CONSOLIDATED RAIL CORPORATION

OSHRC Docket Nos. 78-1504; 78-1779

Occupational Safety and Health Review Commission

April 30, 1982

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Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, U.S. Department of Labor

Mark E. Lichty, Consolidated Rail Corporation, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Henry K. Osterman is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). In his decision, Judge Osterman vacated alleged violations of 29 C.F.R. 1910.22(c) n1 and 29 C.F.R. 1910.23(c)(1), n2 holding that a Federal Railroad Administration ("FRA") policy statement n3 preempted application of the Act n4 to working conditions at inspection pits in Respondent's locomotive repair facilities. Judge Osterman also vacated alleged serious violations of 29 C.F.R. 1910.132(a) n5 for Respondent's failure to require that employees wear steel-toed safety shoes in the locomotive repair pits at its repair facilities in Harrisburg and Enola, Pennsylvania. The Secretary filed petitions for review which Commissioner Cottine granted. For the reasons that follow, we vacate the alleged pit and [*2] platform guarding violations of sections 1910.22(c) and 1910.23(c)(1), and affirm as nonserious the alleged violations of section 1910.132(a).

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n1 29 C.F.R. 1910.22(c) concerns walking and working surfaces and provides:

1910.22 General requirements.

(c) Covers and guardrails. Covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.

n2 29 C.F.R. 1910.23(c)(1) provides:

1910.23 Guarding floor and wall openings and holes.

(c) Protection of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the open sides,

(i) Persons can pass,

(ii) There is moving machinery, or

(iii) There is equipment with which falling materials could create a hazard.

n3 43 Fed. Reg. 10584 (March 14, 1978).

n4 Section 4(b)(1) of the Act, 29 U.S.C. 653(b)(1), provides, in pertinent part:

(b)(1) 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.

n5 29 C.F.R. 1910.132(a) concerns personal protective equipment and 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.

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I

Respondent was cited for failing to use guardrails to protect employees from the hazard of falling into unguarded repair pits and from locomotive work platforms onto railroad tracks within its locomotive repair facilities in Harrisburg, Pennsylvania (Docket No. 78-1779, items 6 & 7) and Enola, Pennsylvania (Docket No. 78-1504, items 2 & 3). The inspection at Enola, Pennsylvania took place between March 1 and March 3, 1978. The Harrisburg, Pennsylvania facility was inspected between February 27 and March 3, 1978. An FRA policy statement, stating that certain working conditions in the railroad industry fall within the exclusive jurisdiction of the FRA, was published in the Federal Register on March 14, 1978 and became effective on that date. 43 Fed. Reg. 10584. The citations in these cases were issued on March 27, 1978 (Docket No. 78-1504), and on April 11, 1978 (Docket No. 78-1779).

We have held that section 4(b)(1) of the Act precludes the Secretary from applying his standards to certain working conditions named in the FRA policy statement over which the FRA has exercised jurisdiction. Consolidated [*4] According to the policy statement, the guarding of pits and platforms associated with moving railroad stock lies within the FRA's jurisdiction. 43 Fed. Reg. at 10587. The pits and platforms involved in this case fall within this category and are thus exempt from any requirements of the Secretary's standards. Inasmuch as the citations in this case were issued after the policy statement, the Secretary lacked authority to issue the citations. n6 Accordingly, we vacate items 2 (No. 78-1504) and 6 (No. 78-1779) alleging violations of section 1910.22(c), and items 3 (No. 78-1504) and 7 (No. 78-1779) alleging violations of section 1910.23(c)(1). We now turn to the allegations under section 1910.132(a).

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n6 Commissioner Cottine would follow the precedent established in Consolidated Rail Corp., 81 OSAHRC 8/A2, 9 BNA OSHC 1258, 1981 CCH OSHD P25,172 (Nos. 78-3100 et al, 1981), appeal filed, No. 81-1210 (1st Cir. Apr. 2, 1981), transferred, No. 81-4192 (2d Cir. Oct. 2, 1981) (OSHRC No. 78-3100) & No. 81-2639 (3d Cir. Oct. 2, 1981) (OSHRC No. 78-4881), that the FRA policy statement is not a standard or regulation within the meaning of 4(b)(1) of the Act and therefore cannot operate to preempt the applicability of OSHA standards to railroad operations. Accordingly, he would reverse the judge and remand for a decision on the merits of the alleged guardrail violations.

