, 1 BNA OSHC 1049, 1051, 1971-73 CCH OSHD ¶ 15,188, p. 20,266 (No. 85, 1972), rev'd on another ground, 489 F.2d 1257 (D.C. Cir. 1973).  The record does establish that the probability of an accident was low.  The operator's hand is within the area of the pulleys only momentarily, and the record does not show that an accident had ever occurred.  Because the record does not show the number of employees exposed to the violative condition, we must assume that it was only one.   Finally, we find that Clement proceeded in good faith.  As the compliance officer stated, Clement was very interested in learning about the hazards in its plant, and it quickly moved to abate the violations.  In view of the low gravity of the violation and Clement's good faith, we assess a penalty of $70 instead of the $140 assessed by the judge.

Citation 1, Item 4: 29 C.F.R. § 1910.309(a), N.E.C. § 250-51, Ungrounded Fans.

Items 4(a) and (b) of citation 1 allege that two fans were not grounded and that this was a violation of the standard at 29 C.F.R. § 1910.309(a) (1979). At the time the alleged violation occurred the 1971 edition of National Electrical Code, NFPA No. 70-HC, ANSI C1-1971, had been incorporated by reference as an occupational safety and health standard by former section 1910.309(a).
N.E.C. section 250-51 provides:

250-51.  Effective Grounding.  The path of ground from circuits, equipment, and conductor enclosures shall (1) be permanent and continuous and (2) shall have ample carrying capacity to conduct safely any currents liable to be imposed on it, and (3) shall have impedance sufficiently low to limit the potential above ground and to facilitate the operation of the overcurrent devices in the circuit.

Section 250-45 of the N.E.C. limits the scope of section 250-51.  It provides:

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:

(a) In hazardous locations (see Articles 500 through 517);
(b) When operated at more than 150 volts to ground . . . .
(c) In residential occupancies,....
[COMMENT:] Portable tools or appliances not provided with special insulating or grounding protection are not intended to be used in damp, wet or conductive locations.
(d) In other than residential occupancies, (1) refrigerators, freezers, air conditioners, and (2) clothes-washing, clothes-drying and dish-washing machines, sump pumps and (3) portable, hand-held, motor-operated tools and appliances of the following types: drills, hedge clippers, lawn mowers, wet scrubbers, sanders and saws, and (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, and (5) portable tools which are likely to be used in wet and conductive locations.

The Secretary must establish the applicability of the standards he cites.   He has not done so here because there is no evidence that the fans were used under any conditions mentioned in section 205-45.  It has not been shown that the fans were in "hazardous locations" within the meaning of section 250-45(a), were "operated at more than 150 volts to ground" within the meaning of section 250-45(b),[[5]] or were in a residential occupancy within the meaning of section 250-45(c).  Moreover, although a photographic exhibit indicates that one of the fans was on a concrete factory floor or similar surface, we do not interpret the term "the ground" in section 250-45(d) to include such factory floors.  We conclude instead that in this provision the term "the ground" was used in the ordinary sense of "earth."  See Blocksom & Co., 83 OSAHRC 10/A2, 11 BNA OSHC 1255, 1258, 1983 CCH OSHD ¶ 26,452, p. 33,596-33,597 (No. 76-1897, 1983).  We therefore conclude that the fans were not used by persons standing on  "the ground" within the meaning of section 250-45(d).  Therefore, we reverse the decision of the administrative law judge and vacate these sub-items.

Citation 2, Item 1: 29 C.F.R. § 1910.23(c)(1), Unguarded Platform.
Citation 2 alleges that Clement violated section 1910.23(c)(1), which requires that open-sided "platforms" four feet or more above adjacent ground or floor level be guarded by a railing.  Section 1910.21(a)(4) defines "platform" as "[a] working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery or equipment."  A Clement employee was working at the edge of an unguarded surface that was 4.8 feet above the adjacent floor.  The surface is called the mustard or starch deck because mustard and starch are made in two large mixing tanks next to the deck.  The employee standing on the deck adds ingredients into and performs other tasks with the tanks.  The compliance officer, who watched the employee work, testified that the employee is working there "constantly."  The plant manager also testified that "lots of material [is] being put on that deck during the day."

The compliance officer testified that if the employee slipped down into the triangular space between the tanks and the deck he would strike his face or head on the lips of the five-foot high tanks, causing a concussion or lacerations.  A photograph introduced by the Secretary shows an employee standing at the edge of the platform and next to the triangular space between the tanks and the deck.

The judge affirmed the citation.  He found that the deck is a "platform" within the meaning of section 1910.21(a)(4) because workers regularly were assigned to work on it to perform tasks central to the employer's processes.  He also held that the violation was not de minimis because an employee who fell off the deck was substantially likely to strike the upper surface of one of the tanks and suffer a concussion or lacerations.  The judge assessed no penalty.

