SECRETARY OF LABOR,
Complainant,

v.

LAUHOFF GRAIN COMPANY,
Respondent.

OSHRC Docket No. 81-0984

DECISION

Before:  BUCKLEY, Chairman; WALL, Commissioner.
BY THE COMMISSION:

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

Lauhoff Grain Company processes and stores soybeans and corn at its Danville, Illinois workplace.  The site includes a private rail switchyard at which rail cars are marshalled and trains assembled and disassembled.   On January 21, 1981, an employee of a subcontractor working in the rail yard was killed when an engine operated by a Lauhoff employee backed six rail cars into a forklift truck, crushing the subcontractor's employee between it and a nearby crane.  The Secretary of Labor investigated the accident and then issued to Lauhoff a serious citation alleging, as amended, that Lauhoff violated 29 C.F.R. § 1910.176(f) by failing to "install a derail and/or bumper blocks on track 16 to prevent railroad cars from entering a work area."[[1]]

Judge Edward A. Bobrick affirmed the citation and assessed a $900 penalty.  We affirm the judge's disposition.

The fatality occurred at track 16, a spur track which ran parallel to and connected with track 17 at its northern terminus, and ended in a covered loading dock within Lauhoff building 203.  Near its southern terminus, approximately 30 feet north of building 203, was a crossover track connecting it to track 17.  The central portion of track 16 was covered with dirt and unused in order to assure adequate clearance for cars being moved into and out of the building 203 loading dock from the track 17 crossover.  The northern portion of track 16 from its northern terminus to the dirt-covered area, was of a length which could accommodate six hopper cars and was used to store loaded hopper cars.  West of, and parallel to, track 16 was track 15 where the Norfolk & Western Railroad Company would deliver empty hopper cars.

The standard operating procedure was for a Lauhoff switch engine to pick up empty hopper cars from track 15, and move them into the building 203 loading dock via track 17 and the crossover at the southern end of track 16.   Loaded cars would then be pulled out of the loading dock via the crossover and track 17 and then pushed south onto the northern portion of track 16 used for storing them until eventually picked up by Norfolk & Western for delivery elsewhere.  As stated, the northern portion of track 16 could accommodate six cars.

On the morning of January 21, 1981, Lauhoff employees Bright and Tuggle were moving cars on tracks 16 and 17.  Bright, the engineer, looked to Tuggle, the switchman, for directions in order to switch cars from one track to another.  Sometime after they started work that morning, the crane that was subsequently involved in the accident was moved into position between tracks 15 and 16, with one set of outriggers inside the dirt-covered portion of track 16--just north of the southern part of track 16 and Lauhoff building 203.  The crane was operated by the O'Neill Brothers Construction Company to assist the construction activities of the Ellington Miller Company.  Ellington Miller had contracted with Lauhoff to erect additions to two buildings in Lauhoff's soybean processing area, the above-mentioned building 203, and building 205--located immediately to the east of building 203.

During the time the crane was in use, the work of the soybean plant continued on a normal basis.  Track 15 continued to be used to store empty rail cars; the northern part of track 16 continued to be used to hold soybean-filled rail cars; and the portion of track 16 south of the dirt-covered part continued to be used as access to building 203.  Lauhoff employees were in the construction area checking gauges, connecting lines, crossing the rail tracks and going through the nearby buildings.  No derails or bumper blocks were used to protect work areas near tracks 15, 16, and 17 during the construction.

The crane was being used to lift steel reinforcing rods to the top of building 203.  The rods were delivered to the crane by the forklift truck, operated by an employee of O'Neill Brothers.  Around noon, the O'Neill Brothers employees stopped work for lunch. The forklift truck was left parked about two feet north of the crane, close to track 16, and south of the southernmost rail car then resting on the northern part of track 16.  The forklift was 20 feet long and 8 feet wide.

At about 12:30 p.m., Lauhoff employees Bright and Tuggle were switching a loaded hopper car to the northern part of track 16, for eventual pickup by the Norfolk and Western Railroad.  The switch engine and hopper car moved backwards at a speed of five miles per hour or less; the hopper car coupled to five other cars already standing on track 16.  Engineer Bright operated the train from the right (east) side of the engine while Tuggle, ostensibly acting as watchman, also was positioned on the right side of the train.  The entire train was backed up southward on track 16 over track that curved right (west) so that neither Bright nor Tuggle could see either the southernmost car on the train or the forklift (a "blind push").  The southernmost car hit the forklift and pushed it into the crane while the forklift operator was between the two pieces of equipment.

The standard for which Lauhoff was cited provides:

Subpart N--Materials Handling and Storage
§ 1910.176 Handling Materials--general.
(f) Rolling railroad cars.  Derail and/or bumper blocks shall be provided on spur railroad tracks where a rolling car could contact other cars being worked, enter a building, work or traffic area.

To prove a violation of a standard, the Secretary must establish its applicability.  See Belger Cartage Service, Inc., 79 OSAHRC 16/B4, 7 BNA OSHC 1233, 1235, 1979 CCH OSHD ¶ 23,440, p. 28,373 (No. 76-1480, 1979).  Lauhoff contends that the words "rolling car" in the cited standard refer to free rolling cars only--not cars being pushed by an engine.

The Commission stated in Bunge Corp., 86 OSAHRC ____, 12 BNA OSHC 1785, 1791, 1986 CCH OSHD ¶ 27,565, p. 35,806 (No. 77-1622, 1986), that "[i]t is axiomatic that OSHA standards must be interpreted in accordance with the natural and plain meaning of their words . . . ." Should the words of a standard represent terms of art in the discipline or industry that it regulates, however, the words should be construed accordingly.  They may not be construed to deprive employers of fair notice of the requirements of the law.  See C. F. & I. Steel Corp., 86 OSAHRC ______, 12 BNA OSHC 2067, 2075, 1986 CCH OSHD ¶ 27,691, p. 36,140 (No. 79-4786, 1986).

The plain meaning of the words "rolling car" appears to encompass both cars that are rolling because they are attached to a moving engine and cars that are free rolling.  Lauhoff argues, however, that the words should be interpreted to apply only to free rolling cars.  In support of its position, Lauhoff refers to certain language contained in a variance from the cited standard issued by the Secretary in 1974 to another company with a private rail yard, Fisher Mills, Inc.  That company used a switch engine to move cars over its spur tracks just as Lauhoff does.  The variance referred to the terms "rolling car" in section 1910.176(f) and stated:  "A rolling car is a car moving freely and it is to such a situation that the standard is addressed."  39 Fed. Reg. 1677 (1974).  The variance authorized noncompliance with the standard so long as the company performed its switching operations while complying with a series of mandated safety practices.

Lauhoff points out that, relying primarily on the above quoted language from the Fisher Mills variance, a Review Commission Administrative Law Judge subsequently stated in an unreviewed decision that "29 C.F.R. § 1910.176(f) is not applicable to railroad cars being switched while attached to a locomotive."  Cargill, Inc., 79 OSAHRC 99/C12, p. 17 (full text), 8 BNA OSHC 1101 (digest), 1979 CCH OSHD ¶ 24,034 (digest)(No. 78-3110, 1979)(ALJ).   Lauhoff also points to proposed changes to section 1910.176(f), which the Secretary published a short time after granting the variance in 1974.  39 Fed. Reg. 14,352-53 (1974).  The proposed changes would have deleted the word "railroad" from the phrase "spur railroad tracks," would have deleted the word "and" from "[d]erail and/or bumper blocks," and would have specifically referred to both free rolling cars and cars attached to locomotives as "Rolling railroad cars."  The proposed changes to section 1910.176(f) were not adopted, however.

The only testimony as to the industry's understanding of the term came from Lauhoff expert witness Flint, the assistant superintendent for railroad operations for a division of the Port of Galveston, who had 34 years of railroad experience.  He testified:

To me, and I believe I could say to railroad people, the term "rolling car" describes the condition of the car.  The car is rolling. "Rolling equipment" is any piece of equipment regardless of whether it is moving or standing still, that is capable of rolling on the track.

Judge Bobrick found the regulation "simple and unambiguous".  The judge found that the term "rolling car" does not distinguish between a rail car that is rolling on its own and a car that is attached to a switch engine.  He stated that the standard's purpose was to prevent rail cars from unexpectedly entering a work area, regardless of whether the cars were pushed by an engine or rolling
freely.  The judge further stated that the variance granted to Fisher Mills would not have been necessary if the standard did not apply to cars coupled to an engine.  The judge found that Lauhoff recognized the need for derailers in that it used them elsewhere in its rail yard where employees worked on rail cars.

The Commission concludes, as did Judge Bobrick, that the meaning of "rolling car" is simple and unambiguous.  A rolling car under the cited standard is a rail car that is in the process of rolling-- whether attached to a power source, such as an engine, or not.

The testimony of Lauhoff's expert Flint does not support the company's position on this issue.  Nothing in his testimony suggests that the industry understands "rolling car" to refer only to a freely rolling car, as distinguished from a car that is rolling because it is attached to a moving engine.

Nor is there any basis in the history of the development of the standard that indicates an intent to give "rolling car" a meaning other than its plain and natural one.  The cited standard was derived from a virtually identical standard at 41 C.F.R. § 50-204.3(f) issued under the Walsh-Healey Act.  The record contains no legislative history or contemporaneous interpretation which supports Lauhoff's definition, and none is recited in the Fisher Mills variance.   The language in the Fisher Mill variance is not persuasive. There is no evidence that it is authoritative, and it accompanied a variance that was granted.  It was not indicated that the variance was unnecessary as being inapplicable to cars moving under power of an engine.[[2]]  Certain of the safety practices mandated by the Fisher Mills variance involved situations in which rail cars were connected to a moving engine.   If, as the variance states, the standard applied only to cars "moving freely," the provisions of the variance governing cars connected to an engine would be unnecessary.

The unreviewed judge's decision in Cargill, which did adopt the variance's definition, does not compel a different result. Unreviewed judge's decisions do not constitute binding Commission precedent.  Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1981, 1975-76 CCH OSHD ¶ 20,387, p. 24,322 (No. 4090, 1976).

Lauhoff contends that the standard is ambiguous in that the term "and/or" permits derails and bumper blocks to be used together whereas derails and bumper blocks serve separate functions and should not be used together.  Lauhoff's contention is rejected.  The term "and/or" does not require the use of both devices together.  The term means that derails may be used separately, bumper blocks may be used separately, or the two devices may be used together, where appropriate.  Here, Lauhoff used neither device.

A further ambiguity asserted by Lauhoff is that the use of the word "where" may refer either to the circumstances under which derails and bumper blocks should be used or to the precise spot where those devices should be placed; if the latter, then the devices would not only be inappropriate but dangerous.   Albeit artlessly drafted, the standard in context demonstrates that "where" refers to the circumstances under which the specified safety devices should be used.

Lauhoff contends that the words "railroad tracks" refer to tracks that are part of the "common railroad operating system," as opposed to "private" or "industry tracks" that are operated within private facilities such as its own.  But, Lauhoff has not pointed to any physical difference between its tracks and those tracks that are a part of the common railroad operating system.  The Commission does not view the standard's use of the term "railroad tracks" (emphasis added) instead of "rail tracks" as intending to draw a distinction between pieces of track on the basis of who owns the track.  Lauhoff's attorney frequently used the term "railroad" where she was referring to the rail operations at Lauhoff's private facility.  Further, it is doubtful that OSHA would have adopted a standard governing only railroads serving as common carriers.  See Cuyahoga Valley Railroad Co., 82 OSAHRC 59/C3, 10 BNA OSHC 2156, 1982 CCH OSHD ¶ 26,292 (No. 76-1188, 1982) (discussing preemptive authority of Federal Railroad Administration over the "general railroad system . . ."), aff'd without consideration of point, 748 F.2d 340 (6th Cir. 1985), rev'd, 106 S.Ct. 286 (1985).  Lauhoff's tracks are therefore "railroad tracks" within the meaning of the cited standard.

It is the Secretary's burden, also, to establish that the employer knew or, with the exercise of reasonable diligence, could have known of the violative condition.  See Monarch Water Systems, Inc., 86 OSAHRC _______, 12 BNA OSHC 1897, 1898, 1986 CCH OSHD ¶  27,632, p. 35,932 (No. 83-943, 1986).  Here, the question is knowledge of the existence of a work area near track 16.

