Docket No. 89-1263, DELFORD INDUSTRIES, INC.

SECRETARY OF LABOR,

Complainant,

DELFORD INDUSTRIES, INC.,

Respondent.

OSHRC Docket No. 89-1263

ORDER

On July 22, 1991, the Secretary filed a Notice of Withdrawal of citation in the above-captioned case. The Secretary has withdrawn the only remaining item at issue in this case, Item 9 of Citation 1.

The Commission acknowledges receipt of the Secretary's Notice of Withdrawal and set aside the Judge's Decision and Order which modified and affirmed and affirmed Item 9 of Citation 1 and assessed a $300 penalty. There being no matters remaining before the Commission requiring further consideration, the Commission orders the above-captioned case dismissed. See 29 U.S.C. зз 659(c), 660(a) and (b).

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: August 9, 1991

SECRETARY OF LABOR,

Complainant,

DELFORD INDUSTRIES, INC.,

Respondent.

OSHRC Docket Nos. 89-1263
and 89-1753

NOTICE OF WITHDRAWAL

The Secretary of Labor notifies the Commission and the parties that she hereby withdraws Citation No. 1, Item 9, which was at issue in this litigation. 29 C.F.R. з 1910.304(f)(5)(v). The administrative law judge agreed and petition, Chairman Foulke granted discretionary review to determine, inter alia , whether the amendment was not proper. Neither Delford nor Judge Burroughs specified the precise subsection of 29 C.F.R. з1910.304(f)(5)(v) which applied to the admittedly ungrounded plug on Delford's chemical tank, and the Secretary was unable to determine that subsections applies. The only subsection that could conceivably apply would be 29 C.F.R. з1910.304(f)(5)(v)(c)(5); however, the evidence of the record makes it unlikely that Delford's chemical tank fits within the definition of "appliances" as set forth at 29 C.F.R. з1910.399(a)(6). To the contrary, the Secretary believes the standard most likely to apply to the facts as brought out at at the hearing is 29 C.F.R. з1910.304(f)(4)(iv)(B). However, the administrative law judge's finding of violation under 29 C.F.R. з1910.304(f)(5)(v) (1990) is not tenable on the record, and that no Rule 15(b) motion to amend the citation to specify the more applicable standard is appropriate at this time. The Secretary therefore withdraws her citation in this case. See generally, Cuyahoga ValleyRy. Co. v. United Transportation Union, 474 U.S. 3 (1985) (Secretary of Labor retains prosecutorial disecutorial discretion at all stages of litigation.)

Respectfully submitted.

David S. Fortney
Deputy Solicitor of Labor

Cynthia L. Attwood
Associate Solictor for
Occupational Safety and Health

Donald G. Shalhoub
Deputy Associate Solictor for
Occupational Safety and Health

Daniel J. Mick
Counsel for Regional
Trial Litigation

Laura V. Fargas
Attorney

SECRETARY OF LABOR,

Complainant,

DELFORD INDUSTRIES, INC.,

Respondent.

OSHRC Docket Nos. 89-1263 and 89-1753

ORDER

These consolidated cases were directed for review by Chairman Edwin G. Foulke, Jr., on December 11, 1990. Review was directed only on issues involving Docket No. 89-1263. Review was not directed on any issue involving Docket No. 89-1753. Under Commission Rule of Procedure 92 (a), 29 C.F.R. з 2200.92 (a), however, the direction for review established jurisdiction in the Commission to review "the entire case, " that is, all issues in Docket Nos. 89-1263 and 89-1753. Having reviewed the entire record, the Commission now finds that there is no compelling public interest that would warrant further review of the issues presented in Docket No. 89-1753.

Accordingly, on the Commission's own motion pursuant to Commission Rule of Procedure 10, 29 C.F.R. з 2200.10, Docket No. 89-1753 is severed and the judge's decision as to that docket number is deemed a final order of the Commission. Docket No. 89-1263 remains pending before the Commission on review.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: January 17, 1991

SECRETARY OF LABOR,

Complainant,

DELFORD INDUSTRIES, INC.,

Respondent.

OSHRC Docket Nos.
89-1263 and 89-1753
(Consolidated)

APPEARANCES:

Diane C. Sherman, Esquire, Office of the Solicitor,
U.S. Department of Labor, New York, New York, on behalf of complainant.

Robert Reach, Jr., President, Delford Industries, Inc.,
Middletown, New York, on behalf of respondent.

DECISION AND ORDER

Burroughs, Judge: Delford Industries, Inc., ("Delford"), a manufacturer of rubber extrusion products, contests a serious and "other" citations issued to it on April 3, 1989 (Docket No, 89-1263) and a serious citation issued to it on May 15, 1989 (Docket No. 89-1753). The cases were consolidated at the commencement of the hearing (Tr. 3).

Compliance Officer Terri Harding arrived at Delford's place of business in Middletown, New York, on February 14, 1989. After examining the OSHA 200 logs, Ms. Harding requested permission to conduct an inspection (Tr. 14-17). She was told to obtain a search warrant. Permission having been refused, she left the premises (Tr. 17). At a subsequent date, Ms. Harding was advised that Delford would consent to the inspection. She returned on February 22, 1989, with Eileen Walsh, an industrial hygienist (Tr. 165, 168), and conducted a walk-around inspection Tr. 19-20).

DOCKET NO. 89-1263

SERIOUS CITATION

Item 1

Alleged Violation of 29 C.F.R. з 1910.23(a)(5)

The Secretary charges that Delford was in violation of з 1910.23(a)(5), [[1]] because an alleged trapdoor floor opening, measuring 19 inches by 17 inches and 30 inches deep, in the water pit area of the mill room, was unguarded. Delford presents two defenses to the allegation. It contends that the opening was not a pit or trapdoor floor opening and that, even if there was a pit or trapdoor floor opening, the standard is still inapplicable. According to Delford, the applicability of the standard depends on the pit or trapdoor opening being used on an infrequent basis. It contends that the alleged area was a walkway frequently used by employees.

Ms. Harding observed a couple of floor planks missing "in a walkway" leading to the water pit in the mill room. The missing planks left an opening measuring approximately 19 inches by 17 inches. The opening was 30 inches [[2]] deep. The walkway was used by employees to gain access to the electrical services and the water pit (Tr. 20-27). Exhibit C-1 is a photograph of the area (Tr. 27-28). The photograph was taken after the planks had been replaced (Tr. 28). When Ms. Harding observed the opening, it was not covered, no one was in attendance around the opening, and it was not guarded by guardrails (Tr. 29-30). The opening was in plain view of anyone passing in the area (Tr. 32-33).

Ms. Harding testified, after looking at her notes, that the walkway was used approximately once a week (Tr. 22). She was not aware from whom she secured this information (Tr. 24-25). She later stated that she talked with Mr. Reach and that he told her that it was used to gain access to the pit and to the electrical installations (Tr. 25). The walkway was the main access to the pit area (Tr. 27).

Ms. Harding makes reference to the cited area as a "walkway" leading to the water pit (Tr. 20, 21). The two planks were missing from the walkway. She does not describe the area of the missing planks as a pit or trapdoor.[[3]] The standard, by express wording, applies to "every pit and trapdoor floor opening." The language of the standard is plain and unambiguous. While the walkway in question provided access to the water pit, this does not make the walkway a pit or trapdoor floor opening. The cited violation was the hazard created by missing planks in the walkway. The condition of the pit was not cited. The photograph of the two planks (Ex. C-1) reveals that they were not covering a water pit or trapdoor floor opening.

Item 2

Alleged Violation of 29 C.F.R. з 1910.23(c)(1)

The Secretary withdrew item two of the serious citation which alleged a violation of з 1910.23(c)(1) (Tr. 35).

Item 3

Alleged Violation of 29 C.F.R. з 1910.212(a)(1)

The Secretary alleges that Delford was in violation of з 1910.212(a)(1), because splicing and injection presses had unguarded pinch points created by a gap between the upper portion of the dies and the cylinder. A pinch point is allegedly created as the die ascends to rejoin the upper portion of the cylinder (Tr. 40, 41). Delford submits that the presses had two-hand tripping devices and that it was in compliance with the standard. The presses were equipped with two-hand tripping devices, but they were not operational. The devices had been disconnected or were in a state of disrepair. The issue must be decided on the basis of how the presses were being operated at the time of inspection.

The purpose of the splicing press is to join two flexible rubber pieces into one. This procedure is performed by the machine operator placing floppy rubber material into the die area and then activating the press. When the press is activated, the die descends and joins the two pieces (Tr. 36, 37, 42). Where the pieces are joined is the point of operation (Tr. 41). (The unguarded point of operation is a separate allegation.) The unguarded pinch point cited in this allegation occurs as the process ends and the upper die ascends to rejoin the upper cylinder (Tr. 38-40, 41). The gap exists between the upper portion of the die plate and the cylinder above it (Exs. C-2, C-3 C-4; Tr. 38). The size of the gap between the upper die in its descended position and the cylinder is 3-3/4 inches (Tr. 39, 113). It is this gap that is closed as the upper die ascends to the upper cylinder and creates a pinch point between the upper die and the cylinder. The injection and splicing processes are similar in operation (Tr. 37-42).

The operator stands directly in front of the press while feeding materials into the die area. Once the material has been placed in the point of operation, the press is activated by a lever which is located above and to the left of the cylinder (Ex. C-2; Tr. 39-40). Harding testified that the operator's hands could be within the die area when the cylinder is descending (Tr. 40). She later testified that, when the left hand activates the lever, the right hand is free to go anywhere (Tr. 42). The material is placed in the die area or point of operation by hand. Ms. Harding later testified that the employee would have to hold onto the floppy material while the machine is activated (Tr. 49). If the machine is activated with the left hand, then the right hand would be holding the material while it is activated.

Section 1910.212(a)(1) [[4]] is a general, introductory standard setting forth guarding requirements to "all machines." Faultless Div., Bliss & Laughlin Industries., Inc. v. Secretary of Labor, 674 F.2d 1177 (7th Cir. 1982). In order to establish a violation of з 1910.212(a)(1), the Secretary must first prove the existence of a hazard which is revealed "by how the machine functions and how it is operated by the employees." Stacy Mfg. Co., 82 OSAHRC 14/B1, 10 BNA OSHC 1534, 1982 CCH OSHD ╢ 25,965 (No. 76-1656, 1982). A potential hazard in this case would exist as the upper die, which descended to mold the two rubber pieces together, ascends to rejoin the upper cylinder. The descending of the die causes a 3-3/4-inch gap that is closed as the upper die ascends to the cylinder. It is obvious that anyone inadvertently placing a finger or hand into the gap as the die ascends would be exposed to injury.

