Authorized Employee Representative.

Docket No. 88-2691


Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.


The employer, Trinity industries, Inc. ("Trinity" or "the Company"), manufactures chemical processing tanks at a plant in Sharonville, Ohio. In 1988, the Occupational Safety and Health Administration ("OSHA"), of the United States Department of Labor, inspected Trinity's Sharonville plant and issued two citations, which included a four-item serious citation and a one-item repeat citation. Trinity contested both citations and the parties presented evidence to an administrative law judge of the Commission. After the hearing, the judge affirmed the repeat citation's one item, although he reduced its classification to serious and assessed a reduced penalty of $600 rather than $800. The judge vacated item 1 of the serious citation. He affirmed the remaining three items and assessed the proposed penalties, which were $700, $700, and $800 for serious citation items 2, 3, and 4, respectively. Trinity takes exception to the $800 penalty for serious citation item 4 and takes exception to the affirmance of the other two serious citation items. Trinity also takes exception to the affirmance of the one item of the citation that the judge reclassified as serious.

For the following reasons, we reduce the penalty for serious citation item 4 from $800 and affirm the remainder of the judge's decision. That is, we find violations as alleged in items 2 and 3 of the serious citation and as alleged in item 1 of the citation that the judge reclassified as serious.

I. The Merits of Citation Item 1, Reclassified as Serious

A. Background

The reclassified item alleges that Trinity failed to use screens to protect the eyes of employees "adjacent to" welding arcs. [[1]] During the OSHA inspection of the Sharonville plant, compliance officer Dennis Collins was able to view welding arcs at two locations as he walked down the main aisle of a work area. The compliance officer took a photograph of one location. The photograph does not show a welding arc, but it does show the welder at work. According to the compliance officer's testimony explaining what the photograph is intended to illustrate, he was able to view the, welding work, and any arc created by it, because there was no screen between the aisle and the welding work. Compliance officer Collins also testified that a welding arc at the other location was visible because the welding work was being performed from a ladder at a level above the screen that was in use. [[2]]

According to compliance officer Collins, the main aisle was a "high traffic area." The compliance officer further testified that Trinity's shop superintendent, Paul Vied, who accompanied him on the inspection, agreed that the existing screens were inadequate. Therefore, the compliance officer believed that there was a serious hazard of flash burns to the employees. He testified that screens need not totally enclose the welding work such that even a crane operator cannot peer in from above: "Not from that distance, I wouldn't be concerned." But he was concerned about the extent of the arcs' visibility to employees passing on the main aisle. The compliance officer did not testify specifically that he saw employees using the aisle, but the administrative law judge, Joe D. Sparks, inferred from this evidence that employees did use the aisle, could view the arcs, and could suffer flash burns.

B. Analysis

To establisih a violation of a standard, the Secretary must show by a preponderance of the evidence that: (1) the cited standard applies, (2) its terms were not met, (3) employees had access to the violative condition, and (4) the employer knew or could have known of it with the exercise of reasonable diligence. See, e.g., Walker Towing Corp., 14 BNA OSHC 2072, 2074, 1991 CCH OSHD 29,239, p.39,157 (No. 87-1359, 1991), citing Astra Pharmaceutical Prod., Inc., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD 25,578, pp.31,899-31,900 (No. 78-6247, 1981). Trinity does not dispute that the cited standard applies to the Company's operations, that the abatement method prescribed by the cited standard was not being deployed where the Secretary would require, and that the company knew or could have known of the alleged deficiencies. Trinity does dispute, however, that the abatement method was necessary to protect any employees. That is, Trinity disputes that employees had access to any hazard as a result of the alleged deficiencies in the placement of screens. In particular, Trinity asserts that the Secretary failed to show the distance of the welding operations from the main aisle, the size of the openings through which the arcs were visible, the hazard associated with exposure to welding arcs at whatever distance was involved, and whether any employees used the main aisle. In other words, the Secretary failed to show that there were "[w]orkers or other persons adjacent to the welding areas," in the language of the cited standard.

The evidence, however, is sufficient in these respects. The cited standard does not define "adjacent," but the dictionary meaning of the term is "relatively near" or "not distant or far off"; also, things need not be right next to each other or touching each other to be "adjacent," if they are not separated by similar things. Webster's Third New International Dictionary, Unabridged 26 (1986). The compliance officer's photograph of one location, depicting one welding operation as seen from the main aisle, shows that any employees who might walk down the main aisle could have been "adjacent" to that particular welding operation. The welder and some equipment next to him are plainly visible, not far away, in the middle of a room-like area that the compliance officer described as a "bay" between "columns." There are no intervening operations and no intervening obstructions to viewing the welding operation.

Particularly worthy of notice is the fact that, as Collins testified about his photograph, there was "one welding screen present on one side of the operation," but the "lack of a screen on the adjacent side" rendered welding arcs "observable from the main center bay aisle." The welding screen shown in the photograph appears to block the view of the welding operation from part of the main aisle; the screen is positioned parallel to the viewer and to his right. The viewer, however, can plainly see the employee who was performing the welding work because, immediately beside the existing screen, there is a large gap that looks at least one-half as wide, and possibly almost as wide, as the one welding screen shown in the photograph. We therefore determine from the photograph that one of the two locations of welding work lacked welding screens adequate to protect any employees from viewing welding arcs while passing on the adjacent main aisle.

Moreover, this photograph showing a welding screen at one location demonstrates Trinity's own belief that its employees could be exposed to hazards of flash burns from welding arcs visible along the main aisle, and this photograph is not the only evidence of Trinity's belief. There is also Collins' unrebutted testimony that Trinity had a screen on the main aisle at another location, although the screen was not high enough to shield the are from view. More significantly, there is the shop superintendent's acknowledgement, as reported by compliance officer Collins in his testimony, that the existing screens were inadequate at both locations. Collins' testimony regarding this admission was unrefuted, and therefore the admission constitutes proof that one of Trinity's managers who was familiar with the existing working conditions, including the use of welding screens at both locations, believed that screens were necessary and that the existing screens were inadequate to protect employees from the hazard presented by these welding operations along the main aisle. [[3]]

