TUBE-LOK PRODUCTS, EASTERN DIVISION OF PORTLAND WIRE & IRONWORKS, INC.
OSHRC Docket No. 16200
Occupational Safety and Health Review Commission
February 26, 1981
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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Herman Grant, Regional Solicitor, USDOL
James B. Ruyle, for the employer
William E. Larrabee, for the employer
OPINION:
DECISION
BY THE COMMISSION:
This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). A decision of Administrative Law Judge Frank B. Zinn is before the Commission for review under section 12(j) of the Act. 29 U.S.C. § 661(i). Judge Zinn vacated item 2 of a citation issued by the Secretary of Labor ("the Secretary"), which alleged that Respondent, Tube-Lok Products ("Tube-Lok"), failed to comply with the protective equipment standard at 29 C.F.R. § 1910.132(a). n1 The judge also affirmed item 3 of the citation, which alleged a failure to comply with the machine guarding standard at 29 C.F.R. § 1910.212(a)(3)(ii). n2 Chairman Cleary granted the parties' petitions for discretionary review of the judge's decision. The Secretary's petition takes issue with the judge's disposition of the section 1910.132(a) item; Tube-Lok takes exception to the judge's disposition of the section 1910.212(a)(3)(ii) item. n3
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n1 That standard states:
§ 1910.132 General Requirements.
(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.
n2 That standard states:
§ 1910.212 General requirements for all machines.
(a) Machine guarding.
* * *
(3) Point of operation guarding.
* * *
(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.
n3 Former Commissioner Moran directed review of all of the judge's findings of fact and conclusions of law in this case. Neither party has indicated any interest in Commission review of any aspects of the judge's decision except the two items discussed in the petitions for discretionary review. There is also no compelling public interest warranting further review of other aspects of the judge's decision. Therefore, those other aspects of the judge's decision will not be considered on review. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 RNA OSHC 1339, 1976-77CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976). Those portions of the decision are accorded the significance of an unreviewed judge's decision. See Leone Construction Co. 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976).
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I
A
We consider first the section 1910.132(a) item. Tube-Lok manufactures rollover protection systems for off-the-road equipment, such as large tracklaying tractors, at its plant near Matoon, Illinois. It fabricates rollover bars by reshaping tube, sheet or plate steel in a number of operations, including forming, sawing and welding. The Secretary alleges that an employee moving a suspended load was neither provided with, nor used, a hard hat to protect against head injuries.
Tube-Lok uses hoists attached to overhead tracks to move material in its plant. The operator walks with the load while it is being moved. He controls the hoist by remote control. The compliance officer testified that during his inspection of Tube-Lok's plant he observed the operator using the hoist to move a heavy load of sheet steel. He stated that the sheet steel was attached to the overhead hoist by a chain sling and that the load was over the employee's head. The employee was not wearing a hard hat. The compliance officer testified that he believed the chain or sling attached to the hoist could slip, the hoist could [*4] come loose from its overhead track, the cable handling the hoist could break or become frayed, and the load on the crane could swing out and bump or brush against an employee's head if the hoist made a sudden stop. He indicated that a hard hat would prevent such contact or would deflect the load.
Mr. Harry, Tube-Lok's production manager, testified that the crane operator was moving a device called a "spider" as opposed to the sheet steel the compliance officer claimed was being moved. A "spider" is a fabricated plece of metal that holds steel while it is being welding. Mr. Harry testified that the spider being moved contained "lifting ears" on opposite corners which were hooked onto the hoist by chains, but that the spider was not fastened by a chain sling. He also testified that by guiding the spider with one hand while operating the hoist controls with the other, the employee was following Tube-Lok's standard operating procedure.