The crux of the dispute is how likely the work habit or environment of the operator would permit an inadvertent or accidental placing of hands or fingers in the gap. Unfortunately, too many relevant facts are left to the imagination--an imperfect manner for determining a hazard. The evidence does not show that the operator had any reason to place his hands or fingers in the gap area as the die ascends. The record does not state how fast the die ascends. Ms. Harding's testimony as to whether the right hand is free or is holding the floppy rubber material in the die as the press is activated by the left hand is inconsistent. If the right hand is holding materials, it is difficult to see how Ms. Harding could conclude it was free to accidentally contact the gap area. If the operator places the material by hand into the point of operation and holds it until the upper die descends and molds the two pieces, it is doubtful that he would have time to get a finger or hand in the gap area. This is especially true in light of Ms. Harding's later testimony that the stock is removed by hand after the operation is completed (Tr. 49). She also testified that the stock is adjusted in the die by hand. The evidence does not disclose how close the right hand is to the gap area as the operator holds it when the die ascends and when he removes the material as the die ascends.

In determining whether a hazard exists, all circumstances, including the manner in which the machine functions and how it is operated by the employees, must be considered. Rockwell International Corp., 80 OSAHRC 118/A2, 9 BNA OSHC 1092, 1980 CCH OSHD ╢ 24,979 (No. 12470, 1980). The operation of the presses does not require that the operator place his hand in the gap area.

The evidence of whether a hazard exists in operation of the presses is left to speculation and conjecture. The evidence is too incomplete to conclude a hazard existed. The more fact that the gap was unguarded and that it was not impossible for an employee to get his hands or fingers in the area does not demonstrate that the operator was exposed to a hazard. Cf., Armour Food Co., 1990 OSAHRC BNA OSHC 1990 CCH OSHD ╢ (No. 86-247, September 24, 1990). The Secretary failed to show the location of the hands as the die ascends. The evidence fails to disclose any reason or occasion for an employee's hands or fingers to come into contact with the gap.

The Secretary must show a more direct relationship between the manner in which the press is operated and the hazard presented by the gap. For instance, at what speed did the die ascend and how close were the operator's hands to the gap area as he removed the stock from the die. Since there are no reported injuries, there is no evidence to show that the hazard was realistic when considered in relation to the manner in which the press was operated. The lack of injuries, although not conclusive, buttresses arguments that there was no exposure to injury. Rockwell International Corp., supra. The Secretary has failed to meet her burden of proof. The alleged violation of з 1910.212(a)(1) is vacated.

Item 4

Alleged Violation of 29 C.F.R. з 1910.212(a)(3)(ii)

The alleged violation of з 1910.212(a)(3)(ii) involves the same splicers covered under the previous allegation concerning pinch points (Tr. 46, 47). The Secretary contends that the splicers violated з 1910.212(a)(3)(ii) since the point of operation was unguarded (Tr. 46). As previously discussed under item three, the splicers were equipped with two-hand tripping devices, but none of them were operational (Tr. 48-49). The splicer was activated by a lever located in the area of the timer on the upper left of the splicer (Tr. 47, 48-49).

The operator stands in front of the splicer and takes two pieces of the stock, a floppy rubber material, and places it into the point of operation by hand. The left hand is normally used to activate the splicer. According to Harding, this leaves the right-hand free to be in any area of the die or press (Tr. 47). This statement is inconsistent with later testimony that the employees would have to hold onto the floppy material while the press is activated (Tr. 49). If this is the case, then the statement that the right hand is free to be in any area of the die or press can't be true. Her testimony that the material is removed from the die by hand (Tr. 49) is also inconsistent with the statement that the right hand is free. The opening between the two dies where the stock is placed is 2-1/4 inches (Tr. 47-48).

Section 1910.212(a)(3)(ii) [[5]] requires that the point of operation of a machine be guarded if the operator is exposed to injury, and that the guarding device be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle. The standard, by express wording, requires that the point of operation expose an employee to injury before the employer has to guard it. Rockwell International Corp., 80 OSAHRC 118/A2, 9 BNA OSHC 1092, 1980 CCH OSHD ╢ 24,979 (No. 12470, 1980). "The mere fact that it [is] not impossible for an employee to insert his hands [in the point of operation] does not itself prove that the point of operation exposes him to injury. Whether a machine presents a hazard must be determined by how the machine functions and how it is operated by employees." Rockwell International Corp., supra, 9 BNA OSHC at 1097-98. In order to prove a violation of з 1910.212(a)(3)(ii), the Secretary must establish that (1) the point of operation of the splicers was unguarded, and (2) that the operation of the splicers exposed employees to injury. The Secretary has established the first point but has failed in meeting her burden of proof on the second point.

Once again, relevant details as to how the splicers function and are operated by employees are missing. [[6]] Ms. Harding assumes there is a violation since the point of operation is not guarded. There is no dispute over this fact; but, before guarding is required, the Secretary must show that the operator is exposed to injury as a result of the manner in which the splicer is utilized. While Ms. Harding testified that the operator's hands were "in close proximity to the die," (Tr. 47) it is impossible to find a violation on this fact. The words "close proximity" are too nebulous in meaning to assume that there was any real danger in operating the splicers. [[7]] The descriptive words "close proximity" are of little value unless they are defined in terms of precise measurements, e.g., in inches. The Commission's purpose is to afford an employer an independent review of the Secretary's allegations. This purpose would be defeated if the Commission decided the issue on such nebulous terminology. In this instance, does "close proximity" mean within two feet or two inches? (See footnote 7.) The party having the burden of proof must suffer the consequences for any failure to present sufficient facts in support of the alleged violation.

Accordingly, the allegation is vacated.

Item 5

Alleged Violation of 29 C.F.R. з 1910.212(a)(4)

The Secretary alleges that Delford violated з 1910.212(a)(4) by its failure to have an interlocking barrier guard on a tumbler in the wash area that was ten feet, two inches, long and three feet in diameter. This fact is not disputed. Delford argues that the configuration of the tumbler, table, and location of the control button protect an employee from any injuries.

A large tumbler was used in the wash area to wash parts. The parts to be washed are loaded through two front doors of the tumbler. A control button for the tumbler is located on the right at the end of the tumbler and away from the movement of the tumbler. The tumbler is approximately ten feet long and three feet in diameter (Exs. C-5, C-6; Tr. 52-53, 119). A metal table, two feet in width, is welded into place in front of the tumbler and extends a foot or more beyond the length of the tumbler (Exs. C-5, C-6; Tr. 120). The employee stands at the control while activating the tumbler (Tr. 54). The control is located within inches of the end of the tumbler (Ex. C-6). Employees operating the controls would be at the end of the table and within a few inches of the end of the tumbler (Ex. C-6; Tr. 119).

While Ms. Harding states that employees would be exposed to brushing up against the tumbler or the tumbler edge (Tr. 54), this does not appear to be a realistic hazard. The configuration of the tumbler and metal table protruding in front and beyond the ends would prevent any accidental brushing up against it. The table was two feet wide (Tr. 120). The employee would have to climb onto the metal table to brush up against the tumbler. He could reach the end by hand, but the placement of the controls and metal table are such that any hand of an employee that comes between the frame holding the tumbler and the tumbler would have to be deliberate. (See Exs. C-5, C-6). While Ms. Harding testified that the operator's hands could be crushed if he got them in the area between the tumbler and the frame, a look at exhibits C-5 and C-6 dispels her theory. The distance between the control and tumbler at the end is too large to crush anyone's hand if it accidentally got in the area between the tumbler and the control. Ms. Harding did not see the tumbler in operation (Tr. 122) and is only guessing as to potential hazards.

Section 1910.212(a)(4) requires revolving drums to be guarded by an enclosure which is interlocked with the drive mechanism so that the drum cannot revolve unless the guard enclosure is in place. The standard must be read in conjunction with з 1910.212(a)(1) which states machine guarding "shall be provided to protect the operator and other employees in the machine area from hazards." The Secretary has failed to show that the operation of the tumbler presents any hazard to employees. The configuration of the tumbler in relation to the metal table and the location of the control buttons make it impossible for someone to accidentally brush up against the tumbler. The fact that there is no history of injuries from the operation of the tumbler buttresses the conclusion that there was no realistic exposure to a hazard. Rockwell International Corp., supra. The alleged violation is vacated.

Item 6

Alleged Violation of 29 C.F.R. з 1910.219(c)(4)(i)

The Secretary alleges Delford violated з 1910.219(c)(4)(i) for failure to guard a projecting shaft from a motor in the Banbury Room of the pit area with a safety sleeve. The standard states:

(4) Projecting shaft ends. (i) Projecting shaft ends shall present a smooth edge and end and shall not project more than one-half the diameter of the shaft unless guarded by nonrotating caps or safety sleeves.

The diameter of the shaft was three inches. The projection was six inches. Since the shaft projected more than one-half of the diameter, the standard is applicable. There is no dispute that the shaft was not guarded by a nonrotating cap or safety sleeve. The shaft had a keyway cut into it (Ex. C-7; Tr. 58-60).

Ms. Harding testified that the shaft was in an exposed area where someone could walk by it. On direct examination, she indicated that an employee might enter the area to perform maintenance or to make adjustments to the equipment in the area (Tr. 59). She was concerned that an employee could brush up against the shaft (Tr. 60). Her testimony in regard to employees in the pit area is inconsistent. She first testified that she did not ask the operator for what reason he would enter the pit (Tr. 137-138). She then stated that the operator did not tell her for what purpose he went into the pit; but, when pressed under cross-examination, she stated the operator said "maintenance of the area" (Tr. 139). She displayed little knowledge of the pit area or what maintenance would be performed (Tr. 134-141). There is no evidence she saw anyone in the pit area. She admitted it was not a heavily traveled area (Tr. 142).

Ms. Harding's testimony is considered to be nebulous and inconsistent. There is no evidence of any exposure to the rotating shaft. There is no description of the pit area. Its dimensions are unknown and there is no evidence as to how close anyone would come to the rotating shaft if they entered the pit area. While the shaft was unguarded, employees did not work in the area and the evidence indicates that maintenance duties would be the only reason to enter the pit. Ms. Harding assumes exposure if anyone enters the pit. No reason is offered as to why anyone would have to approach the shaft even if they entered the pit. The relation of the shaft to walk areas in the pit is unknown. Once again, the Secretary has failed to prove sufficient facts to allow a thoughtful and incisive independent review of the violation. The point is not whether Ms. Harding thinks there was a violation but whether the facts of record support a violation. The paucity of facts prevent a finding of exposure in this instance. The alleged violation is vacated. [[9]]

Item 7

Alleged Violation of 29 C.F.R. з 1910.219(e)(5)(i)

The Secretary alleges that Delford was in violation of з 1910.219(e)(5)(i) for failure to guard the nip points of a three-inch wide leather belt with metal lacing on the Rusnak Tool Works milling machine in the machine shop and the lower portion of a one-half inch V-belt and cone pulley on coiler and pack machines one, two and three. Section 1910.219(e)(5)(i) provides:

(5) Cone-pulley belts. (i) The cone belt and pulley shall be equipped with a belt shifter so constructed as to adequately guard the nip point of the belt and pulley. If the same of the belt shifter does not adequately guard the nip point of the belt and pulley, the nip point shall be further protected by means of a vertical guard placed in front of the pulley and extending at least to the top of the largest step of the cone.