On review, Clement argues that the violation was de minimis because the 0.8 foot deviation from the standard is too small to be significant.  In its petition for discretionary review, the company also claimed that the standard was inapplicable.

We agree with the judge that the standard applies and that the violation was not de minimis.  The judge's decision that the standard is applicable is consistent with the definition of "platform" in section 1910.21(a)(4) and with Commission case law applying the definition.  See Globe Industries, Inc., 82 OSAHRC 24/D4, 10 BNA OSHC 1596, 1982 CCH OSHD ¶ 26,048 (No. 77-4313, 1982).[[6]]  As to Clement's argument that the violation was de minimis, it is true that the difference between compliance and non-compliance here was small--only eight tenths of a foot.  While the extent of deviation from a standard is relevant, it is not necessarily controlling.  The test under Commission precedent is whether the hazard bears such a negligible relationship to employee safety as to render the imposition of a penalty and the entry of an abatement order inappropriate.  Bethlehem Steel Corp.., 81 OSAHRC 86/A2, 9 BNA OSHC 2177, 1981 CCH OSHD ¶ 25,645 (No. 77-617, 1981).  The judge looked to all the circumstances and found a substantial likelihood that concussion or laceration would occur if the employee were to slip off the deck. We agree with this finding.  We therefore affirm citation 2 but assess no penalty.

Accordingly, the judge's decision is affirmed in part and reversed in part.  Item 1 and 3A(c) of citation 1 are affirmed; penalties of $210 and $70 are assessed.  Items 2(a), 4(a) and 4(b) of citation 1 are vacated.  Citation 2 is affirmed; no penalty is assessed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  JUL 17 1984



CLEARY, Commissioner, dissenting in part:

I disagree with the majority's conclusion that there was no violation of section 1910.178(n)(8)'s requirement that an industrial truck "be operated at a speed that will permit it to be brought to a stop in a safe manner."  Accordingly, I dissent.

The gravamen of this allegation is that an industrial truck was travelling at an excessive rate of speed.  The truck was travelling at approximately 15 miles per hour, whereas the speed limit within Clement's installation was 10 miles per hour.  The driver was unaware of the speed limit.  This is what was cited and what was contained in the complaint.  The majority, however, then reads the standard to mean if the Secretary alleges an employee of Clement was operating a machine at an excessive rate of speed, the Secretary must distinguish between a rate of speed that represents a danger to the truck and the driver if the machine goes out of control, and a rate of speed that represents the danger of striking a pedestrian.  Depending on his analysis of the type of accident which might result, he must then select the proper standard between one of two, or else he's out of court.

I see no basis in the language of the standard for the construction arrived at by the majority.  The standard is plain:  A forklift must "be operated at a speed that will permit it to be brought to a stop in a safe manner."  Yet the majority concludes that the standard "does not direct that a driver be able to stop within a particular distance."  Instead, the majority claims that "the sense conveyed by the standard is that forklift trucks should not be operated at speeds so high that the operator could lose control or the vehicle during braking, injuring himself and others if the forklift turns over, shifts or loses its load, or swerves out of control."  However, the majority does not reveal, and I am unable to discover, the source this construction.  In any event, the distinction escapes me.  I can discern no meaningful difference for purposes of section 1910.178(n)(8) between driving a forklift so fast that it cannot be stopped in time to avoid a collision and driving a forklift so fast that it will go out of control during braking.  In both cases, the forklift is not being "operated at a speed that will permit it to be brought to a stop in a safe manner."

The majority view that section 1910.178(n)(4) rather than section 1910.178 (n)(8) "was apparently intended to deal with . . . the problem of excessive speed at cross aisles with obstructed views" is erroneous.  Holding that subsection (n)(8) applies in this case would not render subsection (n)(4) redundant as the majority claims because one can comply with subsection (n)(4) and still violate subsection (n)(8).   For example, a forklift travelling 40 miles per hour in Clement's plant that slowed down to 30 miles per hour and sounded the horn at a cross aisle would be in literal compliance with subsection (n)(4) but could not be said to be operating "at a speed that will permit it to be brought to a stop in a safe manner."

I also disagree with the majority's parsing of the various provisions of the standard.  The source standard for section 1910.178(n) is ANSI B56.1-1969, an advisory standard.  See 29 C.F.R. § 1910.189.  ANSI standards were not drafted with mathematical precision, but were voluntary standards drafted by practical men for audiences familiar with the subjects.  See Keystone Consolidated Industries, 84 OSAHRC ___, 11 BNA OSHC 1847, 1851, 1984 CCH OSHD ¶ 26,807, p. 34,289-90 (No. 80-5236, 1984).  The OSHA standard should therefore not be read as if each provision were narrowly drawn and mutually exclusive.  This much is clear from the words of the standard.  For example, section 1910.178(n)(1) requires in part that "[a] safe distance shall be maintained . . . from the truck ahead, and the truck shall be kept under control at all times."  Obviously, this requirement overlaps considerably with section 1910.178(n)(8)'s requirement that the truck "be operated at a speed that will permit it to brought to a stop in a safe manner."  Both standards require the operator to maintain constant control of the truck and enough room in which to stop safely.  Section 1910.178 (n)(10) similarly requires that the operator "be required to slow down for wet and slippery floors."  These standards reflect that an industrial truck operator is likely to encounter a myriad of conditions and situations that warrant caution and increased attention to vehicle control.  Such standards cannot be written to anticipate every conceivable driving hazard, and accordingly must be drafted with broad strokes.  It makes no sense to read the § 1910.178(n) as though it contains a narrowly-drawn list of discrete requirements.  Accordingly, I dissent.