In his decision, the judge vacated the citation. He concluded that a generally worded standard such as section 1910.132(a) does not provide adequate notice to an employer of what is prohibited unless it is read to penalize only conduct unacceptable [*5] in light of the common understanding and experience of those working in the industry. The judge relied on Cape & Vineyard Div. of New Bedford Gas & Edison Light Co. v. OSHRC, 512 F.2d 1148 (1st Cir. 1975). He found that the Secretary had presented no evidence that hard hats were in general use in the steel fabricating industry under similar circumstances and held that "without some evidence of the general use of hard hats in the steel fabricating industry . . . the citation cannot be affirmed."
In his brief on review, the Secretary argues that be should not bear the burden of showing that the use of the identified means of personal protective equipment is a generally accepted way to meet a known hazard in the specific industry involved. He argues that the existence of a hazard that can be abated by the use of hard hats creates a mandatory duty under the cited standard for employers to provide hard hats and require their use. He cites a number of cases including two court of appeals cases involving the same standard cited here -- Byder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974), and McLean Trucking Co. v. OSHRC, 503 F.2d 8 (4th Cir. 1974). The Secretary [*6] disagrees with the First Circuit's decision in Cape & Vineyard, but also argues that this case is distinguishable from it.
Tube-Lok argues that the lack of injuries in its plant would require that the standard be construed in light of industry custom and practice. It cites Croom Constr. Co., 77 OSAHRC 33/A2, 5 BNA OSHC 1145, 1977-78 CCH OSHD P21,268 (No. 12686, 1977). Tube-Lok contends there is no evidence that industry custom and practice require the use of hard hats in the manufacturing industry, and cites the unreviewed judge's decision in General Flectric Co., 75 OSAHRC 41/A2, 3 BNA OSHC 1097, 1974-75 CCH OSHD P19,337 (No. 752, 1975), for the proposition that the Commission has not found that the use of hard hats in such circumstances is an industry practice.
B
A hazardous condition requiring the use of personal protective equipment under section 1920.132(a) exists if a reasonable person familiar with the circumstances surrounding the allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of personal protective equipment. General Electric Co., 80 OSAHRC 9/B9, 7 BNA OSHC 2183, 1980 CCH [*7] OSHD P21,297 (No. 19037, 1980); Owens Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1979 CCH OSHD P23,509 (No. 76-4990, 1979), appeal filed, No. 79-2516 (5th Cir. June 7, 1979). Although industry custom and practice will aid in determining whether a reasonable person familiar with the circumstances, and with any facts unique to the industry, would perceive a hazard, they are not necessarily dispositive. General Dynamics Corp., Quincy Shpbldg., Div. v. OSHRC, 599 F.2d 453, 464 (1st Cir. 1979); Owens Corning Fiberglas Corp., supra, 7 BNA OSHC at 1295, 1979 CCH OSHD P23,509 at 28,491. n1
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n4 Croom Construction Co., cited by Tube-Lok, was overruled by the Commission in Voegele Co., 79 OSAHRC 76/A2, 7 BNA OSHC 1713, 1979 CCH OSHD P23,860 (No. 76-2199, 1979), aff'd, 625 F.2d 1075 (3d Cir. 1980).
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The compliance officer testified that a hoist operator was exposed to a hazard warranting the use of personal protective equipment, specifically the use of a hard hat. He testified [*8] that the hoisted load could swing and cause substantial injury to the operator and that a hard hat would help prevent such injuries. Inasmuch as the compliance officer was qualified as an expert in occupational safety and health, we cannot conclude that his testimony is mere speculation or that the possibility of significant injury was too remote to warrant abatement. The differences in recollections between the compliance officer and Mr. Harry regarding the presence of a "spider" and the location of the chains has no substantial bearing on the matter. The compliance officer's testimony was sufficient to establish that a reasonable person familiar with the facts, including any facts peculiar to Tube-Lok's industry, would recognize the hazard of the hoisted load swinging and injuring the employee. This is a hazard warranting the use of personal protective equipment, in this case, hard hats.