There is no dispute over the fact that the cone and belt pulleys were not equipped with a belt shifter (Tr. 65).

Ms. Harding observed two separate areas of the plant that had unprotected cone belts and pulleys (Tr. 61). One unprotected belt was a three-inch wide leather belt with metal lacing that was on a Rusnak Tool Works milling machine in the machine shop. The other belt was a one-half-inch V-belt located in the microwave extrusion area on three separate machines. The belts at both locations were located less than seven feet from the floor (Tr. 61-67). Nip points were created where the belt ran onto the pulley (Tr. 65).

The operator stands in front of the milling machine to perform his work. The belt pulley is located "Just above and back a little from the [operator's] hand area" (Tr. 63). When operating the coiler and pack machines one, two and three, the operator stands in "close proximity" but not directly at the cone and pulley (Tr. 63-64). Ms. Harding later revealed that the operator stands approximately two feet from the cone and pulley (Tr. 64). Harding also testified that there were areas one could walk around the machine (Tr. 64). She was unable to describe the coiler and pack machines (Tr. 64).

In Astra Pharmaceutical Products, Inc., supra, the Commission stated that the Secretary, in order to prove a violation of section 5 (a) (2) of the Act, must show by a preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees had access to the violative condition, and (4) the cited employer either knew or could have known of the condition with the exercise of reasonable diligence. There is no doubt concerning the applicability of the cited standard or that Delford failed to comply with the standard. The focus is on whether employees had access to the violative condition in carrying out their job duties. The cone and pulleys were less than seven feet from the floor. This fact is undisputed. The cone and pulley on the Rusnak Tool Works milling machine was described as follows in relation to the operator: "Just above and back a little bit from his head area" (Tr. 63). The operator's location with respect to the coiler and pack machines was described as follows (Tr. 64):

Q. Where does the operator stand in relationship to that machine?
A. He would stand in close proximity but not directly at the cone and pulley.
Q. How far would you say he would be from the cone belts and pulley?
A. In that instance, a couple of feet.

It is also noted that Ms. Harding was unable to describe the coil and pack machines (Tr. 143). She could recall no injuries resulting from unguarded cone and pulleys on the coil and pack machines (Tr. 145).

The language used by Ms. Harding, for the most part, was not specific enough to conclude that the operation of the machines exposed anyone to the violative conditions. This fact, combined with her lack of knowledge of the coil and pack machines (Tr. 143), is persuasive in concluding that the Secretary has failed to meet her burden of proof. There is no evidence as to where the cone and pulley are located on the machines or their location in relationship to the operator. The exposure must be one that is realistic and can be expected to bring the employee in contact with the cone and pulley during normal operation of the machines. The fact that he can touch the cone and pulley by a deliberate act of reaching in is insufficient to meet the burden of proving he had access to the violative condition. The allegations are vacated.

Item 8

Alleged Violation of 29 C.F.R. з 1910.219(i)(2)

The Secretary alleges Delford violated the requirements of з 1910.219(i)(2) in three separate instances: (1) the Banbury motor located in the Banbury Room of the pit area had revolving couplings that were not guarded; (2) the couplings for the brake on the number four milling machine were unguarded, and (3) the number one milling machine had a midrail lacking near the hand brake and there was no guardrail near the operator station.

Ms. Harding testified that she observed three separate instances where employees were exposed to unguarded revolving couplings (Tr. 67-68). A coupling on one of the milling machines was only partially guarded (Ex. C-8). Ms Harding testified that a coupling on the motor located in the Banbury Room of the pit area was unprotected (Ex. C-7; Tr. 68) and that the number one and number four milling machines had unguarded couplings (Tr. 68). She stated that anyone passing by the areas of the unguarded couplings or performing maintenance in the area would be exposed to the hazard (Tr. 68). Exhibit C-8 is a photograph of a partially guarded coupling on a milling machine. It also shows partial guardrails in the area Tr. 69). While it is true that the coupling is only partially guarded, the statement by Ms. Harding that an employee working or walking in the area would come into contact with the revolving coupling bears little relationship to reality. A quick glance at the photograph of the partially guarded coupling easily reveals that employees are prevented from accidentally contacting the coupling by its location within the configuration of the machine (Ex. C-8). An employee would have to make a deliberate attempt to contact the coupling. There was no realistic exposure to the violative condition.

Exhibit C-7 is a photograph of the unprotected coupling on the motor located in the Banbury Room of the pit area. The coupling is inaccessible by virtue of its location. It is located so far inside the machine that it would be difficult to reach even if an employee made a deliberate attempt to touch it. Again, there was no realistic exposure to the violative condition. The fact that a coupling is unprotected or only partially protected does not automatically result in a violation of the standard.

The unguarded coupling on the other milling machine is not described. It is, therefore, impossible to judge whether or not there was exposure to the violative condition, a fact which must be proved by the Secretary. Ms. Harding's testimony that any employee passing by the couplings would lie exposed is not supported by the photographs (Exs. C-7, C-B). Ms. Harding is unrealistic on this item, as she has been on other items, as to what constitutes exposure. The allegations are vacated.

Item 9

Alleged Violation of 29 C.F.R. з1910.304(f)(1)(iv)

The Secretary alleges that Delford violated з 1910.304(f)(1)(iv) [[10]] since it had in use an electrical motor with an ungrounded lead cord. The motor operated on 110 volts (Tr. 73-74). The standard requires ground of AC systems of 50 volts to 1000 volts. Delford argues that the applicable standard is з 1910.304(f)(5)(v) which covers "Equipment connected by cord or plug."

Ms. Harding testified that the chemical tank in the boiler room had an electrical motor with an ungrounded lead cord. The electrical system was AC and carried 110 volts. The ground prong was missing from the lead cord (Tr. 73-74). The motor was used to operate the number two chemical tank (Tr. 74). The boiler room was a wet area of the plant (Tr. 75). Ms. Harding testified that the work of employees would cause them to come into contact with the chemical tank (Tr. 74).

Paragraph (f) of з 1910.304 is entitled "Grounding" and states that paragraphs (f)(1) through (f)(7) contain grounding requirements for systems, conduits and equipment. The specific provision cited by the Secretary [(f)(1)(iv)] refers to AC systems. The provision which Delford contends is applicable [(f)(5)(v)] refers to "Equipment connected by cord and plug." The evidence is clear that Delford was cited because the ground prong was missing from the lead cord. There is no allegation that the AC system was not grounded as required by з 1910.304(f)(1)(iv). The allegation has reference to the removal of the ground prong from the lead cord. Section 1910.304(f)(5)(v) specifically applies to grounding of cord and plug connections. Accordingly, the alleged violation of з 1910.304(f)(1)(iv) is vacated.

Although the alleged violation is vacated, the evidence reflects a violation of another standard. The facts are not disputed and support a violation of з 1910.304(f)(5)(v). The violation consisted of the removal of the ground prong on the plug of the cord. Where the undisputed facts of record support a different standard from that alleged, an amendment to conform to the proof, pursuant to Rule 15 (b) of the Federal Rules of Civil Procedure, is in order and is usually granted unless the employer is prejudiced by its being granted. "[I]t is important to emphasize that pleadings before the Commission are to be liberally construed and easily amended." Bill C. Carroll Co., 79 OSAHRC 87/C13, 7 BNA OSHC 1806, 1809, 1979 CCH OSHD ╢ 23,940 (No. 76-2748, 1979). Whether a party is prejudiced by granting an amendment involves the issue of "whether the party opposing that amendment was denied a fair opportunity to prepare and present its cases on the merits, and whether it could offer additional evidence if the case were tried again on a different theory." Moran and Culpepper, Inc., 81 OSAHRC 26/A2, 9 BNA OSHC 1533 1537, 1981 CCH OSHD ╢ 25,293 (No. 9850, 1981).

The allegation points is a simple matter that in undisputed--the ground prong had been removed. The removal of the prong resulted in the violation. Amending the pleadings to find a violation of з 1910.304(f)(5)(v) will not prejudice Delford. There is no dispute over the relevant fact. Accordingly, an amendment is granted and a violation of з 1910.304(f)(5)(v) is determined from the facts of record.

"OTHER" CITATION

Item 1

Alleged Violation of 29 C.F.R. з 1910.22(a)(1)

The Secretary alleges that Delford was in violation of з 1910.22(a)(1) because the back exit from the Banbury Room leading to the main floor had debris in the stairway landing. Delford does not argue that some debris might have been on the stairway landing but states it was there temporarily. According to Delford, "[t]he alleged condition was transitory and self abated." It further states that the condition presented no direct or immediate hazard to employees.

Ms. Harding observed an exit leading from the Banbury Room was cluttered with various debris--rags, paper and containers. Approximately half of the landing was taken up with the debris (Tr. 76-78). The debris did not completely block the stairs. Anyone traversing the stairs could pass to the left side of the debris (Tr. 78).

The cited standard, з 1910.22(a)(1), is clear in its requirements. It provide:

All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

The standard requires all passageways to be kept in a clean and orderly condition. The landing to the stairs from the room was covered with debris. The debris would present a hazard to employees as they traversed the area. The violation has been established.

Item 2

Alleged Violation of 29 C.F.R. з 1910.37(k)(2)

The Secretary alleges that Delford was in violation of 1910.37(k)(2) due to the fact the exit door in the Banbury Mill Area was blocked by barrels of chemicals. Delford argues that this was a temporary condition resulting from the barrels having been just delivered. It also argues that there were at least two other exits and an overhead door.

Ms. Harding observed that the rear exit door in the Banbury Mill Area was blocked by barrels of chemicals (Tr. 78-79). Employees were working in the room (Tr. 79). The photograph placed into evidence by the Secretary supports the testimony of Ms. Harding (Ex. C-9). The photograph clearly shows the exit door blocked by several barrels. An overhead door was located besides the exit door. It was in the down position (Ex. C-9; Tr. 156). There were at least two other exits from the area that did not include the overhead door (Tr. 156).