Collins' view that the main aisle had "traffic" enough to warrant the use of screens is,therefore,corroborate by the words of one of Trinity's supervisory personnel, and by the actions of the Company itself in deploying the welding screens that the Company did decide to use. See infra note 8. Furthermore, we accept the compliance officer's assessment of the traffic on the main aisle because it is the assessment of a reliable witness who inspected the work area and whose assessment is unrebutted. We also accept Collins' testimony that there was a serious hazard of flash burns to the employees. When he agreed in testimony that screens would not be needed overhead to protect any crane operators, he demonstrated awareness that distance reduces the hazard. We therefore accord dispositive weight to his judgment that there was a hazard to employees passing on the main aisle; his judgment is that of an informed safety professional. Accordingly, we find that Trinity's employees had access to the hazardous conditions, see Gilles & Cotting Inc., 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD 20,448. p.24.424 (No. 504, 1976), and affirm the judge's decision affirming the citation item. The violation was serious, based on the compliance officer's testimony that viewing a welding arc can produce a burn on the outer layer of the eye. Compare Vanco Constr., Inc., 11 BNA OSHC 1058,1061-62 1983-84 CCH OSHD 26,372, p.33,454 (No. 79-4945, 1982), aff'd, 723 F.2d 410 (5th Cir. 1984) (serious physical harm is substantially probable in view of the "delicateness of the eye"). The judge's assessment of a penalty of $600 is appropriate. Nacirema Operating Co., 1 BNA OSHC 1001, 1003, 1971-73 CCH OSHD 15,032, p.20,044 (No. 4, 1972) (in general, the gravity of an offense is the principal factor in penalty assessment).

II. The Merits of Item 2 of the Serious Citation

A. Background

Serious citation item 2 alleges that, in a particular instance, Trinity failed to ensure use of safety belts. [[4]] During the OSHA inspection,compliance officer Collins photographed an employee walking across the top of a cylindrical tank, which was approximately 20 feet long, 5 feet in diameter, and 9 feet above a concrete floor. There were no guardrails or other means of protection against falling to the floor. The compliance officer testified that, if the employee did fall, he would suffer anything from "sever bruises" to "broken bones" or a "concussion."

Trinity made safety belts available to its employees and had a safety rule requiring employees to tie off when "working" 48 inches above the ground.[[5]] The expected practice was for employees at work on tanks to tie off to tank nozzles in the vicinity of their work stations or task areas. The employee photographed by the compliance officer had tied off in this manner while he was at work at his work station. There was testimony indicating, however, that Trinity's managers did not require employees to tie off while walking upon a tank to approach or leave a work station, and the usual practice was not to tie off at those times. According to Trinity's production manager, Mark Lane, these activities could not be called "working," as contemplated by the Company's safety rule. In this case, the employee ventured unprotected across the tank when he needed to retrieve a wrench from his work station.

During the inspection and at the hearing, compliance officer Collins expressed the view that it was necessary to tie off at such times: "You would have the fall potential the entire time you were walking on that particular vessel." The production manager, who accompanied the compliance officer during his inspection and testified regarding his belief that it was unnecessary for an employee to tie off until he was stationary and performing an actual task of work, nevertheless gave testimony showing some agreement with the compliance officer that there was a hazard. According to production manager Lang's testimony regarding his reaction to the compliance officer's views expressed during the OSHA inspection, he indicated to the compliance officer that the employee should have found some way to be off because "basically ... a man, when he's up there, should be tied off." At the hearing, the production manager also indicated agreement that crossing a tank without being tied off is a hazard, because a fall would be hazardous. [[6]]

According to Collin's unrefuted testimony, the Company had not provided any appropriate place for an employee to tie off while crossing the tank. Lang suggested that the employee could tie off to an overhead crane, if the crane were locked out. The compliance officer disagreed, however, noting that the employee would be yanked off the tank if the crane should move. According to Collins, Lang then suggested that Trinity would have to adopt at this location a means of tying off (details not given) that Trinity was using elsewhere in the plant. According to the compliance officer, other manufacturers of storage tanks use height- adjustable catwalks to gain access to tank-top work stations, or the manufacturers install height-adjustable bars or static lines, to provide continuous fall protection for their employees. [[7]]

B. Analysis

Section 1910.132(a) is a general standard, broadly worded to encompass many hazardous conditions or circumstances. If the duty to comply with the standard is not defined, it could run the risk of being almost indefinitely applicable. To avoid that result, and in order to carry her burden of proof as to applicability, see, e.g., Walker Towing Corp., 14 BNA OSHC at 2074, 1991 CCH OSHD at p. 39,157, the Secretary must establish that a reasonably prudent employer, concerned about the safety of employees in the circumstances involved in a particular case, would recognize the existence of a hazardous condition and provide protection as required by the Secretary's citation. Advance Bronze, Inc v. Secretary, 917 F.2d 944, 951 (6th Cir. 1990). Evidence that other employers in the industry actually provide the particular personal protective equipment satisfies this test. Id. Also allowed for consideration is evidence of accidents, evidence of industrial safety standards or recommendations, or opinion testimony from persons experienced in performing the work or familiar with the working conditions. Id.; see also, Ray Evers Welding Co. v. OSHRC, 625 F.2d 726,732-33 (6th Cir. 1980) (concerning the construction industry standard that generally requires personal protective equipment).

In this case, we have the unrefuted testimony of the experienced compliance officer that other employers in the industry use scaffolds or lifelines (or bars) with safety belts to provide constant fall protection on tanks. Also, although Trinity had not had any accidents, the opinion testimony of Trinity's production manager evinces an awareness that crossing a tank without a tied-off safety belt is hazardous; essentially, he agreed with the experienced compliance officer that there was a fall hazard against which some form of protection would be appropriate. Significantly, the only rationales put forth by Trinity's production manager for failing to provide fall protection were the possible difficulty in rigging a lifeline, the comparative brevity of an employee's exposure while crossing a tank, and a belief that this activity was not a form of "working." He actually recognized, however, that employees must tie off while performing an actual task of work upon the tank. Therefore the rule adds further support to the overall picture of recognition.[[8]] In short, a preponderance of the evidence shows that a reasonable person, familiar with the circumstances, would have recognized a hazard necessitating the use of the personal protective equipment that the cited standard requires.[[9]]

The Secretary has therefore estatblished the cited standard's applicability. The remaining elements of the Secretary's case are not disputed: a foreman could have seen the lack of protection for the employee who walked across the tank. See, Walker Towing Corp., 14 BNA OSHC at 2074, 1991 CCH OSHD at p. 39,157. Also, the use of fall protection in other manufacturers' plants indicates its feasibility here, and Trinity has not presented any specific rebuttal. See supra note 7. [[10]] Accordingly, we turn to whether Trinity has established any affirmative defense.