Lauhoff argues that the Secretary failed to establish that any employee--supervisory or hourly--knew or could, with the exercise of reasonable diligence, have known of the positions of the forklift and crane, which Lauhoff asserts were not supposed to be on track 16.  Lauhoff also contends that it could not be expected to police a facility of this size, learn of every activity of every contractor's employees, know of the work area on track 16, and know of the precise locations of the various cranes then in use.  We disagree, as did the judge, who observed that management personnel who supervised the switchyard, processing plant, construction work and safety program were all fully aware of the crane's location, the absence of a derail and blue flag, and the "blind" pushes of up to six cars close to the work area on tracks 15 and 16 . . . . It is difficult to understand [Lauhoff's] position that on January 21, 1981 it was without knowledge of the activities of O'Neill since the crane and forklift truck were in the same location where it had been in use since December 17, 1979 and [Lauhoff] was aware that an 18-foot wide crane could not sit on track 15 without stretching onto track 16.

The judge also observed that the nature of the work required that the O'Neill crane, as well as the forklift, be in the area near building 203, occupying tracks 15 and 16 and the space between them.

Loading supervisor Berry knew that Lauhoff had not placed a derail or bumper block on either track on the day of the accident. Berry admitted knowing the crane would be working on track 15 on the morning of the accident.   With a 170-foot boom, the crane was highly visible, and he had seen the crane in the yard on other occasions; he had also observed that the outriggers of the crane extended beyond the body of the crane.  The fact that Berry admitted knowing that the crane would be working on track 15 that morning but did not also admit knowing that the crane would be on track 16 as well is of no consequence.  Berry knew the physical layout of the rail yard and knew how close together tracks 15 and 16--and the other tracks in the yard--were.  The crane had been in the same location on each of at least three other occasions within a month of the accident, and the particular location was the only one that would interfere neither with Lauhoff's grain and rail operations nor with construction.  Berry should have known that the crane, which was 18 feet wide with its outriggers extended, would extend to track 16.

Berry had seen the rail cars on track 16 on the morning of the accident.  As the loading supervisor, Berry knew that Lauhoff was continuing to load soybeans on a regular basis while construction work proceeded and knew that loaded rail cars were brought to track 16 to await being moved off the facility.   As loading supervisor, Berry should have been aware that his loaders engaged in blind pushes of cars down track 16 and could not always see what was in front of the southernmost car being pushed.  Berry was familiar with the construction activities being performed as they affected the soybean loadout area of the rail yard and knew that the construction work required the use of cranes.

Since Berry knew cranes were being used in conjunction with the construction activities and since the forklift truck was being used to bring steel to the crane for hoisting, Berry could have known that the forklift truck would occasionally be near the crane and track 16.  Indeed, the forklift had been left in that same position on other occasions.  Both Lauhoff employees Tuggle and Bright knew about the position of the forklift truck prior to the backing of the train down track 16 and believed that the train would clear the forklift.  The forklift truck was a part of the work area near track 16 that required derail or bumper block protection under the terms of the cited standard.  Lauhoff, through Berry, could have known of the existence of that work area.

Lauhoff argues that the use of derails would have created a greater hazard.  To prove a greater hazard defense, an employer must show that (1) the hazards of compliance with a standard are greater than the hazards of noncompliance, (2) alternative means of protection are unavailable, and (3) a variance was unavailable or inappropriate.  Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105 (7th Cir. 1982); Roofing Systems Consultants, 80 OSAHRC 51/C13, 8 BNA OSHC 1446, 1449, 1980 CCH OSHD ¶ 24,504, p. 29,941 (No. 76-592, 1980).  The parties have primarily argued about whether the use of a derail would have presented a greater hazard.  The standard, however, provides that a bumper block may be used with, or instead of, a derail.  For Lauhoff's greater hazard defense to prevail, the company must establish that both a derail and a bumper block presented greater hazards.   We find that the record shows a bumper block would not have presented a greater hazard.

Lauhoff's expert, Flint, testified that a bumper block is a "device of rather solid construction and weight . . . it is placed at the ends of tracks to prevent cars or equipment from rolling over the end of the track."   Flint initially stated that if a train that included four to six loaded rail cars were to hit a bumper block on level track while moving at less than five miles per hour, the train would derail. Flint almost immediately reconsidered that statement, however, and subsequently testified that the "more probable thing that would happen would be the bumper block would be somewhat damaged because of that much weight."

The Secretary's expert, Galvin, a supervisory specialist in railroad operating practices with the Federal Railway Administration, testified that the use of a bumper block at the southern end of the northern section of track 16 would not present a greater hazard than the failure to use a bumper block.   There is no evidence that a bumper block could not have been put there.

The judge apparently believed that bumper blocks were not involved in this case because they are normally used at the ends of sections of track.  However, the southern end of the northern portion of track 16 was a de facto end of track 16, for Lauhoff never used track 16 all the way through, had covered part of the track over with dirt to prevent use, and had permanently set into position on track 16, just below the dirt-covered section of that track, a section of cross-over track from track 17.  It would not have been safe to put rail cars on the unused, dirt-covered section of track 16 because rail cars placed there would have been hit by rail cars regularly using the crossover section of track.

Therefore, since Lauhoff failed to show that bumper blocks would have presented a greater hazard, it has failed to establish a greater hazard defense.  The Commission need not determine whether Lauhoff established that derails would have presented a greater hazard.[[3]]  The Commission also need not determine whether a variance was unavailable or inappropriate.[[4]]

Finally, Lauhoff raises the multi-employer worksite defense enunciated in Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1198-99, 1975-76 CCH OSHD ¶ 20,690 (No. 3694, 1976).  Under the Commission's Anning-Johnson precedent, to successfully escape liability for its alleged violation of a standard, a subcontractor on a multi-employer construction site must show that it neither created nor controlled the alleged hazard, and that it had attempted to protect its employees by realistic measures taken as an alternative to literal compliance with the cited standard or that it did not have, and with the exercise of reasonable diligence could not have had, notice that the condition was hazardous.  We need not determine whether the Anning-Johnson defense is applicable under the circumstances of this case, since it is clear that an employer that creates a hazard to which its own employees are exposed may not escape liability under Anning-Johnson.  Here, it was Lauhoff employees who were responsible for backing the train into the work area.  It was Lauhoff that determined that its rail operations would proceed on a normal basis while the construction activities were conducted close to track 16.  It was Lauhoff that could have installed a bumper block or derail device but did not do so.  Further, the record clearly establishes that Lauhoff employees were exposed to the cited hazard.  Lauhoff employees were in the construction area during the period of construction checking gauges, connecting lines, crossing the rail tracks, and working in and around buildings 203 and 205.  If the crane had been hit while it was lifting a load, the crane and load could have toppled onto Lauhoff employees working near the crane or in and around buildings 203 and 205.   Thus, the Anning-Johnson defense would not benefit Lauhoff.

The Commission assesses a penalty of $900.   We find that the gravity of the violation was high in that death could, and did, result from noncompliance with the cited standard.  We do not credit Lauhoff with any significant degree of good faith because it essentially took no action to protect the employees in the work area around the crane and forklift from rolling rail cars at any time that the crane was positioned between tracks 15 and 16.  Further, Lauhoff is a relatively large employer of over 100 employees and has been issued a prior citation which was partially affirmed in a settlement agreement.

Accordingly, the Commission affirms the citation alleging a serious violation of section 1910.176(f), and assesses a $900 penalty.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  February 4, 1987

SECRETARY OF LABOR,

Complainant,

v.

LAUHOFF GRAIN COMPANY,
a Corporation,

Respondent.

OSHRC Docket No. 81-0984

DECISION AND ORDER

Appearance:

FRANCIS X. LILLY, Esq., Solicitor of Labor,
JOHN SECARAS, Regional Solicitor,
NANCY B. COLLINS, Esq., Office of the Solicitor,
Chicago, Illinois
for Raymond J. Donovan, Secretary
of Labor, U.S. Department of Labor, Complainant.

Lynn E. Pollan, Esq., Assistant Counsel,
Bunge Corporation, New York, New York for
Lauhoff Grain Company, Respondent.

BOBRICK, Judge
This proceeding was commenced pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., (hereinafter referred to as the "Act"), wherein Respondent, Lauhoff Grain Company, contested a Citation issued by Complainant, Raymond J. Donovan, Secretary of Labor, U.S. Department of Labor. [[1/]]   The Citation charged Respondent with a serious violation of Section 5(a)(2) of the Act and the 1980 Occupational Safety and Health Regulations 29 C.F.R. 1910.176(f), as follows:

Derail and/or bumper blocks were not provided on spur railroad tracks where rolling car(s) could contact other cars being worked or enter a building, work or traffic area:  In that:  On or about January 21, 1981, the Lauhoff Grain Company did not install a derail and/or bumper blocks on track #16 to prevent railroad cars from entering a work area.

On January 22, 1981, a Compliance Officer of the Occupational Safety and Health Administration (hereinafter "OSHA"), in response to a report of a fatality which had occurred on January 21, 1981, at Respondent's workplace, conducted a safety investigation at that site (Tr. 490).  The Compliance Officer, prior to performing the investigation, first visited the Coroner's office and then the employer of the deceased employee killed at Respondent's worksite.  Once at Respondent's workplace, pursuant to the agreements reached between the Respondent and the Compliance Officer, an abbreviated opening conference was held, after which the investigation was then begun (Tr. 495-500).

As a result of this investigation, on March 25, 1981, a Citation was issued to Respondent initially charging it with a violation of the General Duty Clause of the Act (Section 5(a)(1).  This Citation was later amended to allege a violation of Section 5(a)(2) of the Act and Safety Regulation 29 C.F.R. 1910.176(f), which provides:

¶ 1910.176 Handling materials - general.

(f) Rolling railroad cars.  Derail and/or bumper blocks
shall be provided on spur railroad tracks where a rolling
car could contact other cars being worked, enter a
building, work or traffic area.

FINDINGS OF FACT AND CONCLUSION OF LAW
FACTS OF CASE
Respondent is an employer engaged in the business of processing and storing corn and soybeans.  At the cited workplace, in Danville, Illinois, it operates a large facility consisting of storage tanks, processing buildings, administrative offices, and an extensive rail switchyard (Ex. C-9, C-40).  Hopper rail cars move Respondents products into and out of the facility though its extensive network of rails making up its switchyard.

During 1980 and 1981, Respondent engaged a number of contractors to perform some construction work at its bean processing area, in particular, in and around Buildings 203, 206 and 210.  This work required that the contractors work in and around its switchyard.  Ellington Miller Construction Company (hereinafter "Ellington Miller") was one of the contractors working in this area. This company was assisted by O'Neill Brothers Construction Company (hereinafter "O'Neill"), the employer of the deceased employee.

Respondent's operation, carried on at its processing facility, required the use of a network of approximately 19 railroad tracks which comprised its rail switching yard.  The accident which gave rise to the investigation took place on track 16 near building number 203.  The accident occurred when rail cars being pushed onto track 16 by Respondent's switch engine came in contact with a forklift truck, which had been parked alongside track 16, pushing the forklift against a crane partially situated on track 15 and 16.  The forklift truck and the crane were being used in the construction activities going on in Respondent's switchyard.   At the exact instant of impact of the railcar, forklift and crane, an employee of O'Neill had stepped between the crane and the forklift truck, was therein caught between them, and was crushed as the forklift was pushed against the crane.

A.  Operation of Respondent's Switchyard
In the operation and switching of rail cars at Respondent's switchyard, we find that the Norfolk & Western Railroad Company (hereinafter "N&W") would deliver all hopper cars to Respondent (Tr. 25).  An N&W spur track enters at the north end of Respondent's property (Tr. 44).  Employees of the N&W would throw a switch located on the north side of a rail bridge to gain entry from the N&W main line onto the N&W spur and then to Respondent's property (Tr. 160, Ex. C-9).  The throwing of the switch at the rail bridge would trigger an alarm bell and red light inside the rail yard to alert Respondent's employees that the N&W was about to enter the plant (Tr. 160).  The surface around the tracks at Respondent's switchyard is asphalted (Tr. 872).

To reach track 16, where the accident took place, or tracks 15 and 17, which, respectively, were to track 16's west and east, a rail car would have to move from the N&W main line onto the N&W spur track, and only then onto Respondent-owned tracks which led to tracks 15, 16 and 17 (Tr. 123, 124, Ex. C-9).