Section 1920.37(k)(2) provides that "[m]eans of egress shall be continuously maintained free of all obstructions or impediments to full instant use in the case of fire or other emergency." The standard, by the use of the words "continuously maintained free" and "full instant use," places an employer on notice that temporary unloading which blocks an exit is prohibited by the standard. Emergencies usually arise without advance notice. It is important that all exits be kept free at all times because of this fact. Delford's argument that it was a temporary condition has no merit. The standard further refers to "means of egress" which would include all exits. The fact there were at least two other exits does not excuse the fact that the exit was blocked. In the confusion of a fire or other emergency, there is no assurance that all persons in the building will know or remember which exit or exits are blocked. The alleged violation is affirmed.

Item 3

Alleged Violation of 29 C.F.R. з 1910.101(b)

The Secretary alleges that Delford was in violation of з 1910.101(b), because a cylinder of nitrogen in the Banbury pit area was unsecured. The citation was amended by paragraph XVI of the complaint to reflect that Delford did not comply with section 3.2.3 and/or 3.3.8 of the Compressed Gas Association Pamphlet P-1-1965 rather than section 3.4.4 referenced in the citation. Delford argues that the failure of the Secretary to divulge the contents of the Compressed Gas Association Pamphlet P-1-1965 referenced in the standard refutes the allegation made by the Secretary.

3.2.3 Never drop cylinders nor permit them to strike against each other or against other surfaces violently.

3.3.8 Protect cylinders from any object that will produce a cut or other abrasion in the surface of the metal. Do not store cylinders near elevators or gangways, or in locations where heavy moving objects may strike or fall on them. Where caps are provided for valve protection, such caps shall be kept on cylinders in storage.

The Secretary's brief relies on section 3.3.8 of the pamphlet as the basis for the violation.

Section 3.3.8 prohibits storing cylinders near elevators or gangways or in locations where heavy moving objects may strike or fall on them. This provision pertains to storing cylinders near elevators or gangways. The alleged violation cited was for having a cylinder of nitrogen unsecured. Section 3.3.8 does not require the cylinders to be secured. Its primary purpose is to protect the cylinder from any object that might produce a cut or other abrasion in the metal.

Section 3.2.3 also does not require the cylinders to be secured.

The original allegation set forth in the citation, before amendment, makes reference to section 3.4.4 with the statement that one cylinder of nitrogen was unsecured. Section 3.4 of pamphlet P-1 of 1965 is entitled: "Withdrawing Cylinder Contents." Subsection 3.4.4 states:

Before using cylinder, be sure it is properly supported to prevent it from being knocked over.

There is no evidence the nitrogen cylinder was in use. Ms. Harding noticed the cylinder at the base of the stairway. Delford was cited because the cylinder was unsecured.

The Secretary has failed to show that Delford was required to secure the cylinder. The sections of the Compressed Gas Association Pamphlet P-1-1965 referenced by the Secretary do not require the cylinder to be secured. [[12]] The alleged violation is vacated.

Item 4

Alleged Violation of 29 C.F.R. з 1910.157(e)(3)

The Secretary alleges Delford violated з 1910.157(e)(3) by failure to record the date of the assured maintenance check on two portable fire extinguishers. This section provides, in pertinent part, as follows:

The employer shall assure that portable fire extinguishers are subjected to an annual maintenance check . . . The employer shall record the annual maintenance date and retain this record for one year after that last entry or the life of the shell, whichever is less. The record shall be available to the Assistant Secretary upon request.

Delford states that the fire extinguishers are inspected constantly by company engineers and that they were approved by an outside company.

Ms. Earding observed two fire extinguishers which did not have evidence of annual maintenance (Tr. 83). One was located in the Banbury Pit area and the second was located in the machine shop. These facts are undisputed and support the allegation. The alleged violation is affirmed.

Delford argues that the fire extinguishers were inspected. The Secretary has not alleged that an annual maintenance check was not made. It is the following language in the standard which the Secretary alleges was violated:

The employer shall record the annual maintenance date and retain the record for one year after the last entry or the life of the shell, whichever is less.

The standard requires an annual maintenance check and the recording of the date. The standard states that "[t]he employer shall record the annual maintenance date." The use of the word "shall" makes the requirement mandatory.

Item 5

Alleged Violation of 29 C.F.R. з 1910.215(b)(9)

The Secretary alleges Delford violated з 1910.215(b)(9) for failure to have tongue guards on two Baldor grinders located in the machine shop. The grinders have an abrasive wheel which is used to sharpen tool bits (Tr. 84-85). Delford argues that the grinders have a peripheral adjustable member which shields the entire area of the rotating wheel.

Ms. Harding observed two Baldor grinders (abrasive wheels) in the machine shop that did not have the necessary tongue guards (Tr. 84-85, 98). The left side of one of the grinders was missing a tongue guard and the second grinder did not have any tongue guards (Tr. 87). The two grinders had a periphery guard and work rest (Tr. 85).

Section 1910.215(b)(9) provides:

Exposure adjustment. Safety guards of the types described in subparagraphs (3) and (4) of this paragraph, where the operator stands in front of the opening, shall be constructed so that the peripheral protecting member can be adjusted to the constantly decreasing diameter of the wheel. The maximum angular exposure above the horizontal plane of the wheel spindle as specified in paragraphs (b) (3) and (4) of this section shall never be exceeded, and the distance between the wheel periphery and the adjustable tongue or the end of the peripheral member at the top shall never exceed one-fourth inch. (See Figures 0-18, 0-19, 0-20, 0-21, 0-22, and 0-23).

Figures 0-18 and 0-19, as pictured in the standard, show adjustable tongue guards providing for angular protection for all sizes of wheels. The tongue guard prevents any flying objects from being thrown out at the employee using the grinder. The standard specifies that "the distance between the wheel periphery and the adjustable tongue or the end of the peripheral member at the top shall never exceed one-fourth inch." Since there were no tongue guards, Delford was not in compliance with the standard. The alleged violation is affirmed.

Item 6

Alleged Violation of 29 C.F.R. з 1910.303

The Secretary alleges Delford violated з 1910.303(f) by virtue of the fact that the disconnects in the mill room were not labeled and there was a circuit breaker panel without adequate labeling in the extrusion area (Tr. 88). Delford argues that no hazard was presented by the condition, that the standard only applies if a hazard exists, and that the Secretary had to prove the presence of a hazard.

Ms. Harding observed that disconnects in the mill room were not labeled and that there was a circuit breaker in the extrusion area without adequate labeling (Tr. 88). There is no dispute over these facts.

Section 1910.303(f) provides as follows:

Identification of disconnecting means and circuits. Each disconnecting means required by this subpart for motors and appliances shall be legibly marked to indicate its purpose, unless located and arranged so the purpose is evident. Each service, feeder, and branch circuit, at its disconnecting means or overcurrent device, shall be legibly marked to indicate its purpose, unless located and arranged so the purpose is evident. These markings shall be of sufficient durability to withstand the environment involved.

Delford argues that the Secretary has to prove a hazard exists before the standard is applicable. This is not a correct position with respect to all standards. Some standards, by their express wording, require that a hazard be shown before they are applicable; other standards automatically recognize a hazard which the standard was promulgated to prevent. In such circumstances, it is not necessary for the Secretary to prove that hazard again. A hazard is presumed if the facts coincide with the conditions the standard seeks to prevent. In order to prove a violation of a particular standard, the first thing the Secretary must do is show by a preponderance, of the evidence that the cited standard applies. Astra Pharmaceutical Products, Inc., supra, 9 BNA OSHC at 2129. If the standard requires the Secretary to establish a hazard, then she must prove the hazard to show the standard is applicable.

Section 1910.303(f) does not require that the Secretary prove a hazard before it is applicable. The standard is presumed to have been promulgated to prevent a hazard that could arise if the disconnects were not labeled. In this instance, the Secretary must show that the standard is applicable and that the disconnects were not marked or were not legibly marked. Ms. Harding's testimony is undisputed on these points. The cited condition is controlled by з 1910.303(f). Delford had disconnects and they were not marked to indicate their purpose.

In addition to proving that (1) the cited standard applies, and (2) that there was a failure to comply with the standard; the Secretary must show that (3) employees had access to the violative condition, and (4) the cited employer either knew or could have known of the condition with the exercise of reasonable diligence. Astra Pharmaceutical Products, Inc., 9 BNA OSHC at 2129. The evidence supports a violation of the standard. The allegation is affirmed.

Item 7

Alleged Violation of 29 C. F. R. з 1910.305(g)(1)(iii)

The Secretary withdrew the alleged "other" violation of з 1910.305 (g)(1)(iii) (Tr. 90).

Item 8

Alleged Violation of з 1910.305(g)(2)(iii)

The Secretary alleges Delford violated з 1910.305(g)(2)(iii) because a flexible cord in the microwave extrusion area had a "pendant with frayed cord due to tension of receptacle without restraint."

In the microwave extrusion area, a flexible cord in use was not fitted with tension restraints (Ex. C-10; Tr. 90). The photograph of the condition shows a pendant cord in disrepair and with no tension restraints (Tr. 91). Two machines were plugged into the receptacle held by the flexible cord (Ex. C-10; Tr. 92). The receptacle was in serious disrepair (Tr. 93). Employees were working in the area (Tr. 92).

Section 1910.305(g)(2)(iii) provides:

Flexible cords shall be connected to devices and fittings so that strain relief is provided which will prevent pull from being directly transmitted to joints or terminal screws.

It is undisputed that no strain relief was provided. This fact is supported by the photograph entered into evidence as C-10. The alleged violation is affirmed.

DOCKET No. 89-1753

Alleged Violation of 29 C.F.R. з 1910.132(a)

The Secretary alleges that Delford was in serious violation of з 1910.132(a) since employees were handling chemicals capable of causing skin irritation or contact dermatitis without wearing rubber or chemical-resilient gloves. Delford argues that the compliance officer was unable to differentiate between an allergic reaction and dermatitis.

It also contends that she did not run any tests proving that the chemicals used actually caused dermatitis and offered no proof of the existence of contact dermatitis. It is claimed that the listing of a rash condition on the Log 200 form does not necessarily mean that the claim is bona fide.

On February 22, 1990, Industrial Hygienist Eileen M. Walsh conducted an inspection of Delford's facilities in Middletown, New York. The inspection was based on a complaint received by the local OSHA office. Employees were complaining that there were various instances of contact dermatitis that occurred in the plant over a number of years and that nothing could be done about it. The complaint also dealt with the fact that there was a hole in the floor in the Banbury area (Tr. 168).

In connection with the inspection, Ms. Walsh made a review of the OSHA 200 logs maintained by Delford for the years 1986, 1987 and 1988. The OSHA 200 logs show that during the year 1987, three employees had lost work days due to contact dermatitis. The OSHA 200 log for 1988 shown that there were three different instances of contact dermatitis involving the same individual (Tr. 176).

