SECRETARY OF LABOR,
Complainant,

v.

PHILADELPHIA, BETHLEHEM AND
NEW ENGLAND RAILROAD COMPANY,
Respondent,

LOCAL 1586 UNITED TRANSPORTATION UNION,
Authorized Employee
Representative.

OSHRC Docket No. 77-2200

DECISION

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

BY THE COMMISSION:

An amended citation issued by the Secretary of Labor alleges that Philadelphia, Bethlehem and New England Railroad Company ("the Railroad") violated two personal protective equipment safety standards, 29 C.F.R. §§ 1910.132(a)[[1/]] and 1910.133 (a) (1), [[2/]] at a steel plant operated by Bethlehem Steel Corporation ("Bethlehem Steel") in Bethlehem, Pennsylvania.   Administrative Law Judge Joseph L. Chalk vacated the citation.  The case is before us under 29 U.S.C. § 661(i).  We affirm the judge's disposition.

Inasmuch as the judge's decision adequately sets forth the facts, we shall set forth only some of them here.  The worksite in question consists of an upper level ("the cast floor") where blast furnace "B" is located and a ground level ("the track level") where four sets of railroad tracks enter beneath the cast floor.  Molten material from the blast furnace passes through openings in the cast floor and pours into railcars that are positioned on the track level below.  When the molten material descends into the railcars, it occasionally splashes and solidifies on the vertical and horizontal building girders on the track level.   Bethlehem Steel employees use hooks and jackhammers to chip off the hardened material when it accumulates.  Payloaders then remove the material from the ground.   At least once every thirty-six hours, the hardened material is also removed from the railcars themselves by means of jackhammers and magnets.

During an eight-hour shift, a single Railroad employee enters the track area beneath the blast furnace not more than three times, for approximately 5-15 minutes each time, in order to shift the railcars.  While the Railroad employee is in the track area aligning the railcars underneath the openings in the cast floor, he uses hand or light signals to communicate with the engineer on the locomotive which pushes or pulls the railcars into position.  The Railroad and Bethlehem Steel utilize a warning system of colored lights and whistles so that Railroad employees do not enter the track area while molten material is flowing from the cast floor into the railcars on the track level.   In addition, Bethlehem Steel employees are instructed not to throw any debris from the cast floor through the openings while Railroad employees are working below.

At the hearing, an OSHA compliance officer testified that during the inspection he had observed pieces of solidified material fall from an overhead vertical support and land within six feet of a Railroad employee after the support was struck or rubbed by a passing railcar.  The employee was not wearing a hard hat or safety glasses with side-shields.  The officer stated that the largest of the pieces was about nine inches in diameter by an inch-and-a-half thick.  A second compliance officer observed golf-ball-size pieces of the solidified material fall to the ground from a vertical member on another occasion.  The Secretary also introduced evidence that the build-up of solidified material upon electrical wires causes them to break from time to time.  In addition, he established that Bethlehem Steel officials had designated the track level as a hard hat area for its own employees.  Finally, the Secretary demonstrated that similarly engaged employees at another steel plant wore hard hats and safety glasses at the track level.

The Railroad established that its employees do not enter the track area while pouring activity is taking place on the cast floor. Moreover, unrebutted testimony by the Railroad's yardmaster indicated that only the largest of the three sizes of railcars used in the operation were capable of rubbing against structural supports in the area of the tracks and, then, only when the receptacle mounted on the railcars was improperly aligned. [[3/]]  The yardmaster further testified he had never known solidified metal to fall down. Similarly a brakeman for the Railroad testified no material had fallen off the ladles when he was under the cast floor.  The same employee also said he had known ladles to hit a vertical member only four times in twelve years.  The Railroad's injury records also show that for over 5 million man-hours no employee of the Railroad had ever been struck by flying or failing material dislodged by passing railcars.   Additionally, the Railroad's acting superintendent, who had more than twenty-one years of experience in the railroad business, all of which was associated with the steel industry, testified that hard hats and safety glasses are not worn by railroaders in the steel industry.  He added that there had never been any concerted effort by any public organization or by any union to require the wearing of hard hats or safety glasses by railroaders in the steel industry.