Tube-Lok has presented no evidence that its procedure of having the hoist operator hold the load with one hand would prevent significant injury if a heavy load, such as the one involved here, swung toward the operator. We will not assume that Tube-Lok's procedure was adequate in the absence [*9] of record evidence to that effect. There is also no evidence that Tube-Lok used any other measures to abate the operator's exposure to possible head injuries. Although the hazard was of low gravity, we conclude that Tube-Lok has not adequately rebutted the evidence of a hazard. n5
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n5 In its brief on review, Tube-Lok expressed the concern that by finding it in noncompliance we would in effect be requiring all manufacturing employees working in the vicinity of overhead cranes to wear hard hats. We emphasize, however, that our finding relates only to the crane operator in question and applies only where, as here, adequate alternative measures have not been taken.
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II
A
We now turn to the section 1910.212(a)(3)(ii) item. Tube-Lok uses a 500-ton hydraulic press brake to form or shape pieces of metal, including 3/8-inch thick sheet metal. The machine is controlled by a single pedal switch on the floor that is positioned about 1 1/2 feet in front of and below the point of operation, and to one side. The point of operation [*10] is approximately 12 feet wide and about four feet above the floor. The metal to be formed is placed on the stationary lower part of the point of operation (the platen) and is pressed by the mobile upper part (the ram). Half of the forming mechanism (the die) sits on top of the platen; the other half is fastened to the bottom of the ram. At times, two employees work at the point of operation, holding the large pieces of metal that are to be formed. The Secretary alleges that the point of operation presents a hazard and that, contrary to section 1910.212(a)(3)(ii), it was unguarded at the time of the inspection in this case.
During the inspection, the compliance officer observed an employee placing small pieces of metal between the dies by hand. The distance between the open die faces during this operation was about three inches. The compliance officer testified that such an opening was sufficiently large to permit the employee to place his fingers or almost all of his hand into the point of operation. He testified that there was no guard on the machine to prevent the employees' fingers or hands from entering the point of operation and causing serious physical harm.
The compliance [*11] officer testified that several controls could be used to guard the point of operation. He testified that dual palm buttons could be installed which permit the ram to be activated only when both palm buttons are depressed simultaneously. He testified that the buttons could be located far enough apart so that the operator could not operate both bottons with the same hand; that is, both hands would be away from the point of operation when the ram is activated. He also stated that a single foot pedal would protect a single operator if the pedal were located at least five feet away from the point of operation, since the operator would then be too far from the point of operation to expose any part of his body to the danger zone. The compliance officer testified that it is not necessary for an employee to hold any of the metal pieces during the operating cycle.
The compliance officer also suggested guarding the point of operation by an electronic beam or radio control. Such a device would throw a light beam or radio wave across the front of the machine, between the machine and the operator. The machine would stop whenever an employee disrupted the light beam or radio wave. The compliance [*12] officer also stated that an energized mat could be placed on the floor in front of the machine; any weight on the mat would stop the machine. He also stated that where more than one employee is needed to work the press, the suggested guarding devices would still be effective if the control equipment was either duplicated for use by the other employee or appropriately modified. The duplicate controls could be adapted to operation by a single employee by locking out one of the controls.
Tube-Lok's production manager, Mr. Harry, testified that it takes 15 to 20 seconds for the ram to descend, form the metal, and ascend to the starting position. This is so even at the machine's Caster speed. In his opinion it would be unlikely that an employee would get any part of his hand caught in the point of operation during such a slow cycle. Mr. Harry also testified that there would be difficulties with some of the guarding devices described by the compliance officer. He noted that if the palm buttons were located near the center of the point of operation, it would be impossible to form many large steel sheets. He also testified that placing the palm buttons at a distant place would "wear [*13] . . . out" the employees by requiring them to move back and forth between the palm buttons and the point of operation. Mr. Harry also testified that if dual foot brakes were affixed to the floor five feet from the point of operation, it would be inconvenient to form smaller pieces unless a palm button was also in use. He did not, however, discuss the use of an electronic beam, a radio control or an energized mat.