Contact dermatitis is a rash or irritation which can develop on the hands due to contact with a chemical (Tr. 177). Ms. Walsh spoke to two employees who had had contact dermatitis and one employee who was currently experiencing difficulty with it. She viewed the hands of the individual who had contact dermatitis and described the hands as being very raw, red and chapped. She indicated that moisture had gone out of the hands and that there was extreme irritation (Tr. 177-178).

Ms. Walsh determined that the employees handled chemicals. She asked the management representative what chemicals they used and also requested to see the material safety data sheets in those areas where the problems had been occurring (Tr. 178). She reviewed the MSDS's and Mr. Reach confirmed the fact that the chemicals used by employees were as listed in the MSDS's (Tr. 179). She determined that the employees handled paraplex, morfax, polyethylene, and sulfads (Tr. 178). She determined that anyone having contact with these chemicals could contact dermatitis or possibly more serious illnesses (Tr. 179). Most of the chemicals being used required neoprene, rubber or chemical resistant gloves (Tr. 179).

The Secretary placed into evidence (Ex. C-14) several copies of material safety data sheets which show that the handling of the chemicals or skin contact with the chemicals could lead to dermatitis and possible skin sensitization. All of the chemicals listed in the material safety data sheets are not used or a daily basis. However, all of them are kept on the premises and are used by the employees at different times (Tr. 180). Ms. Walsh observed that Delford's employees were using cotton gloves to handle the chemicals. She considered the cotton gloves to be inadequate protection since they are not chemical resistant (Tr. 184). The employees come into contact with the chemicals as they take them out of the bins and the plastic bags and pour them into a machine (Tr. 184).

Respondent's president, in his cross-examination, sought to prove that Ms. Walsh had incorrectly referred to the condition as contact dermatitis. Ms. Walsh admitted that she had no documentation from any doctors to confirm the fact that the employees had contact dermatitis (Tr. 191-192). She also admitted that she could not tell the difference between an allergy and contact dermatitis (Tr. 192). She further conceded that there were no cases of skin irritation for the year 1989 (Tr. 194). The OSHA 200 logs for 1987 and 1988 recorded cases of contact dermatitis and confirm the fact that it existed among the workers. Delford made the determination of the cases as they were recorded and its attempt to repudiate the cases by insinuating that it was a rash is without merit.

The standard in issue is broadly worded and imposes a generalized duty to protect employees by the use of whatever personal protective equipment is necessary by reason of certain hazards. As a prerequisite to establishing a violation of з 1910.132(a), the Secretary must either show that the employer had actual knowledge that such a hazard existed or that a reasonable person familiar with the circumstances would perceive that a hazard exists which warrants the use of protective equipment. Armour Food Co., supra; Owens-Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1979 CCH OSHD ╢ 23,509 (No. 76-4990, 1979), aff'd, 659 F.2d 1285 (5th Cir. 1981). The evidence supports a finding that Delford knew or should have known that a hazardous condition existed which required the use of appropriate gloves. The material safety data sheets listed various harmful effects to the skin including irritation, contact dermatitis, skin sensitization, and in some instances, skin tumors. The OSHA 200's listed cases of contact dermatitis which had resulted in lost work time. The employees were wearing cotton gloves for some protection against the chemicals although these gloves were inadequate. The material safety data sheets also suggested the use of rubber gloves. The OSHA 200's and the material safety data sheets are strong evidence that a reasonable person, familiar with the facts and circumstances particular to the industry in which Delford is engaged, would be aware of the hazard. The alleged violation is affirmed.

CLASSIFICATION OF VIOLATIONS

The Secretary has alleged that the violations of з 1910.304(f)(1)(iv) and з 1910.132(a) are serious within the meaning of section 17(k) of the Act. "To establish that a violation is 'serious' it must be shown that there is a reasonable probability that death or serious physical harm could result from the violative condition and that the employer knew or with the exercise of reasonable diligence could have known of the presence of the violation." Wisconsin Electric Power Co., 76 OSAHRC 134/B2, 4 BNA OSHC 1787, 1976-77 CCH OSHD ╢ 21,234 at p. 25,532 (No. 5209, 1976), aff'd 567 F.2d 735 (7th Cir. 1977). The Secretary does not have to establish the likelihood of an accident before the violation can be classified as serious. She "need only show that an accident is possible and that such an accident will most likely result in a serious injury." Communications, Inc., 79 OSAHRC 61/A2, 7 BNA OSHC 1598, 16020 1979 CCH OSHD ╢ 23,759, at p. 28,813 (No. 76-1924, 1979), aff'd in an unpublished opinion, No. 79-2148 (D.C. Cir. 1981).

The violation of з 1910.132(a) resulted from the fact that employees were exposed to contact dermatitis. Contact dermatitis can result in infections and other complications which can lead to serious illnesses (Tr. 186).

The violations of з 1910.304(f)(1)(iv) and з 1910.132(a) are properly classified as serious.

PENALTY DETERMINATION

while the Secretary proposed a penalty of $400 for the violation of з 1910.304 (f)(1)(iv), and $360 for the violation of з 1910.132(a); the Commission is the final arbiter in all contested cases. Secretary v. OSHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Under section 17(j) of the Act, the Commission is required to find and give due consideration to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the assessment of an appropriate penalty. The gravity of the offense is the principal factor to be considered. Nacirema operating CO., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ╢ 15,032 (No. 1972).

The gravity of the violation of з 1910.304(f)(1)(iv) is difficult to determine. The number of employees exposed and the length of their exposure is unknown. The employer has had other inspections but displayed good faith in this matter by correcting the alleged violations pointed out to it on the spot or quickly thereafter. After considering all the factors in section 17(j) of the Act, it is determined that a penalty of $300 is appropriate for the violation.

Several employees were exposed to chemicals that caused or could cause contact dermatitis. The employees were wearing cotton gloves which tended to absorb the chemicals. Employees could develop infections and severe complications from the progression of contact dermatitis that could cause more serious health problems. A penalty of $360 is assessed for the violation of з 1910.132(a).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The findings of fact and conclusions of law contained in this opinion are incorporated herein in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED:

1. That the serious citation and proposed penalties issued to Delford on April 3, 1989, (Docket No. 89-1263), are vacated, modified and affirmed as follows:

Item No.	Disposition	Assessed Penalty
1	Vacated	Vacated
2	Vacated	Vacated
3	Vacated	Vacated
4	Vacated	Vacated
5	Vacated	Vacated
6	Vacated	Vacated
7	Vacated	Vacated
8	Vacated	Vacated
9	Modified and Affirmed	$300

2. That items three and seven of the "other" citation issued to Delford on April 3, 1989, (Docket No. 89-1261), are vacated and items one, two, four, five, six, and eight are affirmed; and

3. That the serious citation issued to Delford on May 15, 1989, (Docket No. 89-1753), is affirmed and a penalty of $360 assessed for the violation.
Dated this 6th day of November, 1990.

JAMES D. BURROUGHS
Judge

OSHRC Docket Nos. 89-1263 and 89-1753 (Consolidated)

APPEARANCES:
Diane C. Sherman, Esquire, Office of the Solicitor, U. S. Department of Labor, New York, New York, on behalf of complainant.

Robert Reach, Jr., President, Delford Industries, Inc., Middletown, New York, on behalf of respondent.

DECISION AND ORDER

Burroughs, Judge: Delford Industries, Inc., ("Delford"), a manufacturer of rubber extrusion products, contests a serious and "other" citations issued to it on April 3, 1989 (Docket No. 89-1263) and a serious citation issued to it on May 15, 1989 (Docket No. 89-1753). The cases were consolidated at the commencement of the hearing (Tr. 3).

DOCKET NO. 89-1263

SERIOUS CITATION

Item 1

Alleged Violation of 29 C.F.R. з 1910.23(a)(5)

Ms. Harding observed a couple of floor planks missing "in a walkway" leading to the water pit in the mill room. The missing, planks left an opening measuring approximately 19 inches by 17 inches. The opening was 30 inches [[2]] deep. The walkway was used by employees to gain access to the electrical services and the water pit (Tr. 20-27). Exhibit C-1 is a photograph of the area (Tr. 27-28). The photograph was taken after the planks had been replaced (Tr. 28).

When Ms. Harding observed the opening, it was not covered, no one was in attendance around the opening, and it was not guarded by guardrails (Tr. 29-30). The opening was in plain view of anyone passing in the area (Tr. 32-33).

Ms. Harding testified, after looking at her notes, that the walkway was used approximately once a week (Tr. 22). She was not aware from whom she secured this information (Tr. 24-25). She later stated that she talked with Mr. Reach and that he told her that it was used to gain access to the pit and the electrical installations (Tr. 25). The walkway was the main access to the pit area (Tr. 27).

Ms. Harding makes reference to the cited area as a "walkway" leading to the water pit (Tr. 20, 21). The two planks were missing from the walkway. She does not describe the area of the missing planks as a pit or trapdoor.[[3]] The standard, by express working, applies to "every pit and trapdoor floor opening." The language of the standard is plain and unambiguous. While the walkway in question provided access to the water pit, this does not make the walkway a pit or trapdoor floor opening. The cited violation was the hazard created by missing planks in the walkway. The condition of the pit was not cited. The photograph of the two planks (Ex. C-1) reveals that they ware not covering a water pit or trapdoor floor opening.

The Secretary has the burden of proof in establishing the applicability of the standard. Astra Pharmaceuticals, Inc., 82 OSAHRC 55/E9, 9 BNA OSHC 2126, 1981 CCH OSHD ╢ 25,578 (No. 78-6247, 1979). In her brief, the Secretary represents that "[t]he opening was caused by the absence of two of several planks which provided a cover to a pit and also served as a walkway." The representation goes beyond the established evidence. The evidence does not establish that the planks "provided a cover to a pit." The Secretary's principal witness testified that the cited area was "a walkway leading to the water pit" (emphasis added) (Tr. 21). The evidence does not establish what the planks cover (See footnote 3). The Secretary has failed to establish the two missing planks 17, 42. Where the pieces are joined is the the point of operation (Tr. 41). (The unguarded point of operation is a separate allegation.) The unguarded pinch point cited in this a allegation occurs as the process ends and the upper die ascends to rejoin the upper cylinder (Tr. 38-40, 41). The gap exists between the upper portion of the die plate and the cylinder above it (Exs. C-2, C-35, C-4, Tr. 38). The size of the gap between the upper die in its descended position and the cylinder is 3-3/4 inches (Tr. 39, 113). It is this gap that is closed as the upper die ascends to the upper cylinder and creates a pinch point between the upper die and the cylinder. The injection and splicing processes are similar in operation (Tr. 37-42).