Respondent switches rail cars on tracks 15, 16, 17, 18 and 19 by means of a switch engine to which the cars are coupled (Tr. 30, 45, 48).   The switch engine moves no faster than five miles per hour (Tr. 636).  The switch engine would switch no more than two rail cars at one time (Tr. 131); however, it would push together up to six cars on a single track (Tr. 179).

In January, 1981, track 15 was used to hold empty hopper cars until the bean plant was ready to load them (Tr. 47).  The N&W would back empty cars onto track 15 and leave them (Tr. 129).  Respondent pulled empty cars off track 15 and generally would move them onto track 17 to load with product (Tr. 49 L. 2-12).

Tracks 16 and 17 were used by Respondent for loading the bean plant's products into hopper cars via two loadout spouts in building 203 located at the south end of tracks 16 and 17 (Tr. 140, 177, 176).  Hopper cars were brought straight down track 17 to the loadout spout on track 17.  Cars also traveled down track 17, to a crossover track for locating them at track 16's loadout location (Tr. 62, 65, 128, 129, 665).

Filled cars at the two loadout locations were pulled back north on track 17, and placed on other tracks for storage (Tr. 52, 129). They were generally placed on track 16 north of an inoperable section on that track.  The cars could also be placed on tracks 17, 18 and 19 (Tr. 52, 129).

Track 16, which as mentioned had an inoperable section near its southern end, is divided into two clear and distinct functional sections.   The southern section of track 16 is used as an entry into the loadout station in building 203 (Tr. 62-63).  Access to this section of track 16 is gained only by coming south on track 17, and as above related entering a switch to a crossover track, and then to a second switch on track 16 to the loadout section.  Exit is possible only by reversing the process (Tr. 65, 177, Ex. J-1). Approximately four-fifths of track 16 is used as a storage track for cars labeled by Respondent as bad orders (defective) hopper cars, and for filled hopper cars awaiting pick up by N&W (Tr. 62, 63, 67; see Ex. C- 9).

In storing cars on track 16, it was Respondent's usual practice for the crews to put the first car at an undesignated point at the south end of the storage section of track 16, but no further south than the crossover point, since clearance had to be maintained to permit cars to cross over from track 17 to the loadout section of track 16 (Tr. 65, 135-136, 178).  Railroad cars have not been moved beyond the crossover point on track 16 for years due to the safety concern of fouling the crossover point (Tr. 6, 62-65, 149, 666).

Between the north or storage section of track 16 and the south or loadout section of track 16, there is dirt over the track. Respondent referred to this section of track 16, as being "pegged out" (Tr. 667).   This section of track 16 was out of service and has been out of service for a number of years (Tr. 63).  The pegged out area, however, was only covered by a very thin and uneven layer of dirt.  Most of the pegged out track was clearly visible through the dirt (Ex. C1-5, C2-1).  There is no bumper block, derail, blue flag, or other device separating the active northern section of track 16 used for storage from the southern section of track 16 used for filling hopper cars.

In order to allow sufficient clearance for rail traffic on the crossover track between 16 and 17 and for rail traffic over the switch at the north end of track 16, no more than six cars would be placed on track 16 (Tr. 134, 135, 179).  The practice of Respondent's employees, who regularly performed the switching work, was to position the first loaded car as far south on track 16 as one could go without creating a clearance problem for the crossover track (Tr. 178).  As other cars were added on track 16, they were pushed slowly toward the car or cars already positioned and then coupled to them (Tr. 178 L. 10-14).  The N&W would pick up the loaded cars on track 16, normally five or six cars in the morning and evening (Tr. 52, 54, 55).

Viewing Respondent's loading and switching activities around tracks 15, 16 and 17, once a hopper car is filled the switching engine would move north along track 17.  The engineer operates the switch engine from the east side or right side of the cab of the engine with the switchman to his east (Tr. 191, 193).  The engineer and switchman remain in visual contact as the engine proceeds north and then curves west on track 17 past the entry to track 16 (Tr. 191, Ex. C-9).   If cars were to be placed on track 16, the switchman would throw the switch to permit the train to enter track 16 (Ex. R10(c), R10(e).  The full hopper car is then pushed south onto track 16 where it is positioned for eventual pick up by N&W (Tr. 177).  Respondent's switching crew next pulls out of track 16 and picks up an empty car on track 15 (Tr. 47).  The empty car is then pulled out of track 15 by the engine and pushed down track 17 and/or the crossover onto 16 for filling at the bean plant (Tr. 131).

Tracks 15 and 16 are utilized by train equipment operated by both N&W and Respondent.  The N&W brings empty cars to track 15 (Tr. 28, 47, 51).  Filled cars are placed on track 16 by Respondent's switching crew and then are picked up by N&W (Tr. 54-55).  N&W activity in Respondent's yards is not performed under supervision of Respondent management (Tr. 54-55, 129-130). N&W would perform switching activities on their own schedule (Tr. 55, 134).  In January, 1981, there was no schedule for N&W to pick up on track 16 or drop off on track 15.

Respondent's switching crew is made up of two loaders (Tr. 175-176).  The loaders operate the switching engine owned by Respondent (Ex. C-41).  The loader-engineer (hereinafter "engineer") sits on the right hand side of the switching engine (Tr. 191-193, 861, Ex. C-41).  He is always on this same side of the switching engine, regardless of the direction in which the engine is moving (Tr. 200, 861).  The loader switchman (hereinafter "switchman") is in visual contact with the engineer at all times, except when his job requires him to step out of the line of vision to throw a switch (Tr. 192, 634, 368).  These employees alternate jobs from day to day (Tr. 138, 175, 176).  They get their basic instructions from the management person referred to by Respondent as the "Loading Supervisor," but the everyday operations are within their own discretion (Tr. 152).   These employees are responsible for loading the product into the rail cars (Tr. 127, 138).  When these employees are loading product, no other employee of Respondent would be switching or moving rail cars on tracks 15 through 19 (Tr. 132).

All cars entering tracks 15, 16, 17, and the track 16 crossover section, enter from the north.  The switch engine is to the north of the cars being pushed.  The southern most or lead car is closest to the bean plant and farthest from the engine (Ex. C-40).

Respondent rail operating rules and safety practices do not require any member of the train crew, or any other person, to be at the lead end of the car's being moved (Tr. 176, Ex. C-19).  This means that no person is observing the southern most car as the engine is pushing south onto tracks 13, 14, 15, 16 and 17 in order to couple or uncouple a car.  This system of "pushing" is called a "blind shove" or "blind push" (Tr. 1255).  There is no radio or other means of communication among crew members other than visual hand signals (Tr. 638).  Cars are usually placed on tracks 15 and 16 one or two at a time, but 5 or 6 may be pushed together at any one time (Tr. 131, 179).  They may be removed in a string or one at a time (Tr. 130).  Each time an engine picks up a car, its next planned move is to push that car into another car for the purpose of making a connection or "couple."  This is done by bringing an open knuckle of the coupler or each car together.  Any time a couple is attempted a miscouple may occur resulting in an unintentional and uncontrolled car movement (Tr. 73-75, 739, 1326).  The car or cars which fail to couple on track 17 may begin to roll south, toward building 203 and the track 16 crossover track (Tr. 73-75, 1326).

B.  Respondent's Operating and Safety Rules

Respondent maintained a comprehensive safety program both in its plant and in the rail switchyard.  This safety program included rules, operating procedures, training, and monitoring to insure the safety of its employees (Tr. 628).  Newly hired employees were indoctrinated on their first day at work by Respondent's Plant Safety Director (Tr. 628).  Thereafter, the employee's supervisor would present the additional training necessary for the employee's specific department (Tr. 628).  During these sessions, rules and procedures were discussed (Tr. 628).  Specialized training, both voluntary (e.g., first aid) and mandatory (e.g., lift truck), was also provided (Tr. 631).

Departmental safety meetings for all employees were held once a month.  Different safety procedures were featured and discussed (Tr. 628, 629).  If an employee wanted a matter brought to the Company's attention he or she would contact a representative of the Union /Management Safety Committee (Tr. 629).

The Union/Management Safety Committee would meet once a month to discuss plant health and safety issues (Tr. 629).  Safety committee representatives make lists of items to discuss at these meetings (Tr. 629).  The Safety Committee included union representatives, plant managers, the Plant Safety Director and the Corporate Safety Director (Tr. 629).  Additionally, Respondent had various incentive programs to foster plant safety (Tr. 199, 629, 630).

As part of the safety program, Respondent completed a booklet of basic safety rules entitled "Lauhoff Safety Rules" which employees would carry with them (Tr. 611, Ex. J-2(b).  Not all the safety rules were included in the booklet, such as rules of common sense (Tr. 249, 610, 611).

Respondent's safety booklet included rules relating to work in the rail yard area (Tr. 632).  Other rules on rail area safety were communicated orally to employees during indoctrination, during monthly departmental safety meetings, and as problems arose (Tr. 632).

C.  Respondent's Blue Flag Rule

Rules 5 [[2/]] and 9 [[3/]] in the "General Safety Rule" section of the safety booklet relate to the "blue flag" rule observed at the workplace.  The blue flag rule is a well established work rule in the railroad industry and is fairly general practice in private industry.

A blue flag is a standard safety sign requiring a "STOP" to moving rail equipment and it indicates that there are "men working on the track" (Tr. 634, Ex. R-10(a) and (b).  For better visibility at nighttime a blue light may also be used (Tr. 710).  The blue flag communicates to anyone operating rail equipment that the track is out of service beyond the point of the blue flag.  Rail equipment is not to pass beyond that point (Tr. 164, 634).  The absence of a blue flag indicates that the track is open to rail traffic (Tr. 634).

The Respondent had its employees follow the blue flag rule at its switchyard (Tr. 613, 616, 892, 893).  Respondent used the blue flag to protect access routes where employees or equipment had to cross a particular track frequently (Tr. 892, 893).  Consistent with railroad practice, if an employee of Respondent required the protection provided by the blue flag, he was required to erect it (Ex. J-2(b) Rule 9, Tr. 164, 614, 634).  The employees who's duties it was to switch cars were not responsible for erecting a blue flag (Tr. 613).

Similar to a lockout system, only the person who placed the blue flag could remove it (Tr. 164, 635).  Accordingly, if a blue flag was left on the track, before anyone else could remove it, an attempt had to be made to locate the person who placed it.  If that person could not be located, a thorough inspection of the area was made to determine that no one was working on the track and that no one would be exposed should the blue flag be removed (Tr. 635, 636).

In January, 1981, Respondent had bumper blocks at the terminal points of its active tracks (Tr. 61).  Respondent also had derail devices on tracks A and B which directly joined the N&W main line.  These two tracks were used by Respondent to clean rail cars (Tr. 69, 619).  These tracks were located to the west of the main N&W railroad line and outside and to the west of the switchyard. Blue flags or blue lights were used in conjunction with the derails at these locations (Tr. 620, 621).  These flags warned that men were working on the track and had locked a derail in the derailing position (Tr. 621).

Except for bumper blocks at the end of most tracks in the bean plantyard and the derails on tracks A and B, it was the policy and practice of Respondent to use "blue flags" as the only means of preventing train traffic from passing certain designated points and moving into an area where employees were working or were located near or on a track (Tr. 59-61, 621, 634-635).  No positive means of preventing unauthorized or inadvertent train traffic into a work area was utilized by Respondent (Tr. 60, 158, 621, 654, 672).

If Respondent determined that it would be impractical to blue flag a track, such as for momentarily walking across rail tracks, Respondent's employees were to then rely upon a "ten foot rule."  This rule was contained in Respondent's safety booklet (Ex. J- 2(b) Rule 8, Tr. 249, 250, 275, 613, 614, 636, 637).  This rule required that anyone who had to walk around rail equipment would be required to stay at least ten feet away from the ends of cars or engines (Ex. J-2(b) Rule 8).

Respondent had a sister rule to the ten foot clearance rule, which required that vehicles and all other obstructions be kept at least eight and one-half feet from the center line of a rail track in order to allow rail cars sufficient lateral clearance (Tr. 637).

Respondent has several work practices directed at maintaining safe operations in rail areas.  The switchman would give hand signals to direct the engine operator and would throw switches to permit movement from one track to another (Tr. 127).  He would walk alongside the engine and keep a watch when it moved (Tr. 638).  The engine operator will not move the engine unless he could see the switchman; he would sound a horn before moving the engine (Tr. 637, 638).  An amber light flashes from the top of the switch engine any time it moved as means of further alerting personnel in the area that there is movement on the tracks (Tr. 137).   The switch engine travels at very slow speeds, of less than 5 mph (Tr. 636).