In Brock v. L.E. Myers Co., 818 F.2d 1270, 1277 (6th Cir. 1987), the court stated that "an employer may defend . . . on the ground that, due to the existence of a thorough and adequate safety program which is communicated and enforced as written, the conduct of its employee(s) in violating that policy was idiosyncratic and unforeseeable." In this case, however, Trinity's work rule was not enforced as written. The production manager realized that there could be a fall hazard, but he did not think that gaining access to a work station or retrieving a tool was sufficient exposure to count as "working," and did not expect that employees would tie off at such times. Therefore, Trinity cannot claim that it "could not reasonably have foreseen the aberrant behavior" of the employee and, at least in the circumstances involved in this case, cannot successfully maintain its claim to the safety "program's effectiveness in practice as well as in theory." Id.

Accordingly, we affirm the judge's decision finding a serious violation as set forth in citation item 2. The violation was serious, in view of the unrebutted evidence that a fracture or all impairment as severe as a concussion could result from falling onto a concrete floor. Compare Spancrete Northeast, Inc., 15 BNA OSHC 1020, 1024, 1991 CCH OSHD 29,313, p. 39,358 (No. 86-521, 1991) (major fractures are serious injuries). The judge's assessment of a $700 penalty :s appropriate for the serious violation.

III. The Merits of Item 3 of the Serious Citation

A. Background

Serious citation item 3 alleges that a gas cylinder in Trinity's plant lacked a valve cap.[[11]] Near the main aisle that was a "high traffic area," compliance officer Collins observed a pair of gas cylinders, one of which was not equipped with a valve cap. The capless cylinder had on it a regulator but no hoses; it was not connected for use and was not being used. In fact, shop superintendent Vied told the compliance officer that the cylinders probably had been there for two to three days.

Vied partially opened the valve of the capless cylinder and determined that it contained gas compressed to a pressure of 40 pounds, at a minimum. Vied also told Collins that the cylinder contained oxygen, and Collins himself looked at the label on the cylinder and saw that it indicated oxygen. Relying on this evidence, see supra note 3, the judge found that the cylinder contained oxygen.[[12]] Collins believed that, without a cap to protect the valve of the cylinder, the valve could be damaged and the pressurized gas could rapidly escape, causing the cylinder to be propelled as a danderous missile. Futhermore, the evidence presented showed that even if the pressure were low, the gas could be a fire hazard.[[13]]

Apparently, the cylinder was designed to accept a cap; while Collins was in the plant, the Company's employees removed the regulator from it and put a cap on it. Also, according to Lang, the Company has a work rule requiring gas cylinders to "have caps in place." Lang stated that he had communicated the rule to the employees and that the rule was covered in safety meetings. In general, according to this witness, the rule was followed.

B. Analysis

Trinity asserts that the Secretary failed to establish that the cited gas cylinder was, as the cited standard puts it, "designed to accept a cap." Trinity offered no rebuttal, however, to the compliance officer's testimony that the cylinder did accept a cap during the inspection. Moreover, as the Secretary notes in her brief, Trinity's own safety rule requiring caps would have been overbroad and inappropriate if some of the cylinders could not accept them.

Trinity further asserts that the Secretary failed to prove a hazard, but no such proof is necessary; the cited standard presumes a hazard, it does not require proof. See StanBest, Inc., 11 BNA OSHC 1222, 1231, 1983-84 CCH OSHD 26,455, p. 33,625 (No. 76-4355, 1983) (citing cases); American Steel Works, Inc., 9 BNA OSHC 1549, 1551 n.4 1981 CCH OSHD 25,285, p. 31,270 n.4 (No. 77-553, 1981) (citing cases); cf,. Ormet Corp., 14 BNA OSHC 2134, 2137-38, 1991 CCH OSHD 29,254, p. 39,202 (No. 85,531, 1991) ("the standard anticipates the possiblity that the load will fall"). Moreover, on the basis of credible evidence, the ALJ found that the tanks contained oxygen pressurized to at least 40 pounds. Trinity did not convincingly establish that the gas was inert, see supra note 12, and Trinity did not present any evidencethat there was a negligible amount of gas or a negligible pressure, see supra note 13.   Therefore, Trinity has not shown that the particular instance of noncompliance involved in this case would have had such a negligible effect on employee safety as to be properly classifiable as de minimis. See Whiting-Turner Contrac. Co., 13 BNA OSHC 2155, 2156, 1987-90 CCH OSHD 28,501, p. 37,771 (No. 87-1238, 1989) (negligible relationship to safety), Pratt & Whitney Airfcraft, 9 BNA OSHC 1653,1658,1981 CCH OSHD 25,359, p. 31,506 (No. 13401, 1981) (the classification is "reserved for those unusual situations where the hazard is so trifling that an abatement order would not significantly promote the objective of employee safety"); Turner Co., 4 BNA OSHC 1554, 1564, 1976-77 CCH OSHD 21,023, p. 25,281 (No. 3635, 1976) ("the particular facts presented here show no circumstances which would take [the employer] out of the range of cases covered by the Secretary's rulemaking action"); Huber, Hunt & Nichols, Inc., 4 BNA OSHC 1406, 1409, 1976-77 CCH OSHD 20,837, p. 25,012 (No. 6007, 1976) ("if on the facts of a particular case it appears, for example, that the cylinders are so completely empty as to negate the possibility of injury, the presumption will be considered to have been rebutted").

Accordingly, we affirm the judge's decision affirming the serious citation item. In view of the evidence that establishes a potential for hazards from a fire or an instance of missile-like propulsion, the violation was serious. The $700 penalty that the judge assessed is appropriate.

The Penalty for Item 4 of the Serious Citation

A. Background

In his decision, the judge found and the parties do not now dispute that Trinity violated 1910.303(b)(1). [[14]] During the inspection, compliance officer Collins found two  "mall grinders" that did not have suitable plugs. The plugs were rated at 120 to 208 volts, but the grinders operated at 480 volts. Also, certain openings in the plugs allowed metal dust generated by Trinity's grinding operations to leak inside and accumulate there. Plugs having these deficiencies had caused shorts and shocks, arcs and explosions, by which employees had been burned. Collins testified that there could have been serious burns, or even an electrocution.