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II

Between February 27 and March 3, 1978, Respondent's locomotive repair facility in Harrisburg, Pennsylvania was inspected by John Molovich, at that time a senior safety compliance officer in the Labor Department's Harrisburg office. The repair shop consisted of seven inspection pits providing for the inspection, testing, repair and servicing of rolling equipment. Respondent employed many different crafts in its shop and its employees worked at different maintenance jobs. In the course of these jobs, employees used pipe wrenches, pneumatic tools and sledge hammers. In addition, employees used chains and hooks connected to overhead cranes to lift banks of radiator coils into place on the locomotives. These coils weigh two hundred pounds each and may be lifted one to one-and-one-half feet into the air when installed. In addition, machinists moved water pumps, governors, pistons, liners and connecting rods in the repair shop. These items weigh thirty to forth pounds. Mr. Molovich stated that after talking with employees, he learned Respondent had no steel-toed safety shoe program at this facility. [*6] Mr. Molovich stated that employees not wearing steel-toed safety shoes would be exposed to the hazard of heavy items dropping on their feet. By examining Respondent's injury log, Mr. Molovich also determined that three foot injuries had occurred in the prior year which, in Mr. Molovich's opinion, could have been prevented by the use of steel-toed shoes.

Mr. John Geegee, a machinist with thirty-nine years experience at the Harrisburg plant, testified that he was required to move equipment frequently and that the steel-toed safety shoes he voluntarily wore protected his feet from the many items he had dropped over the years.

Respondent presented as a witness Lewis Easton, its foreman at the Harrisburg plant. He did not believe steel-toed safety shoes were necessary for safety's sake and did not require their use. Mr. Easton explained that he previously wore steel-toed safety shoes, but no longer did. He stated that Respondent did have a rule requiring that safe shoes be worn, that is, high-lace shoes with a nonskid surface. Mr. Easton asserted that he did not know of the alleged toe injuries about which Mr. Molovich had testified, and that he "never heard of" the employees who [*7] were allegedly injured. Mr. Easton explained that he knew of two other foot injuries which occurred when the employees were not wearing steel-toed shoes; however, those injuries were not toe injuries and did not occur as the result of dropped equipment.

James McNally, the mechanical safety superintendent for Respondent's entire system, testified that a survey he had made indicated that other railroads did not require steel-toed safety shoes to be worn. Mr. McNally stated that, while Respondent preferred that its employees wear steel-toed safety shoes, Respondent did not require them to be worn. On cross examination, Mr. McNally conceded that the reason Respondent preferred steel-toed safety shoes was because the employees were exposed to the potential hazard of material dropping on their feet, and because the steel-toed safety shoes "definitely would help."

Between March 1 and March 3, 1978, Respondent's diesel locomotive repair shop at Enola, Pennsylvania was inspected by the Secretary's compliance officer, Ernest Warlow, Jr. Mr. Warlow observed employees at that facility using a number of wrenches and assorted large power tools. He observed an overhead crane hoisting railroad [*8] trucks over seven or eight feet in the air to get the trucks in position to fasten to the locomotive. n7 Parts of the trucks weighed between one hundred and several thousand pounds. At the Enola shop, Mr. Warlow observed twenty people who were not wearing steel-toed safety shoes. Evidence was presented of reports of several injuries to feet and toes at this plant.

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n7 A railroad truck is the wheel apparatus on which the engine operates.

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The Secretary also presented Donald Basom, a maintenance mechanic at the Enola shop. Mr. Basom stated that he frequently was required to move heavy items weighing fifty to one hundred pounds by hand. He stated that he voluntarily wore steel-toed safety shoes to protect his feet and that the shoes had protected him from the items that he accidentally dropped.

Respondent presented John McKeone, its shop manager at the Enola facility. Mr. McKeone stated that while steel-toed safety shoes were readily available for employees to purchase at the Enola plant, he did not believe the steel-toed [*9] safety shoes were necessary to protect employees. Mr. McKeone wore steel-toed safety shoes, but only because they were available and not because they offered any from of protection.

Judge Osterman vacated both citations alleging violations of section 1910.132(a). He found that characterizing the danger to employees as serious exaggerated the danger to employees and, relying on the Fifth Circuit's decision in Cotter & Co. v. Marshall, 598 F.2d 911 (5th Cir. 1979), dismissed the alleged violations of section 1910.132(a).

In his petition for discretionary review, the Secretary argues that evidence of several reports of employee foot or toe injuries sustained from falling objects in the Enola facility establishes that Respondent had actual knowledge of the hazard of foot and toe injuries to employees. The Secretary therefore concludes that the judge erred in basing his decision to vacate on the Court's decision in Cotter & Co. v. Marshall, supra.

III

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 [*10] condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of personal protective equipment. Allegheny Airlines, Inc., 81 OSAHRC 37/A14, 9 BNA OSHC 1623, 1631, 1981 CCH OSHD P25,339 at p. 31,446 (No. 14291, 1981); Owens-Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1979 CCH OSHD P23,509 at p. 28,491 (No. 76-4990, 1979), aff'd, 659 F.2d 1285 (5th Cir. 1981). Although 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, they are not necessarily dispositive. Allegheny Airlines, Inc., supra; Owens-Corning Fiberglas Corp., supra.