Wheel clocks are used to keep cars from moving and, during the coupling process, hand brakes are generally set (Tr. 682, 686). When additional cars are to be placed on a track on which a car is already standing, the practice is to back the car slowly toward the standing car until the cars are coupled (Tr. 139).  Many times the engineer and switchman have no visual contact with the end of the cars being pushed.

According to Respondent, it had not experienced any injury to employees at its switchyard, by reason of any movement of rail cars for at least 32 years (Tr. 161, 162, 194, 614, 616, 638).

D.  Construction Activities at Respondent's Switchyard and Plant

In October of 1980, Respondent contracted with Ellington Miller to erect an addition to building 205.  The project was designed to provide explosion release siding for building 205, [[4/]] (Ex. R-3, C-3) and involved removal of the old roof and erecting a penthouse over building 205.  After removing the roof, Ellington Miller extended the height of the building approximately 30-35 feet, framed in several floor levels, and replaced the roof on building 205 (Tr. 334).

While Ellington Miller and its employees were involved in the above mentioned construction work, various other contractors and their employees were working in and about the area of building 205 and the network of active train track (Ex. C-9, R-3, Tr. 882-888, 902-903).

In the Request for Quotation used for construction projects by Respondent, provisions were included to alert contractors that they had to comply with Respondent's safety rules and OSHA standards (Exs. C-4(e) Item 3, J- 2(b) pp 12-13, Tr. 240, 241).  The "Lauhoff Safety Rules" Booklet, the Bunge Corporation [[5/]] Safety Information and Instructions for Contractors booklet, (Ex. J-2(a),(b), printed material containing special work rules for work in the extraction area (Ex. C-4(a), and General Safety Rules for Contractors working in the Plant (Ex. C-4(b) were a part of Lauhoff's Request for Quotation package (Tr. 211, 643, 644). Contractors were also notified verbally, in the pre-bid meeting, of the safety requirements so that they could adjust their bids to reflect any extra expenses that might be incurred thereby (Tr. 643 L. 7-13).  The bid packing itself contained all safety data pertaining to operations at Respondent's worksite (Ex. J-21(a), Tr. 689, 690).

Contractors were required to distribute copies of the "Lauhoff Safety Booklet" to their employees; Respondent supplies enough copies for this purpose (Ex. J-2(b), Tr. 241).  On November 18, 1980, Respondent sent a memorandum to contractors notifying them that each contractor would be required to maintain a log signed by its employees to indicate they had received and read the safety booklet (Tr. 241, 242, Ex. C-4(d).  Outside contractor's employees were to have read the booklet and work by the rules contained therein [[6/]] (Tr. 244, 693).  Whether the information imparted to each of contractors reached employees working the railyard is clearly left to speculation (Tr. 318, 320, 322, 378, 440, 452, 453).

Respondent held weekly meetings with its contractors to discuss ongoing projects (Tr. 247, 641, 642, Ex. R-9).  At these meetings, safety was also addressed, including problems which may have arisen but were not covered by the written safety materials (Tr. 247, 248, 263).  Other meetings were held at which time safety was discussed and material handed out to remind the contractors to comply with Respondent's safety program (Tr. 336, 348, 349, 641, 642, Ex. R-9, C-4(c) Item 5, 8).  In particular, Respondent's blue flag system used on the rail switching area was discussed with the outside contractors as late as December, 1980 and January, 1981 (Tr. 694).  According to Respondent's witnesses, depending on the seriousness of an infraction, it had required that a contractor's employee be removed from the job or be permanently barred from working at Respondent's worksite (Tr. 214, 239, 651, 695, and 696).

Respondent expected the contractors, in their performing construction work at the worksite, to work around Respondent's own production needs, unless the bid package stated otherwise, at which point the Respondent was to turn over an area to the contractor for a specified amount of time (Tr. 257).  If a contractor needed to take a portion of the plant out of service temporarily, it would contact Respondent's "New Work Supervisor" (Tr. 258).  The New Work Supervisor would then contact the supervisor of the department involved to see if the contractor could be accommodated; if the contractor could not be accommodated, it would not get access to the area at that time (Tr. 258).  If, after the New Work Supervisor had agreed that a contractor could place equipment in a particular location, Respondent found that it required the use of the area for rail movement, the contractor was obligated to move its equipment.  Respondent would then pay "railroad interruption time" for the time needed to move the contractor's equipment out of the area and then back again (Tr. 279).

In performing the construction work at Respondent's worksite, in particular that work being done from the rail switching area, a crane had to be placed near building 203; this required that it be placed onto switchyard tracks.  The first crane so employed was that owned by Ellington Miller.  This crane was placed in an area around tracks 16 and 17 and the crossover track (Tr. 426).   The crane thus situated interfered with cars entering and leaving building 203 (Tr. 426).  If Respondent wanted to bring a car through on track 17, the loaders would inform an Ellington Miller representative that it had to move the crane out of the way (Tr. 427).  The crane was then moved.  When the rail car movement was completed, Ellington Miller would return the crane to the same location (Tr. 427).  The crane was then positioned for a 5 to 10 day period.  No blue flag or derailer mechanism was placed on the tracks during that period the crane was located on tracks 16 and 17 (Tr. 429).

Due to the many interference's with Respondent's production schedule, and its concerns for paying Ellington Miller the railroad interference time, another smaller crane was brought in to replace the first (Tr. 426-427, 458).  This second crane, a smaller truck crane, was brought to Respondent's worksite on December 16, 1980 [[7/]] (Tr. 294).  This crane, hired from O'Neill, was first used on December 17, 1980 (Tr. 295).  The exact location of where to place the crane was left to the operator of the crane since he knew the crane's capabilities (Tr. 472).   Placement of the crane, however, was conditioned upon the provision that the crane's outriggers stay clear of the tracks, so that a rail car passing on the east side would not hit the outriggers of the crane (Tr. 318, 445, 492).

The second crane was not left on the tracks throughout the project.  Each night the crane, after its use, was moved out of the work area.  It would be moved back into the work area for use on the next day (Tr. 58, 59, 315, 316, 317, 396).  The crane was usually positioned approximately twenty feet north of building 203, the bean loadout building, between tracks 15 and 16 (Tr. 293).   The outriggers of the crane, used to stabilize the crane when the boom is in service, were fully extended (Tr. 305, 307).  Two of the outriggers were placed in the gauge or open area between the two metal rails of track 15.  The other two outriggers were positioned in the gauge of track 16 (Ex. C-1-3 through C-1-10, C- 40, C-42).  The crane body was positioned over the field or area between tracks 15 and 16 with the rear or south outriggers against a pile of debris on track 15 (Tr. 296, 298, Ex. C-1-3, C-1-4 and C-1-5).

The crane was first used on December 17, 1980 and then again on January 12, 13, 14 and 21, 1981.  Each time it was used it was located in the exact same position in the switchyard (Tr. 161, 298, 326).  Each time the crane was positioned, the four outriggers were extended, two each on tracks 15 and 16 (Tr. 159).  A forklift truck was always used in conjunction with the crane and was therefore required to position itself in and about the network of tracks near the crane.   No blue flag or derailer was employed on tracks 15 or 16 at anytime during the above mentioned period when the first or second crane was used in conjunction with work on building 205.

The forklift truck used in connection with the crane was 20 feet long and 8 feet wide; it traveled in and around the entire construction area (Tr. 311-313, Ex. C- 20).  It would usually be positioned somewhere around the area of the crane (Tr. 311, 313). While assisting the crane, the forklift would often be directly north of the crane or to the east where steel was being hooked (Tr. 311, 312, 324).  Due to the length and width of both the forklift and the crane taken together, considering the very narrow open space between tracks 15 and 16, both pieces of equipment would have been inside or, at most, within a foot or two of the gauge of tracks 15 and 16 whenever they were being used at or around building 205 (Tr. 311-312, 318).

Employees of Ellington Miller, O'Neill and other contractors had an access route, authorized by Respondent, across the southern sections of tracks 11, 12, 13, 14, 15, 16, and 17 (Tr. 437-438, Ex. C-9, line E).  The access route was used to move equipment, including the crane, across tracks and into position for work or to bring supplies in and out of the area (Tr. 252, 261).

On days the crane was to be used, Ellington Miller would notify the New Work Supervisor, a member of Respondent's management, that the crane would be moving into position across the access road (Tr. 437-438).  The new work supervisor would then notify bean plant supervisor, who in turn, would notify the switching crew that the crane was being moved into position (Tr. 143, 144, 184, Ex. C-19).

When the switching crew responsible for track 15 and 16 was notified that the crane would be working, they moved cars north on track 15 to permit the crane to enter (Tr. 144, 184, Ex. C-19).  They did not clear the track of railroad cars but moved them far enough north to create what they considered ample clearance for a work area (Tr. 144, 185).  The crew never had to move cars north on track 16 to make room for the crane because the crane was positioned on the normally unused section of track 16.

The entire time that the crane worked on tracks 15, 16 and 17, from October 1980 to January 21, 1981, switching and production in the bean plant continued uninterrupted and tracks 15 and 16 were used in the same manner as they had been used prior to setting up the construction project (Tr. 129-130, 144).

Respondent's employees had observed the crane in the area of tracks 15, 16 and 17 in January, 1981 (Tr. 56, 57, 280, 281).  It was large and could be seen from a distance (Tr. 57).  Respondent's employees had also seen the Hyster forklift hired from O'Neill moving back and forth, placing structured steel in position for the crane to hoist (Tr. 57, 312).

Railroad interruption time would be paid by Respondent if the access route to the Ellington Miller work area had been blocked by trains (Tr. 437-438).  After December 17, 1980, Respondent paid no interruption time to Ellington Miller since Respondent considered that it had moved cars far enough north to create a work area each time the crane was to be used (Tr. 250, 252, 254, 265-266).   Respondent did not wish to "blue flag" out tracks 15 or 16, or any substantial part of them, in order to avoid any accidental or unintended movement of rail cars into the work area since to do so would disrupt its production schedule.

E.  Respondent's Control of the Worksite

During the construction process, Respondent exercised control over the switchyard, which included the worksite, observed work being performed within that area, and retained authority to remove any employer from the worksite for violation of its own safety rules, as well as OSHA regulations (Tr. 395, Ex. C-40C).  Once contracts were entered into between Respondent and the contractors, and work let out, its New Work Supervisor, its Safety Director, and some of its other management employees, would schedule and coordinate the construction work.  They would control placement of equipment, enforce safety rules and generally exercise control over the construction area.  Respondent controlled the train traffic into the construction area, and all of its own train movements were under its direct control; control of movement of N&W trains was done by that railroad (Tr. 134, 152).

Respondent controlled train crew rules and operations.  During the period of construction, train crews continued to be limited to two employees; blind pushes, which included up to six cars, were regularly made into the construction work area (Tr. 129-130, 134, Ex. C-19).  Respondent continued normal production with its need for train traffic in the construction area.  Respondent continued to use its entire rail switchyards in the same manner, and at the same production level, during construction as before (Tr. 144, 148, 149).

Respondent required all contractors to give priority to Respondent production requirements over the needs of the contractors (Tr. 54, 257, 259, 457-458).  All contractors were informed by Respondent that they had to work around Respondent production schedule and that if Respondent's production and the contractor's work were in conflict, production took precedence (Tr. 54, 257, 259).   No contractor was permitted to interfere in any way with production without prior permission from the New Work Supervisor Dean Holycross (Tr. 431, 457, 458).

In November 1980, Dean Holycross determined that costs were increasing from the inability of Ellington Miller to perform work due to frequent delays caused by train traffic (Tr. 251-252).  On these occasions Ellington Miller had been unable to get the crane into position, or had been required to move the crane off the tracks, to permit use of track 17.  Holycross then ordered and required Ellington Miller to notify him, personally, when access to the jobsite was needed so that he, in turn, would have railroad cars moved far enough north to allow access to the crane (Tr. 252, 261).  Thereafter, Ellington Miller notified Mr. Holycross each time they were required to move the crane into the work area on tracks 15, 16 or 17 (Tr. 256).   Ellington Miller was required to coordinate with Respondent regarding placement of the crane (Tr. 147, 258, 261, 277).  The decision making authority to allow Ellington Miller to position the crane was held by Respondent's supervisor Holycross (Tr. 147, 258, 261, 277).  Additionally, Respondent created access routes across railroad tracks into the construction area for all contractors (Tr. 252, 261, 271).  With this arrangement, Respondent was again able to move its rail cars on tracks 15, 16 and 17 with the same alacrity as it had before the construction activities were brought to the worksite.