In February 1988, approximately six months prior to the inspection in this case, there was a serious accident involving a welder, Lionel Harris. As he was attaching an extension cord to a mail grinder, he received a shock that threw him backward against a gas cylinder, from which position he fell onto a skid containing manufacturing parts. Harris suffered a lower lumbar strain, a pinched nerve in the lower lumbar region, a concussion, and a neck strain. He was away from work for more than a year. Immediately after the accident, when certain employees took apart the plug of Harris' grinder, it was found to have been "burnt black on the inside, just totally burned out." Also, there was some grinding dust inside.

The Harris incident was not the first occasion on which a Trinity employee had experienced a problem with this kind of plug; it was just the most serious. Another employee had suffered burns several times when, in the words of the company's maintenance electrician, William Tittle, "he would be plugging it into a receptacle and it would flash back onto his arm." For several years, according to Tittle and according to a welder, Thomas Brockman, who was also a grievance committeeman in the employees' union, this kind of plug had been shorting out, burning out, and exploding, and employees had suffered minor shocks and burns. It was further noted that, after the Harris incident, three more plugs shorted out.

Until the Harris incident, the Company had been replacing the burned out or exploded plugs with new plugs of the same kind, deficient in rating and quality. According to Tittle, he replaced approximately 50 plugs a year. He had worked at the plant for more than ten years, and the employee who had trained him for maintenance work had told him that "this was going to be a common thing that I'll be doing a lot of, is replacing these plugs." Furthermore, Tittle explained that "(i)t was a common thing throughout the shop and everyone knew about it [,] so I have to assume that Management had to know about it[,] since it was before my time." Also, approximately three years prior to the Harris incident, the voltage rating of the plugs changed, from a rating at 480 volts to a rating at 120 to 208 volts. At that time, the plant received cautions and notices.[[15]] The cautions and notices were brought to the attention of the plant's maintenance supervisor.[[16]]

Trinity's welders had wrapped the plugs in tape, in an attempt to close off the openings in them and keep metal dust out. This precaution was not entirely successful; during the inspection, the compliance officer found "a significant amount" of metal dust inside a tape-wrapped plug, and maintenance electrician Tittle testified that tape-wrapped plugs continued to short out.

In April 1988, after the Harris incident, Trinity began replacing the deficient plugs with ones that were rated for the 480 voltage at which the grinders operated.  After the Harris incident and after each of the three subsequent shorts, welder Brockman, as a union member, went to production manager Lang and told him that the problem was the deficient voltage rating of the plugs [[17]].  Brockman also claimed that after the Harris incident he proposed to summon OSHA--by filing a complaint--unless the company took appropriate action concerning the shock hazards in the plant. "Management" asked him to wait, then embarked upon a program of replacing the deficient plugs. Lang claimed that he himself investigating the matter and made the decision to replace the plugs, after Brockman only described to him the deficiency in the voltage ratings; Brockman had not asked for any corrective action. Tittle testified that the decision was voluntary; the Company "was getting pressure from our local union...but voluntarily the Company did it," without OSHA's involvement, as far as he knew.
Brockman further testified that, after the Harris incident, he consulted the personnel manager about the plugs. This manager responded that he was already aware of the problem. Also, in "early" 1988, a Company manager assigned only temporarily to the Sharonville plant told Lang that there were problems with the plugs. To the best of Lang's knowledge, prior to early 1988 no one had worked on a cost estimate for replacing the plugs.
In early 1988, Lang authorized the expenditure of approximately $20,000 to replace approximately 600 plugs (and install receptacles capable of accepting the new plugs). In addition, the manager assigned a particular maintenance, employee to do the job systematically--from one end of the plant to the other. In August 1988, when the compliance officer inspected the plant, the employee had completed his systematic progression and most of the plugs had been replaced. There remained only approximately seven or eight that had escaped his notice, as equipment had been moved back and forth over the months. Thus, the compliance officer believed that, to a large degree, the deficient plugs had been replaced; he found plugs having an acceptable voltage rating. Also, the new plugs were dust-tight and, according to Brockman's knowledge, the new plugs had not produced any shorts.
Trinity had a safety program including not only safety manuals but safety meetings and reprimands. There was a corporate safety coordinator, Neale Foreman, who testified. The Company was large and operated several plants. To the best of the compliance officer's knowledge, there were more than 100 employees at this one plant alone. The Company had a history of OSHA violations. This particular inspection was conducted under warrant after Trinity declined to allow a complaint inspection on February 24, 1988, and, as Trinity did not allow the compliance officer to examine the Company's records regarding its safety program, the compliance officer did not give the Company any credit for good faith.
B. Analysis
The Secretary proposed a penalty of $800, primarily because of Trinity's Iarge size and prior violations, as well as this particular violation's significant gravity. We reduce the penalty to $600, however, on the basis of good faith. The Company had substantially eliminated the hazard by the time of the inspection, and the Company's failure to have entirely eliminated the hazard was the result of difficult operating circumstances rather than a careless attitude toward abating the hazard. Once Trinity's management officials determined to take action about the hazard, they implemented a program capable of entirely abating it. We do not disagree with the Secretary that, generally, the gravity of a hazard is to be given great weight in assessing an appropriate penalty. In this case, however, we give credit for good faith in order to encourage a large employer to protect its employees and to cooperate with the Federal occupational safety and health program, by taking voluntary measures to abate genuinely and obviously serious hazards.


Accordingly, we modify the judge's decision in one respect, by reducing the penalty for serious citation item 4 from $800 to $600. We otherwise affirm the judge's decision finding violations as alleged in items 2 and 3 of the serious citation and as alleged in item 1 of the citation that has been reclassified as serious.

Edwin G Foulke, Jr.


Donald G. Wiseman


Velma Montoya


Dated: January 23, 1992










Authorized Employee


OSHRC Docket No. 88-2691


Janice L. Thompson, Esquire, Office of the Solicitor,

U. S. Department of Labor, Cleveland, Ohio, on behalf of complainant.

Frederick W. Addison, III, Esquire, Locke, Purnell, Rain and Harrell

Dallas, Texas, on behalf of respondent.

Harry W. Sorgs, President, Local 7629, United Steelworkers of America

Cincinnati, Ohio, on behalf of authorized employee representative.


SPARKS, Judge: Respondent, Trinity Industries, Inc., operates a foundry business at 11861 Mosteller Road, Sharonville, Ohio. As a result of an inspection conducted in August 1988, serious and repeat citations were issued. The Secretary proposed penalties of $3,800.