Section 1910.212(a)(1) [[4]] is a general, introductory standard setting forth guarding requirements to "all machines." Faultless Div., Bliss & Laughlin Industries., Inc. v. Secretary of Labor, 674 F.2d 1177 (7th Cir. 1982). In order to establish a violation of з 1910.212(a)(1), the Secretary must first prove the existence of a hazard which is revealed "by how the machine functions and how it is operated by the employees." Stacy Mfg. Co. 82 OSAHRC 14/B1, 10 BNA OSHC 1534, 1982 CCH OSHD ╢ 25,965 (No. 76-1656, 1982). A potential hazard in this case would exist as the upper die, which descended to mold the two rubber pieces together, ascends to rejoin the upper cylinder. The descending of the die causes a 3-3/4-inch gap that is closed as the upper die ascends to the cylinder. It is obvious that anyone inadvertently placing a finger or hand into the gap as the die ascends would be exposed to injury.

The crux of the dispute is how likely the work habit or environment of the operator would permit an inadvertent or accidental placing of hands or fingers in the gap. Unfortunately, too many relevant facts are left to the imagination--an imperfect manner for determining a hazard. The evidence does not show that the operator had any reason to place his hands or fingers in the gap area as the die ascends. The record does not state how fast the die ascends. Ms. Harding's testimony as to whether the right hand is free or is holding the floppy rubber material in the die as the press is activated by the left hand is inconsistent. If the right hand is holding materials, it is difficult to see how Ms. Harding could conclude it was free to accidentally contact the gap area. If the operator places the material by hand into the point of operation and holds it until the upper die descends and molds the two pieces, it is doubtful that he would have time to get a finger or hand in the gap area. This is especially true in light of Ms. Harding's later testimony that the stock is removed by hand after the operation is completed (Tr. 49). She also testified that the stock is adjusted in the die by hand. The evidence does not disclose how close the right hand is to the gap area as the operator holds it when the die ascends and when he removes the material as the die ascends.

In determining whether a hazard exists, all circumstances, including the manner in which the machine functions and how it is operated by the employees, must be considered. Rockwell International Corp., 80 OSAHRC 118/A2, BNA OSHC 1092, 1980 CCH OSHD ╢ 24,979 (No. 12470, 1980). The operation of the presses does not require that the operator place his hand in the gap area.

The evidence of whether a hazard exists in operation of the presses is left to speculation and conjecture. The evidence is too incomplete to conclude a hazard existed. The mere fact that the gap was unguarded and that it was not impossible for an employee to get his hands or fingers in the area does not demonstrate that the operator was exposed to a hazard. Cf., Armour Food Co., 1990 OSAHRC, BNA OSHC 1990 CCH OSHD ╢ (No. 86-247, September 24, 1990). The Secretary failed to show the location of the hands as the die ascends. The evidence fails to disclose any reason or occasion for an employee's hands or fingers to come into contact with the gap.

Alleged Violation of 29 C.F.R. з 1910.212(a)(3)(ii)

The alleged violation of з 1910.212(a)(3)(ii) involves the same splicers covered under the previous allegation concerning pinch points (Tr. 46, 47). The Secretary contends that the splicers violated з 1910.212(a)(3)(ii) since the point of operation was unguarded (Tr. 46). As previously discussed under item three, the splicers were equipped with two-hand tripping devices, but none of them were operational (Tr. 48-49). The splicer was activated by a lever located in the area of the timer on the upper left of the splicer (Tr. 47, 48-49).

The operator stands in front of the splicer and takes two pieces of the stock, a floppy rubber material, and places it into the point of operation by hand. The left hand is normally used to activate the splicer. According to Harding, this leaves the right hand free to be in any area of the die or press (Tr. 47). This statement is inconsistent with later testimony that the employees would have to hold onto the floppy material while the press is activated (Tr. 49). If this is the case, then the statement that the right hand is free to be in any area of the die or press can't be true. Her testimony that the material is removed from the die by hand (Tr. 49) is also inconsistent with the statement that the right hand is free. The opening between the two dies where the stock is placed is 2-1/4 inches (Tr. 47-48).

Section 1910.212(a)(3)(ii) [[5]] requires that the point of operation of a machine be guarded if the operator is exposed to injury, and that the guarding device be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle. The standard, by express wording, requires that the point of operation expose an employee to injury before the employer has to guard it. Rockwell International Corp., 80 OSAHRC 118/A2, 9 BNA OSHC 1092, 1980 CCH OSHD ╢ 24,979 (No. 12470, 1980). "The mere fact that it [is] not impossible for an employee to insert his hands [in the point of operation] does not itself prove that the point of operation exposes him to injury. whether a machine presents a hazard must be determined by how the machine functions and how it is operated by employees." Rockwell International Corp., supra, 9 BNA OSHC at 1097-98. In order to prove a violation of з 1910.212(a)(3)(ii), the Secretary must establish that (1) the point of operation of the splicers was unguarded, and (2) that the operation of the operation of the splicers employees to injury. The Secretary has established.the first point but has failed in meeting her burden of proof on the second point.

Once again, relevant details as to how the splicers function and are operated by employees are missing. [[6]] Ms. Harding assumes there is a violation since the point of operation is not guarded. There is no dispute over this fact; but, before guarding is required, the Secretary must show that the operator is exposed to injury as a result of the manner in which the splicer is utilized. While Ms. Harding testified that the operator's hands were "in close proximity to the die," (Tr. 47) it is impossible to find a violation on this fact. The words "close proximity" are too nebulous in meaning to assume that there was any real danger in operating the splicers. [[7]] The descriptive words "close proximity" are of little value unless they are defined in terms of precise measurements, e.g., in inches. The Commission's purpose is to afford an employer an independent review of the Secretary's allegations. This purpose would be defeated if the Commission decided the issue on such nebulous terminology. In this instance, does "close proximity" mean within two feet or two inches? See footnote 7.) The party having the burden of proof must suffer the consequences for any failure to present sufficient facts in support of the alleged violation. Accordingly, the allegation is vacated.

Item 5

Alleged Violation of 29 C.F.R. з 1910.212(a)(4)

While Ms. Harding states that employees would be exposed to brushing up against the tumbler or the tumbler edge (Tr. 54), this does not appear to be a realistic hazard. The configuration of the tumbler and metal table protruding in front and beyond the ends would prevent any accidental brushing up against it. The table was two feet wide (Tr. 120). The employee would have to climb onto the metal table to brush up against the tumbler. He could reach the end by hand, but the placement of the controls and metal table are such that any hand of an employee that comes between the frame holding the tumbler and the tumbler would have to be deliberate. (See Exs. C-5, C-6). While Ms. Harding testified that the operator's hands could be crushed if he got them in the area between the tumbler and the frame, a look at exhibits C-5 and C-6 dispels her theory. The distance between the control and tumbler at the end is too large to crush anyone's hand if it accidentally got in the area between the tumbler and the control. Ms. Harding did not see the tumbler in operation (Tr. 122) and is only guessing as to potential hazards.

Section 1910.212(a)(4) [[8]] requires revolving drums to be guarded by an enclosure which is interlocked with the drive mechanism so that the drum cannot revolve unless the guard enclosure is in place. The standard must be read in conjunction whit з 1910.212 (a)(1) which states machine guarding "shall be provided to protect the operator and other employees in the machine area from hazards." The Secretary has failed to show that the operation of the tumbler presents any hazard to employees. The configuration of the tumbler in relation to the metal table and the location of the control buttons make it impossible for someone to accidentally brush up against the tumbler. The fact that there is no history of injuries from the operation of the tumbler buttresses the conclusion that there was no realistic exposure to a hazard. Rockwell International Corp., supra. The alleged violation is vacated.

Item 6

Alleged Violation of 29 C.F.R. з 1910.219(c)(4)(i)

The Secretary alleges Delford violated з 1910.219(c)(4)(i) for failure to guard a projecting shaft from a motor in the Banbury Room of the pit area with a safety sleeve. The standard states:

Ms. Harding testified that the shaft was in an exposed area where someone could walk by it. On direct examination, she indicated that an employee might enter the area to perform maintenance or to make adjustments to the equipment in the area (Tr. 59). She was concerned that an employee could brush up against the shaft (Tr.60). Her testimony in regard to employees in the pit area is inconsistent. She first testified that she did not ask the operator for what reason he would enter the pit (Tr. 137-138). She then stated that the operator did not tell her for what purpose he went into the pit; but, when pressed under cross-examination, she stated the operator said "maintenance of the area" (Tr. 139). She displayed little knowledge of the pit area or what maintenance would be performed (Tr. 134-141). There is no evidence she saw anyone in the pit area. She admitted it was not a heavily traveled area (Tr. 142).

Alleged Violation of 29 C.F.R. з 1910.219(e)(5)(i)

The Secretary alleges that Delford was in violation of з 1910.219(e)(5)(i.) for failure to guard the nip points of a three-inch wide leather belt with metal lacing on the Rusnak Tool works milling machine in the machine shop and the lower portion of a one-half-inch V-belt and cone pulley on coiler and pack machines one two and three. Section 1910.219(e)(5)(i) provides:

(5) Cone-pulley belts. (i) The cone belt and pulley shall be equipped with a belt shifter so constructed as to adequately guard the nip point of the belt and pulley. If the frame of the belt shifter does not adequately guard the nip point of the belt and pulley, the nip point shall be further protected by means of a vertical guard placed in front of the pulley and extending at least to the top of the largest step of the cone.

There is no dispute over the fact that the cone and belt pulleys were not equipped with a belt shifter (Tr. 65).

Ms. Harding observed two separate areas of the plant that had unprotected cone belts and pulleys (Tr. 61). One unprotected belt was a three-inch wide leather belt with metal lacing that was on a Rusnak Tool Works milling machine in the machine shop. The other belt was a one-half-inch V-belt located in the microwave extrusion area on three separate machines. The belts at both locations were located less than seven feet from the floor (Tr. 61-67). Nip points were created where the belt ran onto the pulley (Tr. 65).

area" (Tr. 63). The operator's location with respect to the coiler and pack machines was described as follows (Tr. 64):

Q. Where does the operator stand in relationship to that machine?
A. He would stand in close proximity but not directly at the cone and pulley.
Q. How far would you say he would be from the cone belts and pulley?
A. In that instance, a couple of feet.

It is also noted that Ms. Harding was unable to describe the coil and pick machines (Tr. 143). She could recall no injuries resulting from unguarded cone and pulleys on the coil and pack machines (Tr. 145).