All during the period that construction activities at Respondent's worksite took place, as above described, and including January 21, 1981, the placement of the blue flag on the rail tracks, as affected by location of the crane, had to be coordinated between the various contractors and Respondent (Tr. 676, 678, 679).  The "blue flag" procedure was apparently the only means of protection authorized by Respondent for use by the various contractors who would be working in and around the switchyard (Tr. 676, 678, 679).  Use of rail bumpers or derailers was specifically coordinated by Respondent; their use was never affected (Tr. 237).  In fact, it was Respondent's practice that trains would not be operated on tracks where a derailer would be, or had been, placed; this, not unexpectedly, had an adverse effect on its possible use in the main switchyard (Tr. 157, 158, 159).   Respondent maintained tight control over the use of its tracks with particular emphasis being placed on eliminating any interference in their use, since such interference would have a significant adverse impact upon the production activities at Respondent's plant (Tr. 261-263).

Significantly, Respondent was fully aware of all activities carried on by the contractors engaged in construction activities and made it a point to observe the condition of its switching facilities, the location of the contractors equipment, and the construction activities itself, as they all might possibly impact upon rail car switching activities (Tr. 147, 258, 261, 277, 651, 657).  The use of derailers was not encouraged or promoted, by Respondent, for use by contractors who might have equipment or employees working on or near tracks where injury could result from movement of Respondent's rail cars (Tr. 237, 268-269, 429, 434, 435).   Understandably, construction employees could not be expected to be familiar with railroad operations, including the use of a blue flag or derailer (Tr. 1388, 1390).

The use of a derailer is a positive means of stopping the unintended or uncontrolled movement of a rail car by dislocating and grounding it from the rail (Tr. 1394).  A derailer [[8/]] or bumper block [[9/]] is a standard operational piece of equipment, and their use is a standard practice in rail activities (Tr. 1361-68, 1394).  With respect to the use of the derailer, we find that since the speed of the cars pushed in the Respondent's switchyard was approximately 5 miles per hour or less, little travel by a grounded car could be expected (Tr. 1360, 1361, 1364).  Aside from the intended dislocation of the rail car from the rail, no other adverse effects could be expected from use of a derailer; this is particularly true in the instant case (Tr. 1297, 1312, 1329, 1361, 1364, 1368, 1390, 1391).  The positive protection from derailers afforded repair or construction employees working in or around a rail switchyard, such as the construction employees involved in the instant case, from the unanticipated movement of rail cars, could not be duplicated by implementation or use of a blue flag rule (Tr. 1318, 1319, 1324, 1325, 1330, 1331).  Concerning bumper blocks, they are traditionally used at the end of tracks and are not the type of devices generally found in the middle of a railroad track (Tr. 1374, 1394).

All during the construction period, the tracks were used and switched by Respondent, and the Norfolk & Western, as if the construction work were not ongoing (Tr. 129-130, 262).  Six cars were stored on track 16, despite the fact that a crane and a forklift were in operation only a few feet south (Tr. 179, Ex. C-19).  Cars continued to be pushed blind on tracks 15, 16 and 17, despite the work area and the presence of an authorized access road (Tr. 129-130, 252, 261-262).  This production activity continued in complete disregard of the hazards being created for employees of Respondent, Ellington Miller, O'Neill and various other contractors in the area.  Respondent never requested or ordered Ellington Miller or O'Neill to blue flag any railroad track, nor did it reprimand any contractor for its failure to derail or blue flag a track, notwithstanding its previous declarations about safety at construction and safety meetings; this was also in complete disregard of its own stated and written safety program, and its construction bids and contractual provisions relating to safety observances.

F.  The January 21, 1981 Fatality

On the early morning of January 21, 1981, the crane was stored between tracks 12 and 13 (Tr. 316).  John Berry, the bean plant supervisor, had been notified by others of Respondent's management that the crane was going to be placed in its usual working position between tracks 15 and 16.  Mr. Berry then informed the loaders-switching crew to clear the access path into the area for the crane (Tr. 150, 184, Ex. C-19).  The crew moved cars north on track 15 far enough to create the work area for the crane on tracks 15 and 16 (Tr. 184, Ex. C-19).  When switching began on the morning of January 21, 1981, cars were already sitting on track 16 and cars were later coupled to these from the north (Tr. 151).  This morning there may have been some confusion by Respondent's employees as to whether both tracks 15 and 16 would be impacted by the presence of the crane (Tr. 130).

The crane was driven across the access route to its usual position between tracks 15 and 16 and was positioned by the O'Neill oiler and James Gill, the crane operator (Tr. 296-298).  The crane was placed in exactly the same position it had been placed at each time it had been used since December 16, 1980 (Tr. 161, 298, 326).  As on each prior occasion, the crane was positioned between tracks 15 and 16 (Tr. 296-298).  Two outriggers were in the gauge of each of the tracks (Tr. Ex. J-1, C-2(1), C-2(3), C-1(3) through (9) C-40).  A forklift was being operated in and around the area of the crane (Ex. C-40; Tr. 312, 325).  The forklift was operated by Mr. Ralph Bruce, an experienced crane and forklift operator (Tr. 311).   Mr. Bruce had a reputation as a safe workman (Tr. 313).  Mr. James Gill, the crane operator, was also an experienced employee (Tr. 288).

Cars were being switched on track 15 by N&W (Tr. 115, Ex. C-17).  The cars on 16 had not yet been picked up by N&W, which was to enter and pick up the cars positioned on track 16 when the track was full (Tr. 54-55).   There were five cars on track 16.  A sixth car was to be placed on the track, and this would have filled the track (Tr. 179).

During the morning Mr. Bruce was operating the forklift around the crane, he would move steel beams into position for placement by the crane (Tr. 311, 312).  Before going to lunch, Mr. Bruce parked the forklift about two feet to the north of the crane, close to track 16 (Ex. C-21(b) Tr. 325).  At that time five rail cars were positioned on track 16 in front of (north of) the forklift when Mr. Bruce parked it (Tr. 653).

At about 12:30 p.m., the switch engine pulled a loaded car north on track 17 in order to set it on track 16 (Tr. 190).  The switchman threw the switch from track 17 to track 16 and the engine with the car coupled to it proceeded backward, south on track 16 (Tr. 191).  The car was then coupled to the five cars already standing on track 16 (Tr. 653).  The switch engine then pushed the cars back so that the north-most car would make the clearance between track 17 and track 16 (Ex. C-19).  Neither Paul Bright nor Marshall Tuggle, the train engineer and switchman, could see the forklift as the engine backed onto track 16 since this was a blind push (Tr. 154, 193, 194).  No blue flag was posted anywhere.  Neither knew the forklift was parked too close to the track or that the crane's outriggers were inside the rails of track 16.  The engineer was on the east side of the train and the switchman was to his east in visual contact with each other, but both having no view of the south portion of track 16 (Tr. 154, 191-193, 200).

As the train car pushed south on track 16, both the switchman and the engineer were at the north end of the train and unable to see the last car of the train, the forklift, or the crane which were positioned at track 16 (Tr. 193-194).  At the same instant the cars neared the south end of the track, forklift operator Bruce was walking toward the forklift which was facing the last car of the train on track 16 (Tr. 81, 83).  As the last car of the train moved south, it came in contact with the forklift truck parked near the track and a few feet north of the crane, and pushed the forklift truck towards the crane.  At this precise moment, Mr. Bruce, apparently unaware of the trains movement, stepped between the forklift truck and the crane.  As the crane and forklift truck were pushed together, he became caught between them and was crushed to death.

One of Respondent's employees, who was near the area heard the cries of Mr. Bruce, saw the situation and began to run back north shouting "Stop the train!" and waving his clip board (Tr. 86).  He got the switchman's attention, who in turn shouted to the engineer in the switch engine to stop and then to pull forward (Tr. 81-87, 154, 192).  This was done immediately.   Unfortunately Mr. Bruce was severely injured and died from the effects of being crushed between the forklift and the crane.  The stopping of the train came too late.

Respondent duly reported the fatality to the Area OSHA Office.  The fatality report then prompted a fatality investigation by OSHA of Respondent's worksite.  This resulted in the issuance of the instant Citation.

Before discussing the merits of the case and whether the Complainant established by a preponderance of evidence whether a violation, as alleged, existed or not, it will be necessary to discuss several affirmative matters raised by the Respondent in defense to the Citation.

CONCLUSIONS OF LAW

I.  The Cited Standard 29 C.F.R. ¶ 1910.176(f) Was Allegedly Unenforceably Vague.

Respondent argues as its first affirmative defense that 29 C.F.R. 1910.176(f)[[10/]] is unenforceably vague, ambiguous and inconsistent in that it fails to communicate the conduct it wishes to prohibit.   Respondent points to the phrase "rolling car" contained in the standard as being the focal point of its challenge and the linchpin of its argument.   Respondent argues that this term is unclear as to how and in what manner it is to apply since the phrase "rolling car," which is crucial to understanding the standard, could be interpreted is a noun describing a car capable of being rolled, whether or not in motion at any given time, or it could be an adjective describing a car that is actually moving.  It is in this setting that Respondent indicates the regulation is without any common meaning.

Respondent in support of this argument points to a grant of a variance to Fisher Mills, Inc., published in the Federal Register, wherein the Secretary stated "a rolling car is a car moving freely and is to such a situation that the standard is addressed" 39 Fed. Reg. 1676, 1677.  Respondent points out that this definition was used by a Commission Administrative Law Judge in vacanting a citation alleging a violation of 1910.176(f) against Cargill Inc. for its failure to use derails and/or bumper blocks in connection with switching operations comparable to Respondents Cargill, Inc., 1979 CCH OSHD 24,034 (Docket #78-3110, 1979).  Looking to the testimony of the witnesses in the instant case, who were associated with railroading, we find different thoughts as to the meaning of the term rolling car (Tr. 524, 526, 700, 701, 717).

We do not find the variance or case cited by Respondent helpful in this case for the simple reason that each matter, ie., the instant case, the variance proceeding, and the cited case, had their own particular factual situation which finds no analogous element to one another, to the instance legal argument, and to the factual content of this case [[11/]].  Moreover with respect to a variance, it is a procedure resorted to only if the standard in question has application to the facts of the case and, despite its applicability, Respondent seeks exemption for its specific requirements.  In effect, we find that the decision in Fisher Mills is consistent with Complainant's position herein that the requirements of 1910.176(f) are applicable to Respondent's switching operation.

With respect to the cited case of Cargill, this case relied in part upon a 1974 proposed amendment to 1910.176(f).  The proposed amendment would have permitted use of a "blue flag" as an alternative means of protection when switching operations are being carried out by a locomotive.  The proposed amendment to the standard was never adopted and thus the holding of the case has no applicability to these proceedings.

Looking to the core argument made by Respondent, we fail to discern the alleged insufficiency reached through the grammatical gymnastics exercise Respondent has engaged in, in interpreting the standard.  The standard is designed to meet a specific situation where a rail car could come in contact with another car.  Quite obviously the term "rolling car" is meant to mean a car that is currently rolling or one that could be set in motion to roll against a second car which would hazardously impact upon employees in a particular work area.  Under the definition forwarded by the Respondent one would have to adopt a meaning that only those employees who would be entitled to the protection of the standard would be those in immediate and imminent peril from a rail car out of control and rolling towards them with harm and injury a predictable result.  We believe the standard should be read in a manner comparable with its intended purpose and not antagonistic towards the conduct or hazard to which it is addressed.  The proposition forwarded by Respondent would cause the standard to essentially ignore the hazard to which it is addressed.

After careful review of the standard, we find easy interpretation and application in its meaning that derails are needed to prevent rolling cars, or the threat thereof, from coming into an area where employees are working.   We find this standard is aimed at preventing railroad cars from inadvertently being pushed upon employees who are working in or near a railroad track where harm could come to them from a rolling car coming in contact with other rail cars they are near, or into their work area, or from the rolling car itself.  We find this remedial regulation a most simple and unambiguous one, and find easy application and interpretation to the potential hazard involved.  Dieabold, Inc. v. OSHRC, 585 Fed. 2d 1327 (6th Cir. 1978); Vance Construction v. Donovan, 723 Fed. 2d 410 (5th Cir. 1984).