The Secretary has established that employees at the Harrisburg plant routinely used overhead cranes to lift banks of radiator coils one to one-and-one-half feet and to guide the coils, by hand, into the frames. These employees frequently used sledge hammers, wrenches, pneumatic tools and hooks and chains in their work. The Secretary also established that machinists moved equipment weighing thirty to forth pounds, and not infrequently dropped [*11] tools or equipment on their feet. With respect to the Enola plant, the Secretary established that employees used a number of wrenches and assorted large power tools weighing ten to fifteen pounds. In addition, employees used overhead cranes to lift and position heavy railroad trucks when installing the trucks in locomotives.

This evidence establishes that a reasonable person familiar with the working conditions in these diesel locomotive repair shops would recognize a hazard of parts and equipment being dropped on employees' feet, requiring the protection provided by steel-toed safety shoes. n8 See Pratt & Whitney Aircraft, 81 OSAHRC 39/A2, 9 BNA OSHC 1653, 1667, 1981 CCH OSHD P25,359 at p. 31,514 (No. 13401, 1981), appeal withdrawn, No. 81-4104 (2nd Cir. Aug. 3, 1981).

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n8 We conclude that several facts show that Respondent had actual knowledge of the hazard to employees. We therefore find the judge's reliance on Cotter & Co. v. Marshall, supra, to be inappropriate. In Cotter & Co. v. Marshall, the Fifth Circuit found a hardware wholesaler did not have actual knowledge that employees working on its loading docks were exposed to a hazard warranting the wearing of steel-toed safety shoes where only one employee had been injured during the last two years, and that injury resulted from employee conduct violating company rules. In the instant case, however, Respondent's safety rule states that Respondent prefers steel-toed shoes and McNally, the safety superintendent for Respondent's' entire facility, explained that the reason Respondent prefers steel-toed safety shoes is because the working conditions presented a potential for dropped equipment that could hit the foot and because steel-toed shoes "definitely would help." Moreover, injuries to feet and toes have occurred and were reported at the Enola facility prior to the inspection. This evidence shows that Respondent had actual knowledge that its employees were exposed to a hazard warranting the use of steel-toed shoes. See Owens-Corning Fiberglas Corp. v. Donovan, 659 F.2d 1285 (5th Cir. 1981), citing Ryder Truck Lines, Inc. v. Brennan, 479 F.2d 230 (5th Cir. 1974).

Chairman Rowland agrees with Commissioners Cleary and Cottine that the record shows that Respondent had actual knowledge. It is the evidence of "actual knowledge" upon which Chairman Rowland affirms the violation.

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Mr. Easton, Respondent's foreman at Harrisburg, explained that he no longer wears steel-toed safety shoes. His testimony also indicates that other employees were not using steel-toed shoes. In this regard, Mr. McNally stated that although Respondent prefers steel-toed shoes, the employees were not required to wear them. This evidence establishes that employees exposed to the foot hazards were not sing steel-toed safety shoes. Accordingly, Respondent failed to comply with the requirements of section 1910.132(a) at its Harrisburg, Pennsylvania plant.

The Secretary's compliance officer who inspected Respondent's Enola plant stated he observed twenty employees using tools or moving equipment who were not wearing steel-toed safety shoes. This establishes that employees exposed to the cited hazards did not use steel-toed safety shoes. Accordingly, Respondent failed to comply with the requirements of section 1910.132(a) at its Enola, Pennsylvania facility.

We now consider whether the violations of section 1910.132(a) are serious. For a violation to be deemed serious under section 17(k) of the Act, [*13] 29 U.S.C. 666(j), there must be a substantial probability that death or serious physical harm could result if an incident occurred; the probability that an incident will occur is irrelevant. Wright & Lopez, Inc., 81 OSAHRC 92/D10, 10 BNA OSHC 1108, 1981 CCH OSHD P25,728 (No. 76-256, 1981).

The Secretary established that employees physically move items weighing from thirty or forty to one hundred pounds in Respondent's repair shops and are in close proximity to the movement of radiator coils weighing two hundred pounds. There is no evidence regarding the seriousness of injuries that could result other than the reported employee injuries of brushed and fractured toes. We are not persuaded by this record that there was substantial probability that serious physical harm could result. We therefore conclude that these violations were nonserious in nature.

Accordingly, we reverse Judge Osterman's decision and affirm item 15 in No. 78-1779 and item 6 in No. 78-1504 as nonserious violations of section 1910.132(a).

The Secretary has proposed penalties of $480 for item 15 and $640 for item 6. In considering the factors set forth in section 17(j) of the Act, 29 U.S.C. 666(i), we [*14] believe the low gravity of the violations justifies reducing the proposed penalties. We therefore assess penalties of $200 and $300 for the respective violations. SO ORDERED.