Alleged Violation of 29 C.F.R. з 1910.219(i)(2)

Ms. Harding testified that she observed three separate instances where employees were exposed to unguarded revolving couplings (Tr. 67-68). A coupling on one of the milling machines was only partially guarded (Ex. C-8). Ms. Harding testified that a coupling on the motor located in the Banbury Room of the pit area was unprotected (Ex. C-7; Tr. 68) and that the number one and number four milling machines had unguarded couplings (Tr. 68). She stated that anyone passing by the areas of the unguarded couplings or performing maintenance in the area would be exposed to the hazard (Tr. 68). Exhibit C-8 is a photograph of a partially guarded coupling on a milling machine. It also shows partial guardrails in the area (Tr. 69). While it is true that the coupling is only partially guarded, the statement by Ms. Harding that an employee working or walking in the area would come into contact with the revolving coupling bears little relationship to reality. A quick glance at the photograph of the partially guarded coupling easily reveals that employees are prevented from accidentally contacting the coupling by its location within the configuration of the machine (Ex. C-8). An employee would have to make a deliberate attempt to contact the coupling. There was no realistic exposure to the violative condition.

The unguarded coupling on the other milling machine is not described. It is, therefore, impossible to judge whether or not there was exposure to the violative condition, a fact which must be proved by the Secretary. Ms. Harding's testimony that any employee passing by the couplings would be exposed is not supported by the photographs (Exs. C-7, C-8). Ms. Harding is unrealistic on this item, as she has been on other items, as to what constitutes exposure. The allegations are vacated.

Item 9

Alleged Violation of 29 C.F.R. з 1910.304(f)(1)(iv)

Ms. Harding testified that the chemical tank in the boiler room had an electrical motor with an ungrounded lead cord. The electrical system was AC and carried 110 volts. The ground prong was missing from the lead cord (Tr. 73-74). The motor was used to operate the number two chemical tank (Tr. 74). The boiler room was a wet area of the plant (Tr. 75) Ms. Harding testified that the work of employees would cause them to come into contact with the chemical tank (Tr. 74).

Although the alleged violation is vacated, the evidence reflects a violation of another standard. The facts are not disputed and support a violation of з 1910.304(f)(5)(v). The violation consisted of the removal of the ground prong on the plug of the cord. Where the undisputed facts of record support a different standard from that alleged, an amendment to conform to the proof, pursuant to Rule 15(b) of the Federal Rules of Civil Procedure, is in order and is usually granted unless the employer is prejudiced by its being granted. "[I]t is important to emphasize that pleadings before the Commission are to be liberally construed and easily amended." Bill C. Caroll Co., 79 OSAHRC 87/C13, 7 BNA OSHC 1806, 1809, 1979 CCH OSHD ╢ 23,940 (No. 76-2748, 1979). Whether a party is prejudiced by granting an amendment involves the issue of "whether the party opposing the amendment was denied a fair opportunity to prepare and present its cases on the merits, and whether it could offer additional evidence if the case were tried again on a different theory." Morgan and Culpepper, Inc., 81 OSAHRC 26/A2, 9 BNA OSHC 1533, 1537, 1981 CCH OSHD ╢ 25,293 (No. 9850, 1981).

The allegation points to a simple matter that is undisputed--the ground prong had been removed. The removal of the prong resulted in the violation. Amending the pleadings to find a violation of з 1910.304(f)(5)(v) will not prejudice Delford. There is no dispute over the relevant fact. Accordingly, an amendment is granted and a violation of з 1910.304(f)(5)(v) is determined from the facts of record.

"OTHER" CITATION

Item 1

Alleged Violation of 29 C.F.R. з 1910.22(a)(1)

The cited standard, з 1910.22(a)(1), is clear in its requirements. It provides:

All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

The standard requires all passageways to be kept in a clean and orderly condition. The landing to the stairs from the room was covered with debris. The debris would present a hazard to employees as they traversed the area. The violation has been established.

Item 2

Alleged Violation of 29 C.F.R. з 1910.37(k)(2)

The Secretary alleges that Delford was in violation of з 1910.37(k)(2) due to the fact the exit door in the Banbury Mill Area was blocked by barrels of chemicals. Delford argues that this was a temporary condition resulting from the barrels having been just delivered. It also argues that there were at least two other exits and an overhead door.

Section 1920.37 (k) (2) provides that "[m]eans of egress shall be continuously maintained free of all obstructions or impediments to full instant use in the case of fire or other emergency." The standard, by the use of the words "continuously maintained free" and "full instant use," places an employer on notice that temporary unloading which blocks an exit is prohibited by the standard. Emergencies usually arise without advance notice. It is important that all exits be kept free at all times because of this fact. Delford's argument that it was a temporary condition has no merit. The standard further refers to "means of egress" which would include all exits. The fact there were at least two other exits does not excuse the fact that the exit was blocked. In the confusion of a fire or other emergency, there is no assurance that all persons in the building will know or remember which exit or exit are blocked. The alleged violation is affirmed.

Item 3

Alleged Violation of 29 C.F.R. з 1910.101(b)

The secretary alleges that Delford was in violation of з 1910.101(b), because a cylinder of nitrogen in the Banbury pit area was unsecured. The citation was amended by paragraph XVI of the complaint to reflect that Delford did not comply with section 3.2.3 and/or 3.3.8 of the Compressed Gas Association Pamphlet P-1-1965 rather than section 3.4.4 referenced in the citation. Delford argues that the failure of the Secretary to divulge the contents of the Compressed Gas Association Pamphlet P-1-1965 referenced in the standard refutes the allegation made by the Secretary.

Ms. Harding observed a cylinder of nitrogen in the Banbury Pit area. It was located at the base of the stairway which led into the pit along the left wall. It was not secured (Tr. 80). Employees using the stairs to go down to the pit area were exposed to the condition (Tr. 81).

Section 1910.101(b) [[11]] makes reference to Compressed Gas Association Pamphlet P-1-1965. The sections referenced in the in complaint provide:

3.2.3 Never drop cylinders nor permit them to strike against each other or against other surfaces violently.

3.3.8 Protect cylinders from any object that will produce a cut or other abrasion in the surface of the metal. Do not store cylinders near elevators or gangways, or in locations where heavy moving objects may strike or fall on them. Where caps are provided for valve protection, such caps shall be kept on cylinders in storage.

The Secretary's brief relies on section 3.3.8 of the pamphlet as the basis for the violation.

The original allegation. set forth in the citation, before amendment, makes reference to section 3.4.4 with the statement that one cylinder of nitrogen was unsecured. Section 3.4 of pamphlet P-1 of 1965 is entitled: "Withdrawing Cylinder Contents." Subsection 3.4.4 states:

Before using cylinder, be sure it is properly supported to prevent it from being knocked over.

There is no evidence the nitrogen cylinder was in use. Ms. Harding noticed the cylinder at the base of the stairway. Delford was cited because the cylinder was unsecured.

Alleged Violation of 29 C.F.R. з 1910.157(e)(3)

The employer shall assure that portable fire extinguishers are subjected to an annual maintenance check... The employer shall record the annual maintenance date and retain this record for one year after that last entry or the life of the shell, whichever is less. The record shall be available to the Assistant Secretary upon request.

Delford states that the fire extinguishers are inspected constantly by company engineers and that they were approved by an outside company.

Ms. Harding observed two fire extinguishers which did not have evidence of annual maintenance (Tr. 83). One was located in the Banbury Pit area and the second was located in the machine shop. These facts are undisputed and support the allegation. The alleged violation is affirmed.

Alleged Violation of 29 C.F.R. з 1910.215(b)(9)

Section 1910.215(b)(9) provides:

Exposure adjustment. Safety guards of the types described in subparagraphs (3) and (4) of this paragraph, where the operator stands in front of the opening, shall be constructed so that the peripheral protecting member can be adjusted to the constantly decreasing diameter of the wheel. The maximum angular exposure above the horizontal plane of the wheel spindle as specified in paragraphs (b)(3) and (4) of this section shall never be exceeded, and the distance between the wheel periphery and the Section 1910.303(f) provides as follows:

Identification disconnecting means and circuits. Each disconnecting means required by this subpart for motors and appliances shall be legibly marked to indicate its purpose, unless located and arranged so the purpose is evident. Each service, feeder, and branch circuit, at its disconnecting means or over current device, shall be legibly marked to indicate its purpose, unless located and arranged so the purpose is evident. These markings shall be of sufficient durability to withstand the environment involved.

Delford argues that the Secretary has to prove a hazard exists before the standard is applicable. This is not a correct position with respect to all standards. Some standards, by their express wording, require that a hazard be shown before they are applicable; other standards automatically recognize a hazard which the standard was promulgated to prevent. In such circumstances, it is not necessary for the Secretary to prove that hazard again. A hazard is presumed if the facts coincide with the conditions the standard seeks to prevent. In order to prove a violation of a particular standard, the first thing the Secretary must do is show by a preponderance of the evidence that the cited standard applies. Astra Pharmaceutical Products, Inc., supra, 9 BNA OSHC at 2129. If the standard requires the Secretary to establish a hazard, then she must prove the hazard to show the standard is applicable.

Item 7

Alleged Violation of 29 C.F.R. з 1910.305(g)(1)(iii)

The Secretary withdrew the alleged "other" violation of з 1910.305(g)(1)(iii) (Tr. 90).

Item 8

Alleged Violation of з 1910.305(g)(2)(iii)

The Secretary alleges DeIford violated з 1910.305(g)(2)(iii) because a flexible cord in the microwave extrusion area had a "pendant with frayed cord due to tension of receptacle without restraint."

Section 1910.305 (g)(2)(iii) provides:

Flexible cords shall be connected to devices and fittings so that strain relief is provided which will prevent pull from being directly transmitted to Joints or terminal screws.

It is undisputed that no strain relief was provided. This fact is supported by the photograph entered into evidence as C-10. The alleged violation is affirmed.

DOCKET NO. 89-1753

Alleged Violation of 29 C.F.R. з 1910.132(a)

in connection with the inspection, Ms. Walsh made a review of the OSHA 200 logs maintained by Delford for the years 1986, 1987 and 1988. The OSHA 200 logs show that during the year 1987, three employees had lost work days due to contact dermatitis. The OSHA 200 log for 1988 shows that there were three different instances of contact dermatitis involving the same individual (Tr. 176).

Contact dermatitis is a rash or irritation which can develop on the hands due to contact. with a chemical (Tr. 177). Ms. Walsh spoke to two employees who had had contact dermatitis and one employee who was currently experiencing difficulty with it. She viewed the hands of the individual who had contact dermatitis and described the hands as being very raw, red and chapped. She indicated that moisture had out of the hands and that there was extreme irritation (Tr. 177-178).

Ms. Walsh determined that the employees handled chemicals. She asked the representative what chemicals they used and also requested to see the material safety data sheets in those areas where the problems had been occurring (Tr. 178). She reviewed the MSD's and Mr. Reach confirmed the fact that the chemicals used by employees were as listed in the MSD's (Tr. 179). She determined that the employees handled paraplex, morfax, polyethylene, and sulfads (Tr. 178). She determined that anyone having contact with these chemicals could contact dermatitis or possibly more serious illnesses (Tr. 179). Most of the chemicals being used required neoprene, rubber or chemical-resistant gloves (Tr.179).