It is axiomatic that when considering remedial legislation such as the Act and its implementing regulations, the purported vagueness of a standard is judged not on its face but rather in the light of its application to the facts of the case.  Faultless Division v. Secretary of Labor, 674 F. 2d 1177 (7th Cir. 1982); PBR, Inc. v. Secretary of Labor, 643 F. 2d 890, 897 (1st Cir. 1981); McLean Trucking Co. v. OSHRC, 503 F. 2d 8, 10-11 (4th Cir. 1974).   Moreover, the regulations will pass constitutional muster even though they are not drafted with the utmost precision; all that due process requires is a fair and reasonable warning.  Allis-Chalmers Corp. v. OSHRC, 542 F.2d 27, 30 (7th Cir. 1976).  It is clear the imposition of use of a derail is for the purpose of preventing railroad cars from inadvertently rolling into a work area creating a danger to employees in that work area.  It matters not that the railroad car was at rest, or rolling, as long as it had the potential to roll into the area and cause a hazard.

The application of 29 C.F.R. 1910.176(f) to the hazard depicted in this case is clear and unambiguous.  Moreover the readily apparent nature of the hazard involved in the instant case makes application of the standard easily discernable by anyone working, or tangentially involved, in rail activities.  This presupposes any claim of vagueness and the standard is found fully enforceable.

One last point does bear mention, in this case Respondent itself recognized the need for derailers in that it used them in an area where employees were engaged in working on rail cars.  It is difficult to find the logic or sincerity within Respondent's argument that a standard requiring derailers to protect employees occupying, as a worksite, active railtracks is vague and unenforceable.  We do not find any infirmity in the enforcement of subject standard.

II.  29 C.F.R. 1910.176(f) Had No Application to the Cited Work Area.

Respondent argues that if the cited standard has any application, given its allegedly vague wording, it must be limited to locations in which employees are exposed to the hazard of free rolling cars.  Respondent argues that it does not apply to its switching operation since rail cars move only when under the control of an attached power source, i.e., a switch engine, and that other measures were taken to prevent inadvertent movement when rail cars were unattached.

Respondent represents that by reason of its switchyard set-up no car could roll uncontrolled into the work area in that there were switches which would prevent such an incident.  Moreover, according to Respondent, no cars could roll on their own since there was no incline to its switchyard and all cars are positively attached to one another, and ultimately to the switch engine, thereby alleviating any possibility of the car rolling free.  Lastly, Respondent argues that air brakes are automatically set when rail cars are detached from the locomotive thus preventing inadvertent movement.

While Respondent's argument is more factual than legal, we nonetheless find as a matter of law, as well as fact, that it must fail; we find the standard fully applicable to the operations within its switchyard.

As above mentioned the purpose of the standard is to prevent one car from rolling into another car, or into a work area, where employees may be unprotected from the hazards attributable to the rolling car.  This standard does not distinguish whether the rail car would be rolling on its own, or whether the rail car would be attached to other cars, or a switch engine, or both, when they are pushed into the unprotected work area.  To view it otherwise would leave some workers protected and other workers not at different times during the day as switching operations took place.  If one were to follow the argument forwarded by Respondent, no protection would be provided employees from the very obvious hazard of cars being unintentionally pushed by an engine into a work area where employees were found.   Additionally, who is to say whether a couple would fail, or whether brakes would give out, or whether they were ever set or could be set,[[12/]] and the impetus from a push by an engine setting a string of cars into motion rolling towards a work area where employees were located.  We find in this case multiple sources of possible unintended movements of rail cars on Respondent's switching tracks and in particular 15, 16 and 17.   The N&W movement of rail cars together with Respondent's own movement of rail cars makes this obvious.

As discussed above, the standard's purpose is to prevent rail cars from coming unexpectedly into a work area, whether they are pushed or whether they are rolling free.  Respondent's switchyard was indigenous, intregal and intimate to worksites which were permanent (the processing and loading facility) and temporary (the construction activities), and as such is particularly suitable to the application of the standard.  Accordingly, Respondent's argument in this regard will be rejected.

III.  Compliance With 29 C.F.R. 1910.176(f) Allegedly Presented A Greater Hazard.

Respondent argues that derails are inherently dangerous, since they are specifically designed to take the wheels of a railroad car off a track to prevent it from continuing its movement down the track (Tr. 1290).   Respondent points out that those people knowledgeable in railroad activities, including the witnesses testifying in the instant case, held that derails were "strong medicine" and a means of last resort.  Respondent further argues that derailing a car could have extremely serious consequences since the car could continue to roll in an uncontrolled manner into the work area (Tr. 513, 533, 616, 715,1360).  Respondent lists a significant number of possibilities wherein a rail car could strike employees or buildings or areas once it was derailed.  Respondent maintains that a derailing could cause the car to tip and fall over onto other employees causing injury as well as significant property damage. Respondent lastly argues that the irony of it all is that the accident could not have been prevented by the derail, and when balanced against the additional hazards, it should be relieved from complain with such standard.

Significant case law establishes the principal that the "greater hazard" defense is narrowly construed and the burden of proof lies with the employer.  Greyhound Lines-West v. Marshall, 575 F. 2d 759, 762 (9th Cir. 1978).  The Commission as well as the courts have placed a three-fold burden on employers, seeking to invoke this affirmative defense:  "[t]he employer must demonstrate:  (1) that the hazards of compliance are greater than the hazards of non-compliance, (2) that alternative means of protecting employees are unavailable and (3) the unavailability or inappropriateness of obtaining a variance."   PBR, Inc. v. Secretary of Labor, 643 F.2d 890 (1st Cir. 1981); Noblecraft Industries, et al v. Secretary of Labor, 614 F. 2d 199, 205 (9th Cir. 1980).

We find little credible evidence by Respondent that use of derails would present such hazards as is alleged.  The expert witness in this case testified that in using a derail a car would move less distance if it was derailed then if it remained on the track (Tr. 1394), and that use of a derail would create a safer work environment for employees in a work area in which an unattended car could roll freely or be pushed by a locomotive (Tr. 1297, 1312, 1327, 1328, 1329).   We find common use of derails in railroad yards themselves (Tr. 1391).  We find no credible evidence that established that a rail car would tip over if it were derailed in Respondent's switchyard.  This is particularly true since the cars move no faster than 5 miles per hour and at that speed a car would simply be derailed onto the ground stopping its movement at the point of the derail (Tr. 1297, 1312, 1329, 1360, 1361, 1364, 1390, 1391).  The overwhelming evidence in the case proved that car derailment through use of derailers would not present a greater hazard to employees but in fact, was a means to accomplish a positive stop to the movement of cars into the work area sought to be protected by the use of the derail itself.

We find, as earlier mentioned, Respondent's blue flag rule no substitute for the positive protection of a derailer.  Accordingly, since Respondent failed in all regards to carry its three-fold burden, and since as a matter of fact we find derailers not to present a greater hazard, Respondent's argument, notwithstanding, is herewith rejected.

IV.  Use of Derails and Bumper-Blocks Would Allegedly Be Functionally Impossible

Respondent argues that use of a derail and bumper blocks would render much of its track area useless and would seriously interfere with the loading operation.  This would subject Respondent to gross inefficiency of operation and enormous economic hardship. (Respondent's Post-trial Brief p. 55) With regards to bumper blocks, we find bumper blocks not to be the type of device which lends itself to the issues in this case and as such not required under the Citation issued herein.  However, we do believe Respondent errors in challenging use of the derails as something being impractical by reason of the fact that it may interfere with its rail activities in its switchyard.

Derails are portable and as such their use is easily applicable to the situation at Respondent's worksite.  They are not cumbersome devices, as made out by Respondent, but devices which are easily transportable and can be installed and moved by a single employee (Ex. C-10a).

We find Respondent's argument to be more in the nature of one alleging imposition or inefficiency or inconvenience.  Significant case law holds that these reasons are not within the scope of proof of the defense of impossibility.

In order to establish the defense of impossibility Respondent must bear the burden of proving that (1) compliance with the standard was functionally impossible or would preclude the performance of work, and (2) that alternative means of employee protection were unavailable or were in use.  F.H. Lawson Co., 1980 CCH OSHD 24,277; M.J. Lee Construction Co., 7 BNA OSHC 1140, 1979 CCH OSHD par. 23,330 (1979).  Notwithstanding who's burden it was to demonstrate impossibility or possibility, this record well demonstrates that use of a derail was a realistic and reasonable method to guard the south part of tracks 15 and 16 for employees who occupied same as a work area.  Respondent never proved otherwise with any compelling evidence.

The construction activities carried on on behalf of Respondent required that employees work on the south part of tracks 15 and 16. Access was provided by Respondent to this work area and part of track 15 and 16 was allegedly placed out of commission in any event.  That a derailer would have occupied some of Respondent's workable track area does not make the use of derail impossible. Hughes Brothers, Inc., 6 BNA OSHC 1830, 1978 CCH OSHD par. 22,909.  True Respondent may not be able to store six rail cars onto a rail protected by a derailer which had been placed there for the benefit of employees working in the construction zone. This fact, however, will not carry the day for Respondent on the issue of impossibility, especially in view of the fact that had a derail been used initially the accident would not have occurred.

We fail to see use of a easily portable derail as an impossible task by Respondent to protect employees who worked on the south part of tracks 15 and 16.  It should also be brought to mind that the location of the crane never did block full use of track 16 since no traffic was ever intended to go beyond the crane.  Track 16 ended, for all practical purposes, at that point where Respondent held the track to be "pegged out..." a point north of the location of the crane.   A derailer could have been placed a bit further north of the area which had been "pegged out" and thus no more than a temporary inconvenience to Respondent would have resulted from taking out of service a small part of track 16.  As a matter of fact and law, we find no merit to Respondent's argument that compliance with the standard was impossible.

V.  Respondent Allegedly Neither Created Nor Controlled The Hazardous Condition Which Prompted The Citation.

Respondent argues that it did not create nor did it control the alleged hazardous condition.  It argues that the work area was a multi-employee worksite, that it was a non-controlling employer which took realistic measures as an alternative to literal compliance to protect employees (i.e., the blue flag rule).  Respondent specifically relies on the holding in Anning-Johnson Co., 4 BNA OSHC 1193, 1975-1976 CCH OSHD ¶ 20,690 (1976) and Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1975-1976 CCH OSHD ¶ 20,691 (1976).  Respondent argues that responsibility for the accident lies with the employer of the deceased employee because the work area in which the employee worked changed from minute to minute and thus it was not controlled by Respondent. We find Respondent's argument fatally deficient as a matter of fact and law.

We find the Anning-Johnson defense not applicable to Respondent for several major reasons:  First, as a matter of fact, as above discussed, Respondent both created and controlled the hazard.  Second, Respondent acted as a general contractor, in effect, and is therefore responsible under the Act.  Thirdly, even if the defense were available, Respondent failed to prove that it provided adequate alternative protection or, that it could not, with the exercise of reasonable diligence, have known of the violation.

Respondent cannot invoke the claimed defense unless it proves that it neither created nor controlled the hazardous condition. Central of Georgia Railroad Co. v. OSHRC, 576 F. 2d 620 (5th Cir. 1978); New England Telephone & Telegraph Co. v. Secretary of Labor, 589 F. 2d 81, (1st Cir. 1978); Marshall v. Knutson Construction Co., 56 F. 2d 596, (8th Cir. 1977).   The Anning-Johnson multi-employer worksite defense is available only to a sub-contractor who did not create and did not control the hazard and who lacked the ability to abate that hazard.  Cotner and Cotner, 6 OSHC 1163, (1977).   Respondent failed to meet this criteria since it was the controlling employer whose relationship to its other contractors was like that of a general contractor.

Additionally, Respondent controlled the use of the blue flag rule and/or derails, and it was the only authority which could authorize use of the blue flag or derail in a manner which would take a track out of service.  It essentially created the hazard (holding control over abatement of the hazard) by continuing switching operations immediately adjacent to the work area on tracks 15 and 16.   Its continued blind pushes of six rail cars towards the construction area essentially was the instrumentality which caused the hazard of railroad cars entering an unprotected employee work area.  As such, Respondent's argument that it neither created nor controlled the hazard is rejected.