Judge Chalk found that solidified material had been dislodged by moving railcars in few instances.  He noted however the Railroad's low overall injury rate--particularly the absence of injuries attributable to the hazards contemplated by the citation.  The judge further found that it is not customary in the steel railroad industry to wear hard hats or safety glasses when entering the track area beneath the floor of the blast furnace and that the Railroad had neither actual nor constructive notice of the need to require its employees to wear such personal protective equipment.   He therefore vacated the citation.

On review, the Secretary asserts that the Railroad's employees were exposed to head and eye injuries caused by failing solidified material dislodged by moving rail equipment (as a result of contact or vibration) and also caused by Bethlehem Steel employees' dumping waste material from above through openings in the cast floor while Railroad employees worked below at track level.  The Secretary alleges that the judge erred in relying upon the evidence concerning industry practice and the Railroad's injury history. The Secretary argues that the appropriate test here is whether a reasonable person would recognize a hazard, that it is not necessary to examine industry practice when the hazard is readily apparent, and that the hazard of flying or falling material was shown to be readily cognizable in this case.

The Commission has held that a hazardous condition requiring the use of personal protective equipment exists under section 1910.132(a) if a reasonable person familiar with the circumstances surrounding an allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of personal protective equipment.  Lukens Steel Co., 81 OSAHRC 96/A2, 10 BNA OSHC 1115, 1123, 1981 CCH OSHD ¶ 25,742, p. 32,118 (No. 76-1053, 1981).  See also Marshall v. Haysite, Division of Synthane-Taylor No. 80-1800 (3rd Cir. Nov. 17, 1980); Voegele Company, Inc., v, OSHRC, 625 F.2d 1075 (3rd Cir. 1980).  Although not necessarily dispositive, evidence of industry custom and practice will aid in determining whether a reasonable person familiar with the circumstances and with any facts unique to the industry would perceive a hazard. Lukens Steel Co., supra; Owens-Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1295, 1979 CCH OSHD ¶ 23,509, p. 28,491 (No. 76-4990, 1979), aff'd, 659 F.2d 1285 (5th Cir. 1981).  The Commission also will examine an employer's own understanding of the alleged hazard.  Id.  Finally, section 1910.133(a)(1), like section 1910.132(a), is so broadly-worded that it is appropriate to apply the reasonable person test in assessing compliance with the standard.

The evidence regarding industry custom and practice establishes that the wearing of hard hats and safety glasses is not customary in the steel railroad industry.   The Railroad presented two witnesses with extensive industry experience who reported that hard hats and safety glasses are not considered to be necessary protective equipment for railroaders in the steel industry.  In contrast, the Secretary's witness on industry custom and practice was a steelworker rather than a railroader.   He never claimed any knowledge of steel railroad industry custom other than what he had observed in his work at an unrelated steel plant.  Industry custom, therefore, does not afford a basis for concluding that reasonable persons familiar with the circumstances would have recognized the need for protective equipment.

The remaining evidence is also unpersuasive either that the Railroad recognized or that a reasonable person would have recognized the need for hard hats and safety glasses.  Railroad employees do not enter the track level beneath the cast floor while pouring operations are taking place.  The solidified material is routinely removed from both structural members and railcars--a task which requires the use of jackhammers and magnets.  The testimony that electrical wires periodically break under the weight of accumulated solidified material and could swing down to strike an employee is speculative.  The evidence establishes that over the course of 5 million man-hours no Railroad employee has ever been struck by flying or falling material dislodged by passing railcars. Indeed, the record demonstrates that the occurrence of an incident where the material would thus dislodge was extraordinary, involving only the largest railcars and only when these were improperly positioned.  Moreover, the incidents involving the dumping of debris from the blast furnace level by Bethlehem Steel employees were rare and were the result of Bethlehem Steel employees' misconduct specifically prohibited by Bethlehem Steel workrules.  See Cotter & Co. v. Marshall, 598 F.2d 911 (5th Cir. 1979). These incidents furnish insufficient basis for finding that the Railroad had notice of the hazards cited by the Secretary. [[4/]]