Item one of the serious citation alleges a violation of 29 C.F.R. 1910.22(a)(1) [[1]] as follows:
1 29 CFR 1910.22(a)(l): Places of employment were not kept clean and orderly, or in a sanitary condition:

(a) Spent welding rods were scattered on the floor at the welding areas in the center bay.

The evidence shows that approximately 8 to 12 used welding rods were scattered about the floor in an area of the center bay where welding operations were going on. The spent rods were about the size of a small pencil, approximately inch in diameter and 3 to 4 inches long. A welder was seated in the area near the rods (Tr. 113, 132-137, 273-276). The Secretary contended that the spent rods constituted a hazard to employees who might step on them because of a ball-bearing effect--that assumption was disputed by respondent's manager who was of the opinion that the rods would be crushed by a person stepping on one, without any danger of slipping (Tr. 113, 134, 276-277). The rods were observed at approximately 2:40 p.m. on August 5, 1988, which was about an hour and ten minutes before the shift quitting time. It is undisputed that the floors of the plant facility were cleaned daily and that a crew would be called to immediately clean up any spills. Moreover, the only employee shown to be exposed to the condition was a welder who was seated and not walking around the area. The rods were not in a walkway or other traffic area. Under the conditions described, it is to be expected that the waste rods would remain on the floor of the area until cleaned up at the end of the shift. The evidence indicates such waste was removed at least once a day.

The burden of proof is upon the Secretary to show exposure to a hazard caused by the condition. There is no evidence that an injury had ever occurred. As no one was walking in the area and the slipping hazard was remote, the evidence does not show that a realistic danger of injury was presented to the welder or any other employee; and, accordingly, the evidence does not establish a violation as alleged.

Item two of citation number one alleges a serious violation of 29 C.F.R. 1910.132(a)[[2]] as follows:

29 CFR 1910.132(a): Protective equipment was not used when necessary whenever hazards capable of causing injury and impairment were encountered:

(a) In the north bay, an employee was exposed to a fall of approximately 9' while walking on a tank and while stepping from a stepladder onto the tank and had no means of fall protection.
The Secretary proposed a penalty of $700. The evidence shows that an employee, Alan Thomas, was standing or walking on a large cylindrical tank approximately nine feet above the floor without a safety belt or other means of personal protection (Ex. C-1, C-2; Tr. 27, 286). The employee was observed walking on the tank. The employee, a welder, was preparing the tank for shipment by installing the bolting and accessories (Tr. 287). A fall from the tank car to the concrete floor below would likely result in severe injuries such as broken bones, a concussion or serious bruises (Tr. 27-28). Thomas Brockman, a Class A welder who also worked in the north bay, testified that, at the time of the inspection, the practice was to not tie off while walking across the tank but to tie off to nozzles while at the work stations (Tr. 228). compliance officer Dennis Collins did not see any appropriate place to tie off a safety belt at that location (Tr. 29). Mark Lang, respondent's production manager, suggested that the employee could tie off to an overhead crane, but the employee could be subjected to being pulled off the tank car should the crane be placed in operation (Tr. 28-29, 289). The compliance officer testified that at other manufacturers he had seen catwalks and static lines used to provide safe access to work areas (Tr. 29).

Respondent contends that the evidence does not show that the employer had knowledge of the conditions. Yet, the employee was working in an open portion of the facility and the conditions were or, with proper diligence, should have been seen by his foreman or other supervisor. That is especially true as it was common practice not to tie off while walking across the tanks (Tr. 228). Respondent further suggests the employee was engaged in an isolated incident of misconduct an he was in violation of respondent's safety rules. As defined in Brock v. L. E. Myers Co., High Voltage Div., 818 F.2d 1270, 1277 (6th Cir. 1987), the defense requires the following elements of proof:

. . . an employer may defend the citation on the ground that, due to the existence of a thorough and adequate safety program which is communicated and enforced as written, the conduct of its employee(s) in violating that policy was idiosyncratic and unforeseeable. By its nature, information with respect to the implementation of its written safety program will be in the hands of the employer, and it is not unduly burdensome to require it to come forward with such evidence. If the employer's evidence preponderates, it has successfully established the defense of unforeseeable employee misconduct. We emphasize that the employer who wishes to rely on the presence of an effective safety program to establish that it could not reasonably have foreseen the aberrant behavior of its employees must demonstrate that program's effectiveness in practice as well as in theory.

Mr. Lang testified that the company's work rules required employees to use a safety belt attached to a lanyard when working above 48 inches (Tr. 285-286). Respondent contends employees were informed of such rules at safety meetings (Tr. 290). However, the work rule was not enforced. Employees did not tie off while walking across the tanks and supervisors did not regularly require employees to even tie off to nozzles[[3]] (Tr. 229). Therefore, respondent's affirmative defense must fail. The Secretary has established a serious violation of item two as alleged.

Item three charged a violation of 29 C.F.R. 1910.252(a)(2)(ii)(d) [[4]] as follows:

3 29 C.F.R. 1910.252(a)(2)(ii)(d): Valve protection caps were not in place, hand-tight, on compressed gas cylinders not in use or connected for use:

(a) Beside the center bay aisle, there was an oxygen/actylene torch which was not connected for use and which had no valve protection cap on the oxygen cylinder.

Compliance officer Collins observed several compressed gas cylinders located near the center bay aisle. One of the cylinders had a regulator attached to it, but did not have any hoses and so could not have been in use. Company representative Paul Vied indicated there was at least 40 pounds of pressure in the tank (Ex. C-3; Tr. 35-36). The tank had been sitting in a high traffic area for two to three days (Tr. 37-38). Collins described the hazard presented by the missing valve cap as follows (Tr. 38):

A The hazard would be damage to that valve which could release the pressure in the tank. It would release oxygen. If there's a sufficient amount of pressure in that tank you could have a missile. Even if there's not a sufficient amount of pressure in the tank to create a missile, you still have fire potential by releasing oxygen compressed oxygen, into the ambient air.

Death or serious injury would probably result from an accident. From reading the label on the cylinder, Collins determined it contained oxygen gas (Tr. 154-155). Thomas G. Brockman, a welder, indicated the cylinder looked like one containing acetylene because it was in a red cylinder, but he did not read the label. He testified it was common for cylinders within the plant to be without valve caps because caps were not maintained in any organized fashion (Tr. 230-231, 245). Plant manager Lang disagreed with testimony that the red color of the cylinder indicated it contained acetylene but thought the type of regulator and size of the cylinder did suggest it contained acetylene (Tr. 292- 293).