VI.  Respondent was not contradictionally responsible for the violation or abatement.

Respondent argues that by virtue of its construction agreements it placed responsibility on the various contractors to follow the OSHA standards.  Respondent points to its bid request package, bid meetings, and various safety handbooks provided contractors to demonstrate that if derails were indeed required, for separation of the two work areas, (i.e., crane work area - switching work area), responsibility, as a matter of law and contract, and common sense and practice, was with the employer of the employees involved and not with it.

It is axiomatic that it is the Act, and not a contract or contractual relationship, that is the source of an employer's responsibilities for its employees safety and for avoiding hazards to which employees are exposed.  PBR, Inc. v. Secretary of Labor, supra; Central of Georgia Railroad Co. v. OSHRC and Marshall, 576 F. 2d 620, 625 (5th Cir. 1973).  See also:  Frolic Crane Service, Inc. v. OSHRC, 521 F. 2d 628, 631 (10th Cir. 1975).  We find adequate evidence in this record to establish Respondent's responsibility for hazard abatement both in the construction work area and throughout its switchyard.

The record, as earlier discussed, established that Respondent, as owner and coordinator of the project, exercised considerable control over the workplace.  The Respondent had the ability to effect abatement and held a position "akin to that of a general contractor;" therefore the responsibility to abate falls upon Respondent as it would on any general contractor regardless of contractual agreements.  Red Lobster Inns of America, Inc., 8 BNA OSHC 1762 (RC 1980) 1980 CCH OSHD p. 24,636; Harvey Workover, Inc., 7 BNA OSHC 1687, (1979 RC) 1979 CCH OSHD p. 23,830.  Lastly the Commission has held, as in the case herein, that an employer is responsible for violations of other employers where it could be reasonably expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.  See Gil Haugan, Red Lobster Inns of America, Inc., supra; 7 BNA OSHC 2004, 1979 CCH OSHD ¶ 24,105; Knuston Construction Co., 4 BNA OSHC 1759, 1967-77 CCH OSHD ¶ 21,185 (No. 765, 1976), aff'd 566 F. 2d 596 (81th Cir. 1977).  Respondent's argument in this regard is rejected.

VII.  Complainant's Alleged Failure to Conduct a Reasonable Inspection or Investigation and the Alleged Denial to Respondent of Its Walk-around Rights, in Violation of Section 8 of The Act and The Regulations Promulgated Thereunder, Rendered the Citation Void.

Respondent argues that Sections 8(a) and 8(e) of the Act which are mandatory and not merely directory, require that OSHA inspectors present "appropriate credentials to the owner" before commencing an inspection and that a representative of the employer shall be given an opportunity to accompany the [inspector] during the physical inspection of any workplace...for the purpose of aiding such inspection" 29 U.S.C. § 657(a)(e).  Respondent cites as authority, Chicago Bridge & Iron Company v. Occupational Safety and Health Review Commission, 535 F. 2d 371 (7th Cir. 1976).

Respondent maintains that the cited cases require dismissal of the Citation since the Compliance Officer failed to present his credentials upon arrival at Respondent's worksite, did not conduct a formal opening conference, a formal closing conference, and an onsite inspection.  Additionally, Respondent lists a series of reasons why the inspection should be considered wanting in completeness.  We find little merit, as a matter of fact and law, to Respondent's argument that the inspection was procedurally inadequate and formed the basis for dismissal of the Citation.

The Compliance Officer, under the circumstances of the case, substantially complied with the requirements of Sections 8(a) and 8(e) of the Act, 29 U.S.C. Section 657(a) and Section 657(e).  He conducted an opening conference and an investigation which solicited information from Respondent, other employees involved and hourly employees of Respondent (Tr. 490-500).  Respondent had removed the equipment involved in the accident prior to the Compliance Officer's arrival, and on this basis, the Compliance Officer had decided it was not necessary to go to the area to conduct an onsite investigation, which in any event is of no legal consequence.

Respondent was in no way prejudiced in the presentation or preparation of its defense by the alleged failure of the Compliance Officer to strictly comply with the procedural requirements of Section 8 of the Act by a show of his credentials or in any other manner.  Respondent knew full well who the Compliance Officer was (Tr. 430, .484).  Respondent adduced no evidence at the trial of any prejudice suffered due to the Compliance Officers failure to do an onsite inspection.  The safety director of Respondent conducted an accident investigation immediately after the fatality and before the OSHA investigation.  Management officials were present during the coroners investigation.  In fact, members of Respondent's management were actual witnesses to the fatality. Under the circumstances, we find that no prejudice could flow to Respondent from any alleged procedural violation of the Act whether real or imagined.

Assuming there was some procedural problem in the investigation, we still find no reason to vacate the Citation.  An agency's procedural failures will not vitiate regulatory actions absent a specific showing that the complaining party has been concretely prejudiced thereby.  United States v. Pierce Auto Freight Lines, 327 U.S. 515, 528, 530 (1946); National Roofing Contractors Association v. Brennan, 495 F.2d 1294, (7th Cir. 1974), cert denied, 419 U.S. 1105 (1975); City of Chicago v. F.P.C., 458 F.2d 731, 745-748 (D.C. Civ. 1971).  This rule of harmless error or procedural error rests upon policies which are particularly applicable to the OSHA statute which should be entitled to a liberal construction to afford maximum protection to employees it seeks to protect.  See:   Whirlpool Corp. v. Marshall, 445 U.S. 1, 13 (1980); Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717, 721 (4th Cir. 1979); Southern Railway Co. v. OSHRC, 539 F.2d 335, 388 (4th Cir.), cert denied, 429 U.S. 999 (1976).  Respondent has failed to show any prejudice to its case.

VIII.  The Complainant Should Allegedly be Dismissed Because It Was Served Out of Time

Respondent's last argument, as an affirmative defense to the Citation, is that the Complaint should be dismissed since it was filed twenty days after receipt of the Notice of Contest.

The Secretary filed its complaint in the instant case nine (9) days beyond the period for filing required by Commission Rule 33(a)(1).   Commission law is clear that a Citation should not be vacated unless the noncompliance results from contumacious conduct or causes prejudice to the opposing party.   Refractory Construction, Inc., 9 BNA OSHC 1192, 1981 CCH OSHD ¶ 25,088; Henry C. Beck Co., 9 BNA OSHC 1191, 1981 CCH OSHD ¶ 25,087.  Respondent relies upon TRG Drilling Corp., 1982 CCH OSHD ¶ 25,837 for the proposition that Respondent need show no prejudice in order to warrant dismissal of the action.  TRG Drilling, however, specifically recites a two prong test to claim this defense:  contumacious action or prejudice to Respondent (1982 CCH OSHD at 32,319).  In TRG Drilling the Secretary filed the complaint 39 days out of time, failed to respond to a Motion to Dismiss, and made no assertion of a good faith reason for late filing.  The majority opinion therefore upheld the Administrative Law Judge's finding of contumacious conduct on the part of the Secretary.

Respondent in the present case made no motion to dismiss, but proceeded to trial without pursuing the issue of late filing in any manner and at trial offered no proof of prejudice at all.  Furthermore, there being no prejudice to Respondent shown, and there being no contumacious conduct by Complainant's late filing, ordinary due process and fundamental fairness require rejection of Respondent's argument.

ALLEGED VIOLATION OF 29 C.F.R.-1910.176(f) - ROLLING RAILROAD CARS

The burden of proof lies with the Complainant in establishing a violation of a particular standard.  In cases dealing with serious violations of a standard, the Commission and courts have translated that burden into the Secretary being required, as part of his prima facie case, to establish the following facts:  (1) that a particular standard applies to the facts, (2) that the cited employer failed to comply with the standard, (3) that the cited employer's employees had access to the hazard, and (4) that the employer knew or with the exercise of reasonable diligence could have known of the presence of the violation.  Seaboard Foundry, Inc., 11 BNA OSHC 1398, 1983 CCH OSHD 26,522, 1981 CCH OSHD ¶ 25,358, 9 BNA OSHD 1864; General Electric Co., 19 BNA OSHD 1722, 1981 CCH OSHD ¶ 25,345; United Geophysical Corporation, 9 BNA OSHC 2117, 1981 CCH OSHD ¶   25,579; Marion Power Shovel Corp., 8 BNA OSHC 2244, 1980 CCH OSHD ¶ 24,915; Brennan v. OSHRC and Raymond Hendrix d/b/a/ Alesa Lumber Co., 511 F. 2d 1139 (9th Cir. 1975); S & H Riggers and Erectors, Inc. v. Marshall, 650 F. 2d 1273 (5th Cir. 1981).   We find that the Complainant has not only made his prima facie case but has met his burden in preponderating on the issues involved in establishing a violation of the standard and Act by the Respondent.

In the instant case the cited standard, 29 C.F.R. 1910.176(f), had particular application to the facts of this case in that Respondent's switchyard was integral to and terminated in a material handling and storage facility, i.e., Respondent's grain processing operation.  A temporary construction work area that adjoined the processing facility was situated on and between tracks 15 and 16 of Respondent's switchyard.  Employees were in need of protection from the hazards of rail cars unexpectedly coming into the work area on tracks 15 and 16.  (pp. 13, 16-19, 24-26, supra).  The cited standard required, in applicable part, that a "...derail ... be provided on spur railroad tracks where a rolling car could contact other cars being worked (or) enter a... work ... area."  No such derail was provided all during the period of construction for the worksite located on or proximate to the tracks where switching took place.

In the instant case we find that Respondent unequivocally controlled the operation of the rail switchyard where the accident, resulting in an employee's death, took place.  Rail cars were continually moved and switched from one track to another, notwithstanding the temporary construction site.   Respondent kept tight control of the movement of its locomotive and all rail cars. It had close supervision of the rail switching facilities.  The facts showed that virtually nothing took place at the switchyard without Respondent's knowledge, supervision and acquiescence.  (pp. 15, 19-22, supra.)

Significant emphasis was placed by Respondent on keeping its switchyard fully operational since any disruption in the ability to move filled or empty rail cars, to and from its processing building, would result in a significant interruption in its processing activities (pp. 15, 16, 18, 19, 20, 21, 22, 24, supra.)

To this end the placing of a rail track, which was used to directly or indirectly handle or supply product to one of its processing buildings, out of service or partially out of service was unacceptable to Respondent.   Such tracks were tracks 15, 16 and 17, used to shift empty and full rail cars inconjunction with its processing activities.  Significant testimony in this case indicated that any obstruction to these tracks would be closely supervised and managed by Respondent.  Use of a blue flag or derail to take a portion of or the entire track out of service had to be coordinated and cleared through Respondent's management personnel.  (pp. 20, 21, 22, supra).  Accordingly, with Respondent's uncompromising emphasis on keeping the production rail tracks clear (pp. 16, 20, 21, 24, supra) use of derails or blue flags was effectively curtailed in the construction areas, or in rail areas which could have kept switching activities reasonably distant from that work area.

In narrowing the factual issues of this case we will primarily concentrate on that construction work area which comprised the south end of tracks 15 and 16, notwithstanding that construction work crews were located on other tracks within Respondent's switchyard beginning approximately in November 1980.   Employees in these work areas worked without access to derails or reasonable use of Respondent's blue flag rule.

In December 1980, after it had been determined by Respondent that a large crane operating near building 203 was significantly hampering movement of the rail cars on tracks 15 and 16, Respondent arranged for a small crane to work in this area.  On December 16, 1980 the O'Neill Company arrived with a smaller crane and with a forklift truck used to handle the structural steel in conjunction with the crane operations.  The crane and forklift truck were placed into operation on December 17, 1980 and were situated each day in essentially the same position on the south end of tracks 15 and 16 up to and including January 21, 1981, the date of the accident (pp. 16, 17, 18, 19, supra).

The layout of Respondent's switchyard is such that track 17 curved into tracks 15 and 16.  Tracks 15 and 16 were curved at its northern end.  Thus the engineer and switchman, when pushing a five or six rail car train, could not see the area where the fifth and sixth car would be pushed.  (Ex. C-9, C-40) Nor could they see much of tracks 15 and 16 when pushing cars into those tracks from track 17.  This accounted for the "blind" pushes.  No derail device was placed on the track north of the location of the crane or forklift, nor were any blue flags positioned on tracks 15 and 16 at such a point where it would be visible to the engineer if his locomotive were on the north part of track 17 at the switchover to tracks 15 or 16.  Indeed no blue flag was used at all.