The Secretary placed into evidence (Ex. C-14) several copies of material safety data sheets which show that the handling of the chemicals or skin contact with the chemicals could lead to dermatitis and possible skin sensitization. All of the chemicals listed in the material safety data sheets are not used on a daily basis. However, all of them are kept on the premises and are used by the employees at different times (Tr. 180). Ms. Walsh observed that Delford's employees were using cotton gloves to handle the chemicals. She considered the cotton gloves to be inadequate protection since they are not chemical resistant (Tr. 184). The employees come into contact with the chemicals as they take them out of the bins and the plastic bags and pour them into a machine (Tr. 184).

The standard in issue is broadly worded and imposes a generalized duty to protect employees by the use of whatever personal protective equipment is necessary by reason of certain hazards. As a prerequisite to establishing a violation of з 1910.132(a), the Secretary must either show that the employer had actual knowledge that such a hazard existed or that a reasonable person familiar with the circumstances would perceive that a hazard exists which warrants the use of protective equipment. Armour Food Co., Supra; Owens-Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1979 CCH OSHD ╢ 23,509 (No.76-4990, 1979) aff'd, 659 F.2d 1285 (5th Cir. 1981). The evidence supports a finding that Delford knew or should have known that a hazardous condition existed which required the use of appropriate gloves. The material safety data sheets listed various harmful effects to the skin including irritation, contact dermatitis, skin sensitization, and in some instances, skin tumors. The OSHA 200's listed cases of contact dermatitis which had resulted in lost work time. The employees were wearing cotton gloves for some protection against the chemicals although these gloves were inadequate. The material safety data sheets also suggested the use of rubber gloves. The OSHA 200's and the material safety data sheets are strong evidence that a reasonable person, familiar with the facts and circumstances particular to the industry in which Delford is engaged, would be aware of the hazard. The alleged violation is affirmed.

CLASSIFICATION OF VIOLATIONS

The Secretary has alleged that the violations of з 1910.304(f)(1)(iv) and з 1910.132(a) are serious within the meaning of section 17(k) of the Act. "To establish that a violation is 'serious' it must be shown that there is a reasonable probability that death or serious physical harm could result from the violative condition and that the employer knew or with the exercise of reasonable diligence could have known of the presence of the violation." Wisconsin Electric Power Co., 76 OSAHRC 134/B2, 4 BNA OSHC 1787, 1976-77 CCH OSHD ╢ 21,234 at p. 25,532 (No. 5209, 1976) aff'd, 567 F.2d 735 (7th Cir. 1977). The Secretary does not have to establish the likelihood of an accident before the violation can be classified as serious. She "need only show that an accident is possible and that such an accident will most likely result in a serious injury." Communications, Inc., 79 OSAHRC 6l/A2, 7 BNA OSHC 1598, 1602, 1979 CCH OSHD ╢ 23,759, at p. 28,813 (No. 76-1924, 1979), aff'd in an unpublished opinion, No. 79-2148 (D.C. Cir. 1981).

The violation of з 1910.304(f)(1)(iv) results from the fact that a ground prong was missing from the plug which led to an electrical motor in the boiler room. The system carried 110 volts. As result of the lack of the ground plug, employees were exposed to possible electrocution or burns of a serious nature.
The violation of з 1910.132(a) resulted from the fact that employees were exposed to contact dermatitis. Contact dermatitis can result in infections and other complications which can lead to serious illnesses (Tr. 186).

The violations of з 1910.304(f)(1)(iv) and з 1910.132(a) are properly classified as serious.

PENALTY DETERMINATION

While the Secretary proposed a penalty of $400 for the violation of з 1910.304(f)(1)(iv), and $360 for the violation of з 1910.132(a); the Commission is the final arbiter in all contested cases. Secretary v. OSHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Under section 17(j) of the Act, the Commission is required to find and give due consideration to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the assessment of an appropriate penalty. The gravity of the offense is the principal factor to be considered. Nacirema Operating Co., 72 OSAHRC 1/B1O, 1 BNA OSHC 1001, 1971-73 CCH OSHD ╢ 15,032 (No. 4, 1972).

The gravity of the violation of з1910.304(f)(1)(iv) is difficult to determine. The number of employees exposed and the length of their exposure is unknown. The employer has had other inspections but displayed good faith in this matter by correcting the alleged violations pointed out to it on the spot or quickly thereafter. After considering all the factors in section 17(j) of the Act, it is determined that a penalty of $300 is appropriate for the violation.

The findings of fact and conclusions of law contained in this opinion are incorporated herein in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is
ORDERED: 1. That the serious citation and proposed penalties issued to Delford on April 3, 1989, (Docket No. 89-1263), are vacated, modified and affirmed as follows:

Item No.	Disposition	Assessed Penalty
1	Vacated	Vacated
2	Vacated	Vacated
3	Vacated	Vacated
4	Vacated	Vacated
5	Vacated	Vacated
6	Vacated	vacated
7	Vacated	Vacated
8	Vacated	Vacated
9	Modified and	$300
	Affirmed

2. That items three and seven of the "other" citation issued to Delford on April 3, 1989, (Docket No. 89-1263), are vacated and items one, two, four, five, six, and eight are affirmed; and

3. That the serious citation issued to Delford on May 15, 1989, (Docket No. 89-1753), is affirmed and a penalty of $360 assessed for the violation.
Dated this other day of November 1990.

JAMES D. BURROUGHS
Judge

FOOTNOTES:

[[1]] Section 1910.23(a)(5) provides:
Every pit and trapdoor floor opening, infrequently used, shall be guarded by a floor opening cover of standard strength and construction. While the cover is not in place, the pit or trap opening shall be constantly attended by someone or shall be protected on all exposed sides by removable standard railings.

[[2]] The transcript erroneously states this opening was 300 inches deep (Tr. 21).

[[3]] Respondent states in its brief that the walkway covered a drain leading to a pit combining well and city water. This fact was not established in the evidence of record.

[[4]] Section 1910.212(a)(1) of 29 C.F.R. provides:
(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 an 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.

[[5]] Section 1910.212(a)(3)(ii) provides:
The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

[[6]] There is no information as to how far the operator's hands are from the point of operation as he holds the material in the die. There is no evidence as to how fast the upper die descends, and there is no evidence as to whether there is any reason for the operator to place his hands in the die area. These are important factors in determining if a violation has occurred.

[[7]] In using the term "close proximity" in testifying on item seven, Ms. Harding had in mind a distance of two feet (Tr. 64).

[[8]] Section 1910.212 (a) (4) of 29 C. F. R. provides:
Barrels, containers, and drums. Revolving drums, barrels, and containers shall be guarded by an enclosure which is interlocked with the drive mechanism, so that the barrel, drum, or container cannot revolve unless the guard enclosure is in place.

[[9]] Respondent states in its brief that the Banbury operator is the only employee to enter the pit for the purpose of performing maintenance and that the equipment is turned off before he enters. This last fact is not part of the evidence of record and cannot be considered an evidence in resolving this issue. Prior to the hearing, Mr. Reach was advised an to the hearing procedure and specifically advised that the Judge could consider only the facts placed into evidence in reaching a decision. He was advised to place all facts into the record he deemed would be helpful to his case.

[[10]] Section 1910.304 (f) (1) (iv) provides:
AC systems of 50 volts to 1000 volts shall be grounded under any of the following conditions unless exempted by paragraph (f) (1) (v) of this section:
(A) If the system can be so grounded that the maximum voltage to ground on the ungrounded conductors does not exceed 150 volts;
(B) If the system is nominally rated 480Y/277 volt, 3-phase, 4-wire in which the neutral is used as a circuit conductor;
(C) If the system is nominally rated 240/120 volt, 3-phase, 4-wire which the midpoint of one phase is used as a circuit conductor; or
(D) If a service conductor is uninsulated.

[[11]] Section 1910.101 (b) provides:
Compressed gases. The in-plant handling, storage, and utilization of all compressed gases in cylinders, portable tanks, rail tankcars, or motor vehicle cargo tanks shall be in accordance with Compressed Gas Association Pamphlet P-1-1965.

[[12]] It is noted that section 3.5.8 of the Compressed Gas Association Pamphlet P-1-1984 does not automatically require every cylinder be secured. It provides:
3.5.8 Storage and Use of Containers. All compressed gas containers in service or in storage shall be stored standing upright where they are not likely to be knocked over, or the containers shall be secured. At container filling plant operations and sellers' warehouses, the nesting of tightly stacked containers is considered an equivalent safe manner of storage. Gas containers with a water volume up to 305 cu. in (5.0 L) may be stored in a horizontal position.

[[2]] The transcript erroneously states this opening was 300 inches deep (Tr. 21).

[[3]] Respondent states in its brief that the walkway covered a drain leading to a pit combining well and city water. This fact was not established in the evidence of record.

[[4]] Section 1910.212(a)(1) of 29 C.F.R. provides:
(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.

[[7]] In using the term "close proximity" in testifying on item seven, Ms. Harding had in mind a distance of two feet (Tr. 64).

[[8]] Section 1910.212(a)(4) of 29 C.F.R. provides:
Barrels, containers, and drums. Revolving drums, barrels, and containers shall be guarded by an enclosure which is interlocked with the drive mechanism, so that the barrel, drum, or container cannot revolve unless the guard enclosure is in place.

[[9]] Respondent states in its brief that the Banbury operator is the only employee to enter the pit for the purpose of performing maintenance and that the equipment is turned off before he enters. This last fact is not part of the evidence of record and cannot be considered as evidence in resolving this issue. Prior to the hearing, Mr. Reach was advised as to the hearing procedure and specifically advised that the Judge could consider only the facts placed into evidence in reaching a decision. He was advised to place all facts into the record he deemed would be helpful to his case.

[[10]] Section 1910.304(f)(1)(iv) provides:
AC systems of 50 volts to 1000 volts shall be grounded under any of the following conditions, unless exempted by paragraph (f)(1)(v) of this section:
(A) If the system can be so grounded that the maximum voltage to ground on the ungrounded conductors does not exceed 150 volts;
(B) If the system is nominally rated 480Y/277 volt, 3-phase, 4-wire in which the neutral is used as a circuit conductor;
(C) If the system is nominally rated 240/120 volt, 3-phase, 4-wire which the midpoint of one phase is used as a circuit conductor; or
(D) If a service conductor is uninsulated.

[[11]] Section 1910.101(b) provides:
Compressed gases. The in-plant handling, storage, and utilization of all compressed gases in cylinders, portable tanks, rail tankcars, or motor vehicle cargo tanks shall be in accordance with Compressed Gas Association Pamphlet P-1-1965.