The testimony of Compliance officer Collins that it contained oxygen is convincing since his statement is based upon his observation of the label on the cylinder. Even if it contained acetylene, equally great hazards are present.

Respondent contends the Secretary failed to prove a prima facie case, because there is no specific testimony that the cylinder in question". . . is designed to accept a cap." The only reasonable inference to be drawn from the finding and testimony of Compliance Officer Collins was that the cylinder was so designed. That was at the heart of the alleged violation and had the cylinder not been designed to accept a cap, company officials would have quickly resolved the allegation on the walkaround.

Respondent suggests it had a work rule requiring caps on cylinders, but as the testimony of welder Brockman makes clear, the work rule, if any, was not enforced.

A violation of 29 C.F.R. 1910.252(a) (2)(ii)(d) has been established as alleged in item three.
A penalty of $700 was proposed by the secretary.

Item four of serious citation one alleges a violation of 29 C.F.R. 1910.303(b)(1)[[5]] under the following circumstances:

29 CFR 1910.303(b)(1): Electrical equipment was not free from recognized hazards that were likely to cause death or serious physical harm to employees:

(a) Mall grinder No. CL located between columns B12 and C12 was operated at 4880V and was equipped with an extension cord which had a 4-prong twist lock attachment plug rated for only 120/208V. In addition, the attachment plug had openness between its cord grips and cord and was not suitable for exposure to conductive dusts.

(b) Mall grinder No. 6 located between column B12 and C12 was operated at 480V and was equipped with attachment plugs on its cords which were only approved for 120/208V. In addition, the cord grips of the plugs were not designed for exposure to conductive dusts and were not adequately sealed by application of dust tape to the cord and plug.

Compliance Officer Collins testified he had two concerns regarding mall grinder number CL described in item 4a as follows (Tr. 64-65):

. . . The first concern was this piece of equipment was being operated at 480 volts and this particular plug is not an approved plug at 480 volts. It's UL approval is only for a 120/208 voltage rating.

The second concern which was raised during the inspection, and this was one of the complaint items, was the fact that there were problems with these plugs due to getting metal dust inside the plugs and having them arc.

The mall grinder number six was operated at 480 volts rather than the 120/208 for which it was designed and also had problems with metal dust inside the plugs (Tr. 76, 202-206).

Respondent contends the Secretary cited the wrong standard in her contention that tools were being used at an unapproved voltage and that metal dust inside taped connections to the plugs was not a recognized hazard (Resp. brief p. 13).

The evidence showed that respondent had experienced problems with equipment with the defects cited for some time and had been replacing its electrical circuits and equipment (Tr. 335). It was recognized that the problems cited had caused electrical shorting and shocks (Tr. 236) Lionel Harris, a welder, had been seriously injured after receiving an electrical shock at a plug shown to contain metal dust and to be burnt black (Tr. 186-190).

In spite of these accidents, respondent was still using underrated plugs and equipment containing metal dust at the time of the inspection. Mr. Lang estimated seven or eight plugs, several mall grinders and several extension cords were in use (Tr. 300).

The facts of record establish that respondent violated 29 C.F.R. 1910.303(b)(1) as alleged.



Citation number two alleges a repeat violation of 29 C.F.R. 1910.252(e)(2)(iii)[[6]] under the following conditions:

(a) Along the center bay aisle, there was an arc welding operation located between columns B9 and B10 which had only 1 welding screen and had the welding being performed at a level above the screen exposing employees in the aisle to the welding flash.

(b) At the center bay aisle between columns B5 and B6, there was a welding operation in process which had welding screen protections from the east side but none from the west side.

Compliance officer Dennis Collins testified that at the two locations described in the citation, he observed welding operations being performed so that the arc could be seen. The arc from the welding going on between columns B5 and B6 could be seen from the main center bay aisle, because there was no screen to shield the rays. The arc from the welding processing being performed between columns B9 and B11 could be seen from the main aisle because the welding was taking place at a height higher than the screens (Ex. C-4; Tr. 40-41). Welder Brockman testified that, at the time of the inspection, respondent did not have enough screens for all the welding stations (Tr. 243). During the walkaround inspection, Paul Vied, a company representative, agreed that the welding screens were inadequate (Tr. 21, 57-58). As stated by Compliance officer Collins, the absence of adequate welding screens could result in serious flash burns to the eyes (Tr. 58).

Respondent contends the Secretary failed to prove a violation on the grounds that there was no showing of employee exposure. The citation states and the compliance officer testified; however, that the work was being done along the center bay aisle and the arc was seen from that location. The reasonable inference to be drawn from those facts was that employees walking along the center bay aisle could see and saw the arc. It is concluded they were thereby exposed to the hazard. A flash burn of the eyes is a serious injury (Tr. 58).

The Secretary contends that the violation was a repeated one. Under precedent of the Commission, "a violation is repeated ... if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation." Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1063, 1979 CCH OSHD 23,294, p. 28,171 (No. 16183, 1979). Under Potlatch, a prima facie case of similarity is established by a showing that the prior and present violations were for failure to comply with the same standard. If the standards were not the same; however, the Secretary must present other evidence that the violations were substantially similar and in such cases evidence that the violations involved similar hazards is relevant. Id.

Exhibit C-9 is a copy of a citation issued May 27, 1986, to Brighton Corporation charging a violation of 29 C.F.R. 1910.252(e)(2)(iii) under the following circumstances:

1910.252(e)(2)(iii): workers or other persons adjacent to welding were not protected from the rays by noncombustible or flameproof screens or shields, nor were they required to wear appropriate goggles:

(a) At the center bay near column B7, screens or shields were not used to protect persons from rays of the Thermol Arc cutting system.

Not only was the citation issued under the same standard, but the violation took place in the same general area of the plant. Brighton Corporation did not contest the citation, and it became a final order (Tr. 59-62). Respondent acquired the plant from Brighton on January 1, 1987 (Tr. 344, 346).

The Secretary lists eight factors which she contends, under national labor and civil rights law, determine whether respondent is a successor corporation bound by the earlier final order and asserts such factors should be applied in this case. The factors are as follows:

(1) whether successor company had notice of charge,

(2) ability of predecessor to provide relief,

(3) whether there has been a substantial continuity of business operations, (4) whether successor used the same plant, (5) whether successor uses the same or substantially the same work force, (6) whether successor uses the same or substantially the same supervisory personnel, (7) whether the same jobs exist under substantially the same working conditions, (8) whether successor uses the same machinery, equipment and methods of production, and (9) whether successor produces the same product.