In his decision, the judge affirmed item 3 of the citation. He rejected Tube-Lok's contention that the standard does not apply to hydraulic press brakes, citing Irvington Moore, Div. of U.S. Natural Resources, Inc., 75 OSAHRC 45/A2, 3 BNA OSHC 1018, 1974-75 CCH OSHD P19,523 (No. 3116, 1975), aff'd, 556 F.2d 431 (9th Cir. 1977). The judge found that there was nothing to prevent employees from having their hands, arms or fingers in the point of operation as it was closing. He also found that although the slowness of the cycle reduced the likelihood of an injury, a hazard still existed. He stated that even if there is little chance of an injury when the machine is operated properly, the standard is intended to eliminate dangers from unsafe operating procedures, [*14] poor training or employee inadvertance.
In its brief on review, Tube-Lok contends that section 1910.212(a)(3)nii) does not apply to press brakes because press brakes are specifically excluded from the machine guarding requirements of a different guarding standard at section 1910.217(a)(5). It argues that even if press brakes were not intended to be excluded from section 1910.212(a)(3)(ii), the standard cited in the citation, the ambiguity created by section 1910.217(a)(5) renders section 1910.212(a)(3)(ii) too vague to be enforceable. Tube-Lok also argues that the application of section 1910.212(a)(3)(ii) to press brakes would create an inconsistency in the regulations because all machines covered by section 1910.212 were required to come into compliance as of October 18, 1972, while power presses regulated under section 1910.217 were exempted from compliance until November 1, 1975 under section 1910.217(a)(2). n6
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n6 Section 1910.217 states in part:
§ 1910.217 Mechanical power presses
(a) General requirements.
* * *
(2) Former installations. The requirements of this section shall apply to all mechanical power presses installed prior to August 31, 1971, except that the requirements of paragraphs (b) and (c)(5) of this section shall be compiled with by November 1, 1975.
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Tube-Lok also argues that section 1910.212(a)(3)(ii) is unenforceable because 29 C.F.R. § 1910.212(a)(3)(ii) is substantively different from its source standard, 41 C.F.R. § 50-204.5, the machine guarding standard adopted under the Walsh-Healey Public Contracts Act, 41 U.S.C. § § 35-45. Tube-Lok cites an unreviewed judge's decision, Parr, Inc., 76 OSAHRC 76/A2, 4 BNA OSHC 1449, 1975-76 CCH OSHD P20,272 (No. 9352, 1976).
Tube-Lok argues further that in view of the slowness of the cycle the citation should be vacated. Finally, Tube-Lok maintains that it would be impossible to comply with the Secretary's interpretation of the standard because the necessary modifications of the press brake would render it "unproductive."
The Secretary argues on review that a violation has been established because an employee's fingers or hand could be caught inside the point of operation during the operating cycle, and because no guarding was used. He also points out that the Commission has rejected claims that the cited standard was improperly promulgated and unenforceably ambiguous or vague as applied to press [*16] brakes. He cites Irvington Moore, Div. of U.S. Natural Resources, Inc., supra; Sheet Metal Specialty Co., 75 OSAHRC 51/F1, 3 BNA OSHC 1104, 1974-75 CCH OSHD P19,546 (No. 5022, 1975); and Collator Corp., 76 OSAHRC 32/A2, 3 BNA OSHC 2041, 1975-76 CCH OSHD P20,446 (No. 2004, 1976).
B
We turn first to Tube-Lok's arguments concerning the applicability and validity of section 1910.212(a)(3)(ii). Judge Zinn properly rejected the argument that press brakes are excluded from section 1910.212(a)(3)(ii) by section 1910.217(a)(5). Irvington Moore, Div. of U.S. Natural Resources, Inc., supra; Diebold, Inc., 76 OSAHRC 3/E5, 3 BNA OSHC 1897, 1975-76 CCH OSHD P20,333 (Nos. 6767, 7721 & 9496, 1976), rev'd on other grounds, 585 F.2d 1327 (6th Cir. 1978). n7 The fact that some power presses regulated under section 1910.217 are subject to a deferred compliance date under section 1910.217(a)(2) and that section 1910.212(a)(3)(ii) requires immediate compliance for press brakes does not render section 1910.212(a)(3)(ii) inapplicable to press brakes. Diebold, Inc., 3 BNA OSHC at 1899, 1975-76 CCH OSHD at p. 24,248-49.