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]] Clement maintains that the judge did not adequately consider that pallets inserted into each level of the boxes increased their stability.  We disagree; the judge did take this into account but correctly found that no pallet increased the stability of the top tier. Clement also argues that the boxes were turned in different directions to increase their stability.  There is no evidence in the record to support this assertion and the photograph of the stack seems to contradict it.

[[2]] The judge found that the violation was "serious" within the meaning of section 17(k) of the Act, 29 U.S.C. § 666(j).  The boxes weighed 25 pounds each and were stacked as high as fifteen feet off the ground.  Employees used walkways within eight feet of the stacked boxes.  Clement does not take issue with the judge's finding of seriousness, or with his determination that a $210 penalty is appropriate.

[[3]] We note that a forklift traveling at 15 m.p.h. would cover 30 feet in less than 1.5 seconds, while a forklift traveling 10 m.p.h. would cover the distance in 2 seconds.  The margin for error in the method used to time the forklift's speed is obvious.  Given our disposition of the cited item, the potential inaccuracy of the measurement need not be considered.

[[4]] Chairman Rowland does not agree that the evidence establishes employee access to the hazard.  The compliance officer did not see any employee come closer than three feet from the nip points.  Although the compliance officer did testify that an unnamed employee pointed to a location "within say a foot or so" from the pulleys, the compliance officer testified that he was unable to "clearly ascertain" how close an employee would come to the nip points.  The plant manager gave testimony that employees reached "in there," but this testimony, which was not relied upon by the judge, does not explain how close to the pulleys the employees would come.  None of the witnesses indicated where employees stood when they worked in the area, and how or where precisely they reached.  Because such information is lacking and the evidence about how close the employees would come to the nip points is inconclusive, Chairman Rowland does not find that employees came within the zone of danger presented by the machine.  Further, Chairman Rowland does not conclude that access to the hazard can be inferred from the photographs submitted by the parties, since the photographs neither indicate exactly where employees would reach in performing the work nor establish that the area presents a hazard to the employees from the nip points regardless of where the employees reach.

In addition, Chairman Rowland would not accord dispositive weight to the compliance officer's account of statements made by an unnamed employee during a conversation in which no Clement representative was present.  It is inherently unfair to base a violation upon such testimony because of the obvious difficulty in presenting rebuttal evidence to statements by a declarant whose identity is not known.

[[5]] The compliance officer's testimony implies that the fans were operated at 120 volts and that errant voltage through the motor casing would be around 12 volts.

[[6]] Chairman Rowland agrees that the deck here was a "platform" within the meaning of section 1910.21(a)(4).  In Globe Industries, Chairman Rowland stated that he would follow the analysis set forth by former Commissioner Moran in Allis-
Chalmers Corp., 76 OSAHRC 50/F8, 4 BNA OSHC 1227, 1975-76 CCH OSHD ¶ 20,666 (No.5210,1976).  Consistent with that reasoning, Chairman Rowland noted that the use of the "balcony" and the phrase "for the operation of machinery and equipment" in section 1910.21(a)(4) suggests that an elevated surface is not a "platform" unless it is erected and designed for use by employees while operating "machinery and equipment."  10 BNA OSHC at 1599 n.7, 1982 CCH OSHD at p. 32,719 n.7.  Chairman Rowland has also observed that the applicability of the standard depends on a number of factors, including the nature of the surface and the frequency and regularity with which employees go onto it, and whether it was designed or intended to function as a working surface.  Brown & Root, Power Plant Div., 82 OSAHRC 40/A2, 10 BNA OSHC 1837, 1842 n.11, 1982 CCH OSHD ¶ 26,159, p. 32,968 n.11 (No. 77-2553, 1982) (construction standard counterpart); General Electric Co., 81 OSAHRC 97/D6, 10 BNA OSHC 1144, 1146, 1981 CCH OSHD ¶ 25,736 p. 32,101 (No. 76-2879, 1981) (concurring opinion)(manufactured part not a "platform").  In this case, the Chairman notes, the work of the employee on the deck is analogous to the operation of machinery and equipment, the employee's activity on the deck was regular and frequent, and the deck appears to have been intended by the employer to be used as a surface from which to work.