Golden State Bottling Co. v. N.L.R.B. 414 U.S. 168 (1973);

John Wiley & Sons Inc. v. Livington, 376 U.S. 543 (1963);

E.E.O.C. v. MacMillan Bloedel containers, Inc., 503 F.2d 1086 (6th Cir. 1974).

The record in this case, however, fails to establish the extent to which each of the eight factors are present in this case. Without question, many employees, including some managers and supervisors who had worked for Brighton continued their work for Trinity after it acquired the facility. Except for Lang who was plant superintendent from 1984 to 1987 it is not shown to what extent the managers who dealt with the OSHA inspection for Brighton continued their employment under Trinity. In Flexible Corp., 84 OSAHRC 43/A2, 12 BNA OSHC 1053, 1984-85 CCH OSHD 27,063 (No. 83-1013, 1984), Judge Burroughs noted there was no showing of ". - - common identity of directors, officers or stockholders of the predecessor and successor corporation" and, therefore, the successor corporation ". . . cannot be held liable for the violations of its predecessor." It might be added that the safety personnel and policies have been changed.

In any event, there has been no showing of sufficient nexus between Brighton and Trinity that a prior citation to Brighton should cause a similar citation to respondent to be a repeated one.
A serious violation, but not a repeated violation, of 29 C.F.R. 1910.252(e)(2)(iii) has been established.



It is concluded that items two, three and four ofcitation one and item one of citation two constitute serious violations. Section 17(b) of the Act requires that a civil penalty of up to $1,000 be assessed for each serious violation. Section 17(j) gives the Review Commission authority to assess penalties giving consideration to the gravity of the violations and the size, good faith and history of prior violations of the employer.

Respondent's corporate headquarters is in Dallas, Texas. It has approximately 3,000 employees nationwide and over 100 employees at its Mosteller Road facility involved in this proceeding (Tr. 329-331, 353). There is no evidence of prior inspections of this plant after it was bought from Brighton, nor is there evidence of anything other than good faith by the company.

The Secretary proposed a penalty of $700 for citation one, item two. Employees working on the tanks without safety protection were subject to serious injury due to the fall hazard. The evidence shows that any safety rules regarding the dangerous practice were not enforced. The proposed penalty of $700 is reasonable and warranted.

The absence of caps on gas cylinders as alleged in citation one, item three, creates a realistic hazard due to fire or explosion. The penalty proposed by the Secretary of $700 is reasonable.

Citation one, item four, concerned the mall grinders connected to improper electrical circuits with metal dust in their plugs. That there have been serious injuries demonstrates the gravity of the violation. A penalty of $800 is warranted.

Citation two, item one, was charged as a repeat violation but found to constitute a serious, rather than a repeat violation. The Secretary proposed an $800 penalty; however; as a serious a penalty of $600 is reasonable.


1. Respondent is an employer subject to the Act and this proceeding.

2. Respondent did not violate 29 C.F.R. 1910.22(a)(l) as alleged in citation one, item one.

3. Respondent violated the Act as alleged in items two, three and four of citation one under conditions constituting serious violations.

4. Respondent violated 29 C.F.R. 1910-252(e)(2)(iii) as alleged in citation two, item one, under conditions constituting a serious violation.

ORDER 1. Citation one, item one, is vacated.

2. Citation one, items two, three and four, are affirmed.

3. Citation two, item one, is affirmed as a serious violation.

4. Penalties of $2,800 are assessed.

Dated this 14th day of February, 1990.




[[1]] The cited standard is 29 C.F.R. 1910.252(e)(2)(iii), which in 1990 was renumbered as 29 C.F.R. 1910-252(b)(2)(iii). The standard states, in pertinent part:

Protection from arc welding rays. Where the work permits, the welder should be enclosed in an individual booth .... Booths and screens shall permit circulation of air at floor level. Workers or other persons adjacent to the welding areas shall be protected from the rays by noncombustible or flameproof screens or shields, or shall be required to wear appropriate goggles.

[[2]] At the time of the hearing, Collins had worked for OSHA for 16 1/2 years and had conducted over 1200 inspections, mainly Involving safety standards.

[[3]] The Commission has previously upheld the sufficiency of unrebutted testimony regarding admissions by an employer's employees. See, Anoplate Corp, 12 BNA OSHC 1678,1682 n,10. 1986-87 CCH OSHD 27,519, p.35,684 n.10 (No. 80-4109,1986) StanBest, Inc. 11 BNA OSHC 1222,& 1227 & 1228, 1983-84 CCH OSHD 26,455. pp.33,621-22 (No. 76-4355, 1983). Astra Phamaceutical Prod. Inc.. 9 BNA OSHC at 2131-32, 1981 CCH OSHD at pp.31,901-02.

[[4]] The cited standard is 29 C.F.R. 1910.132(a), which states:

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

[[5]]The Company's, production manager testified that Trinity's safety rule had been only orally communicated, and, we note that it does not appear in either of the Company's safety manuals.

[[6]] At the hearing, when cross examined as to whether he thought that crossing a tank without a safety belt constituted a fall hazard, Lang replied. "I would say, yes. If a man fell it would be a fall hazard." He further stated: "Basically, the man should be able to [gain] access to his work site. [I]f he's walking across... going to his station ... [he] should maybe [have] had a ladder going to the actual work site." The company's safety manuals refer to ladders and scaffolds, without actually requiring their use in the kind of work involved here. Nevertheless, according to some testimony, the employee involved here may have, been disciplined for failing to use a tied-off safety belt.

[[7]] Lang testified, however, that he did not recall any further discussion after Collins gave his opinion that the crane was not a suitable anchor. In his testimony, Lang also summarily posited that putting up a lifeline would not [be] impossible, but impractical, probably."