Thus, we conclude that the Secretary failed to establish that a reasonable person familiar with the working conditions at the cited workplace would recognize a hazard of debris or solidified material falling on Railroad employees, requiring the protection of either hard hats or safety glasses.[[5/]]

Accordingly, we affirm the judge's disposition.

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  APR 27 1983


COTTINE, Commissioner, concurring in part and dissenting in part:

Contrary to the finding of the majority, the record in this case does establish that a reasonable person would recognize the existence of hazards warranting the use of personal protective equipment.  Accordingly, I dissent from my colleagues' vacation of the citation item alleging noncompliance with 29 C.F.R. § 1910.132(a) for failure to provide hard hat protection.  However, the record fails to establish that the safety glasses without side shields worn by the Railroad employee who was observed by the compliance officers constituted inadequate eye protection under 29 C.F.R. § 1910.133(a)(1).  I therefore concur in vacating that item. [[1/]]

The evidence establishes routine violations by Bethlehem employees of the rule against dumping debris through the chutes into railroad cars while Railroad employees are below the cast floor.  Railroad employees have on several occasions complained to Bethlehem employees about the practice.  A Railroad brakeman with 30 years experience testified, "[t]hese men continually throw things down when our men are shifting under the floor."  Similarly, a Bethlehem employee with 13 years experience testified that Railroad employees have on approximately six occasions over a four year period complained to Bethlehem cast floor personnel regarding violations of the green light rule.   This witness also related an incident in which railroad employees complained about hot water splashing down from the cast floor when a Bethlehem employee was attempting to cool molten metal on the runners for removal.  The witness further testified to an occasion when an incoming railroad car contacted the cast floor with sufficient force to raise the floor.  The witness later observed a great deal of loose material, including iron pieces, lying on the floor and noticed two or three twisted structural beams that were subsequently replaced by Bethlehem.

Bethlehem's motor inspector-electrician testified that he was aware of a submarine car striking the splash plate under the main beam supporting the cast floor.   The splash plate is installed to protect the beams from splashing molten metal and tends to sag from the weight of the metal.  Slag also accumulates on electrical wires under the floor, causing the wire to tear.  The witness testified that the torn wire with accumulated slag could swing down and strike an employee on the head.  The record further establishes that during the inspection an incoming ladle car struck a vertical supporting member under the cast floor causing pieces of solidified metal that had accumulated on the supporting framework to be propelled toward a Railroad employee.

This record evidence of a hazard is corroborated by evidence that Bethlehem employees entering the area below the cast floor are required to wear hard hats and eye protection.  According to the compliance officer, he had been informed by both Bethlehem's Safety Director and its OSHA Coordinator that a hazard existed in the area that required the use of these forms of personal protective equipment.  In addition, the Safety Director informed the compliance officer that he had tried unsuccessfully on three or four occasions to have Railroad employees working in the area wear hard hats and eye protection.  The evidence also establishes that railroad employees working at the U.S. Steel plant in a blast furnace area similar to the Bethlehem furnace use hard hats and safety goggles.

The majority acknowledges that Bethlehem has designated the track level below the cast floor as a hard hat area and that the Secretary has demonstrated the use of hard hats and safety glasses by similarly engaged employees at another steel plant. Nevertheless, the majority concludes that the evidence is unpersuasive that the Railroad recognized or that a reasonable person would have recognized the need for personal protective equipment.  In reaching this conclusion, the majority points to:  (1) Bethlehem's green light rule; (2) evidence that incidents of debris dumping were rare and were the result of misconduct by Bethlehem employees; (3) evidence that only improperly positioned large railcars could strike beams; (4) the routine removal of solidified material from the structural members; and (5) the absence of a history of injury to Railroad employees from material dislodged by passing railcars.  The majority further concludes that the evidence establishes that the use of personal protective equipment is not customary in the steel railroad industry.