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n7 In Diebold, we have held that § 1910.217 does not make § 1910.212 unenforceably vague. 3 BNA OSHC at 1899, 1975-76 CCH OSHD at p. 24,249. In any event, because the citation here was based on events that happened more than seven months after the Commission decision in Irvington Moore, Div. of U.S. Natural Resources, Inc., supra, Tube-Lok had sufficient notice of the applicability of the cited standard when the alleged violation occurred. See Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335 (6th Cir. 1978) (violation before Irvington Moore, Div. of U.S. Natural Resources, Inc., supra).
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We also reject the argument that 29 C.F.R. § 1910.212(a)(3)(ii) is invalid because the Secretary altered the standard when he adopted it under section 6(a) of the Act, 29 U.S.C. § 655(a). In Rockwell International Corp., 80 OSAHRC , 9 BNA OSHC 1092, 1980 CCH OSHD P24,979 (No. 12470, 1980), we noted that although there are differences in language between 41 C.F.R. § 50-204.5, the source standard, and 29 C.F.R. § 1910.212(a)(3)(ii), section 1910.212(a)(3)(ii) [*18] should be read to convey the same meaning as its source standard, thereby sustaining its validity. Rockwell International Corp., 9 BNA OSHC at 1097, 1980 CCH OSHD at p. 30,845. Press brakes that expose their operators to injury required the same guarding under 41 C.F.R. § 50-204.5 as they do under section 1910.212(a)(3)(ii). Diebold, Inc., 3 BNA OSHC at 1900, 1975-76 CCH OSHD at p. 24,249. Inasmuch as there is no difference in the substantive requirements of the two standards with respect to press brakes, we conclude that section 1910.212(a)(3)(ii) is valid.
To prove a violation of 29 C.F.R. § 1910.212(a)(3)(ii), the Secretary must demonstrate that the point of operation is unguarded and that the operation of the machine exposes an employee to injury. See Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD P22,909 (No. 12523, 1978). Here, the point of operation was unguarded and Tube-Lok's employees' hands were, at times, 12 inches from the point of operation during the operating cycle. The record demonstrates that employees who worked at the press brake were exposed to the possibility of permanent injury from having their fingers or hands [*19] caught in the point of operation. Although the possibility of such an incident was low because of the slowness of the cycle, should an injury occur, it could be severe. We therefore reject Tube-Lok's suggestion that the hazard was so slight that the citation should be vacated. n8
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n8 In Rockwell, the Commission vacated a citation alleging noncompliance with § 1910.212(a)(3)(ii). Although the rams on the machines cited in Rockwell descended as slowly as the rams here, the length of the ram, and the consequently much larger point of operation on the press brake here, distinguishes this case from Rockwell. Moreover, the presence of a helper during many of the operations involving the press brake creates a situation in which an employee may be next to the press brake, but be unable to control it. In sum we find that here a point of operation hazard was created by the machine's operation.
Commissioner Cottine dissented from the disposition of the citation in Rockwell. He considers the relevant facts in this case and in Rockwell to be indistinguishable. Therefore, he joins in the affirmance of the citation in this case for the reasons set forth in the text above as well as on the basis of his separate views on the merits in Rockwell. 9 BNA OSHC at 1098 n.20, 1980 CCH OSHD P24,979 at pp. 30,846-47 n.20.
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Tube-Lok claims that compliance with the cited standard would make operation of the press brake unproductive and that some of the guarding devices suggested by the Secretary are impossible to use. We treat Tube-Lok's argument as raising the defense of impossibility of performance. See Marion Power Shovel Co., 80 OSAHRC , 8 BNA OSHC 2244, 2247, 1980 CCH OSHD P24,915 (No. 76-414, 1980). In order to prove the defense of impossibility of performance an employer must show that (1) compliance with the standard would preclude performance of required work and (2) alternative means of employee protection are unavailable. M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979).