[[8]] An employer's voluntary safety efforts may properly be considered in conjunction with other evidence demonstrating that the employer or its industry recognized the hazard in question. Compare Durion Co. v. Secretary. 750 F.2d 28, 30 (6th Cir. 1984); with Donovan v. General Motors Corp., 764 F.2d 32, 36-37 (1st Cir. 1985). Cotter & Co. v. OSHRC, 598 F.d 911, 914- 15 (5th Cir. 1979); and DieboId, Inc. v. Marshall, 585 F.2d 1327, 1337-38 (6th Cir. 1978). See also Otis Elevator Co. v. OSHRC, 581 F.2d 1056 1058 (2d Cir. 1978); Lukens Steel Co., 10 BNA OSHC 1115, 1123, 1981 CCH OSHD 25,742, p. 32,119 (No. 76-1053, 1981). Addressing this case law, Trinity argues as if its workrule were the only evidence of hazard recognition. The Company erroneously assumes that all other related evidence is relevant to a separate matter, i.e., recognition of a need for the particular personal protective equipment. That is not the case, however. Evidence concerning equipment used by other employers is relevant to hazard recognition because the evidence demonstrates a broad perception, throughout an industry, that protection was necessary in the circumstances.

[[9]] Trinity did not present any sufficient evidence in rebuttal. Trinity asserts that common sense would "dictate" not bothering with safety belts, because "one could reasonably predict that the risk of injury associated with tying off a safety belt may actually be greater than the risk involved in retrieving the wrench," which "might take 30 seconds at most." Trinity questions why an employee should "go to the further time, trouble, and risk of tying off a safety belt." There is no evidence specifically supporting these assertions, however, whether they are taken as a rationale demonstrating why reasonable persons would not recognize a hazard requiring personal protective equipment or as an attempt to raise a greater hazard defense. Compare Ray Evers Welding v. OSHRC. 625 F.2d 726.732 ("he testified that the proposed means of protecting employee from falling were not feasible and would in fact subject employees to a greater hazard of falling because of their reduced mobility").

[[10]] Regarding feasibility as an element of a violation of a general standard such as the one cited in this case. see Granite City Terminals Corp. 12 BNA OSHC 1741, 1746 n.11, 1986-87 CCH OSHD 27,547, p. 35,775 n. 11 (No. 83 882-S, 1986).

[[11]] The cited standard is 29 C.F.R. 1910.252(a)(2)(ii)(d), which in 1990 was renumbered as 29 C.F.R. 1910.253(b)(2)(iv). . The standard states. in pertinent part:

Valve protection caps, where [a] cylinder is designed to accept a cap, shall always be in place, hand-tight, except when cylinders are in use or connected for use.

[[12]] Trinity tried to prove that the cylinder contained something other than oxygen. When Trinity's attorney cross-examined Collins, he asked whether the cylinder contained argon. an inert gas (noncombustible and nonflammable). Collins replied that, to the best of his recollection, the gas was not argon, and Collins again reffered to the label that had indicated oxygen. Another witness, a longtime employee who was a welder and a union grievance committeeman, posited that the cylinder contained acetylene, although he was not sure; he reasoned entirely on the basis of the red color of the cylinder. Lang testified that the cylinder contained acetylene, based on the appearance of the gauges of the regulator and the size of the cylinder, he said that the color (if the cyIinder is not a significant factor in determining what substance a cylinder contains. He had not looked at the cylinders label.

[[13]] Both oxygen and acctylene can be fire hazards; the Company's production manager agreed that this is so. On review, Trinity asserts that there was no showing that acetylene could be a fire hazard at low pressures, but production manager Lang agreed, without qualification, that both gases presented this hazard. Also, obviousIy, a cyclinder can become a missile regardless of the kind of gas it contains, if the gas is sufficiently pressurized. Thus, even if the cyclinder contained acetylene rather than oxygen, the judge correctly found hazards existed.

[[14]] This standard pertains to "[e]xamination" of electrical equipment, and requires:

Electrical equipment shall be free from recognized hazards that are likely to cause death or serious physical harm to employees. Safety of equipment shall be determined using the following considerations:

(i) Suitability for installation and use in conformity with the provisions of this subpart Suitability of equipment for an identified purpose may be evidenced by listing or labeling for that identified purpose.

(ii) Mechanical strength and durability, including, for parts designed to enclose and protect other equipment, the adequacy of the protection thus provided.

[[15]] The record does not establish the source of these particular cautions and notices, but on the basis of certain evidence indicating that cautions and notices may appear on or inside the boxes that contain such plugs, we infer that the cautions and notices came from the manufacturer.

[[16]] At the time, the Sharonville plant was operated under the name of Brighton Corporation which, according to Trinity's corporate statement filed in this case, is one of the names under which Trinity has previously transacted business. In January 1987, however, Trinity began operations in its own name at the Sharonville plant. In this case, there is no evidence indicating that the Sharonville plant's maintenance supervisor resigned thereafter. Moreover, inasmuch as, the ownership of the plant evidently did not change, we find no reason to infer a change of management personnel

[[17]] Because Brockman was not yet aware that metal dust had contributed to the electrical hazards, Brockman did not mention it to Lang. Thus, not until OSHA inspected in August 1988 did Lang learn of the employees' practice of wrapping tape around the old plugs to keep dust out of them.


[[1]] Section 1910.22(a)(l) of 29 C.F.R. states as follows:

(a) Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

[[2]]Section 1910.132(a) of 29 C.F.R. provides as follows:

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

[[3]] Brockman testified as follows (Tr. 229):

Q Do you know If the tying off, even if it's just on the nozzles, if that's enforced by a supervisory personnel?

A Regularly, it's not. Unless one of the safety committee or grievance committee complained about it. It has been a practice of them getting right up there and working with nothing on.

Q Or, without even tying off to the nozzles?

A Yes.

[[4]] Section 1910.252(a)(2)(ii)(d) of 29 C.F.R. states as follows:

(d) Valve protection caps, where cylinder is designed to accept a cap, shall always be in place, hand-tight, except when cylinders are in use or connected for use.

[[5]]Section 1910.303(b)(1) of 29 C.F.R. provides:

(b) Examination, installation, and use of equipment --(1) Examination. Electrical equipment shall be free from recognized hazards that are likely to cause death or serious physical harm to employees. . . .

[6]]Section 1910.252(e)(2)(iii) of 29 C.F.R. provides:

(iii) Protection from arc welding rays. Where the work permits, the welder should be enclosed in an individual booth painted with a finish of low reflectivity such as zinc oxide (an important factor for absorbing ultraviolet radiations) and lamp black, or shall be enclosed with noncombustible screens similarly painted. Booths and screens shall permit circulation of air at floor level. Workers or other persons adjacent to the welding areas shall be protected from the rays by noncombustible or flameproof screens or shields or shall be required to wear appropriate goggles.