Whether the incidents previously described resulted from violations of workrules by Bethlehem employees or improper positioning of larger railcars, the resulting hazard to Railroad employees is apparent.  Although the routine removal of solidified metal adhering to the beams and chutes below the cast floor may reduce the hazard of being struck by dislodged metal pieces, it does not eliminate the hazard. [[2/]] Furthermore, it does not affect the burn hazard from splashing molten metal to which Railroad employees are exposed when Bethlehem employees dump material into cinder pots that may be filled with molten material.

The majority correctly notes the absence of a history of injuries from materials dislodged by passing railcars.  However, the majority ignores the reported injury to a Railroad brakeman who was splashed on the head and burned by molten metal from an over-filled ladle car. [[3/]] Nevertheless, an absence of injuries does not dispose of the issue of whether a hazard exists.  The goal of the Act is to prevent the first injury.  Faultless Div., Bliss & Laughlin Indus., Inc. v. Secretary of Labor & OSHRC, 674 F.2d 1177, 1185 (7th Cir. 1982); Mineral Industries & Heavy Construction Group v. OSHRC, 639 F.2d 1289, 1294 (5th Cir. 1981).

The record as a whole clearly establishes the existence of hazards to personnel working below the cast floor.  These hazards and the need for precautions are readily acknowledged by Bethlehem personnel.  However, workplace hazards do not discriminate between employees of different crafts.  The hazards exist regardless of the nature of the employment or the contrasting safety practices of the industries involved. [[4/]]  The Commission interprets safety standards to provide the same protection to all employees exposed to the same hazards at a worksite.  See Gelco Builders, Inc., 77 OSAHRC 203/B14, 6 BNA OSHC 1104, 1106, 1977-78 CCH OSHD ¶ 22,353 at p. 26,941 (No. 14505, 1977).  Furthermore, the Act has consistently been interpreted to reject adherence to industry practices that fail to protect against workplace hazards.   E.g., General Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d 453 (1st Cir. 1979), citing with approval, S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ¶ 23,480 (No. 15855, 1979), rev'd, 659 F.2d 1273 (5th Cir. 1981); Bunkoff Constr. Co., 80 OSAHRC 117/A2, 9 BNA OSHC 1043, 1980 CCH OSHD ¶ 24,988 (No. 76-2760, 1980).  The Act was designed to improve the safety of working conditions in industry, not to maintain a hazardous status quo.  Id. Citation item 1(a) for failure to provide head protection should be affirmed on the grounds that a reasonable person familiar with the circumstances would recognize a hazard that warrants the wearing of hardhats.  See Lukens Steel Co., 81 OSAHRC 96/A2, 10 BNA OSHC 1115, 1981 CCH OSHD ¶ 25,742 (No. 76-1053, 1981); Tube-Lok Products, 81 OSAHRC 17/B7, 9 BNA OSHC 1369, 1981 CCH OSHD ¶ 25,235 (No. 16200, 1981).

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

FOOTNOTES:

[[1/]] 29 C.F.R. § 1910.132(a) provides:

§ 1910.132 General requirements.

(a) Application.  Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

[[2/]] 29 C.F.R. § 1910.133(a)(1) provides:

§ 1910.133 Eye and face protection.
(a) General.  (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment.  In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors.  No unprotected person shall knowingly be subjected to a hazardous environmental condition.  Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.

[[3/]] The United Transportation Union participated actively at the hearing, but has not filed a brief on review, indicating by letter to the Commission that it is in "full accord" with the Railroad's position.