Respondent was fully aware of this situation and continued to require the locomotive to push six rail cars in the blind onto tracks 15 and 16 during the period of the construction work.  Significantly, Respondent's management personnel who supervised the switchyard, processing plant, construction work and safety program were all fully aware of the crane's location, the absence of a derail and blue flag, and the "blind" pushes of up to six cars close to the work area on tracks 15 and 16.

Respondent argues that the activities of O'Neill in setting up a work area using a crane and a forklift truck, was something it was unaware of, and could not control.  We fail to recognize any credence to such an argument.   The facts show that the nature of the work required that the O'Neill crane, as well as the forklift, be in the area near building 203 occupying tracks 15 and 16 and the space between them.  It is without question that Respondent should have expected the crane or forklift truck to be closer than 8 to 8 1/2 feet to the train tracks, or the designated end of the track, since the crane itself with its outriggers extended straddled both tracks 15 and 16.  It is difficult to understand Respondent's position that on January 21, 1981 it was without knowledge of the activities of O'Neill since the crane and forklift truck were in the same location where it had been in use since December 17, 1979 and Respondent was aware that an 18 foot wide crane could not sit on track 15 without stretching onto track 16.

We find that Respondent created a hazardous work area within its facility and had a duty to inspect the area to determine the extent of hazards to which its employees and subcontractors employees would be exposed, and the necessity for protective controls to reduce or eliminate the hazard.  The Commission has held that an employer must make a reasonable effort to anticipate the particular hazards to which its employees may be exposed in the course of their scheduled work.   Specifically, an employer must inspect the area to determine what hazards exist or may arise during the work before permitting employees to work in an area, and the employer must then give specific and appropriate instructions to prevent exposure to unsafe conditions.  Southwestern Bell Telephone Co., 7 BNA OSHC 1058, (1979) CCH OSHD ¶  23,278; J. H. McKay Electric Co., 6 BNA OSHC 1947, 1978 CCH OSHD ¶ 22,494; Automatic Sprinkler Corporation of America, 8 BNA OSHC 1384, 1387-1388, 1980 CCH OSHD ¶ 24,495. Respondent had a duty to comply with the standard since the hazard was patently obvious and it was fully aware of the entire situation.  However as can be seen from the credible evidence within this record it failed in such obligation.

It is important to digress at this point and focus on the incident of January 21, 1981 to place that incident in its proper perspective with respect to any conclusions reached in this case.  The complaint correctly does not rely upon the fact of the employee's death as proof of the core issues in this case, since to do so would, in essence, make of this employer an insurer of the employee's well being and a guarantor of the employee's compliance with the safety and health standards.   Such a result has not been sanctioned by the courts or the Commission.  Brennan v. OSHRC and Raymond Heidrix d/b/a/ Alesa Lumber Company, supra; National Realty & Construction Co. v. OSHRC, 489 F. 2d 1257 (D.C. Cir. 1973).   Complainant in arguing for affirmation of the Citation, focuses upon the conditions existing at Respondent's workplace, these conditions existing from the start of construction in October 1980, and particularly since December 17, 1980, to establish the violative condition.  We agree in this view.  We further agree that the incident giving rise to the death of the employee was the result of the violative condition of noncompliance by Respondent with 29 C.F.R. 1910.137(f).

Respondent portrays the positioning of the forklift truck by the O'Neill employees as an idiosyncratic act, and his walking between the forklift and the crane, at the moment that the train pushed these two pieces of equipment together, as part of that idiosyncratic act.  We do not view the incident as does Respondent; we find that the facts show otherwise.

The accident occurring January 21, 1981, which resulted in the death of Mr. Bruce, is viewed as a foreseeable circumstance that inevitably came about after the creation of a particularly hazardous and dangerous situation at the worksite.  This accident, or some similar type accident, could not have been unexpected since Respondent's employees regularly made blind pushes of five and six railroad cars towards the construction area.  The engineer and the switchman were out of visual contact with the rearward part of their train as they pushed towards and close to the construction area.  This was done on a day to day basis and it was only a matter of time until some complication occurred.  While Respondent, in defense of the alleged violation, relies on the existence of the blue flag rule, even use of its blue flag rule would have been to no avail in protecting the construction employees.  The blue flag would have been obscured to the conductor and switchman in any event since in order to comply with Respondent's intentions and directions for placement of the flag, it would have been placed adjacent to the construction area quite out of sight of the train crew. Respondent never allowed the blue flag to be placed at a point on the track where it would always be visible to the engineer or switchman.

Had the Respondent allowed the blue flag to be placed somewhere at midpoint of track 15 and 16 perhaps the switchman and engineer could have observed same and stopped their train short, avoiding contact with the construction equipment.  This transcript is replete with evidence indicating the urgency to which Respondent mandated that it keep its track in full operation, so that it could carry out its processing activities.  All the time work crews were situated on the last quarter of two of its most active tracks and Respondent continued to have its train crews push rail cars on the tracks to their fullest capacity (pp. 17, 18, 19, 21, 22, 23, 24, 25, 26, supra).  This created a hazard which could have been abated only through use of a properly placed derail, as required by the standard.  Respondent's actions, as above described, resulted in a violation of the standard and Section 5(a)(2) of the Act.

Accordingly, the Citation herein will be affirmed.  We find that had there been initial compliance by Respondent with 29 C.F.R. 1910.176(f) when construction began, and had a derail been installed, the rail car pushed into the work area would have been derailed and stopped prior to its coming in contact with the forklift truck which was then pushed against the crane.  An employee's death would have been averted.  We find this conclusion inescapable and nothing in this record ameliorates reaching such conclusion.  Since the hazard addressed by the standard is immediate, we find the abatement time specified in the Citation reasonable and as such will be affirmed.

PENALTY

In reviewing the appropriateness of the proposed penalty, we can not help but be affected by the serious consequences that could, and did, flow from Respondent's failure to comply with the cited standard.  Respondent not only allowed the violative condition to exist all during the construction period, but indeed, created the hazardous condition.  Accordingly, after giving due consideration to those factors as set forth in Section 17(j) of the Act, the penalty will be affirmed as proposed in the Citation.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, as set out in my Decision and Order, and for good cause shown, it is ORDERED:

1.  That item 1 of Serious Citation 1 is AFFIRMED.
2.  A penalty of $900 is assessed.

Edward A. Bobrick
Judge, OSHRC
Date:  February 28, 1985
Chicago, Illinois

FOOTNOTES:

[[1]] A derail is a device attached to a rail track which, when contacted by the flange of a rail car wheel passing over it, causes the car to go off the track.  A bumper block is a heavy, solid structure placed at the end of a rail track to prevent rail cars or equipment from rolling over the ends of the track.

[[2]] There is no evidence in the record that prior to the citation Lauhoff relied to its detriment on the definition employed in the Fisher Mills variance.

[[3]] While we do not discuss the greater hazard issue with respect to derailers, we take note of testimony indicating that derailers were placed on other tracks in Lauhoff's yard.

[[4]] Lauhoff has also argued that it had alternatively protected employees by its blue flag rule.  The argument is rejected.   The cited standard clearly states that derails and/or bumper blocks are the two forms of protection to be provided against rolling cars.  The standard does not state that a blue flag may be used instead of those devices.  But even if we were to consider whether a blue flag is an adequate alternative means of protection, Lauhoff did not blue flag this track.  It continued to conduct blind pushes into a construction area.

[[1/]] Jurisdiction of the parties and the subject matter herein is confirmed upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act.

[[2/]] Rule 5 states:

"Signs and safety signals constitute safety rules and must be obeyed."

[[3/]] Rule 9 states:

"Employees shall place a blue flag on the track or turn on the blue light above the track beyond the rail car they are going to work in."

[[4/]] Building 205 is in what is known as the "extraction area" at Lauhoff (Tr. 334).  Soy bean oil is extracted from soy beans utilizing a piece of equipment called a "rotocel."  A gas, hexane, is used to extract the oil; then the hexane is evaporated from the oil, leaving the soy oil.   The hexane is recondensed and recirculated through the "rotocel" (Tr. 345).  Hexane is flammable and volatile (Tr. 345).  During the entire time Ellington Miller was engaged in construction in the extraction area, hexane continued to be pumped through lines in building 205 while Lauhoff employees continued work related activities in the building (Tr. 345).

[[5/]] Bunge Corporation is Lauhoff's parent corporation.

[[6/]] The only documents Lauhoff distributed to Ellington Miller dealing with safety were Exhibits C-4A,B,C,D, and E and Joint Exhibit 2A and 2B (Tr. 340).  Among these documents, only two safety rules in any way dealt with railroad safety, (Rules 8 and 9 of the Lauhoff Safety Rules) which stated:

Do not climb under, over, or go between railroad equipment.  When necessary to walk around railroad equipment, stay at least ten feet away from end of cars or engines, except when equipment is on loading or cleaning track and blue flag is in place (No. 8)

Employees shall place a blue flag on the track or turn on the blue light above the track beyond the rail car they are going to work in. (No. 9) (Emphasis added).

(Joint Exhibit 2B, p. 12, Tr. 340, 343-344, 350).

[[7/]] The second crane brought to the Respondent's facility was approximately 32 feet long and was equipped with a boom 170 feet high (Tr. 295, 297, 304).  The body of the crane was positioned on a truck body and was 10 1/2 feet wide (Tr. 295).  The cab of the crane was capable of rotating 360 degrees (Tr. 297).  To stabilize the crane, the crane was equipped with two stabilizers or outriggers on each side (Tr. 305, 307).  The outriggers extended 9 feet from the center of the crane to a total distance of 18 feet wide (Tr. 923-924).

[[8/]] A "derail" is a device attached to the rail of a railroad track which drives the wheels of the train car off the track and onto the gauge and ground outside the track, thus preventing the car from continuing to roll on the track.  The derail is used to prevent railroad traffic beyond a given point (Tr. 712-713, 1289).  It is an emergency device and is intended to be used only if a train car inadvertently strays or rolls beyond a safe section of track (Tr. 716).   It can be set to derail a car to the right or left of the track (Tr. 762).  A derail is a device of last resort to prevent the more serious consequences and hazards associated with unauthorized and/or controlled train car movement (Tr. 716, 1297).   Derails are often hinged so they can either be locked to derail traffic or locked to permit traffic to pass the derail point (Tr. 762).  They can be made to be easily portable (Ex. C-10-a).

[[9/]] A bumper block is a solid obstacle set between the two rails of a track.  It is used to prevent cars from going beyond a given point (Tr. 719).  Because train traffic cannot pass a bumper block, they are most often positioned at the end of a railroad track (Tr. 719-763, 876, C-40 track 17).

[[10/]] Subpart n - materials handling and storage
1910.176 - Handling materials - General

(f) Rolling railroad cars.
Derail and/or bumper blocks shall be provided on spur railroad tracks
where a rolling car could contact other cars being worked, enter a
building, work or traffic area.

[[11/]] A variance was granted in Fisher Mills for a switching operation which involved only cars moved under power of engines. Fisher Mills Company requested a variance to use flags instead of derails recognizing that 1910.176(f) was applicable to their switching operation.  The grant of variance in Fisher Mills is consistent with affirmation of the citation in the present case.  The effect of the grant of variance in Fisher Mills was to grant the variance request application to provide a different but adequate means of abatement of the hazard addressed by the OSHA regulation applicable to locomotive switching operation, 1910.176(f).  In Fisher Mills, 1910.176(f) was applicable to the kind of switching being done.  Therefore, Fisher Mills would have been required to derail or bumper its tracks unless the Secretary found that special facts in the request for variance provided employees with adequate alternative means of protection from the hazard.  We further see that the facts in Fisher Mills concerning worker protection are inapposite to the present case.  In the variance, all work on the track was forbidden during switching.  There was no work area on the track.  Switching was done only by an outside railroad and after notice to Fisher Mills management and was conducted at their direction.  Also, there were no blind pushes.  These facts and many others in the Fisher Mills matter assured the Secretary that employees would be adequately protected by means other than the use of a derail or bumper block.  The facts in the instant case in no way assure such a degree of protection.

[[12/]] Most of the cars on track 16 had been on track 17 and if the air brakes were set then they had to be removed with the total depletion of air from its system in order to switch them again.  There is no mention in the record of reconnecting the air brakes.  We must conclude none were set.