Tube-Lok's evidence is insufficient to establish the first element of the defense. It does not claim that the devices described by the compliance officer could not be used in some form. Its production manager testified instead that dual palm buttons would make the forming of large pieces of sheet metal impossible if the buttons were located near the center of the point of [*21] operation. He did not indicate, however, that there was not a proper place for the buttons, and he never explained why he supposed that they would necessarily be placed only near the center of the point of operation. The production manager also testified that employees could be "worn out" if the buttons were located "at a distant place," but again he never explained why the buttons would necessarily be located so far from the point of operation.
The production manager also did not explain why dual foot brakes would be impossible to use. Indeed, he stated that they could be used if a palm button system also was in use. Furthermore, he did not even discuss electronic beams, radio control or energized mats, all of which the compliance officer testified could be used. Thus, Tube-Lok's claim that it would be impossible to comply with the standard is not supported by the evidence. n9
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n9 Tube-Lok cites Parr, Inc., 76 OSAHRC 76/A2, 4 BNA OSHC 1449, 1975-76 CCH OSHD P20,272 (No. 9352, 1976), and Wasco Mfg. Corp., 75 OSAHRC 83/B10, 3 BNA OSHC 1557, 1975-76 CCH OSHD P19,943 (No. 10754, 1975), two unreviewed decisions by Commission judges in which citations for failure to guard press brakes were vacated. These cases do not constitute precedent binding on the Commission. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976). These judge's decisions also do not convince us that the citation here should be vacated. Both cases are readily distinguishable. For example, in both cases the judge found that use of the guarding methods suggested by the Secretary would be likely to cause increased hazards to the employees.
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Accordingly the judge's decision is reversed in part and affirmed in part. Items 2 and 3 of the citation are affirmed. n10
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n10 Tube-Lok has not taken exception to the penalties proposed by the Secretary. No penalty is assessed for item 2; $30 is assessed for item 3.
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SO ORDERED.
DISSENTBY: BARNAKO (In Part)
DISSENT:
BARNAKO, Commissioner, Dissenting in Part:
I agree, for the reasons stated by my colleagues, that the judge acted properly in finding Respondent in violation of 29 C.F.R. § 1910. 212(a)(3)(ii) as alleged in item 3 of the citation. I dissent from my colleagues' decision to reverse the judge with respect to item 2 of the citation alleging a violation of 29 C.F.R. § 1910.132(a). In my view the Secretary failed to prove the existence of a hazard requiring the use of hard hats, and the judge properly vacated this item.
My colleagues conclude that the Secretary satisfied his burden of proof through the testimony of the compliance officer. They [*23] expressly decline to resolve the discrepancy between the compliance officer's testimony and that of Respondent's witness concerning the manner in which the operation in question is performed since in their view the work practices described by Respondent's witness were not adequate to protect the employee from injury. For the reasons that follow, I would credit Respondent's description of its work operation over that of the compliance officer and based on Respondent's evidence I would find that the Secretary has not proven that Respondent's employee was exposed to a hazard requiring the use of a hard hat.
As my colleagues indicate, the compliance officer described four possible causes of injury to the crane operator. The first of these is that the chain or sling attached to the hoist could slip. However, the compliance officer admitted that lugs onto which the hoist could be hooked are visible in a photograph he took of the operation. Respondent's witness specifically stated that the load was being moved by hooks secured into lifting ears and that this type of rigging is standard procedure in Respondent's plant. He expressly contradicted the compliance officer's statement that [*24] the load was held in a chain sling. In discussing the conflicting evidence, the judge stated that the photograph shows hooks inserted into rings at two locations on the load. Although the judge did not expressly resolve the dispute between the witnesses, it is implicit in his decision that he found the compliance officer's description of the nature of the hoist rigging to be contradicted by the witness's own photograph. This case presents no reason for the Commission to evaluate differently the evidence underlying the judge's credibility finding. See CTM, Inc., 77 OSAHRC 136/C2, 5 BNA OSHC 1578, 1977-78 CCH OSHD P21,597 (No. 13008, 1976).