[[4/]] The dissent speculates that Railroad employees are exposed to a burn hazard from splashing molten metal caused by Bethlehem employees' dumping material into cinder pots that may be filled with molten material.  The record, however, does not disclose a single instance of molten material splashing out of a cinder pot as a result of scrap or other material being dumped in, nor is there anything in the record which explains how such an accident could occur.  The dissent also notes that a Railroad brakeman reportedly was burned by molten metal which splashed out of an over-filled ladle.   Nevertheless, the record contains no evidence that this incident--which did not produce a lost-time injury--took place in or near the area cited by the Secretary.   That this could happen, somewhere, does not establish hard hats are necessary in the location cited.

[[5/]] Chairman Rowland does not decide at this time whether the Commission's reasonable person test or the Fifth Circuit's industry custom/actual knowledge test, see Owens-Corning Fiberglas Corp. v. Donovan, supra, is more appropriate.  He notes that the Secretary has failed to establish a violation of the cited standards under either test.  See Consolidated Rail Corp., 82 OSAHRC 41/D3, 10 BNA OSHC 1851, 1858 n.19, 1982 CCH OSHD ¶ 26,165, p. 32,992 n.18 (No. 78-238, 1982) (Rowland, Chairman, dissenting in part and concurring in part).

Chairman Rowland notes that the application of OSHA standards and regulations to working conditions that are the subject of regulation by another agency is precluded by § 4(b)(1), 29 U.S.C. § 653(b)(1), of the Act.  Section 4(b)(1) provides in part:

Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies. . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

Chairman Rowland has pointed out that, because § 4(b)(1) is a jurisdictional requirement rather than an affirmative defense, it may be raised and considered at any stage of the proceedings.  Gearhart-Owen Industries, Inc., 82 OSAHRC ___, 10 BNA OSHC 2193, 1982 CCH OSHD ¶ 26,329 (No. 4263, 1982) (Rowland, Chairman, dissenting).  He notes that the Commission has held that § 4(b)(1) precludes the Secretary from applying his standards to certain working conditions named in a policy statement by the Federal Railroad Administration ("FRA"), published at 43 Fed. Reg. 10583-90 (March 14, 1978), over which the FRA has exercised jurisdiction.  Consolidated Rail Corp., 82 OSAHRC 25/B6, 10 BNA OSHC 1577, 1982 CCH OSHD ¶ 26,044 (No. 79-1277, 1982), appeal dismissed, No. 82-3302 (3rd Cir. Nov. 16, 1982).  Nevertheless, because the inspection and citation occurred prior to the FRA policy statement, Chairman Rowland concludes that the FRA policy statement would not preempt, under § 4(b)(1), enforcement of the cited OSHA standards in this case.  See Consolidated Rail Corp., 10 BNA OSHC at 1858 n.18, 1982 CCH OSHD at p. 32,992 n.17 (Rowland, Chairman, dissenting in part and concurring in part).


[[1]] Citation item 1(a) alleges noncompliance with section 1910.132(a) in that "[h]ead protection was not worn by conductors and brakemen" moving and placing ladles and cinder pots.  Item 2(a) alleges noncompliance with 1910.133(a) in that "eye protection with sideshields was not worn by a conductor" involved in the same activity.

[[2]] The evidence indicates that, despite Bethlehem's efforts to remove this accumulation, a large amount of solidified metal, some not firmly adhered, was observed on the structural beams and around the chutes.  Additionally, pieces of solidified metal were observed on the floor of the track level.

[[3]] The compliance officer testified that during his inspection of the Bethlehem plant he reviewed the Railroad's accident records and observed the entry for a burn injury to a brakeman who had been working adjacent to a ladle car that "apparently was too full." In addition, Bethlehem has issued a notice to its employees in the cited blast furnace area that overfilled pots may present a hazard to Railroad employees.

[[4]] The record establishes that the eye protection worn by Bethlehem employees and railroad employees at the U.S. Steel plant includes side shields.   However, because the Secretary has introduced no independent evidence to show that safety glasses without side shields would not provide adequate protection, the record evidence is insufficient to sustain the violation alleged in citation item 2(a).  See supra note 1 and accompanying text.