Another cause of injury identified by the compliance officer is that the load might swing and come into contact with the employee's body. But as the judge also noted, and as my colleagues indicate in their decision, Respondent's witness testified that in accordance with Respondent's standard procedure, the employee guided the load with one hand while operating the hoist to lift and move the load. This testimony is not refuted by the compliance officer. n1
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n1 The compliance officer was asked whether an employee customarily uses one hand to keep the load away from his body while operating the crane. The witness answered that an employee does not because he would be unable to guide a load "of several hundred pounds" with one hand. However, contrary to my colleagues' characterization of the load as "heavy," there is no direct evidence of the weight of either the load described by the compliance officer or the spider described by Respondent's witness, and the compliance officer was not asked whether the employee he observed was or was not guiding the load with one hand.
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Because loads being moved by hoists in Respondent's plant are customarily secured by hooks inserted into lifting ears and are guided during movement by the hoist operator, the possibility that a load could slip or otherwise strike the operator in the manner described by the compliance officer is considerably reduced. Because Respondent took precautions to prevent injury, it cannot be said that an obvious hazard exists and therefore it is not readily apparent whether a reasonable [*26] person familiar with the circumstances would recognize a need for the use of personal protective equipment. n2 Consequently, in order to make this determination, it is appropriate not only to consider the standard of care in the industry but indeed to give controlling weight to the customs and practices in the industry as the measure of what a reasonable person would consider as hazardous. Morton Buildings, Inc., 79 OSAHRC 75/C7, pp. 16-17, 7 BNA OSHC 1702, 1708, 1979 CCH OSHD P23,861 at 28,947 (No. 15565, 1979) (dissenting opinion). n3
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n2 The two other possible causes of injury described by the compliance officer, that the hoist could come loose from the overhead track and that the cable could break or become frayed, involve defects in the hoist mechanism as opposed to the manner in which the hoist is used in Respondent's operations. However, there is no evidence that the cable was actually frayed or likely to become frayed or break and no evidence that a hoist had ever come loose from the track nor any basis on which to assume that it might come loose. Furthermore, there is no showing nor any argument that Respondent failed to comply with the specific standards at 29 C.F.R. § 1910.179 which govern the inspection, testing, and maintenance of overhead cranes. Therefore, the compliance officer's testimony with regard to the possibility of injury from defects in the hoist mechanism is entirely speculative and is insufficient to establish that a reasonable person would see a need for the use of hard hats to protect against such defects. Cf. Hurlock Roofing Co., 79 OSAHRC 7/A2, 7 BNA OSHC 1108, 1111, 1979 CCH OSHD P23,358 at p. 28,267 (No. 76-357, 1979) (Commission will not credit an opinion that providing the means of protection required by a standard will be hazardous when there is no explanation of the nature of the hazard and no basis for the opinion is offered).
n3 Morton Buildings concerned the personal protective equipment standard for the construction industry, 29 C.F.R. § 1926.28(a), rather than the general industry protective equipment standard which is at issue in this case. However, since both of these standards impose a general obligation for the use of protective equipment when employees are exposed to hazardous conditions, the requirements for proof of the existence of a hazard warranting protective equipment are essentially the same under either standard. Morton Buildings, supra, 79 OSAHRC 75/C7, p. 17 n.3, 7 BNA OSHC at 1708-09 n.3, 1979 CCH OSHD P23,861 at 28,947-48 n.3 (dissenting opinion).
[*27]
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In this case, as Judge Zinn correctly stated, there is no evidence to show that hard hats are customarily used in the steel fabrication industry during the operation of overhead hoists. The Secretary failed to sustain his burden of proof, and the citation should be vacated.